FEDERAL COURT OF AUSTRALIA

The Queen v Tran [2000] FCA 1888

CRIMINAL LAW & PROCEDURE – murder and intentional wounding – appeal – irregularities in relation to conduct of trial – prosecutor’s opening not supported by evidence – Crown case presented on basis of unsustainable theory – prosecutor not resiling from theory – whether miscarriage of justice.

CRIMINAL LAW & PROCEDURE – grounds of appeal – verdicts said to be “unsafe and unsatisfactory” – whether appropriate to formulate grounds in these terms – considerations governing ordering of new trial.

Criminal Appeal Act 1907 (UK) s 4(1)

Federal Court of Australia Act 1976 (Cth) ss 24(1)(b), 28(1)(e), 28(1)(f)

Criminal Appeal Act 1912 (NSW) s 6(1)

Crimes Act 1958 (Vic) s 568(1)

Criminal Code (Qld) s 668E(1)

Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 532, 535 applied

Fleming v The Queen (1998) 197 CLR 250 at 256 applied

R v Anderson (1991) 53 A Crim R 421 at 453, 437-8, 449, 453 applied

Davies and Cody v The King (1937) 57 CLR 170 at 180 referred to

M v The Queen (1994) 181 CLR 487 at 492-5 referred to

Gipp v The Queen (1998) 194 CLR 106 at 114, 146-150, 158-9, 256 referred to

R v Serratore (1999) 48 NSWLR 101 at 131-2 referred to

R v Giam (1999) 104 A Crim R 416 at 422-423 referred to

King v The Queen (1986) 161 CLR 423 at 426, 427, 433 and 435-6 referred to

R v Tangye (1997) 92 A Crim R 545 at 556 referred to

Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 referred to

R v Wilkes (1948) 77 CLR 511 at 518 referred to

Parker v The Queen (1997) 186 CLR 494 referred to

THE QUEEN v VIET DUNG TRAN

A32 of 2000

VIET DUNG TRAN v THE QUEEN

A33 of 2000

BLACK CJ, WEINBERG and KENNY JJ

22 DECEMBER 2000

MELBOURNE (HEARD IN CANBERRA)

On appeal from a judge of the Supreme Court of the Australian Capital Territory

THE COURT ORDERS THAT:

1.                  The appeal against conviction be allowed.

2.                  The convictions and sentence recorded against the appellant be quashed.

3.                  The matter be set down for retrial before a judge of the Supreme Court of the Australian Capital Territory.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a judge of the Supreme Court of the Australian Capital Territory

REASONS FOR JUDGMENT

The Court

1                     In March of this year the appellant, Viet Dung Tran, was convicted in the Supreme Court of the Australian Capital Territory of having, on 6 April 1999, murdered Thien Thanh Phan (“Thien”) and of having intentionally wounded Rong Feng Su (“Eddie”). He was subsequently sentenced to be imprisoned for fourteen years on the count of murder, and for three years on the count of intentional wounding. It was ordered that both sentences be served concurrently. A non-parole period of eight years was fixed.

2                     The appellant has appealed against these convictions on two grounds:

·                    the verdicts of the jury were unsafe and unsatisfactory; and

·                    the trial miscarried by reason of the conduct of counsel for the Crown during his opening address asserting as facts matters which were not the subject of evidence adduced by the Crown and not corrected in the Crown’s final address.

3                     There is also before the Court a Crown appeal against sentence. The grounds of appeal are:

·                    the sentence was manifestly inadequate;

·                    the learned trial judge failed to have due regard to the overall seriousness of the offence; and

·                    the learned trial judge failed to provide adequately for deterrent and retributive factors in the sentence imposed.

4                     As will become apparent, it is unnecessary to consider further the appeal against sentence.

Background

5                     The appellant, who is presently twenty-four years of age, was born in Vietnam. Together with his mother and his sister he fled that country in 1982. The family spent two years in a refugee camp in Hong Kong before arriving in Australia in 1984, and settling in Sydney.

6                     In about 1993, while the appellant was still at school, he became addicted to heroin. He was subsequently convicted of a number of offences relating to the use and supply of heroin. He also has convictions for dishonesty.

7                     Early in 1999 the appellant moved from Sydney to Canberra. He began selling heroin in Civic. He was what might be described as a “street-level” dealer.

8                     In early March 1999 the appellant met Khoa Nguyen (“Khoa”). He recruited Khoa to sell heroin on his behalf. He supplied him with heroin for sale and also allowed him to keep some for his own use. On occasion Khoa stayed with the appellant overnight at his apartment.

9                     In about the middle of March 1999 the appellant was introduced to Robert Saga (“Saga”). The appellant and Saga would meet regularly at a location known as the Bunda Street carpark, in Civic where the appellant supplied Saga with heroin. Saga knew the appellant as “Jay”.

10                 Early in April 1999 Khoa introduced the appellant to a young man who had arrived from Vietnam a few months earlier, Binh Van Ho (“Binh”). Binh spoke no English. He maintained at the trial that he had no involvement with drugs. However, the evidence strongly suggested that he did.

The gathering at “Happy Days”

11                 On the morning of 6 April 1999 a group of approximately fifteen persons, drove from Sydney to Canberra. Some of the group were required to attend proceedings scheduled for hearing that day in the Canberra Childrens’ Court. Included in the group were Thien and Eddie, the victims of the appellant’s actions later that day

12                 The members of the group arrived at the Childrens’ Court at about 10.00am. They remained there for about an hour. Shortly after 11am they congregated at an amusement centre known as “Happy Days” which was located nearby.

13                 Members of the group were soon observed asking various people at Happy Days about the local drug scene. They wanted to know, in particular, who was selling heroin in Civic. The Crown prosecutor, in his opening address to the jury, described their activities as a form of “market research”. That seems to be an apt description of what they were doing.

14                 Shortly afterwards Khoa and Binh arrived at Happy Days. According to Khoa, this was one of several locations from which he regularly sold heroin. They were approached by several members of the group, including Thien and Eddie. They were asked, in English, whether “they sold in the city”. Khoa described the questioning as “unfriendly”. He said that he and Binh walked away. After they left Khoa explained to Binh, in Vietnamese, what had occurred. From what was said Binh understood that the members of the group had come to Canberra in order to deal in heroin. Binh told Khoa that he wanted to go back to the amusement centre and tell the men who had accosted them that he personally was not involved in dealing in drugs.

15                 Immediately thereafter Khoa and Binh returned to Happy Days. They were confronted again and were once more asked, in English, whether they sold heroin. Binh asked the members of the group to speak Vietnamese, which they did. They then accused Binh of selling drugs. He denied doing so. Khoa and Binh then left. They said that they bought some food for lunch, and then went to the Canberra Central Apartments where the appellant’s apartment was located. This was about five minutes walk from Happy Days. Khoa thought that they arrived at the apartment between 12.00 noon and 12.30 pm.

16                 In the meantime the appellant had been wandering around Civic. He claimed to have been making inquiries about alternative accommodation. At about 11.15 am he dropped into Happy Days. There he met Saga, who wished to purchase heroin. He told Saga that he had none available at that time. The appellant then left and went looking for Khoa and Binh. However, he could not locate them.

17                 Shortly after 1.00 pm the appellant returned to Happy Days. On this occasion he became involved in an altercation with the members of the group who had earlier accosted Khoa and Binh. He claimed that they questioned him aggressively about whether he dealt in drugs, an allegation which he denied. He said that he was then pushed and grabbed by the arm. He claimed that he was threatened. He said that he was so frightened that he headed directly back to his apartment. This incident was recorded on a surveillance video. The timer indicated that it took place at precisely 1.15 pm.

The purchase of the knife

18                 The Crown case was that the appellant had lied when he said that he had returned immediately to his apartment. The prosecutor opened the case upon the basis that he had gone instead to a shop known as “Laser One” which was located in the Canberra Centre Shopping Arcade. There he purchased a knife, the same weapon with which he had later stabbed both Thien and Eddie.

19                 The proprietor of “Laser One” was Leon Kessey (“Kessey”). He gave evidence that at about 1.30 pm on 6 April 1999 he had sold a folding pocket knife which bore upon its handle the brand name “Excalibur”. He acknowledged, however, that he could remember very little about the transaction. He described the purchaser as having been aged between 18 and 25, a person “of Asian appearance, black hair”, and “a bit taller” than himself. Kessey said in evidence that he was between 165 and 170 centimetres tall. We were told that the appellant is 166 centimetres tall.

20                 Kessey recalled that he had shown the man who came into his shop a number of different knives. These included two in particular which bore the “Excalibur” brand, each of a slightly different length. He could not recall which knife the man had bought. His records indicated that the purchase price had been $31.

21                 Kessey was asked to describe the box which came with the knife which he had sold. He said it was grey, and had an orange insignia upon it. He said that it had displayed across it, in black, the word “Excalibur”. He could not recall its size.

22                 Kessey was interviewed by the police about a week later. He provided them with two knives which bore the “Excalibur” brand. He said each of these knives was similar to the knife which he had sold a week earlier. He also provided them with two boxes of the kind in which such knives were ordinarily sold.

23                 The knife used by the appellant when he stabbed Thien and Eddie was never located. It was never therefore identified as that which Kessey had sold.

The events of the afternoon of 6 April 1999

24                 According to the appellant he returned to his apartment some time before 2.00 pm, shortly after the confrontation at Happy Days. Khoa and Binh were waiting for him in the hall. They had brought with them some pizza. The three of them entered the apartment together and shared the pizza.

25                 It is common ground that Khoa and Binh told the appellant over lunch what had happened to them earlier that morning. He, in turn, told them about his treatment at the hands of the group.

26                 The prosecutor opened the case to the jury upon the basis that both Khoa and Binh would say that the appellant told them, during this conversation, that he had been unable to do anything about the situation because it was not “one-on-one”. Khoa and Binh would also say that the appellant had said that “if he had had a knife, he would have killed them”, and that he had said that “he might go and buy a knife”.

27                 When Khoa and Binh ultimately gave evidence concerning this conversation, what they said did not accord with what the prosecutor had opened to the jury .

28                 In his evidence Khoa said that after he informed the appellant of what had occurred, he warned him to stay away from these men. The appellant replied that he had already run into them, and “almost had a fight with them”. He said that he would only fight “one to one”. He told Khoa that “he was going to buy a knife to keep with him on his body so that if anything happened he could defend or protect himself”.

29                 Binh’s account of the conversation was quite similar. He said that the appellant had said that he had had trouble with “other guys” who wanted to beat him up. The appellant had said that if he had a knife, he would “do” them.

30                 Although both Khoa and Binh were challenged as to what they said about this conversation, the appellant ultimately conceded, when he gave evidence, that he may indeed have said something about going to purchase a knife. He said, however, that if he had done so, it had merely been “false bravado”.

31                 It was common ground that at about this time two women had arrived at the apartment wanting to purchase heroin. They were supplied with the drug and they left. The appellant and Khoa then smoked some heroin. About this time, according to Khoa, he was telephoned by someone wanting to buy the drug. He arranged to meet that person at McDonald’s, in James Court, just across the road from the apartment. Before leaving the apartment Khoa arranged to meet the appellant later that afternoon, at the Bunda Street carpark.

32                 According to Khoa, both he and Binh then went to McDonald’s. At that stage they sold a quantity of heroin. After this, they headed towards the Bunda Street carpark, arriving there sometime between 2.30 pm and 2.45 pm. Khoa said that he saw several members of the same group as had been at Happy Days that morning still standing nearby. He said that he telephoned the appellant and warned him not to come to Bunda Street. He suggested that they meet instead at the Currong Flats. He said that the appellant agreed to this change of plan.

33                 Binh’s account of what happened after they left the apartment differed in several important respects from the account given by Khoa. He said that after Khoa and he had gone to McDonald’s, they met the appellant near the Canberra Centre. A man named “Paul” had approached them. Paul told them that some men at Happy Days were asking questions about them and, in particular, whether they sold heroin. According to Binh, the appellant responded that he would go to the Canberra Centre and buy a knife. He told Khoa and Binh that he would meet them later at the Bunda Street carpark.

34                 Binh said that shortly afterwards, when he and Khoa arrived at the usual meeting place in the Bunda Street carpark he could see in the distance a group of about 10-15 individuals standing outside Happy Days. He said that he recognised four of the men in the group as being among those with whom he had had words earlier that day. It was at that point that Khoa had telephoned the appellant, informing him of the presence of the men, and suggesting that they change their meeting place.

35                 It is clear, on any view, that the appellant did not heed the warning which he was given. At about 3.00 pm he made his way to the Bunda Street carpark. There he met Saga, who was not alone. He was accompanied by another man, Brendan Dickson (“Dickson”). Dickson was never thereafter located. He did not give evidence at the trial.

36                 The prosecutor opened the Crown case by observing that it was the appellant’s case that he happened to be in the Bunda Street carpark at about 3.00 pm when, “by coincidence”, he ran into Saga and Dickson. However, Saga said in evidence that the appellant had come to the carpark at his request, in response to a telephone call which he had made. In the light of this evidence, the prosecutor resiled, in his final address, from his comment about the meeting with Saga having been a “coincidence”.

37                 The prosecutor told the jury in his opening address that the Crown case was that anyone at the Bunda Street carpark would have had a “good view” of Happy Days. Whether or not what he said about the view was correct became something of an issue in the trial. The evidence was that the distance between the Bunda Street carpark and Happy Days was between 300-400 metres.

38                 Saga said that when he arrived at the Bunda Street carpark he had “a clear view” of a group of Asians standing in front of the amusement centre. He conceded, however, when cross-examined upon this subject, that he could not see “too well”. He also said that after the appellant arrived he saw him look towards Happy Days. He said the appellant appeared nervous or stressed.

39                 The appellant acknowledged in evidence that when he arrived at the Bunda Street carpark he noticed a particular member of the group pointing at him, apparently saying something to his friend. He said that he thought that the two men started “walking up” in his direction. He acknowledged that it was at that point that he, together with Saga and Dickson, left the area.

40                 The prosecutor opened the Crown case upon the basis that not only was the appellant aware that the two men were following him as he left the carpark, but that he had gone there for the specific purpose of enticing them to do so. The prosecutor told the jury that there would be evidence that while the appellant was walking away from the carpark, he kept looking back, in the direction of those two men. He suggested that, far from showing any signs of fear, the appellant had “dawdled” across the Bunda Street carpark, deliberately ensuring that the men following him could keep up. He invited the jury to conclude that this conduct was all part of a plan to “lure” the men into following him with the aim of provoking some sort of attack upon him. This would provide a pretext whereby he could rid himself of a man who, he believed, was a rival heroin supplier hoping to gain a foothold in the appellant’s territory.

41                 It is worth noting at this stage that at least one difficulty with this theory was that Saga’s evidence was that when the appellant left the carpark he moved at “not a fast pace, a brisk walk”. In answer to a question from the trial judge, Saga specifically rejected the prosecutor’s suggestion that the appellant had been “dawdling”.

42                 Saga went on to say that as the three of them were leaving the carpark the appellant took a box from his pocket, opened it, and removed a folding knife with a four inch handle. The appellant then opened the knife. According to Saga, either he or Dickson had asked “What’s that for?”. The appellant replied, “Fucking shut up, keep on walking.” Saga said that he believed that the appellant then put the knife, still open, in his right hand pocket.

43                 The appellant denied Saga’s account of the incident concerning the knife. He maintained that he was unarmed, and that Saga had concocted this part of his testimony.

The circumstances surrounding the stabbing of Thien and Eddie

44                 There was no dispute about the fact that within moments of leaving the Bunda Street carpark the appellant was attacked from behind by Thien. Saga said that Thien either pushed or kicked the appellant, jolting him forward. At the same time Eddie endeavoured to strike the appellant with his fists.

45                 Saga said that as a result of Thien’s attack the appellant had almost fallen to the ground, but had been able to maintain his balance. Saga said that the two men attacking the appellant were “punching him and doing a lot of karate side kicks at him.” He said that he observed more than half a dozen punches being thrown, and a number of side kicks being delivered.

46                 Saga then described what happened next. He said:

“The two Asians were attacking Jay pretty harsh, and he got pushed back about half a metre, and he – I think he produced – then he produced a knife, and the Asian in the suit was firstly attacking him the most.

Well, you said he produced a knife. Did you see where he produced the knife from? --- Yes, out of his right hand side pocket.

Okay? --- Trouser pocket.

Yes, did you see. Okay, what happened after he produced the knife? --- The Asian in the suit, as I said, was mostly doing the hardest of the attacking. He was kicking him and that and punching him and Jay produced a knife out of his right hand side pocket and I remember the first stab was in the – in the underarm motion.”

47                 Saga said that the first stab wound inflicted by the appellant had struck Thien high in the area of his chest. However, Thien had remained on his feet. The appellant had then continued to stab him repeatedly, at least four times in the upper body. Thien finally fell to the ground. As he did so, he lashed out with his feet, trying desperately to fend off the appellant. The appellant had then stabbed Thien repeatedly in the legs and in the groin. At one stage, the appellant had turned on Eddie. He stabbed him in the side, using what Saga described as “a round arm action”. Saga said that Eddie ran off, holding the side of his chest.

48                 The appellant’s account of the stabbing incidents did not differ greatly from what Saga had said, save in one important respect. The appellant agreed that he had been attacked from behind. He said that he had been repeatedly kicked and punched. He claimed, however, that it was Thien, and not he, who produced the knife. He claimed that as Thien and he struggled for possession of the knife it fell from Thien’s hand. He said that they had both scrambled for the knife, but he was first to retrieve it. When Thien continued to come at him, he stabbed him once in the chest. However, this had no discernible effect upon Thien. He said that he continued to stab Thien repeatedly in an effort to protect himself. He said that he could vaguely recall having stabbed Eddie as well. He denied having intended to kill or to seriously injure Thien. He said that he had acted in self-defence.

49                 An issue which assumed great importance in the trial, therefore, was whether it was the appellant who first produced the knife in response to the attack made upon him, as Saga claimed, or whether it was Thien who had done so.

The injuries to the appellant’s hands

50                 Immediately after having stabbed Thien and Eddie, the appellant ran from the scene. He made his way to the Currong Flats. Saga and Dickson went there as well, albeit by a different route. Saga said that he saw the appellant standing in the flats at the bottom of the stairwell. He was bleeding from the hands. The appellant told Saga to depart which he did.

51                 The appellant then rang one of his regular customers and offered him some heroin in return for a ride to Sydney. The offer was taken up. The appellant was driven to Sydney where he attended that evening at Bankstown Hospital. He was treated for an injury to his right index finger. The injury was so extensive that the tendon was severed, and a small piece of bone was chipped. There was also a cut across the right thumb. There was a similar cut to his left index finger. He had surgery that night upon two of his fingers.

52                 In opening the case to the jury the prosecutor sought to explain the injury to the appellant’s right index finger by claiming that it was consistent with his having stabbed Thien with a fair amount of force, and his hand having slipped down onto the blade of the knife. The prosecutor’s theory was that this injury was so serious that, once it had been sustained, the appellant would have had difficulty in continuing to hold the knife. The prosecutor suggested, therefore, that he must have swapped the knife from his right hand to his left. When he stabbed Thien again, this time with the knife in his left hand, he must have sustained a similar injury to his left index finger.

53                 The appellant told hospital staff at Bankstown Hospital that he had sustained the injuries to his hands while defending his girlfriend from an attack. Some weeks later, when interviewed by the police, he acknowledged that he had lied to the staff at the hospital. He told the police that the injuries to his fingers had been inflicted during the course of his struggle for the knife after Thien had dropped it.

54                 The prosecutor invited the jury to conclude that the appellant had lied, not merely to the hospital staff, but also to the police, about how the cuts to his fingers had been inflicted. Whether or not he had lied to the police also became a significant issue in the trial.

55                 Evidence was given by Dr Elaine Yeoh. She had treated the appellant at Bankstown Hospital. She said that he had a number of lacerations to the fingers, and also to a thumb. She had recorded the history which he gave her of having sustained the wounds while defending his girlfriend from being attacked. She expressed the opinion that the injuries which she had observed were consistent with the history which he had given her.

56                 The Crown also called Professor Peter Herdson, the Director of ACT Pathology at the Canberra Hospital. It was he who had performed the autopsy upon the deceased. He had attended at the Belconnen Remand Centre on 4 May 1999. While at the Remand Centre he had examined the appellant. He had noted injuries to his hands. He was not, however, asked any questions about how those injuries might have been sustained.

The evidence of Professor Pleukhahn

57                 The defence called Professor Vernon Pleukhahn to give evidence about the injuries to the appellant’s hands. Professor Pleukhahn is a consultant forensic pathologist, vastly experienced in his field. He had examined photographs of the injuries. He had also been shown a video tape of the appellant’s record of interview with the police. He said that in his opinion the injuries were consistent with having been inflicted in the manner described by the appellant in his record of interview.

58                 Counsel for the defence then read to Professor Pleukhahn the prosecutor’s opening remarks regarding these injuries. Professor Pleukhahn was asked whether, in his view, the injuries were consistent with the scenario outlined by the prosecutor, namely that the appellant had inflicted these wounds upon himself whilst stabbing the deceased. Professor Pleukhahn replied:

“I consider them most improbable to fit into that scenario. Several factors are in it, one is they say, on the fist – or he says, the prosecutor, I am sorry, that the injury was to the middle of the right index finger when, if you look at the photograph 3, it occurs on the distal part of the actual finger and also extends more to the rear of the finger than on the front of the finger, and I think it would be most peculiar or difficult for that sort of injury to occur by slipping down on a knife.

Well, you have been practising in this field for 40 plus years and 10,000 plus autopsies. Have you ever come across a case where a person has injured his hands in a stabbing by slipping on the knife, even one rather than – on one hand rather than two in one incident ---

…

You’ve seen the knife ---?--- I’ve seen those two – I saw them this morning, sir.

… Have you in all your years come across such injuries caused by slipping on a knife? -- I haven’t, no.”

59                 It is hardly surprising that the defence placed great reliance upon this evidence. To the extent that the jury accepted what Professor Pleukhahn had said, the appellant’s account of what had occurred was bolstered.

The grounds of appeal

60                 The jurisdiction of the State appellate courts to set aside a conviction has, for many years, been regarded, in Australia, as extending to cases in which, in all the circumstances, the court is of the opinion that the verdict of guilty is “unsafe and unsatisfactory”: Hargan v The King (1919) 27 CLR 13 at 23-24; Davies and Cody v The King (1937) 57 CLR 170 at 180; Raspor v The Queen (1958) 99 CLR 346 at 350-351; Ratten v The Queen (1974) 131 CLR 510 at 516; Whitehorn v The Queen (1983) 152 CLR 657 at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 532; Morris v The Queen (1987) 163 CLR 454 at 472-474; Chidiac v The Queen (1991) 171 CLR 432 at 443-444; Knight v The Queen (1992) 175 CLR 495 at 511; M v The Queen (1994) 181 CLR 487; and Jones v The Queen (1997) 191 CLR 439 at 450-451. This is so notwithstanding the fact that the language in which the powers of these courts to set aside a conviction is expressed does not mention any such concept expressly.

61                 The common form of statutory provision in each State requires an appellate court to allow an appeal, and set aside a conviction, subject only to the possible operation of the proviso, if:

·                  it considers that the verdict is unreasonable, or cannot be supported by the evidence, or

·                  that the judgment of the trial court should be set aside on the ground that there was a wrong decision on a question of law, or

·                  that on any ground there was a miscarriage of justice.

See for example Criminal Appeal Act 1912 (NSW) s 6(1); Crimes Act 1958 (Vic) s 568(1); and Criminal Code (Qld) s 668E(1).

62                 This common form of statutory provision derives from s 4(1) of the Criminal Appeal Act 1907 (UK) (“Criminal Appeal Act”). For many years after the enactment of that provision, it was construed in a narrow, if not pedantic, manner by the English Court of Criminal Appeal. The approach which was taken was that if there was any evidence against the appellant capable of having been accepted by the jury, no matter how tenuous that evidence might be, the conviction would be upheld.

63                 It has been noted by one commentator that there was nothing in the wording of s 4(1) which compelled such a narrow approach. The grounds for allowing an appeal under this formulation are, in truth, extremely wide – see R. Pattenden English Criminal Appeals 1844-1994, Oxford, Clarendon Press, 1996, at p 142. As indicated earlier, these same words had long been held, in this country, to entitle a State appellate court to set aside a verdict when that court considered that it was “dangerous” to allow the conviction to stand notwithstanding that there was sufficient evidence to support a verdict of guilty.

64                 In 1966 s 4(1) of the Criminal Appeal Act was amended. The new provision expressly permitted the English Court of Criminal Appeal to quash a conviction which is “under all the circumstances of the case unsafe or unsatisfactory”. The Court of Criminal Appeal construed the new words as requiring it to form a subjective opinion on whether there was a “lurking doubt” about the correctness of the verdict: R v Cooper (1969) 53 C App R 83. Such a doubt was said to be a reaction which might not be based strictly on the evidence as such, but might be based instead upon the “general feel” of the case, as the Court experienced it.

65                 The “lurking doubt” test received the imprimatur of the House of Lords in Stafford v DPP [1974] AC 878 at 892. In later years there have been many variants of this formulation. For example, a verdict was said to be unsafe and unsatisfactory if the appellate court felt “a reasoned and substantial unease about the finding of guilt”: R v Wellington [1991] Crim LR 543.

66                 The 1966 amendment to s 4(1) of the Criminal Appeal Act in England was not replicated in any of the Australian State provisions modelled upon that section. Given the width which had been accorded to these provisions in this country over many years, that is scarcely surprising.

67                 It is with this background in mind that we turn to the first of the two grounds of appeal against conviction which were pressed, namely that the verdicts of the jury were unsafe and unsatisfactory.

68                 Counsel for the appellant, Mr Harris, referred to what is perhaps the leading statement of principle regarding the unsafe and unsatisfactory ground: the discussion by the High Court in M v The Queen (1994) 181 CLR 487. A majority of the Court, comprising Mason CJ and Deane, Dawson and Toohey JJ, observed at 492-5:

“Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe” See Davies and Cody v. The King (1937), 57 C.L.R. 170, at p. 180.), or “dangerous or unsafe” (See Ratten v. The Queen (1974), 131 C.L.R., at p. 515. ). In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s. 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside…

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v. The Queen [No. 2] (1984), 153 C.L.R., at p. 621.).

…

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained in the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.” (some footnotes omitted)

69                 The principles set out above have been applied on many occasions over recent years. The claim that a verdict is unsafe and unsatisfactory has come to be used as something of a “catch-all” ground, often without clear formulation of the precise basis upon which it is said the verdict should be quashed. When the claim is made in the way in which it was dealt with by the High Court in M it requires an intermediate appellate court to conduct an independent assessment of the strength of the prosecution case, and to consider whether or not it would be “dangerous” to allow a conviction to stand.

70                 The unsafe and unsatisfactory ground is not only invoked where the appellant claims that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. It is often contended that a conviction is unsafe and unsatisfactory because some failure has occurred in observing the conditions which are essential to a fair trial. There may be some feature of the case which raises the substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been “mistaken or misled”: Davies and Cody v The King (supra) at 180. A material irregularity of this type may require that a conviction be set aside, but not necessarily that there be substituted a verdict of acquittal. Rather it may be appropriate in such circumstances to order that there be a new trial.

71                 In Gipp v The Queen (1998) 194 CLR 106 convictions upon each of five counts of sexual offences were held to be unsafe and unsatisfactory. This was because evidence relating to two other counts, which had been the subject of nolle prosequi by the Crown, had erroneously been left to the jury for consideration. The consequence of that finding, in the particular circumstances of that case, was not that there should be entered verdicts of acquittal but rather that there should be a new trial. Kirby J observed at 158-9:

“The appellant asked that, if his appeal were allowed, the convictions should be quashed and verdicts of acquittal entered. That is ordinarily appropriate where the verdict entered at the trial is unreasonable or cannot be supported having regard to the evidence. But where, as here, the real objection which ultimately succeeds concerns errors of judicial misdirection and non-direction resulting in a miscarriage of justice, the proper course is to quash the convictions and to order a new trial.” (emphasis added)

72                 Similarly, in R v Serratore (1999) 48 NSWLR 101 the New South Wales Court of Criminal Appeal rejected a contention that it had not been reasonably open, upon the whole of the evidence, to the jury to convict. The Court found, however, that the jury, acting reasonably, could not have followed the trial judge’s directions and still have convicted. Accordingly, there had been an irregularity constituting a miscarriage of justice which rendered the verdict “unsafe and unsatisfactory”. Dunford J, with whom Greg James J agreed, observed at 131-2:

“On upholding an appeal against conviction, the court has power, to enter a verdict of acquittal …or order a new trial …. The factors relative to whether a new trial should be ordered have been considered in a number of cases, including …R v Anderson [(Hilton Bombing case) (1991) 53 A Crim R 421] at 453 Gleeson CJ (although not ordering a new trial in the particular circumstances of that case) said:

“The principal considerations in favour of ordering a new trial … are the public interest in the due prosecution and conviction of offenders, the serious nature of the alleged crimes, and the desirability, if possible, of having the guilt or innocence of the appellant finally determined by a jury which, according to the constitutional arrangements applicable in this State, is the appropriate body to make such a decision.”

In a case such as the present where the appeal succeeds on the ground of irregularity and there was evidence on which, acting reasonably and in accordance with appropriate directions, it would be open to a jury to convict, I consider the appropriate course is to order a new trial.”

73                 The effect of these decisions in the context of State appellate courts is relatively straightforward. Where such a court concludes that a conviction should be set aside as unsafe and unsatisfactory because the jury ought to have entertained a reasonable doubt as to guilt it will quash the conviction and substitute a verdict of acquittal. Where the court concludes that a conviction should be set aside as unsafe and unsatisfactory for some reason other than that the jury ought to have entertained a reasonable doubt as to guilt, it may quash the conviction and either substitute a verdict of acquittal or direct that a new trial be had.

74                 These principles concerning the different meanings to be ascribed to the expression “unsafe and unsatisfactory” must be considered in the context of the legislative provisions which govern appeals to this Court from the Australian Capital Territory in criminal matters. Section 24(1)(b) of the Federal Court of Australia Act 1976 (Cth) provides:

“Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

…

(b)               appeals from judgments of the Supreme Court of a Territory; and

…”

75                 The word “judgment” is defined in s 4. It means a judgment, decree or order, whether final or interlocutory or a sentence. The appellate power conferred upon this Court includes the power to hear an appeal against a judgment which is entered upon a verdict in a criminal trial: Duff v R (1980) 26 ALR 663.

76                 In Chamberlain v The Queen (No 2) (supra) the High Court determined that notwithstanding that s 24(1)(b) was not drafted in the common form of the provisions which govern criminal appeals in the States, and that it did not specify any grounds upon which an appeal against conviction should be allowed, this Court has the same powers and duties as the State courts when dealing with such appeals. The primary duty is to set aside a conviction in any case where a miscarriage of justice had occurred. This would include a case where, in the context of the common form provisions, it would be unsafe and unsatisfactory to allow the verdict to stand. To the extent that Duff held that no such power was conferred upon this Court, that decision was overruled.

77                 The High Court in Chamberlain left no doubt that, notwithstanding that appeals in criminal matters are brought to this Court pursuant to legislation which is couched in language entirely different from that which applies to appeals in criminal matters in the State courts, the principles which should determine the outcome of all such appeals are essentially the same. A contention that a conviction was unsafe and unsatisfactory would be dealt with in this Court in exactly the same manner as the same contention in any State appellate court.

78                 In Gipp v The Queen (supra) Kirby J at 146-150 pointed to the use of the phrase “unsafe or unsatisfactory” in relation to the various limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW). He expressed concern about the confusion of thought which the use of that phrase might encourage. Gaudron J at 114 also noted that the expression had no very precise meaning.

79                 Recently, in Fleming v The Queen (1998) 197 CLR 250 the High Court expressed reservations about the desirability of the continued use of the expression “unsafe and unsatisfactory” in support of an appeal against conviction in the context of s 6(1). In a joint judgment, Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ observed at 256:

“The fundamental point is that close attention must be paid to the language of s 6(1) of the Criminal Appeal Act. Use of the potentially confusing phrase “unsafe and unsatisfactory” to cover the several different elements in the sub-section is liable to mislead. There is no substitute for giving attention to the precise terms in which s 6(1) is expressed.”

80                 In R v Giam (1999) 104 A Crim R 416 at 421-423 the New South Wales Court of Criminal Appeal held that, by reason of the judgment of the High Court in Fleming, the expression “unsafe and unsatisfactory” is no longer appropriate to be used as a ground of appeal in that State. Spigelman CJ, with whom Abadee and Adams JJ agreed, said at 422-423:

“Much of what has hithereto been identified under the “unsafe and unsatisfactory” ground of appeal is encompassed within the formulation in s 6(1) of “on any other ground whatsoever there was a miscarriage of justice.”

Frequently this ground of appeal has relied upon other grounds for their cumulative effect. It is not necessarily the case that any such basis for allowing an appeal will lead to the court directing a verdict of acquittal. However, in the way submissions in this Court have hitherto been structured, the subheading “unsafe and unsatisfactory” ground has been regarded as a code word for such a submission. …

“Unsafe and unsatisfactory” is not, as such, a separate ground of appeal acknowledged in those terms by the legislative scheme. …

It will be preferable in future to identify the ground of appeal as “miscarriage of justice” or the other terminology in accordance with s 6, with an appropriate degree of particularity in any heading. However, a distinct section of the submission should refer to the nature of the order sought on a successful appeal, perhaps under the heading “Verdict of Acquittal”, if that is what the appellant contends should be the result of success in the appeal.”

81                 The Victorian Court of Appeal has not regarded the decision of the High Court in Fleming as requiring the abandonment of the use of the expression “unsafe and unsatisfactory” as a ground of appeal: R v NRC [1999] 3 VR 537 at 555.

82                 Precisely how the High Court’s comments about the phrase “unsafe and unsatisfactory” are to be viewed in relation to criminal appeals to this Court under s 24(1)(b) of the Federal Court of Australia Act has not yet been the subject of any judicial exegesis.

83                 The expression “unsafe and unsatisfactory” has been regularly used over many years in appellate courts in this country and has acquired almost the status of a principle of the common law. It has been elucidated by the High Court on many occasions. The vice associated with its use as a ground of appeal lies in its catch-all nature and, in particular, in its failure to differentiate between a claim that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt, and a claim that there has been a material irregularity in the conduct of the trial. That failure is conducive to confusion on both sides and an inefficient use of an appellate court’s resources.

84                 Provided an appellant identifies the nature of the challenge to be made on appeal with some precision, we see no reason why the expression “unsafe and unsatisfactory” should be abandoned in appeals to this Court. Where this expression is used, however, the appellant should clearly identify the basis upon which it is said that there has been a miscarriage of justice . That may be done by the provision of adequate particulars. This approach seems to us to accord with what the High Court has said in Fleming.

85                 Although the first of the two grounds of appeal pressed before the Court is that the verdicts are “unsafe and unsatisfactory”, it was not suggested, in any serious way, during the hearing of the appeal that, on the whole of the evidence, it was not open to the jury to convict the appellant. It was contended, rather, that there had been material irregularity in the conduct of the Crown case which had given rise to a miscarriage of justice. The verdict was, for this reason, unsafe and unsatisfactory. In essence, the matters raised under the rubric of the first ground of appeal were the same as those outlined in the second ground of appeal.

86                 Mr Harris acknowledged that if the appeal against conviction were to succeed, the best result that the appellant might legitimately hope for would be that there would be a new trial. Having regard to the manner in which the appeal was conducted, that was a proper concession.

The appellant’s contentions on the appeal

87                 Mr Harris contended that:

·                    the prosecutor had opened to the jury a body of evidence which was not thereafter led;

·                    the prosecutor’s opening had been inflammatory and prejudicial;

·                    in both his opening address and closing address, the prosecutor had invited the jury to draw inferences which were not properly available on the evidence; and

·                    in his closing address the prosecutor had failed to correct his earlier misstatements, and had failed to resile from a theory of the case which had been opened but which ought not, ultimately, to have been pressed.

88                 Mr Harris identified some twenty-seven separate assertions which, he claimed, the prosecutor had made in his opening address, none of which were supported by the evidence led in the trial. He identified some eleven further assertions in the prosecutor’s closing address which, he submitted, were at variance with the evidence which had been led.

89                 A number of the matters which are the subject of complaint are plainly inconsequential. This was acknowledged during the course of argument. However, Mr Harris emphasised four broad areas in which he claimed the prosecutor’s comments had brought about a miscarriage of justice. These were:

(a) The rival heroin suppliers claim

90                 In the course of the prosecutor’s opening he told the jury that:

“… our case focuses upon these two groups of rival heroin suppliers …”

He also told the jury that during their meeting at Happy Days on the morning of 6 April 1999, Thien had spoken to Khoa in Vietnamese and had

“accused him of being a dealer and that he, the accused, was the one who wanted to deal heroin in Canberra and he alone.”

Each of these statements was said to amount to an imputation by the prosecutor that there had been a pre-existing relationship between the appellant and the deceased, with both being “rival” heroin dealers intent upon establishing territorial domain in Canberra. There was said to be no evidence that the appellant and his associates, and Thien and his group were “rival heroin suppliers”. Moreover, when Khoa gave evidence, he did not give evidence of any such statement having been made by Thien.

(b)               The purchase of the knife

91                 Mr Harris contended that the prosecutor ought not to have opened the Crown case upon the basis that the appellant had been the man who purchased the knife from Kessey. The only evidence theoretically capable of supporting that conclusion was that given by Kessey. However, he did not purport to identify the appellant. Indeed, the description which he gave of the man who purchased the knife was so vague and unsatisfactory that Kessey should not have been called to give evidence at all.

92                 The submission that Kessey’s evidence ought not to have been led was said to be fortified by the evidence given by Saga. Saga gave a detailed description of the knife. He said it was single edged, and had a blade about three and a half inches in length. The handle was brown or gold, and had “a gold curly symbol” upon it. It had a locking mechanism and, according to Saga, looked “brand new”.

93                 The box containing the knife was “bluish, light blue” in colour. It was about four inches in length and one inch in width.

94                 Saga was shown a photograph of the two “Excalibur” brand knives which Kessey had provided to the police. When asked to compare the knife in the photograph with the knife which the appellant had produced, he said:

“That was a similar knife, but it’s not the same knife.” (emphasis added)

95                 Saga was then asked to elaborate upon that answer. He said that both of the knives shown in the photograph were similar to the knife which the appellant had produced. He did not elaborate further, and he was asked no more questions about the knife.

96                 Saga was then asked a series of questions about the box from which the knife had been produced. He recalled that there had been a name upon it, and that it had opened “by sliding out the side”, and not “flipping over the top”. He was then shown the two boxes which Kessey had provided to the police. He was asked:

“Could you have a look at this – there are two items in this plastic bag, sir. Are you able to say anything about those two boxes that you see in front of you? --- Yes, it wasn’t what I saw.

Okay? --- As I said this box opens from – open it like that. The knife that he had opened from the sides.

… Like a matchbox.

… It was blue, light blue, not a grey.” (emphasis added)

97                 Mr Harris submitted that once Saga had given this evidence, the evidence of Kessey could no longer be said to have any probative value. It was, at the same time, likely to have distracted the jury from their task and to have been extremely prejudicial. It ought not, therefore, to have been led.

98                 It was submitted that the appellant had not only been prejudiced by the introduction of the evidence concerning the knife but also by what the prosecutor had said to the jury in his closing address regarding that issue. The prosecutor told the jury:

“Of course you have to accept that the accused had the knife and he bought the knife that day. If, for example, we did not have the evidence of Leon Kessey we still have the evidence of Robert Saga.” (emphasis added)

99                 However, the prosecutor also told the jury that they did not have to accept that the knife which, on the Crown case, had been produced by the appellant, was the same knife as that which Kessey had sold earlier that day. Indeed he went on to say that even if there was no evidence “of any one purchasing a knife” the case could still be proved beyond reasonable doubt.

100              Mr Harris submitted that these comments by the prosecutor were likely to have confused the jury. He submitted further that the trial judge’s charge to the jury had done nothing to dispel any such confusion.

101              Mr Harris submitted that there was no evidence to suggest that the appellant had purchased any knife, whether on the day in question, or on any other day. The fact that Saga had described the appearance of the knife as “brand new” could not sustain any such inference. The jury should not have been invited to engage in what had been mere speculation and conjecture: Chamberlain v The Queen (No 2) (supra) at 535 and Shepherd v The Queen (1990) 170 CLR 573 at 578-9.

(c) The “luring” theory

102              The prosecutor opened the case upon the basis that, having earlier on the afternoon of 6 April 1999 had an altercation over the supply of heroin with Thien, the appellant had set out to rid himself of a potential rival in the business of supplying heroin. On this scenario, he first armed himself with a knife which he purchased from Kessey, and then made arrangements to meet Saga and Dickson at the carpark. He did so in the knowledge that such a meeting would take place in clear view of Thien, and that it would be regarded by him as involving the sale of drugs. The aim was to lure Thien away from his associates, and to provoke him into attacking the appellant, thus providing the appellant with the opportunity, upon a pretext of defending himself, to eliminate a potential rival.

103              To support this theory, the prosecutor suggested to the jury in his opening that when the appellant saw Thien in the vicinity of Happy Days, he deliberately “dawdled” as he walked away from the carpark.

104              Mr Harris submitted that there was no evidence to support a number of the limbs upon which this theory was based. For example, there was no evidence that anyone standing in the vicinity of Happy Days would have a clear view of what was happening in the carpark. There was no evidence that the appellant was aware that Thien and Eddie were actually following him as he left the carpark. Saga specifically rejected the assertion that the appellant had “dawdled” as he walked away. He said instead that the appellant was moving at “a brisk walk”.

105              Mr Harris submitted that, given these circumstances, the entire theory that the appellant had “lured” Thien into a trap was untenable, and should not have been opened to the jury. At the very least, once Saga had given the evidence which he did, the prosecutor should have resiled from that theory.

(d) The injuries to the appellant’s hands

106              The prosecutor opened the case upon the basis that the injuries to the appellant’s hands had been sustained when he stabbed Thien repeatedly with the knife. The theory advanced by the prosecutor was that the appellant’s hands had slipped down onto the blade when the knife was thrust with great force into Thien’s body. This was because there was no hilt at the end of the handle to prevent that from occurring.

107              Mr Harris contended that there was no evidence to support this theory, and it should not have been pressed. The appellant had maintained that the injuries had been sustained while he and Thien had struggled for the knife. Mr Harris relied upon the evidence of Dr Yeoh and Professor Pleukhahn as support for his contention that the prosecutor had conducted himself inappropriately in dealing with this issue.

The Crown’s contentions on the appeal

108              The Director of Public Prosecutions, Mr Refshauge SC, appeared on the appeal, though not at the trial. Mr Refshauge submitted that the jury must have been aware that they were not to treat anything said by the prosecutor in his opening address as evidence. The prosecutor told them this at the outset. Likewise, they had been told that they could accept or reject, as they saw fit, any submission or argument advanced by counsel. The appellant’s contentions must be viewed against the background of the jury having been so instructed.

109              Mr Refshauge then dealt specifically with each of the four broad areas of complaint raised by the appellant.

(a) The rival heroin suppliers claim

110              Mr Refshauge submitted that the prosecutor had been entirely justified in describing the two groups as “rival heroin suppliers”. The appellant was a heroin supplier. So too was Thien. There was evidence which suggested that Thien was interested in supplying heroin in Canberra. Shortly after his death, police searched the vehicle in which he had driven from Sydney that morning. They discovered a quantity of heroin and some scales suitable for weighing out gram lots. These items spoke for themselves.

111              Counsel for the accused at the trial recognised the reality of the situation when, in his opening to the jury, he said:

“…[the deceased and his associates came to Canberra] to set up a heroin distribution network in Canberra, or at least in the Civic area, and that they were determined to get rid of any other suppliers.”

112              The appellant too had conceded that the altercation which he had with the deceased concerned the distribution of heroin in Civic. Both Khoa and Binh said much the same thing.

113              Mr Refshauge accepted that the prosecutor’s opening remark at the trial to the effect that the deceased had told Khoa that the appellant “was the one who wanted to deal heroin in Canberra and he alone” was not, ultimately, supported by any evidence. It is not clear upon what basis the prosecutor had attributed a statement of that type to Khoa. It was submitted, however, that this misstatement of what Khoa would say did not render the verdicts unsafe and unsatisfactory.

(b) The purchase of the knife

114              Mr Refshauge submitted that there had been no impropriety or error on the part of the prosecutor in inviting the jury to conclude that it was the appellant who purchased the knife from Kessey.

115              Saga had described the knives shown in the photograph as “similar” to the knife which the appellant had produced. While it was true that he had said that it was not “the same knife”, the jury would have understood that statement to mean nothing more than that the knife shown in the photograph was not the identical knife used by the appellant. That, on any view, was self evident. On that basis, what Saga said in evidence was not exculpatory, and in no way inconsistent with the Crown case.

116              Alternatively, Mr Refshauge submitted, it had been open to the jury to accept Saga’s account of the appellant having produced a knife, but to have rejected his assertion that it was not a knife of the same type as those shown in the photograph.

117              Finally, Mr Refshauge submitted, the jury had been told that even if they were not satisfied that the knife produced by the appellant was the same as that which had been purchased from Kessey they could still find that it was a knife which he had purchased in order to use against Thien. Accordingly, the Kessey theory did not assume sufficient importance in the context of the trial to warrant setting aside the convictions.

(c) The “luring” theory

118              Mr Refshauge submitted that, contrary to Mr Harris’ submission, there was evidence capable of sustaining the theory that the appellant had gone to the carpark in order to lure Thien into a confrontation so that he could eliminate him as a potential rival in the heroin trade.

119              Mr Refshauge noted that Saga had acknowledged that he had “a clear view” from the carpark to the area around Happy Days. He said that he saw the appellant look back several times as they were leaving the carpark. He said that the appellant appeared nervous.

120              The appellant himself said that from his position in the carpark he noticed a group of people standing outside Happy Days. He acknowledged that he had recognised Thien as being one of that group. He said he saw Thien point at him. He then saw Thien apparently say something to his friend, and both men start to walk in his direction.

121              Mr Refshague conceded that there had been no justification for the prosecutor’s comment that, instead of being scared and running away when he saw Thien and Eddie, the appellant had “dawdled” across the Bunda Street carpark in order to encourage them to follow him. He submitted, however, that this comment had amounted to what might colloquially be described as a “throw away line”, and had not, by itself, brought about a miscarriage of justice.

(d) The injuries to the appellant’s hands

122              Mr Refshauge submitted there had been no impropriety or error on the part of the prosecutor in the manner in which he had dealt with this issue. It had been open to the prosecutor to advance the theory that the injuries to the appellant’s hands had been brought about by their having slipped down the blade of the knife as he stabbed Thien. He also submitted that the prosecutor had dealt accurately and fairly, in his closing address, with the evidence given by Dr Yeoh and by Professor Pleukhahn.

123              Mr Refshauge referred specifically, in this context, to the evidence of Saga. Saga said that the appellant had produced the knife with which Thien and Eddie were stabbed, and denied that there had been any struggle for the knife. His evidence stood in stark contrast to that of the appellant.

124              Dr Yeoh’s evidence was that the appellant’s injuries were consistent with his having tried to grab a knife held by another. It did not follow that those injuries were not also consistent with the appellant having injured his hands in the manner suggested by the prosecutor.

125              Professor Pleukhahn had conceded that he could not rule out completely the possibility that the injuries to the appellant’s hands had been sustained in the manner suggested by the prosecutor. Moreover, in some respects the evidence which Professor Plukhahn gave was not consistent with the appellant’s account of what had occurred. For example, he said that the injuries were consistent with the appellant having “gone” for the knife, but not with his having grabbed it in the way that he described. He said that if the appellant had grabbed the knife, he would have expected to see more cuts to the fingers than there were.

126              Mr Refshauge submitted that merely because the appellant’s account of what had occurred may have been supported, in part, by Professor Pleukhahn did not mean that the jury were bound to accept that account. It was obviously open to the jury to prefer the evidence of Saga to that of the appellant. Accordingly, he submitted, there was no substance in this limb of Mr Harris’ argument.

Conclusions on the appeal

127              Before dealing with the specific complaints made on behalf of the appellant, it is appropriate that we summarise first what we understand to be some of the principal obligations which rest upon a prosecutor in the conduct of a trial.

128              It is the duty of the prosecutor, above all else, to ensure that the Crown case is presented fairly. In King v The Queen (1986) 161 CLR 423 Murphy J at 426 summarised this overriding duty in the following terms:

“The duty of a prosecutor is to present the case against the accused fairly and honestly; not to use any tactical manoeuvre legally available in order to secure a conviction. In this regard, I adopt the words of Maxwell J. in R. v. Bathgate (1946) 46 S.R. (N.S.W.) 281, at pp. 284-285:

“It cannot be too strongly impressed that the obligations of the Crown Prosecutor arise not merely by reference to the attitude adopted by the defence. ‘Counsel for the prosecution … are to regard themselves as ministers of justice, and not to struggle for a conviction, as in a case at Nisi Prius – nor to be betrayed by feelings of professional rivalry – to regard the question at issue as one of professional superiority, and a contest for skill and pre-eminence’: Reg. v. Puddick (1865) 4 F. & F. 497, at p. 499 [176 E.R. 662, at p. 663[. ‘But it must be remembered that the whole policy of English criminal law has been to see that as against the prisoner every rule in his favour is observed and that no rule is broken so as to prejudice the chance of the jury fairly trying the true issues. The sanction for the observance of the rules of evidence in criminal cases is that, if they are broken in any case, the conviction may be quashed’: Maxwell v Director of Public Prosecutions [1935] A.C. 309, at p. 323; and Sugarman’s Case (1935) 25 Cr. App. R. 109, at p. 115.””

129              In R v Banks [1916] 2 KB 621 Avory J observed at 623 that counsel “ought not to press for a conviction”. That may overstate the principle but the policy which underlies that statement is unexceptionable.

130              In the conduct of a trial, the prosecutor’s duty of fairness typically arises first when the prosecutor opens the Crown case to the jury. The opening is intended to inform them briefly of the elements of the offence or offences charged, the facts which constitute each offence, and the witnesses the prosecution intends to call to prove those facts. The prosecutor will ordinarily make clear, in outlining the elements of the offences to be proven, that directions regarding the applicable law are the province of the judge. A prosecutor must not make any reference to proposed evidence where its admissibility is in dispute. A prosecutor should not advance any theory, or make any submission, which does not carry conviction in the prosecutor’s own mind. Importantly, although a prosecutor may legitimately invite the jury to draw inferences from such facts as are proved, the prosecutor must not encourage the jury to engage in mere speculation or conjecture.

131              There are special obligations imposed on those who prosecute. These include, inter alia, a duty to make full and proper disclosure of “unused material”, or material which may be exculpatory: Clarkson v DPP [1990] VR 745; and R v Maguire (1992) 94 Cr App R 133. They also include a duty to call all witnesses who may give relevant evidence whether that evidence assists the Crown case or not: Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657; Apostilides v The Queen (1984) 154 CLR 563; R v Komornick [1986] VR 845; and R v Armstrong [1998] 4 VR 533.

132              It is no part of the duty of a prosecutor to address a jury in language which is intemperate, inflammatory, or over-zealous in nature. In opening for the Crown it is highly undesirable to use unnecessarily emotive language which on any view can only excite sympathy for the victim or prejudice against the accused in the minds of the jury. In R v R (1997) 99 A Crim R 327 Tadgell JA observed that it was “no part of the duty of counsel for the Crown to excite passion”. In R v M [1991] 2 Qd R 69 a conviction was quashed on the ground that the prosecutor in his address to the jury had so far exceeded the bounds of proper comment and submission that the effect could not be, and was not, repaired by the judge’s summing up. This conduct on the part of the prosecutor constituted a serious irregularity in the trial. See also R v McCullough (1982) 6 A Crim R 274; R v Bazley (1986) 21 A Crim R 19 at 31; R v Pernich & Maxwell (1991) 55 A Crim R 464; and R v R (supra).

133              Although there are no formal pleadings, as such, in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused, and essentially to adhere to that case. For example, where the Crown throughout most of a trial presents its case on the basis that a particular accused was an accessory before the fact to a killing by another accused, it is not appropriate to permit the Crown to put a quite different case to the jury after all the evidence has been led: King v The Queen (supra) at 435-6. See also R v Carr [2000] 2 Cr App R 149.

134              In R v Tangye (1997) 92 A Crim R 545 Hunt CJ at CL observed at 556:

“The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage.” (emphasis added)

135              It is clear that a prosecutor should not invite the jury to proceed upon a theory which cannot properly be sustained. If the prosecutor does so, and a conviction results, the verdict may be set aside.

136              In R v Anderson (1991) 53 A Crim R 421 (“the Hilton Bombing case”) the New South Wales Court of Criminal Appeal held that the trial had miscarried precisely because the prosecutor had failed to discharge his obligations in this regard.

137              The facts of that case were as follows. Following a lengthy trial, the appellant had been convicted on three charges of murder. The charges arose out of what was known as “the Hilton bombing” in 1978 during a meeting of the Commonwealth Heads of Government at that hotel. Three people were killed when a bomb, alleged to be targeted for the Indian Prime Minister, exploded in a rubbish bin. The Crown case depended largely upon the evidence of a convicted accomplice, Evan Pederick, who, on a key aspect of the case, was shown to be totally unreliable.

138              The prosecutor in his final address advanced a new theory designed to explain a number of Pederick’s obvious errors. The defence submitted at the trial that this theory was not reasonably open on the evidence, and that the Crown should not be permitted to put it to the jury in an effort to restore Pederick’s credibility. The defence also submitted that, in view of the Crown’s failure to have questioned Pederick about the theory, there was serious unfairness in what the prosecutor had done. However, the trial judge did not accede to these submissions.

139              On appeal it was alleged that the verdict was unsafe and unsatisfactory in the sense that a jury, properly instructed, ought not to have been satisfied beyond reasonable doubt of the guilt of the appellant.

140              It was also submitted that the Crown theory had not been supported by any evidence and should not have been put to the jury. It had been unfair to allow the prosecutor to promote the theory in his closing address without having recalled Pederick, and having sought to reopen his evidence in-chief. It was not sufficient for the prosecutor to say that the defence could have sought to cross-examine Pederick further had they wished to do so. The Crown had been given an unfair opportunity to put to the jury that a major weakness in its case was much less serious than it actually was. The prosecution error which had been compounded by the Crown’s unfair attempt to persuade the jury to draw inferences that were not properly open meant that the trial had miscarried.

141              The Court of Criminal Appeal accepted these later submissions. It held that the Crown should not be given a further opportunity to patch up its case. It declined to order that there be a new trial and instead ordered that verdicts of acquittal be entered.

142              WE now turn to set out in some detail the reasoning of the Court in R v Anderson. Gleeson CJ, with whom Finlay J and Slattery AJ agreed, noted that far from directing the jury that it was not open to them to consider the hypothesis lately raised by the Crown, the trial judge had left the case to them on the basis that the hypothesis was open.

143              Gleeson CJ summarised the principal grounds of appeal at 437-8 in the following terms:

“First, it was submitted that, in the state of evidence as it existed at the conclusion of the trial, it was not reasonably open to the jury to conclude that Pederick had seen Prime Minister Desai departing from the George Street entrance of the Hilton Hotel at about 5 pm on the Sunday and had then attempted to detonate the bomb for the purposes of killing Mr Desai, and, therefore, the learned trial judge should not have permitted the Crown Prosecutor to address the jury on that basis or, in particular, to invoke the theory as means of repairing the damage that had been done to Pederick’s credibility as a witness.

Secondly, it was submitted that, in view of the events that had occurred in relation to the conduct of the trial and, in particular, in view of the failure of the Crown Prosecutor to question Pederick about the Desai departure theory, and facts relevant to it, there was serious unfairness to the appellant in permitting the theory to go to the jury.”

144              When Gleeson CJ came to deal with the former of these grounds, namely that the verdict was unsafe and unsatisfactory, he observed at 449:

“Although the Crown case against the appellant was one abounding with difficulties, some of them of the Crown’s own creation, but others more fundamental, and although it could not be described as a strong case, I do not conclude that it was not reasonably open to the jury, on the evidence before them, to decide that the appellant was guilty. Although there were numerous matters which might properly have caused them to have a doubt about the appellant’s guilt, it cannot be said that, acting reasonably, they were obliged to have such a doubt. In that respect, therefore, this ground of appeal is not made out.”

145              However, his Honour continued:

“… it is well-established that a Court of Criminal Appeal may treat a jury’s verdict as unsafe or unsatisfactory even if satisfied that it was, on the evidence, reasonably open to the jury to convict: eg Davies and Cody (1937) 57 CLR 170 at 180; Carr (1988) 165 CLR 314; 35 A Crim R 387. Such a situation may arise if, to use the language of the former case,

“it appears unjust or unsafe to allow [a] verdict to stand because some failure has occurred in observing the conditions which … are essential to a satisfactory trial.”

The inherent strength or weakness of the Crown case may be a factor relevant to such a conclusion. In the present case, for reasons just given, I do not regard the Crown case as presented at the trial as a strong one, and for the reasons discussed in relation to the first ground of appeal, there was one important respect in which, in my view, the proceeding miscarried. The Crown was permitted, in an unfair manner, to obscure a major difficulty concerning the reliability of the evidence of its principal witness. In particular, the Crown was permitted to represent that the difficulty was one resulting from a mistake on the part of the prosecuting authorities rather than one inherent in the witness’s story, and it was also permitted to attempt to resolve that difficulty by resort to submissions that should not have been put, and by raising an hypothesis that was reasonably open on the evidence.”

146              His Honour continued at 453:

“There then arises the question whether there should be an order for a new trial. This is a discretionary decision to be made in the light of the principles enunciated in such cases as Reid [1980] AC 343 at 351 and DPP v Fowler (1984) 154 CLR 627.

If, contrary to what appears above, I had been of the view that this was a case in which it was not reasonably open, on the evidence, for the jury to convict then, in accordance with the established principles, that would be an end of the matter. There would be no new trial. However, this is not such a case, and it becomes necessary to consider the various considerations for and against ordering a new trial.

The principal considerations in favour of ordering a new trial on each of the three counts in question are the public interest in the due prosecution and conviction of offenders, the serious nature of the alleged crimes, and the desirability, if possible, of having the guilt or innocence of the appellant finally determined by a jury which, according to the constitutional arrangements applicable in this State, is the appropriate body to make such a decision.

On the other hand there are considerations that militate against a new trial. The Crown case is not strong, and depends in large part upon the evidence of an accomplice whose account of the relevant facts has been demonstrated to be unreliable in significant respects. The suggested corroboration is, on analysis, flimsy. It is now more than 13 years since the relevant events took place, and this compounds the difficulty of establishing the truth. Moreover, it is far from clear exactly how the Crown would run a fresh trial. What would the Crown Prosecutor open to the jury as to the significance they should attach to the evidence they were going to hear from Pederick as to the events of 12 February 1978? In fairness to the accused, the Crown could hardly fail to elicit from Pederick his recollection of the Sunday, but that recollection is substantially erroneous. Finally, there is a consideration which, in the circumstances of this particular case, I regard as compelling. The trial of the appellant miscarried principally because of an error which resulted in large part from the failure of the prosecuting authorities adequately to check aspects of the Jayawardene theory. This was compounded by what I regard as an inappropriate and unfair attempt by the Crown to persuade the jury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence and that were in some respects contrary to the evidence. I do not consider that in those circumstances the Crown should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted.

I would order that the appeal be allowed and that the convictions be quashed. On each of the three charges in question the court should direct a judgment and verdict of acquittal to be entered.”

147              The reasoning in Anderson demonstrates a well-established principle. Inappropriate and unfair conduct on the part of the Crown may result in a miscarriage of justice leading to the quashing of the conviction and the substitution of a verdict of acquittal. In that case the fact that the jury were told by both the prosecutor and the trial judge, that nothing said by counsel in their opening or closing remarks was to be regarded as evidence did not mean that what had been said by the prosecutor had not caused the trial to miscarry.

148              The same principles must apply to any theory advanced by the prosecutor for the jury’s consideration. Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: R v Carr (supra).

149              It is with these general observations in mind that we address each of the four areas of complaint advanced on behalf of the appellant.

(a) The rival heroin suppliers claim

150              There is no substance in Mr Harris’ contention that the prosecutor’s opening was so inflammatory and prejudicial that it brought about a miscarriage of justice. In our view what the prosecutor said was neither inflammatory nor relevantly prejudicial. It was fully supported by the evidence.

151              In so far as the prosecutor opened to the jury evidence which he anticipated that Khoa would give, and that evidence was not subsequently led, the error was inconsequential. It could not have given rise to any miscarriage of justice.

(b)               The purchase of the knife

152              In our opinion the prosecutor ought not to have invited the jury to conclude that the appellant was the man who purchased the knife from Kessey. The evidence given by Kessey concerning the identity of the purchaser was so vague and unsatisfactory as to render the whole of his evidence inadmissible. The prosecutor should not have called Kessey to give evidence. He should not have invited the jury to conclude that the appellant was the man who had purchased the knife from Kessey.

153              The description given by Kessey of the purchaser carried hardly any weight. Virtually all that he could say was that the purchaser was a young man of Asian appearance.

154              The absence of any probative value in Kessey’s evidence was confirmed by the evidence given by Saga. If the prosecutor had been aware that Saga was going to testify that the knife produced by the appellant was not of the same type as the knives shown in the photograph, he had no justification for calling Kessey. If Saga’s evidence came as a surprise to the prosecutor, Kessey should still not have been called.

155              We should say that we reject entirely the argument advanced by Mr Refshauge that the effect of Saga’s evidence was merely that the knife produced by the appellant was not the same knife as either of those depicted in the photograph. As we have said, that fact was self-evident. We do not believe that the jury would have understood Saga’s evidence as amounting to no more than this. In our view Saga clearly and emphatically denied that the knife he saw the appellant use to stab Thien was the same type of knife as either of those shown in the photograph. Indeed, his evidence concerning the box in which that knife had been contained was, if anything, even more certain. He said that it was not the same type of box as either of those shown to him in Court. There was no direct evidence to suggest that he was in error about these matters. Saga’s evidence should have been an end to any suggestion that the appellant was the man who purchased the knife from Kessey.

156              It is trite law that a trier of fact may accept the evidence of a witness in whole or in part. The jury were entitled to have reservations about whether what Saga had said about the appearance of the knife was correct. However, even if they had such reservations, this would provide no basis for a positive finding that the reverse of what he said was true.

157              It should be noted that none of the evidence led from Khoa and Binh concerning the appellant’s stated intent to purchase a knife provided any support for the Crown theory that he was the man who in fact purchased the knife from Kessey. For that theory to be sustained, the appellant must have already acquired the knife at the time he made these statements. It seems highly impossible that the appellant would have told Khoa and Binh that he intended to buy a knife when, on the Crown case, he had already done so.

158              In our opinion, the possibility that the theory that the appellant had purchased the knife from Kessey may have influenced the jury in their deliberations cannot be excluded. The consequences of this finding will be considered shortly.

(c) The “luring” theory

159              Of arguably greater significance is the question whether it was open to the jury to act upon the elaborate theory pressed by the prosecutor regarding the “luring” of Thien.

160              We must say that the theory seems to us to be inherently implausible. It breaks down at many points. We have already dealt with one of its aspects, namely the contention that the appellant purchased the knife from Kessey. To the extent that the theory depends upon that contention, a conviction based upon that theory cannot be sustained.

161              There are other difficulties as well. It is clear on the evidence that the appellant went to the Bunda Street carpark, and met Saga and Dickson there, not, as the prosecutor suggested in his opening address, “by coincidence”, but in response to a telephone call from Saga. It follows that his presence in the carpark could not have been planned in advance.

162              It is true that the appellant acknowledged that, upon his arrival, he recognised Thien as one of the men with whom he had quarrelled earlier that day. He also acknowledged that he saw Thien and another man walking in his direction. That is not the same as having been aware that he was being followed by these men as he left the area.

163              It was wrong, in our view, for the prosecutor to have invited the jury to conclude that the “luring” theory could be sustained, as a matter of inference, from the fact that the appellant had “dawdled” while leaving the area of the carpark. There was no evidence at all to support that assertion. Saga specifically denied that the appellant had “dawdled”. He said, instead, that the appellant had moved at “a brisk walk”.

164              It was never satisfactorily explained to us how, or why, the prosecutor had concluded that he was justified in opening the case upon a basis which was unsupported by any evidence, and which turned out to be entirely contrary to such evidence as was given. Nonetheless, the prosecutor at no stage resiled from what he had said. Indeed, he continued to advance the same theory during the course of his closing address, and the theory was left to the jury as perhaps the primary basis upon which the Crown case rested.

165              If, as the prosecutor suggested, the appellant sought to lure Thien into following him so that the appellant could stab him, a number of difficulties arise:

·                    Firstly, why would the appellant go about the task of eliminating a rival in the heroin trade in this way? It seems improbable, to say the least, that the appellant would openly brandish a knife which he had acquired for the purpose of attacking Thien in front of two comparative strangers, moments before he stabbed the deceased. It also seems improbable that he would carry out his plan in the presence of these two individuals.

·                    It seems unlikely that the appellant would turn his back upon the two men whom he knew were following him, and with whom he had had a violent confrontation earlier that day. For all the appellant knew, these men may have been armed. Alternatively, they may have overwhelmed him before he had the chance to use the knife. It also seems unlikely that the appellant set out deliberately to be attacked from behind, and permitted that to occur, in order to have available an excuse for retaliating.

·                    If the appellant had set out to orchestrate a situation whereby he could claim self-defence in answer to a charge of murder, why then did he flee from the scene, lie to the medical staff at Bankstown Hospital, and hide from the police until apprehended some weeks later?

166              There are so many problems associated with the “luring” theory that any verdict of guilty based upon that theory would, in our view, be wholly unreasonable. Such a verdict would be unsafe and unsatisfactory in the sense that the evidence did not support it and the jury ought not to have reached a guilty verdict in reliance on it. Once again the consequences of that finding will be considered shortly.

(d) The injuries to the appellant’s hands

167              We are not persuaded that there is any substance in Mr Harris’ complaint regarding the manner in which the prosecutor dealt with the issue of the injuries to the appellant’s hands. Although Professor Pleukhahn’s evidence provided considerable support for the appellant’s account of how his hands came to be injured, there was no obligation on the part of the prosecutor to concede that fact. It was open to the jury to prefer the evidence of Saga to that of Professor Pleukhahn. It was equally open to the prosecutor to seek to persuade the jury to do so.

Has there been a miscarriage of justice?

168              For the reasons already given the attempt on the part of the prosecutor to persuade the jury to conclude that the appellant was the man who purchased the knife from Kessey, and also to persuade them that he had done so as part of an elaborate plan to lure Thien into attacking him leads, in our view, to the conclusion that there has been a miscarriage of justice. It is impossible to know whether the jury arrived at the verdicts in this case upon the basis of the unsustainable theory improperly and unfairly pressed by the prosecutor, or whether they did so by a route which was permissible. There is no scope in these circumstances for the application of the proviso. The present verdicts cannot be permitted to stand.

Should there be a new trial?

169              In Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 it was said at 630:

“… the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case! … Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.”

170              It is contrary to the interests of justice to order a new trial where the evidence at the original trial was insufficient to warrant a conviction: King v The Queen (supra) at 427 at 433. Nor is an order for retrial available to afford the Crown an opportunity to make out a different case from that not made at trial: R v Wilkes (1948) 77 CLR 511 at 518; and Parker v The Queen (1997) 186 CLR 494. It should not be thought that merely because there is evidence upon which the appellant might be convicted on a retrial, that such a retrial should be ordered as a matter of course: R v Bartlett [1996] 2 VR 687 at 699. There may be sound reasons why, as a matter of discretion, the Crown should not be permitted a second opportunity to present a case against an accused who has already once been the victim of a miscarriage of justice: Sams v R (1990) 46 A Crim R 468; R v Anderson (supra); and Parker v The Queen (supra) at 538-9 per Kirby J.

171              In our opinion the evidence which was presented at the original trial was sufficiently probative to have warranted a conviction for murder. That original trial has miscarried. It is clear that on a retrial, the Crown will be required to confine its case, and will not be permitted to rely upon any theory which is unsustainable.

172              Although the prosecutor put the “luring” theory at the forefront of his submissions, that theory was not the sole basis upon which he invited the jury to convict. He also submitted, albeit less forcefully, that the jury could convict the appellant of murder upon a narrower and more limited view of the facts. The jury might find that the appellant’s conduct had been an unplanned response to an attack made upon him in which he used more force than was reasonably necessary: Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645.

173              It will be recalled that in his closing address the prosecutor said:

“If we did not have any evidence of anyone purchasing the knife then our case could still be proved to be beyond reasonable doubt, I suggest, if you accept the evidence of Robert Saga.”

174              The trial judge also understood the Crown case to have been put on this alternative basis. This is shown by the fact that he left the defence of provocation to the jury. Had the “luring” theory been the only basis upon which it was suggested that the jury might convict the appellant, it would be difficult to see how any question of provocation could conceivably have arisen. In essence, the Crown case would then have been one of premeditated and calculated murder, or nothing.

175              We regard the fact that the Crown case was left to the jury upon this alternative basis as crucial to the disposition of this appeal. An order for a retrial will not afford the Crown an opportunity to make out a case which was not made at trial.

176              In Anderson the Court declined to order a new trial. The reason was, in part at least, because the Crown case was considered to be particularly weak. That consideration does not seem to us to be applicable in the present case. If Saga’s evidence is accepted, the appellant, while armed with a knife, responded to an attack by two unarmed men in a manner which a jury might conclude was wholly disproportionate to the needs of self-defence. Such a view of the evidence is at least open. Whether or not a jury will be persuaded to that view remains to be seen.

177              We can see no reason why, as a matter of discretion, a new trial should not be ordered. It is of course a matter for the prosecuting authorities whether or not to proceed with such a trial.

178              It follows from what we have said that in the event that there is a retrial we would expect that, at least in the absence of additional evidence that was not led at the trial, the evidence of Kessey concerning the purchase of the knife would not be led. It also follows that we would expect that the Crown case would not be put on the basis of the “luring” theory, or any other theory which cannot be supported, having regard to the evidence.

179              The appeal should be allowed. The convictions and sentence recorded against the appellant should be quashed. The matter should be set down for retrial before a judge of the Supreme Court of the Australian Capital Territory in relation to each of the counts upon which the appellant was convicted.

180              It follows from these orders that the Crown appeal against sentence does not fall to be determined.

Associate:

Dated: 22 December 2000

A32 of 2000