Civil Rights Concerns

I am getting more and more worried about the quality of the reasoning displayed by our venerable High Court everyday. First, we have the absolute "gem" that is Farah Construction Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, a decision that made a total hash of the issues, but now, the High Court has handed down a decision I think has a significant impact on the administration of justice and the right to a fair trial.

In Libke v The Queen [2007] HCA 30, a majority of the HCA (Callinan and Kirby JJ dissenting in a joint judgment!) held that it is perfectly alright for the prosecutor in cross-examination (!!!!) to bully, harass, intimidate, and make disparaging remarks about an accused, make remarks about disbelieving the accused's answers, and to ask questions rhetorical questions of the accused and then not give him a chance to answer!

An example of the prosecutor's remarks:

"I put it to you your evidence is just a tissue of lies. That's what I'm putting to you, and I'm trying to work out just what it is that you're trying to tell us."

Heydon J (in a separate judgment) noted that many of the prosecutor's comments 'offended ... common law rules' and 'were annoying, harassing, intimidating, offensive or oppressive, contrary to s 21 of the Evidence Act 1977 (Q)[65]' (at [124]), were 'contrary to the rules of evidence' (at [125]), and yet, held along with the majority of the court that the trial was not unfair.

I can only echo the incredulous comments of Callinan and Kirby JJ, when they said they were unable to accept that the trial was not unfair, or that the accused had not been prejudiced:

38. In his reasons Heydon J too has demonstrated the entirely unsatisfactory nature of the conduct of the trial of the appellant involved in the approach taken both by the prosecutor[9] and the trial judge[10] during cross-examination. In effect, they complement our own. Merely to offer judicial disapprobation to discourage[11] unsatisfactory prosecutorial conduct of this kind in the future can be of no solace to an accused the subject of it.


39. We are unable to accept that the "very egregiousness of the conduct generated safeguards against the dangers inherent in it" or that the conduct of the prosecutor "was such as to attract sympathy to the accused"[12]. It is at least as likely that the jury, considering the way the prosecutor as a public official, and the judge as the controller of the trial acted, took their cue from the improper questions and comments, and apparent judicial acquiescence in them respectively, and inferred that they reflected a justified hostility to the appellant which they were bound to share. Clearly their verdict is more consistent with that reaction than with any sympathy.


40. The appellant does not seek sympathy from this Court, simply orders that uphold for him and for future cases like his the proper standards of prosecutorial conduct enforced by vigilant judicial supervision. We are quite unconvinced that the course of the cross-examination did not result in a substantial miscarriage of justice. The orders we propose give effect to that conclusion.

Miscarriage of justice and the "proviso"


41. Every member of the Court accepts at least that the prosecutor's comments were inappropriate and should not have been made[13], and that in making them he aligned himself personally with the prosecution case. Nor does any judge question that, even though the proceedings were adversarial, the trial judge could have intervened to check the persistently inappropriate commentary of the prosecutor.

There you go. If you want to get away with unfair conduct in a criminal trial, just make it so hostile and outrageous that you can claim that the conduct was not prejudicial to the accused because of its very hostility and outrageousness. Problem solved.