R v Lewington[2021] QCA 258

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Freeburn J and with the orders proposed by his Honour.
2. [2]
   BOWSKILL SJA:  I agree with Freeburn J.
3. [3]
   FREEBURN J:  On 31 January 2020, a jury found the appellant, Mr Lewington, guilty of fraud.  The trial had been heard over four days from 28 to 31 January 2020.  Mr Lewington was sentenced to imprisonment for four years and six months with the term of imprisonment suspended after serving 27 months, with an operational period of five years.
4. [4]
   Mr Lewington appeals against the conviction on two grounds:

   1. (a)
      Ground 1: There was a miscarriage of justice arising from the manner in which discrepancies between his police interview and his evidence at trial were dealt with by the trial judge and the Crown Prosecutor; and
   2. (b)
      Ground 2: There was a miscarriage of justice because the trial was conducted on a basis which was inconsistent with the indicted charge.
5. [5]
   It is convenient to deal with those grounds of appeal in reverse order.

GROUND 2

The charge

6. [6]
   The single count indictment on which Mr Lewington faced trial was as follows:

“That on divers dates between the fourth day of February, 2015 and the second day of February, 2016 at Brisbane or elsewhere in the State of Queensland, JOHNATHON RAY LEWINGTON dishonestly gained bank credits for Acentra Pty Ltd.

And the property was of a value of more than $30,000.”

7. [7]
   Particulars of the charge were supplied.^[1]  Essentially, the Crown’s case was that Mr Lewington dishonestly gained bank credits for his building/development company by filling in and/or submitting four progress payment instruction forms to ANZ as follows:

   1. (a)
      $80,773 on 5 February 2015 for “base stage”;
   2. (b)
      $100,966 on 8 October 2015 for “frame stage”;
   3. (c)
      $100,966 on 11 November 2015 for “enclosed stage”; and
   4. (d)
      $60,579 on 27 January 2016 for “fixing stage”.

The Crown and defence contentions at trial

8. [8]
   Ms Dianna Ho owned a block of land in Yeerongpilly.  She decided to build a house on the land.  She secured a loan of about $403,000 from the Australian and New Zealand Banking Group Ltd (“ANZ”) and signed a building contract with Mr Lewington’s building/development company, Acentra Pty Ltd.
9. [9]
   The Crown’s case was that Mr Lewington had persuaded Ms Ho to sign and date the progress payment instruction forms in blank at the outset of the building work, and that he then filled in all of the four forms and submitted them to ANZ.^[2]  He did that so that ANZ would draw down the money from Ms Ho’s loan to pay his company for building work on the basis that the work had reached each of those milestones.  The prosecution alleged that the construction of the house had not reached any of those milestones, and that Mr Lewington knew that.
10. [10]
    The defence contended that, for three of the four progress payment instructions, Mr Lewington had been told by another director of Acentra, Mr Genrich, that the work had reached those milestones.  By the time of the last progress payment instruction Mr Genrich had resigned and had left Acentra.  For that last progress payment instruction, on 27 January 2016, Mr Lewington’s evidence was that he was able to determine that the work had in fact reached “fixing stage” by looking at Mr Genrich’s construction schedule.^[3]  Curiously, despite its significance, Mr Genrich’s construction schedule was not tendered into evidence or called for.^[4]

The Contractual & Legislative Context

11. [11]
    The trial was conducted on the basis that the progress payment instruction forms were a certification by Ms Ho to ANZ that the work on the house had reached each of the milestones.^[5]  The Crown case was that Mr Lewington’s involvement in filling out those forms, having Ms Ho sign them, and dispatching the forms to ANZ, constituted an involvement by Mr Lewington in a representation to ANZ that the work had reached the milestones.
12. [12]
    However, the actual progress payment instructions cannot be characterised as a certification that the work had reached a particular milestone.^[6]  Section 2 of the progress payment instruction form is labelled “Claim Details”.  The question is: “What stage are you claiming for? (e.g. base, frame, surplus)”.  Thus, by filling in and signing the form, the customer is merely identifying the stage for which payment from the bank is claimed.  At least in a literal sense, the customer is not certifying that the work has actually reached that stage.
13. [13]
    That is reinforced by section 5 of the form, entitled “Payment Authorisation” where the customer states:

In authorizing this payment, I/we confirm and acknowledge it is not ANZ’s responsibility to ensure that:

• the quality of the work is to my/our satisfaction
• the work done is in accordance with the building contract
• sufficient work has been done to cover progress payments

14. [14]
    Thus, the customer acknowledges that the bank does not have responsibility for the quality or quantity of the work.  The form may not be an express representation by the customer to the bank that the work has reached a certain stage.  However, it may be that, in making a claim for a stage of the work, it is implicit that the work has achieved that milestone.
15. [15]
    The documents recording the contract between Ms Ho and ANZ are a little unclear.  Ms Ho was sent a “Construction Pack” which included an assortment of documents and blank progress payment instructions.^[7]  Those documents, at least to the extent that they became part of the exhibits at trial, do not include any record of the contractual arrangements between ANZ and Ms Ho.
16. [16]
    The Master Builders contract between Ms Ho and Acentra Pty Ltd^[8] provided that progress payments were to be made in accordance with clause 11.6 of the contract.  That clause provided that Acentra was entitled to claim payment of the contract price progressively on completion of the stages set out in Part D of the Appendix to the contract.  Those stages are specified as follows:

17. [17]
    The building contract provided that the parties had agreed to stages which were different to the stages specified in s 66 of the Domestic Building Contracts Act 2000 (Qld) (now repealed).^[9]  The Act and regulations permitted stages to be configured in a different manner to that provided for in s 66.  However, except for a deposit, any alternative arrangement must not, in the absence of specific notices, include an arrangement that the owner is required to pay for work in advance of the work being carried out.^[10]
18. [18]
    The contract information statement expressly provided that “payments in advance of work to be done should not be made”^[11] and that the amount of each progress payment “must be directly related to the work completed on site”.^[12]
19. [19]
    Those provisions of the Act and the contract were not expressly adverted to during the trial.  Instead, the trial was conducted on the footing that:

    1. (a)
       either Ms Ho or ANZ may be harmed by the conduct of Mr Lewington in filling out all of the four forms and then submitting them so that ANZ would pay his company for building work on the basis that the work had reached each of those milestones, when those milestones had not been reached;^[13]and
    2. (b)
       if Mr Lewington did fill out the forms, and submit them, in circumstances where he knew that the work had not reached those milestones, that would be dishonest.^[14]
20. [20]
    The particulars^[15] identify Mr Lewington’s participation in the lodgement of the four relevant progress payment instructions as the relevant actions in circumstances where the stages had not been reached.

The Argument

21. [21]
    Against that background, the second appeal ground is that there was a miscarriage of justice as a result of the trial being run on a basis which was inconsistent with the indicted charge.
22. [22]
    The appellant’s complaint is that the charge was not particularised as causing a detriment to any person, let alone ANZ, when the trial was run on the basis that the appellant had defrauded ANZ.^[16]

Detriment?

23. [23]
    Firstly, there is no requirement that a detriment be established.
24. [24]
    The charge was that, between 4 February 2015 and 2 February 2016, Mr Lewington dishonestly gained bank credits (of more than $30,000) for Acentra Pty Ltd.  That conforms to s 403C(1)(d) of the Criminal Code: “A person who dishonestly … gains a benefit or advantage, pecuniary or otherwise, for any person … commits the crime of fraud.”
25. [25]
    Thus, the elements of the offence are dishonesty and the gaining of a benefit for any person.  No element of the offence requires proof of a detriment.  The opposite is true.  Proof is required that, by means of dishonesty, a benefit was gained.
26. [26]
    Second, in any event, it is difficult to perceive any inconsistency between the charge and the conduct of the trial.  Both the prosecution and the defence assumed that the effect of inaccurate or false progress payment instructions would be that either the customer, or the bank, might be affected by paying the builder for work up to milestones it had not in fact reached.  On the hearing of this appeal, Mr Lewington’s counsel rightly conceded that it was plain to all that both Ms Ho (the borrower) and ANZ (the lender) were likely to be affected by the deception of lodging false or inaccurate progress payment instructions.^[17]
27. [27]
    For those two reasons the appeal on ground 2 should fail.

GROUND 1

28. [28]
    The first ground of appeal was that there was a miscarriage of justice arising from the manner in which discrepancies between Mr Lewington’s police interview and his evidence at trial were dealt with by the trial judge and the Crown Prosecutor.
29. [29]
    Because of the nature of this ground of appeal, it is necessary to explain how the trial was conducted in some detail.

The Police Interview

30. [30]
    On 20 June 2017, Mr Lewington was interviewed by police officers.  The recording of the interview (Exhibit 22) was played to the jury.^[18]
31. [31]
    During the course of that police interview the interviewing police officer put to Mr Lewington, in rather oblique terms, that the progress claims had been processed and yet the construction of the house had not reached frame stage, enclosed stage or fixing stage.  Mr Lewington’s answer was:

“[T]he claims that were put forward was because there was so many variations … in the, the build … it was agreed from both parties …we put forward the claims of the stages because that was the only way Diana could pay the building company for her variations.”^[19]

32. [32]
    The police officer also asked Mr Lewington to explain why the $100,966 paid for the “enclosed stage” went from ANZ into Acentra’s account and then was paid out to a related company’s account in JRL Consortium Group’s account with Suncorp.  The officer asked why that money was not used for the variations.  Mr Lewington said that all of the money was used to pay for the construction and any other money was used to pay Acentra’s debts.^[20]

The Evidence at Trial

33. [33]
    Mr Lewington’s evidence was that the monies for the four progress claims were paid out because of his honest belief, based on information given to him, that the work to those milestones had been carried out.  In his interview, he told police that the monies were paid out in advance to meet the cost of variations agreed to by Ms Ho.  As Mr Lewington’s counsel conceded, those two versions are inconsistent.^[21]
34. [34]
    Mr Lewington chose to give evidence.  When he was examined-in-chief, he was asked to explain the inconsistency between his evidence and what he said in the police interview.  That gave rise to an objection from the Crown Prosecutor, which was heard in the absence of the jury.
35. [35]
    The objection was to the effect that the “bolster rule” did not permit Mr Lewington’s own counsel to ask in-chief questions designed to lift the witness up by his own bootstraps to enhance his credit.  Defence counsel maintained he could ask Mr Lewington “why he didn’t tell police… what he’s saying now… because, no doubt, my learned friend is going to go hammer and tong into cross-examination about it,”^[22] and counsel said he would do it a different way.  The trial judge ruled that Mr Lewington could not be asked for his explanation.^[23]
36. [36]
    As it turns out, defence counsel did not attempt to “do it a different way”.  His examination-in-chief finished a short time later without a return to the topic of the police interview.

The “Bolster Rule”

37. [37]
    The “bolster rule” was explained in R v Turner^[24] where the English Court of Appeal decided that, in general, evidence can be called to impugn the credibility of witnesses, but not led in chief to bolster it up.^[25]  There the defence in a murder case unsuccessfully sought to lead expert psychiatric evidence designed to show that the defendant was not of a violent nature, but that his personality was such that he would have been provoked by his deceased wife’s disclosure of her affairs, and that he was likely to be telling the truth about the circumstances of alleged provocation.
38. [38]
    That decision was followed by McHugh J in Palmer v The Queen.^[26]  McHugh J considered circumstances where, during a trial for sexual offences against a child, the accused was asked in cross-examination whether he could suggest any reason why the complainant would invent allegations against him.  The majority (Brennan CJ, Gaudron, Gummow and Kirby JJ)^[27] all considered that the question gave rise to a risk of a miscarriage of justice.  McHugh J dissented.  In the course of his dissent his Honour relied on R v Turner to the effect that the “bolster rule” stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked.^[28]
39. [39]
    The reasons of McHugh J were then applied by Chesterman JA (with whom McMurdo P and Wilson AJA agreed) in R v SBV.^[29]  In that case his Honour found that expert psychiatric evidence was inadmissible to endorse the credibility of the complainant’s reliability.
40. [40]
    However, it will be noticed that the rule discussed in these three cases is limited to evidence which merely bolsters the credibility of the witness.  The evidence which defence counsel sought to tender was sought to be led to for the purpose of answering what defence counsel apprehended to be a central plank in the Crown case.  As it turned out, that apprehension was accurate.
41. [41]
    And, even if the objection was properly taken during Mr Lewington’s evidence-in-chief, the principle in Browne v Dunn^[30] required the prosecutor to put the inconsistency to Mr Lewington during cross-examination.  If the prosecutor was to submit to the jury that Mr Lewington ought not to be believed because he gave an inconsistent version to the police, it was incumbent on the prosecution to put that case to Mr Lewington.

The Cross-Examination

42. [42]
    In his cross-examination at least, the Crown Prosecutor did not go “hammer and tong” as to the apparent inconsistency between Mr Lewington’s trial evidence and his police interview.  As will be seen, the prosecutor saved going “hammer and tong” on the police interview until his address to the jury.
43. [43]
    The prosecutor did ask Mr Lewington if he was truthful in his police interview.  Mr Lewington replied: “I was truthful in the questions they were asking me, that I thought they were asking.”^[31]
44. [44]
    The prosecutor left it there.  He did not put to Mr Lewington that what he had said in the police interview was untruthful, other than in one respect.^[32]
45. [45]
    And so, in summary, up to the point of addresses to the jury, Mr Lewington gave what appears to be inconsistent versions to the police and to the jury.  His counsel’s attempt to have Mr Lewington explain the inconsistency in his evidence-in-chief was frustrated by the Crown’s objection.  Despite saying that he would pursue it a different way, defence counsel never sought to do so.  The prosecutor cross-examined on the police interview but did not put the inconsistency to Mr Lewington and did not put to Mr Lewington that what he had told the police was dishonest.  Defence counsel did not re-examine on the police interview, presumably because there was only a limited basis upon which he could have re-examined on the police interview.^[33]

The Addresses to the Jury

46. [46]
    The defence counsel’s address to the jury did not refer to the police interview at all.  However, the primary thrust of the prosecutor’s address was the differences between what Mr Lewington said in his police interview and what he said in his testimony at trial.  Some extracts from the prosecutor’s address will illustrate the content of his address to the jury.
47. [47]
    The prosecutor put his case in strong terms:

“MR WHITE: So I have to prove to you, the onus is on the Crown, beyond a reasonable doubt, that he was dishonest in claiming for any of those stages and that would satisfy the fraud.  So he hasn’t got to prove anything.  And it’s not like you’re trying to decide is he telling the truth [indistinct].  You have to reject the defendant.  I’m going to say that you reject his account in court.  The word ridiculous has been used.  I’ll say that it was outlandish and absurd and I’ll come to reasons.  I’m not just going to use the adjective.  I’ll explain why his account is so outlandish and completely unbelievable.  So I hope I’ve simplified that.  If you find that any of these transfers that he has submitted progress payment instruction sheet, knowing that that stage wasn’t complete, that’s dishonest.  You can’t claim from a bank for things you haven’t done.  Mr Bonasia hasn’t said otherwise.  It’s clearly dishonest.

But of course on the flip side, if you have a reasonable doubt that he thought those stages were complete, then he wouldn’t be guilty of that particular stage.  And I say that this Crown case is totally overwhelming and I am going to come through – I’m not just going to say that’s overwhelming.  I’m going to say why its overwhelming and give you the reasons.”^[34]

48. [48]
    Whilst a prosecutor is entitled to address the jury with spontaneity or with the occasional flourish, the personal tone is regrettable.^[35]  The prosecutor continued:

“And before I give you the particulars, I’ll say this, I’m going to come to some details.  Most overwhelmingly is that the Crown case is overwhelming, is the defendant has completely admitted it to police.  He has admitted to police committing this offence of dishonestly gaining bank credits for Acentra.  Nothing was said just then about the defendant’s police interview, which you’ve seen today from watching in the jury room.  The only thing the defendant said about it in his testimony is the question I asked, was it truthful.  I say it wasn’t, but he said that it was.”^[36] [emphasis added]

49. [49]
    First, it is regrettable that the prosecutor chose to again express his personal opinion.  His opinion was an irrelevant distraction for the jury.  Second, it was inaccurate for the prosecutor to tell the jury that Mr Lewington had “completely admitted it to police.”  There was no such admission to the police.  And, the alleged admission was not put to Mr Lewington.  Third, the words “nothing was said just then” appears to be the prosecutor pointing out to the jury that defence counsel had not addressed on the topic of police interview.  Of course, defence counsel had no real opportunity to address on the police interview.  The objection had prevented him from dealing with the topic in evidence-in-chief, and the prosecutor had not put any inconsistencies to Mr Lewington in cross-examination.  Fourth, the prosecutor told the jury that the only thing that Mr Lewington had said about the police interview was his affirmative response to the prosecutor’s question, “was it truthful?”  Whilst that is strictly accurate, the false implication is that the defence had chosen to avoid the topic of the police interview.  Fifth, the prosecutor says: “I say it wasn’t (truthful)”.  In other words, the prosecutor expressed his personal view that Mr Lewington had lied to the police.  The prosecutor expresses that personal view in circumstances where he had never put Mr Lewington that what he had told police was untruthful.
50. [50]
    The prosecutor continued:

“If you accept the defendant’s police interview, and it’s his own words, then he would be guilty of the fraud I have charged him with and I’ll come to why he said what he has said and the things that he said but it’s very simple.  He has gone to police and been confronted with this.  There are many reasons to convict him.  I’m going to go through them all, like Dianna Ho and Simon Stewart, Jason Genrich, the emails.  But his own words, that’s just as clear as it gets.  This is what police say to him:

The complaint I’m dealing with is a fraud complaint made by Dianna Ho.  It’s directed at yourself as a suspect.  Her complaint involves a construction loan, the taking away of that of money in the loan fraudulently is the basis of this.

What he is confronted with in his police interview, which nothing has been said about by my learned friend because you can’t say anything about it, there’s no address in there and the defendant has an address that – except to agree with my suggestion, he said it’s truthful.  The defendant is faced with an accusation from police that he has defrauded Dianna Ho.  And so what he – he knows the progress payments are signed by her because he’s either signed them for her but more likely he’s had her sign them blank after she signed the surplus one.”^[37] [emphasis added]

51. [51]
    Thus, the prosecutor appears to again personalise the charges and to tell the jury, once again, that the defence had not addressed on the police interview and that the defence had chosen to avoid the topic because there was no answer.
52. [52]
    The prosecutor then took the jury to various parts of the police interview.  The prosecutor suggested that Mr Lewington, in the police interview, was implicating Ms Ho in the fraud, and that was wrong, and that it did not address the real fraud because of the dishonesty against ANZ.^[38]  Importantly, the prosecutor told the jury that Mr Lewington’s police interview was completely and irreconcilably different to his evidence at trial.
53. [53]
    The prosecutor continued:

“His explanation now on the charges before him that he’s dishonest as to what he’s done to ANZ Bank, he now says in the witness box, “Oh, I thought every one of these things the builder’s done.” That’s the only way you could answer this kind of fraud of course. You have to say, “I thought what I was claiming from the bank had been done”, otherwise you’re claiming dishonestly. Whether he’s understood that in the police interview or not I don’t know. Doesn’t matter. But that’s what his police interview is admitting to, and I am going to read you the quotes. He’s admitted to drawing down a construction loan without the house being built, but with Dianna Ho.

Now, that is just plain wrong with Dianna Ho. That’s just rubbish. It’s another lie. So I put to him in cross-examination, but even if – that’s the central point, that he has confessed to drawing down a loan knowing the build wasn’t done. I hope its clear. I’m going to come to the quotes shortly. But that is just so irreconcilably, wildly different to what he says now. Now he swears under oath. “It was all Jason Genrich. He was giving me false invoices. I was submitting this stuff. I thought it was done and then at the end, when the home loan’s been drawn down, I had to go to Dianna Ho and say, “Would you like your money back or keep going?” That wasn’t even put to Dianna Ho. That’s just come out of the witness box.

But what is crazy is in his police interview he hasn’t mentioned – if the police say, “Well, you’ve taken this construction loan” and he goes, “Yes, I’ve drawn it down because she couldn’t pay for it. It was – it’s outside the terms of the contract with QBCC. They’re not really concerned about it”. If his true answer, which apparently gives to you, his true answer is, “No, I drew down the construction loan because I thought every stage of the construction was met because Jason Genrich has given me false invoices and told me it was being met”. He didn’t say anything like that in the interview. They are irreconcilable because this is just a new story to try to address the real prosecution charge.”^[39] [emphasis added]

54. [54]
    Thus, the central point made by the prosecutor in his address to the jury was that Mr Lewington gave inconsistent versions to the police and to the jury.^[40]  There was some force to the contention.  As explained above, there was an inconsistency.  However, in circumstances where the Crown’s contentions were that there was an inconsistency, and that Mr Lewington was dishonest in his evidence, and that he was guilty of a recent fabrication,^[41] it was necessary for the prosecutor to fairly put those allegations of inconsistency, dishonesty and recent fabrication to Mr Lewington.  That was what was required by the principles of natural justice and the principles in Browne v Dunn (discussed below).
55. [55]
    There are many more parts of the transcript that record similar submissions by the prosecutor to the jury:

    1. (a)
       “What he’s confessing to is a fraud that he and Dianna Ho have committed against ANZ Bank”;^[42]
    2. (b)
       “However, just in theory, just hypothetically, if you accept his police interview and thought Dianna Ho was in on it and signed these things, as he said in his interview, signed them filled in, he would still be guilty because he – his police interview is completely irreconcilably different to what he now swears to you”;^[43]
    3. (c)
       “This defence that he’s giving to Simon Stewart and he gives to police, it doesn’t answer, though, fraud against ANZ”;^[44]
    4. (d)
       “So let’s turn to the police interview which I am the only counsel addressing and I’m going to say that it’s a complete confession to the fraud he’s charged with, even if, and I just want to 100 per cent clearly say you would not doubt Dianna Ho for a second”;^[45]
    5. (e)
       “What he’s saying is, ‘I thought it was built. She’s agreeing. Yep, let’s do this.’ And she’s made a mistake, too, is what he’s saying now. That’s not what he’s saying to police”;^[46]
    6. (f)
       “Remember just, too, broadly, in his [police] interview, there’s no mention of Genrich, ‘… Genrich told me the building’s going on’. If that’s what happened, that’s exactly what he’d say to police as soon as they said he’d drawn down a construction loan”;^[47]
    7. (g)
       “I want to prove the point that he’s completely confessed, in this interview, to drawing down the contract knowing it wasn’t done”;^[48]
    8. (h)
       “… understand he’s admitted to police that he knew the house wasn’t built and you can rely on that in convicting him”;^[49]
    9. (i)
       “But that’s not what he’s explaining to police. He’s just dishonest. He’s a fraudster and this is what is going on”;^[50]
    10. (j)
        “That’s his sell to police. That is not his sell to you now. You cannot believe a word he says”;^[51]
    11. (k)
        “His whole concept in his police interview, which he hasn’t pursued now at trial, is these variations, potentially we were entitled to them and so somehow she’s just going to have to a pay for $180,000 more. That’s what he tells police. But that’s not what he seems to have said now”;^[52]
    12. (l)
        “That’s just – just said now it was an accident that that transferred $101,000 for the enclosed stage off to his other company. Just an accident, he says. It’s not what he told police”;^[53]
    13. (m)
        “You couldn’t possibly think for a second, an experienced property developer, would believe that a bank would let a customer drawdown a construction loan without any construction… That’s madness if that’s what you think he was saying. Good news is he’s not saying that now”;^[54]
    14. (n)
        “Now, just to be clear, it’s no answer to the dishonesty that I’ve charged him with to say he intended to build the house”;^[55]
    15. (o)
        “…let’s just say what he told police is true and she’s a party to a fraud against ANZ. That just means she’s slipped under the net, didn’t get charged. If he has drawn down a construction fund for work not done, he’s guilty of a fraud”;^[56]
    16. (p)
        “What we’re talking about is those two versions violate the law of non-contradiction of logic. They cannot be reconciled in reality because they are completely different”.^[57]

The Trial Judge’s Summing Up

56. [56]
    The trial judge’s summing up included a general warning about inconsistent statements:

“Another point may be, has the witness said something different at an earlier time. A matter to be considered in assessing testimony is whether it differs from what has been said by the witness on another occasion. Obviously the reliability of a witness who says one thing one moment and something different the next about the same matter is called into question, and weighing the effect of such an inconsistency or discrepancy, consider whether there is satisfactory explanation for it. For example, might it result from an innocent error such as faulty recollection, or else could there be an intentional falsehood.

Be aware of such inconsistencies, and where you find them, carefully evaluate the testimony in the light of other evidence. These are only examples…”^[58]

57. [57]
    That direction is likely to have focussed the jury’s attention on whether there was a satisfactory explanation for the inconsistency.  Of course, here Mr Lewington had not given an explanation, whether satisfactory or not because his counsel’s attempt to elicit that was frustrated by a successful objection.  Later in his summing up, the trial judge addressed the police interview:

“Prosecution relies on answers said to have been given by the defendant in an interview with police as supporting its case against him. In order to rely on that evidence, you must be satisfied that he did give the answers that are attributed to him and that they were true. The evidence of Johnathon Ray Lewington’s admissions is in the form of a videotape, which you have seen and are entitled to have played again as often as you wish.

During the course of the interview, a number of questions were asked by the police officers of Johnathon Ray Lewington. The same reasoning applies here as you were told about in relation to questions by counsel of a witness. If Johnathon Ray Lewington did not agree to or in some way accept the contents of a question asked of him, the question cannot be any evidence against him…

In the course of the interview it is said Johnathon Ray Lewington made statements which the prosecution relies on as pointing to his guilt. If you accept them as having been made by Johnathon Ray Lewington and as true, it is up to you to decide what weight you give them and what you think they proved. He also gave answers which you might view as indicating his innocence. You’re entitled to have regard to those answers, if you accept them, and to give them whatever weight you think appropriate. In relation to both the answers which the prosecution relies on as indicating guilt and those which point to innocence, it is entirely up to you what use you make of them and what weight you give them.”^[59] [emphasis added]

58. [58]
    Of course, there was never any dispute that Mr Lewington had made the statements attributed to him in the police interview.  The prosecution relied on Mr Lewington’s answers in the police interview because they were inconsistent with his evidence at trial.  In the police interview Mr Lewington said he and Ms Ho agreed that the progress payments from ANZ would be used to pay for variations.  Implicit in that version was an acceptance that the work had not reached the milestones; the progress payments were to pay variations rather than work to the particular milestone.  That was different from the account he gave at trial that he had been told that the work had reached each of the milestones.
59. [59]
    When his Honour came to summarise the prosecution case, his Honour emphasised the prosecution’s reliance on the police interview:

“Mr White referred particularly to the statement given by the defendant to the police. It said that those statements showed the defendant had defrauded the bank by putting in claims for progress payments where he knew no work had been done on the construction of the property. Even if Ms Ho had agreed to those drawdowns to be made to meet variations, which he says she did not accept, it was clear that the defendant knew that the claims being made were not in accordance with the contract. He said that the defendant was an experienced building contractor and had knowledge of how the system worked from his experience with Ms Higgins, and that these statements contained in the police record of interview were completely inconsistent with the evidence he had given in court.”

60. [60]
    That was a concise and accurate summary of the prosecution case.  The problem is that, contrary to the principles in Browne v Dunn,^[60] the prosecution case about the inconsistency had not been put to Mr Lewington.  Defence counsel did not seek a direction concerning Browne v Dunn.

Browne v Dunn

61. [61]
    Whilst prosecutors may present their case fully and firmly, prosecutorial fairness requires prosecutors to fairly assist the court to arrive at the truth.^[61]  In Whitehorn v The Queen,^[62] Deane J described the prosecutorial fairness duty as one of “fairness and detachment”:^[63]

“Prosecuting Counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and helping to ensure that the accused’s trial is a fair one.”

62. [62]
    The duty of fairness emerging from Browne v Dunn affirms that “it is necessary [for the prosecutor] to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of [his/her] evidence, particularly where the case relies upon inferences to be drawn from other evidence in the proceedings.”^[64]
63. [63]
    In R v Foley^[65] this court held that failure to put the essential elements of an eventual case to a witness will result in a fair trial being jeopardised.^[66]
64. [64]
    In this case, where the central point of the prosecution case was that Mr Lewington gave inconsistent versions to the police and to the jury, and that that was a reason for the jury to disbelieve him, fairness required that the prosecutor put that inconsistency to Mr Lewington.  In fact, the prosecutor went so far as to suggest that what he told the jury was a “new story” (i.e. a recent fabrication).  That was a further reason for the prosecutor to comply with the rule in Browne v Dunn.
65. [65]
    The only unusual feature of this case was that defence was, in fact, on notice that the prosecutor intended to pursue the inconsistency “hammer and tong”.  However, despite notice, the defence was not afforded an opportunity to respond to the prosecutor’s case.  As explained, Mr Lewington was prevented from addressing the inconsistency in evidence-in-chief, and the topic was avoided in cross examination.  This is contrary to the rule in Browne v Dunn, which requires, not only notice of the inconsistency the prosecutor proposed to put to the jury, but to also afford that party or witness an opportunity to deal with the evidence.^[67]
66. [66]
    It follows that appeal ground 1 has been made out and that there was a miscarriage of justice and that there ought to be a new trial.
67. [67]
    I would order that the appeal be allowed, that the conviction be set aside and that a retrial be ordered.