R V BIRKS

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Crown, (the complainant) was not asked whether she was struck by the torch. Now, I perhaps should say something about this subject. The rules of evidence, even of fairness, would require that if you have a dispute with a witness, the witness says: I was punched, for example, and you say or the accused said: no, it was not a punch, it was a torch and it was an accident; fairness, you may think, requires that the cross-examiner puts to the witness not only that she was not punched but that she was struck with a torch. It was never done. Here — not done here nor at the lower court nor before the magistrate, never put. ... It first surfaced when the accused gave evidence. The Crown puts to you, therefore, that would cause you to be sceptical as to the veracity or the truthfulness, reliability of the accused's evidence. The Crown further says that it is the accused's case in this Court, that no anal intercourse took place. The first we heard about that was when he went into the witness box. (Counsel) cross-examined the (complainant) and did not make one reference to it, did not put a question to her such as this: There was never any anal intercourse. One would think, as a matter of fairness that if that was his case, that question should have been put. And the inference that the Crown invites you to draw from that failure to ask that question is not that (counsel) was doing his duty, but that he was not instructed by his client, the accused that no anal intercourse took place." No objection was taken to those directions to the jury. There is an important feature of them which should be noted, and to which it will be necessary to return. They run together two somewhat different considerations. First, they refer to the matter of fairness. Secondly, they invite the jury to treat the conduct of counsel as a relevant factor when engaging in their own decision-making process and in particular when forming views as to the credibility of the appellant. After the jury retired to consider their verdict counsel for the appellant made a statement to the trial judge from the bar table. In short, he asserted that his failure to cross-examine the complainant about the matters of the torch, and the anal intercourse, were the result of his own oversight, and that he had indeed been instructed by the appellant that no anal intercourse took place, and that it was the torch that had damaged the complainant's face. It would be something of an understatement to say that confusion resulted. The learned judge asked counsel if he wanted the jury to be redirected in any way, and counsel declined. The learned judge asked counsel if he was applying for the jury to be discharged, and counsel ultimately agreed that he was. There was a good deal of debate and, apparently with considerable misgivings, the learned judge declined to discharge the jury who, for their part, returned fairly promptly with verdicts of guilty. Both in the discussion that took place about the matter at the trial, and in argument before this Court, the Crown gave unqualified acceptance to the truth of the statements made by counsel from the bar table. Furthermore,
evidence in the form of affidavits from the barrister and his instructing solicitor was adduced in this Court. It was made clear to this Court, and accepted by both sides, that the appellant's barrister was well aware of the problem that had arisen as a result of his oversight at a time no later than during the cross-examination of the appellant at the trial. There were various steps that he could have taken before the conclusion of evidence to seek to remedy the situation. For example, he could have called his instructing solicitor to support the appellant's evidence as to the instructions given by the appellant to his lawyers. As a last resort, he could have returned his brief in the matter and given evidence himself. His reason for not doing any of those things was not based on some tactical decision, but was that he simply did not know what to do. It appears that he hoped that the problem would become submerged in the mass of other detail but the consequences of his error became more and more obvious during the course of the address of the Crown Prosecutor and the summing-up. Finally, and apparently in some desperation, after the conclusion of the summing-up, he took the advice of a colleague at the bar and was advised at that stage to take the course described above. The appellant contends that all this resulted in a miscarriage of justice. In order to deal with that submission it is necessary to consider with some particularity the features of the matter which are said to give rise to that miscarriage. The first concerns the conduct of counsel, including his failure to cross-examine the complainant on important issues and his subsequent failure to take steps to deal with the problem after it had become obvious. In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information. As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:
Page 1 and 2: R V BIRKS Court of Criminal Appeal:
Page 3: The Crown Prosecutor, without objec
Page 7 and 8: the defence of an alibi that the pr
Page 9 and 10: Browne v Dunn was a case in which t
Page 11 and 12: have been cross-examined about the
Page 13 and 14: continued to work as she had sworn
Page 15 and 16: was pursued by the Crown Prosecutor
Page 17 and 18: "Q. ... you did not tell your couns
Page 19 and 20: (1990) 19 NSWLR 677 at 696 And then
Page 21 and 22: Q. Apart from focusing on a couple
Page 23 and 24: The Crown agreed that there was no
Page 25 and 26: consequent embarrassment to the Cro
Page 27 and 28: up" must have left a dubious atmosp

R V BIRKS

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