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Kayirici v R [2021] NSWCCA 127 (25 June 2021)

Last Updated: 30 June 2021

JUDGMENT

1. HOEBEN CJ at CL: I agree with Ierace J.
2. HARRISON J: I agree with Ierace J.
3. IERACE J: On 5 June 2018, the applicant stood trial in the District Court before his Honour Judge King SC (“the trial judge”) on an indictment comprising the following three counts:

(1) Break and enter and commit a serious indictable offence, namely, stealing, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW) (“count 1”);

(2) (In the alternative to count 1) Receive stolen property knowing it to be stolen, contrary to s 188(1) of the Crimes Act (“count 2”); and

(3) Drive vehicle knowing police are in pursuit, fail to stop and drive in a manner dangerous to others, contrary to s 51B(1) of the Crimes Act (“count 3”).

4. On 18 June 2018, the jury returned a special verdict of “larceny or receiving” pursuant to s 121 of the Crimes Act in relation to counts 1 and 2. The jury found the applicant guilty of count 3.
5. On 16 November 2018, the applicant was sentenced to an aggregate term of imprisonment of 5 years, with a non-parole period of 3 years and 9 months, commencing on 26 September 2016 and to expire on 25 September 2021. The non-parole period expired on 25 June 2020. The trial judge indicated a sentence of 2 years and 6 months imprisonment in relation to the special verdict, and 4 years imprisonment in relation to count 3.
6. The applicant seeks leave to appeal against his conviction on the following five grounds:

(1) The jury should have been discharged after the respondent raised evidence of the bad character of the applicant;

(2) The trial miscarried when the Court prevented the applicant from calling an expert witness in his case;

(3) The trial judge misdirected the jury when answering jury question marked “MFI 8”, which asked whether they could find the applicant not guilty in certain circumstances;

(4) The summing up was unbalanced and created a substantial risk that the jury were persuaded of the applicant’s guilt by the trial judge; and

(5) The comments made by the trial judge during the proceedings after conviction raised a real risk of an apprehension of bias against the applicant, existing both during the trial and the sentence proceedings.

Factual background

Break and enter offence

7. On 25 June 2016, AB and CB left their residence at Vaucluse (“the residence”) to travel to the airport for a vacation. Prior to leaving the residence, at 8:15am, CB activated their alarm system.
8. At 8:33am, an alarm in the residence was set off. The evidence indicated that an intruder had entered a side door by throwing a brick through a glass panel, after which they proceeded upstairs and triggered a motion alarm in “the gallery” area. Whilst the alarm was sounding, the intruder ransacked a number of bedrooms and a study, taking various items with an estimated total value of around $10,000.
9. At this time, the applicant was under investigation in relation to separate allegations of sexual assault against two complainants, alleged to have occurred on 19 and 24 June 2016, as a result of which police had obtained a warrant for the interception of the applicant’s mobile phone. Telecommunication records indicated that the applicant’s mobile phone had been operating in the Vaucluse area shortly before the alarm was triggered and subsequently connected to other cell masts consistent with him travelling west from Vaucluse.

Police pursuit

10. The Crown case was that at around 11:30am on the same date, the applicant was travelling west on Bondi Road in a silver sedan. Two plain-clothes police officers in an unmarked police vehicle were approaching the applicant’s vehicle, travelling in the opposite direction. One of the officers recognised the applicant as he abruptly turned left into a side street. They activated their lights and sirens and a pursuit ensued, during which the applicant traversed a number of streets around the Bondi, Bronte and Bondi Junction area, at times travelling in excess of 150kph in 50 and 60km zones, frequently crossing to the incorrect side of the road and driving onto the footpath or across grassed areas. Multiple pedestrians and vehicles had to take evasive action to avoid collision at various stages of the pursuit. At one point, the applicant burst a tyre on his vehicle and forced his way between two vehicles that were occupying each of the two lanes at the intersection of Syd Einfeld Drive and Old South Head Road, causing damage to both vehicles.
11. The pursuit ended when the applicant was faced with a vehicle collision guard on a side street near Old South Head Road. The applicant drove onto the footpath and into a small space between a bus shelter and a brick wall, in which his vehicle became wedged.

The applicant’s arrest

12. The applicant was forcefully removed from the vehicle through the only passenger door that was capable of opening, after refusing requests by police to exit. Some of the police officers drew their pistols as the applicant was extracted.
13. During the course of the applicant’s arrest, he received a number of injuries to his face and head. A video of the applicant’s arrest was tendered in evidence, as well as photographs of his injuries which were taken at the police station. It was unclear at trial which injuries were sustained in the course of the applicant’s arrest, and which were occasioned by the collision.
14. During a search of the applicant’s vehicle, the police seized a number of items that had been stolen from the residence in Vaucluse. Some foreign currency from the residence was also located in the applicant’s wallet. There was no forensic evidence linking the applicant to the break and enter.

Pre-trial procedural history

15. The pre-trial procedural history of the matter is relevant to some of the grounds of appeal. It was outlined in an affidavit of a solicitor employed in the office of the respondent, Mr Daly Chen, affirmed on 12 October 2020, which was read at the hearing without objection.
16. The matter was listed in the District Court at Sydney for arraignment before his Honour Justice Price, sitting as the Chief Judge of the District Court, on 27 January 2017. The applicant was represented by Ms Zali Burrows, solicitor, funded by Legal Aid NSW. The matter was adjourned on the application of the applicant and listed for mention on 24 February 2017. The matter was subsequently adjourned on 10 and 24 March, 28 April and 12 May 2017, each time on the application of the applicant.
17. On 30 June 2017, the applicant again made an adjournment application, which was refused. The matter was listed for trial to commence on 21 May 2018.
18. On 16 April 2018, the Crown filed and served a Notice of Prosecution Case on the applicant, pursuant to s 141(1)(a) of the Criminal Procedure Act 1986 (NSW) (“the Prosecution Notice”). The defence was required by s 141(1)(b) of that Act to file and serve a Notice of Defence Response (“the Defence Response”) by 7 May 2018 in accordance with a practice note of the District Court. I note that no Defence Response was served.
19. On 9 May 2018, the applicant filed a notice of motion seeking to vacate the trial and to permanently stay the proceedings. The applicant was represented by Mr Jay Williams of counsel instructed by Ms Burrows. The notice of motion was heard over three days, 15-17 May 2018, before her Honour Judge Syme. On 18 June 2018, Syme DCJ refused the orders sought. The applicant then terminated his instructions of Mr Williams and Ms Burrows.
20. At some point between 18 and 21 May 2018, the applicant reinstated Ms Burrows, who later re-briefed Mr Williams, to seek leave to appeal against the decision of Syme DCJ in this Court pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). Further applications were also made to adjourn the trial on 22 and 23 May 2018.
21. On 28 May 2018, this Court heard the application to vacate the trial and refused to grant leave to appeal: MK v R [2018] NSWCCA 105.
22. On 29 May 2018, Mr Williams and Ms Burrows notified Syme DCJ that they were obliged to withdraw from the matter because a privileged ethical issue had arisen. Ms Dymphna Hawkins of counsel, instructed by Ms Julie Johns, came into the matter.
23. On 4 June 2018, a solicitor from the Office of the Director of Public Prosecutions with carriage of the matter (“the DPP solicitor”) sent Ms Johns an email detailing the Crown’s proposed witnesses and exhibits in relation to each of the counts on the indictment.
24. On 4 and 5 June 2018, two further adjournment applications were made by the applicant. Both were refused.
25. The trial commenced on 5 June 2018. On 7 June 2018, counsel for the applicant indicated to the Court that Ms Johns’ instructions had been terminated by Legal Aid NSW and Ms Burrows had been reinstated, as she no longer considered herself to be ethically restrained.

Ground 1: The jury should have been discharged after the respondent raised evidence of the bad character of the applicant

Relevant background

26. Section 51B(1) of the Crimes Act provides as follows:

“51B Police pursuits
(1) The driver of a vehicle—

(a) who knows, ought reasonably to know or has reasonable grounds to suspect that police officers are in pursuit of the vehicle and that the driver is required to stop the vehicle, and
(b) who does not stop the vehicle, and
(c) who then drives the vehicle recklessly or at a speed or in a manner dangerous to others,

is guilty of an offence.”

27. On the second day of the trial, 6 June 2018, the Crown tendered a Roads and Maritime Services (“RMS”) certificate of registration for the vehicle involved in the police pursuit (“Exhibit 10”) and led the following further evidence through the Officer in Charge of the investigation, Detective Senior Constable Carter:

“CROWN PROSECUTOR: When [the applicant] was arrested I think he gave his address as South Penrith, didn’t he?
A. I believe so.
Q. It’s on the custody management records. Can I just show you this document? What’s that?
A. What’s that, sorry?
Q. What is it?
A. It is a RMS documentation regarding a certificate in relation to the licence status of [the applicant] ... The document goes on to outline that he’s disqualified.
Q. Thank you. That he’s disqualified?
A. Correct.
Q. That is as of what date?
A. It outlines that [the applicant] was disqualified from 11 March 2016 until 2 March 2017.
MFI #5 RMS CERTIFICATE SHOWING [THE APPLICANT’S] LICENCE DISQUALIFICATION”

28. At the end of the proceedings for that day, in the absence of the jury, the following exchange occurred:

“[Counsel for the applicant]: Can I just ask through your Honour the reason why the Crown led evidence that [the applicant] was a disqualified driver?
HIS HONOUR: Well I don’t think the Crown intended to lead that but it came out. It may well be however that that is to your client’s advantage as to the reason why he was engaging in a police pursuit, because he thought he might be arrested for unlicensed driver.
[Counsel for the applicant]: The thought crossed my mind as an alternative hypothesis but even so, if the Crown—
HIS HONOUR: Well you can talk to the Crown about that.
[Counsel for the applicant]: --could refrain from doing it.
HIS HONOUR: Yes.
CROWN PROSECUTOR: I won’t take that any further.”

29. The following morning, counsel for the applicant, who at that stage was without an instructing solicitor, noted to the trial judge that her previous solicitor, Ms Johns, had instructed her to make an application to discharge the jury. The trial judge rejected the application:

“[Counsel for the applicant]: ... so the application to discharge was going to be on the basis of what the officer-in-charge had said in the witness box yesterday with respect to [the applicant] having a criminal record. That was going to be the basis—
HIS HONOUR: Well, being a disqualified driver, I think, was what it was rather than a criminal record other than--
[Counsel for the applicant]: Well, disqualified driving is a criminal record.
...
HIS HONOUR: Not exactly a criminal record for break, enter and steal, assault, rape—
[Counsel for the applicant]: Does it really matter, your Honour?
HIS HONOUR: --or anything more serious.
[Counsel for the applicant]: Does it matter? The fact is that the criminal record of [the applicant] has been brought up—
HIS HONOUR: That is, a disqualified driver can be readily dealt with as being irrelevant to the jury’s consideration.
[Counsel for the applicant]: Well—
HIS HONOUR: So if that is the basis of an application to discharge the jury, I refuse it.

30. Counsel then indicated another basis for the application, which is irrelevant to this appeal. The trial judge continued:

“... so any other basis on which you are asking for the jury to be discharged?
[Counsel for the applicant]: No. Those are the only bases that I would have asked—
HIS HONOUR: Right. Well on those bases as I have indicated I have refused.”

31. The Crown then sought to tender photographs of identification documents from the applicant’s wallet which also contained foreign currency from the victims’ residence. Counsel for the applicant objected to the tender on the basis that it is common knowledge that “if you don’t have a driver’s licence and you need a photo ID, apart from your passport, you need to go and get some form of ID with your address on it”, so that it highlighted the applicant’s status as a disqualified driver. The objection was overruled.
32. After the lunch adjournment and in the absence of the jury, the trial judge raised counsel’s application to discharge the jury and said:

“HIS HONOUR: The difficulty I have in relation to the question of your client being disclosed as a disqualified driver is that there was a police pursuit, and as I raised with you before, it seems to me that it may well be that your client’s instructions may include that he was driving while disqualified and the reason that he engaged in the police pursuit was not because he had broken into any premises, was not because he was in possession of stolen items from the premises, but because he was, at the time, a disqualified driver, and for that reason ... he then fled.
...
[Counsel for the applicant]: ... I’m instructed that the issue of the disqualification was not a reason why [the applicant] fled from the police.
HIS HONOUR: ... In that case, I will give the jury a direction that this is a trial not about your client being a disqualified driver but a trial about the charges that are on the indictment and the fact that he was a disqualified driver has no relevance to the case.
...
Is there any difficulty with anything that I propose to say?
CROWN PROSECUTOR: No, thank you, your Honour.
[Counsel for the applicant]: No.”

33. The trial judge then gave the following direction to the jury:

“HIS HONOUR: ... Just before we continue, there are a couple of matters that I’d like to mention to you ... when Detective Senior Constable Carter was giving his evidence, you may have heard him refer to [the applicant] as being disqualified from driving. I want to make sure that you understand that this is not a trial about disqualified driving. This is a trial about a break and enter, receiving stolen goods and a police pursuit. Whether [the applicant] was a disqualified driver is entirely irrelevant to your consideration of those issues, so please do not draw any inference adverse to him from the fact that he was apparently a disqualified driver at the time. You probably wouldn’t have to go very far in the street to find a number [of] disqualified drivers. It’s a fairly common event. People get disqualified for many reasons, so please don’t draw any inference adverse to him from that fact.”

Applicant’s submissions

34. In written submissions, the applicant stated that the tender of Exhibit 10, and the nature of the Crown’s questioning of the witness, demonstrates a “clear intention” on the part of the Crown to adduce evidence of the applicant’s licence disqualification. It was submitted that, in leading this evidence, the Crown intentionally raised the bad character of the applicant in circumstances in which it was not entitled to do so. In oral submissions, counsel for the applicant stated that it is unclear from the transcript whether this evidence was deliberately led, but in any event, once it was in evidence the applicant was irretrievably prejudiced, necessitating the discharge of the jury.
35. The applicant submitted that, contrary to the opinion of the trial judge, a criminal record for any matter is serious, particularly where it reveals a disregard for road rules in circumstances in which it is alleged that the applicant drove a vehicle in a dangerous manner knowing police were pursuing him. The photo identification card of the applicant further highlighted the prejudicial evidence.
36. The applicant noted that the application to discharge the jury was raised early in the trial and, therefore, the costs involved in restarting the trial “were minimal”.
37. The applicant submitted that the raising of the bad character of the applicant led to a substantial miscarriage of justice and the direction given by the trial judge was “not sufficient to extinguish the highly prejudicial nature of the evidence”.

Respondent’s submissions

38. The respondent noted that Exhibit 10 was tendered following questions by the Crown which were directed at confirming the applicant’s address at the time of the offences. When asked an open-ended question as to what the document was, the witness stated that it demonstrated that the applicant was a disqualified driver. The respondent submitted that, given this context, it is unclear whether the Crown merely intended to confirm the applicant’s address, or whether he indeed deliberately intended to adduce the evidence of the applicant’s driver disqualification.
39. The respondent submitted:

“... it would have been open to the trial Crown to argue that the applicant’s status as a disqualified driver provided a further motive to flee from the police (in addition to the presence of stolen items in his car). However, it is accepted that once issue was taken as to the admissibility of the evidence by counsel for the applicant, the trial Crown indicated that ‘I won’t take that any further’. In that context, the evidence must be treated as being irrelevant and therefore erroneously before the jury at the trial.”

40. The respondent submitted that, although the evidence was erroneously before the jury after that exchange, the prejudice occasioned to the applicant from the admission of the evidence “was not great”, nor was it heightened by the subsequent admission of the applicant’s identification card. This is because, firstly, the “stigma” associated with traffic offences is “far less” than that of other offences and, secondly, any prejudice occasioned to the applicant was “sufficiently cured” by the directions of the trial judge which were given shortly after the application to discharge the jury was made.
41. The respondent concluded that, if the Court finds that the trial judge should have discharged the jury, his failure to do so was within his judicial discretion and did not occasion the risk of a substantial miscarriage of justice: Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 at [111]- [120] per Bell P.

Relevant principles

42. In Medich v R [2021] NSWCCA 36, Bathurst CJ said:

“83 In [Maric v The Queen (1978) 52 ALJR 631] it was pointed out by Gibbs ACJ at 634 that an appeal in these circumstances is not against a failure to discharge the jury but against the conviction. However, his Honour, with whom Mason and Jacobs JJ agreed, immediately went on to say that in these circumstances he could not see any justification for dealing with such cases on different principles from that which applies in criminal appeals generally (Maric at 634-635).
84 In Crofts v R (1996) 186 CLR 427; [1996] HCA 22 (‘Crofts’), Dawson J, albeit in dissent, made the following remarks at 432 in a passage which has been frequently cited:

‘Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge’s discretion. But it is a discretion which is to be exercised in favour a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that ‘a high degree of need for such discharge’ must appear before a discharge will be ordered. When a trial judge’s refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.’

85 The majority, in holding that the trial judge was in error in failing to discharge the jury, expressed the principle in the following terms:

‘It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? In our view, in the particular circumstances of this case, that could not be said.’

[86] The principles were helpfully summarised by this Court in Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at [126]:

‘The principles relating to an application for the discharge of the jury and appellate review thereof were reviewed by this Court in Khazaal v The Queen [2011] NSWCCA 129; (2011) 265 FLR 276 at [265] ff per Hall J. The following principles emerge from his Honour’s review and from the two leading cases he cites Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427; 88 A Crim R 232 and Maric v The Queen (1978) 52 ALJR 631:

(1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440; 241.
(2) In deciding an application to discharge the jury, key considerations include:
(a) the fairness of the trial: Crofts at 440; 241;
(b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to ‘have been left vividly etched on the mind of the jury’: Crofts at 441; 242;
(c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440; 241;
(d) the stage at which the mishap occurs: Crofts at 440; 241; Maric at 635;
(e) the deliberateness of the wrongful conduct: Crofts at 440; 241; Maric at 635;
(f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; 241; Maric at 635.
(3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635.
(4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that ‘[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict’, and in Crofts at 441; 242, the question was put similarly as whether, in the circumstances, the appellate court can ‘say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable’.
(5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind ‘that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript’: Crofts at 440-441; 241.
(6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge ‘is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind’: Crofts at 441; 242, but rather must apply the broader test stated at (4) above.”
87 In Hamide, this Court gave some consideration to the interaction of these principles with the common form appeal provisions in s 6(1) of the Criminal Appeal Act 1912 (NSW). In that case, Bell P noted that at the time Crofts was decided, the relevant provisions of the Victorian legislation contained similar common form appeal provisions. Referring to Weiss v R (2005) 224 CLR 300; [2005] HCA 81 (‘Weiss’) and Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14 (‘Baiada Poultry’), Bell P emphasised the distinction in s 6(1) of the Criminal Appeal Act between ‘miscarriage of justice’ and a ‘substantial miscarriage of justice’, leaving open the question of whether the principles in Crofts involved some conflation of the statutory language. His Honour ultimately concluded (at [127]) that the relevant principles that should be applied were those in Crofts, not those in House v The King (1936) 55 CLR 499; [1936] HCA 40. I have reached a similar conclusion, expressing the view that the principles established in cases such as Weiss and those that followed it had no application in applying the principles set out in Crofts.
88 On reflection, I do not think that Crofts conflated the approach mandated by s 6(1) of the Criminal Appeal Act. As was said in Maric, cases involving the discharge of a jury involve the application of the same principles as those in other criminal appeals. Like any other appeal, this Court should determine if there was a wrong decision on a question of law, or on any ground whatsoever where there was a miscarriage of justice. If the Court finds error or a miscarriage of justice, it can then proceed to apply the proviso in appropriate cases.
89 I do not think that anything said in Crofts is inconsistent with this approach. As was pointed out in Kalbasi v Western Australia (2018) 264 CLR 62;  [2018] HCA 7  (‘Kalbasi’) at [12], any error or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act. See also GBF v R (2020) 94 ALJR 1037; [2020] HCA 40 at [24]. Thus, where the application to discharge the jury was based on a wrongful admission of evidence or an error in process, even if the judge applied the correct principles in refusing an application to discharge the jury, it remains necessary for the Court to determine, considering the whole of the record of the trial, whether notwithstanding the error there had been no substantial miscarriage of justice. It is only if the Court reaches that conclusion that it can dismiss the appeal. It was for that reason that the plurality in Crofts stated at 441 that the appellate court must decide for itself whether the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.
90 Although it was stated in Crofts that the consideration of whether there was a substantial miscarriage of justice involved the question of whether an appellate court could say with assurance that, but for the omission of the inadmissible evidence a conviction was inevitable, the principles concerning the application of the proviso to s 6(1) of the Criminal Appeal Act laid down in Weiss and subsequent cases should be followed in determining this issue. Those principles were conveniently summarised by Bell P in Hamide in the following terms:
‘[94] Where what is being considered is whether a substantial miscarriage of justice (relevant in the present case by reason of the terms of the notice of appeal ...) occurred, Weiss at [39] sets forth three fundamental propositions that ‘must not be obscured’. These are:
‘[39] ... First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.’
[95] Without being prescriptive or exhaustive, the cases establish that in assessing whether there has been a substantial miscarriage of justice:
(i) the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict: Weiss at [43];
(ii) it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty (Weiss at [44]). This negative proposition states a necessary but not sufficient condition for applying the proviso; some errors can constitute a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable: Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28 at [38], citing Baiada; and
(iii) the terms of the proviso permit the appellate court to dismiss an appeal from a judgment of the court which gives effect to the verdict of the jury. The proviso does not allow the appellate court to exercise the function of the jury. In a case where a jury has not performed its function in some way (for example, where it has not performed its function of reaching a unanimous verdict), the terms of the proviso do not permit an appellate court to dismiss an appeal on the basis that it is satisfied of the guilt of the accused: Lane at [48], [54]; OKS v State of Western Australia (2019) 93 ALJR 438; [2019] HCA 10 at [36].’”

Consideration

Rule 4.15 of the Supreme Court (Criminal Appeal Rules) 2012 (NSW)

43. A preliminary consideration is whether the applicant requires leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). I note that the Supreme Court (Criminal Appeal) Rules came into force on 1 May 2021 and, accordingly, r 4 of the Criminal Appeal Rules (NSW) applied at the time of the hearing of this appeal. For ease of reference, I will refer to r 4.15 for the balance of the judgment.
44. The evidence that the applicant was a disqualified driver at the time of the offences was not objected to by counsel for the applicant at the time it was led. Although it appears from the exchange between counsel for the applicant and the trial judge extracted at [28] above that she had been taken by surprise by the questions that elicited the evidence, the defence had formally been on notice that the Crown intended to lead the evidence.
45. The Prosecution Notice that was annexed to the affidavit of Mr Chen was served by way of email sent by the DPP solicitor to Ms Burrows on the same day it was filed, being 16 April 2018. Annexed to the Prosecution Notice was the Crown Case Statement and a document titled “Trial Brief Index”. The Crown Case Statement, under the sub-heading “Police Pursuit”, noted: “At the time, the accused was disqualified from driving by Liverpool Local Court”. A footnote to the sentence provided the following further details:

“On 17 February 2016, [the applicant] was convicted of Police pursuit – non-stop-drive dangerously (H56417566) at Liverpool LC and sentenced to Imp: 7 months and disqualified for 12 months from ‘date of release’. He lodged a conviction and severity appeal to the District Court which was withdrawn on 11 March 2016. The RMS have him disqualified from 11 March 2016 to 2 March 2017.”

46. In compliance with ss 141(1)(a) and 142 of the Criminal Procedure Act, the Prosecution Notice noted had annexed to it, inter alia, the following documents:

“d) A copy of each document, evidence of the contents of which the prosecutor proposes to adduce at trial
All statements and documents proposed to be relied upon at this time by the prosecution have been served as part of the brief of evidence. The brief index (Annexure ‘C’) itemises material comprising the brief of evidence served to date.”

47. The “Trial Brief Index” included the following two items:

“36. RMS Certificate [the applicant]
37. RMS Certificate Cansever TOKSOZ”

48. The first item, the RMS Certificate of the applicant, which was shown to Detective Carter in the trial and marked MFI 5, is included in the Appeal Book. It indicated that the applicant was a disqualified driver and the period of disqualification. The second was the certificate that became Exhibit 10 in the trial, which was tendered into evidence without objection.
49. Also annexed to the affidavit of Mr Chen was an email dated 4 June 2018 from the DPP solicitor addressed to Ms Johns, who was instructing counsel for the applicant at the time the evidence was led. The email noted that the Crown and the applicant’s previous legal representatives had agreed that 10 named witnesses would be called. The Prosecution Notice had identified 44 witnesses to be called. The email stated in part:

“We propose to call the following witnesses:
...
For Pursuit and Arrest:
1. OIC Carter to produce
∙ Certificates under Road Transport Act
...
The above list was agreed by your client’s previous representatives.”

50. Accordingly, the defence was on notice before the trial commenced that the Crown intended to lead evidence of the applicant’s status as a disqualified driver at the time of the police pursuit and, having regard to the Crown Case Statement, it would seem that its relevance was as evidence of the applicant’s motive to not stop when directed to do so by police.
51. Counsel for the applicant’s inquiry as to the basis of the evidence being led suggests that she had not previously turned her mind to the issue of its admissibility. The Crown’s response to her inquiry was pre-empted by the trial judge who said that he presumed that the Crown had not intended to lead that evidence; that it was accidental.
52. The following day, when counsel for the applicant sought a discharge of the jury, the trial judge did not call upon the Crown to respond before refusing the application. Indeed, the only time that the Crown was called upon in relation to this issue at all was when the trial judge outlined the terms of the direction he proposed to give to the jury, to which the Crown agreed.
53. I note that it emerged in exchanges in the absence of the jury on the seventh day of the trial, 14 June 2018, by which time counsel for the applicant was being instructed by Ms Burrows, that she had not seen the Prosecution Notice and was unaware of its contents. She was also unaware that a Defence Response had not been served.
54. The respondent did not raise the issue of r 4.15 in respect of this ground, nor was it addressed by the applicant. As noted above at [39], the respondent stated that it had been open to the Crown to submit to the trial judge that the evidence was admissible as being relevant to motive, but that because the Crown chose to not put that submission, it must be treated as “irrelevant and therefore erroneously before the jury”.
55. The factors that tend against granting leave are that the defence was on notice of the evidence that the applicant was a disqualified driver and did not object to it when it was led. Factors that tend in favour of granting leave are that a discharge was sought, albeit the next day, and that although the defence was formally on notice of the evidence, counsel for the applicant had been personally unaware of it.
56. A relevant consideration as to whether leave should be granted pursuant to r 4.15 is whether the applicant would lose “a real chance (or a chance fairly open) of being acquitted” if leave is not granted: see Picken v R [2007] NSWCCA 319 at [20]- [21] per Mason P. Accordingly, I will return to the issue of r 4.15 after considering the merits of ground 1.

Whether the trial judge erred in failing to discharge the jury

57. An application of the principles summarised in Miller, in the passage reproduced by Bathurst CJ in Medich at [86] and cited above at [42], as to whether the trial judge should have discharged the jury, gives rise to the following observations.

(a) the fairness of the trial

58. The jury’s awareness that the applicant was a disqualified driver provided an alternative motive for him to not comply with the police direction to stop his vehicle, thus undermining his explanation as to why he sped off. The fact of his disqualification reflected adversely on his character.

(b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to ‘have been left vividly etched on the mind of the jury’

59. It would have been a difficult exercise, if not an impossibility, for the jury to put to one side the accepted fact that the applicant was a disqualified driver as a motive for him to have not complied with the police direction to stop, in their deliberations on count 3.

(c) the seriousness of the occurrence in the context of the contested issues

60. The disclosure of the applicant’s status as a disqualified driver was central to the issue of count 3 insofar as it served to demonstrate the applicant’s disregard for the road rules.

(d) the stage at which the mishap occurs

61. Although the evidence was admitted on the second day of the trial, counsel for the applicant did not make a discharge application until the following day. While the discharge of a jury is a significant decision which is not to be taken lightly, doing so at this relatively early stage of the trial is a factor that weighed in favour of the discharge application.

(e) the deliberateness of the wrongful conduct

62. The Crown asked the witness for the dates of the applicant’s disqualification, knowing that the reply would establish that the applicant was a disqualified driver at the time of the offending conduct. Accordingly, I find the conduct to have been deliberate.

(f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice

63. The direction given by the trial judge, reproduced at [33] above, was to disregard the applicant’s disqualification because it was irrelevant. His Honour observed that a period of disqualification from driving is not an uncommon penalty, thus minimising its potency as evidence of bad character. The direction did not squarely address the obvious inference that the jury would draw from the applicant’s disqualification, which was to provide a motive to commit the third offence charged. Indeed, it is difficult to imagine a direction that could have effectively done so, since identifying the danger would only attract more attention to it.
64. For these reasons, pursuant to the principles enunciated in Miller, I conclude that the trial judge erred in failing to discharge the jury.

Whether there was a substantial miscarriage of justice

65. I move to the next stage of the consideration of ground 1, which is to determine whether on the record of the trial as a whole there was a substantial miscarriage of justice resulting from the trial judge’s failure to discharge the jury. In Medich, Bathurst CJ said, at [94]:

“... the question of whether there was a substantial miscarriage of justice resulting from the failure to discharge the jury involves the consideration first, of whether the evidence properly admitted proved beyond reasonable doubt the accused’s guilt of the offence, and second, of whether there was no substantial miscarriage of justice irrespective of the Court’s view on that question: see Baiada Poultry at [29]; Lane v R (2018) 265 CLR 196; [2018] HCA 28 (‘Lane’) at [38] and the cases there cited; see also Kalbasi at [12], [15]-[16].”

66. A more detailed summary of the evidence as to count 3 is as follows. The driver of the unmarked police vehicle, Detective Senior Constable Perry, gave evidence that as he proceeded east along Bondi Road, he saw a vehicle travel west along Bondi Road and turn sharply to the left into Paul Street. As it did so, he identified the driver as being the applicant, who was being sought by police, and his car registration. Detective Perry then engaged in a pursuit of that vehicle.
67. The applicant’s vehicle turned right from Paul Street into Dalley Street, which is a dead end. The applicant drove over a nature strip at the end of Dalley Street which gave access to Council Street. He turned left into Council Street and headed south towards Bronte. The applicant’s vehicle travelled along Council Street at a speed in excess of 150kph and crossed to the wrong side, passing within 5m of a pedestrian who was crossing the road. At the intersection of what was described as Council Street and Bronte Road (apparently Carrington Road and Bronte Road), the applicant turned right into Bronte Road and drove north-west on the wrong side, “predominantly for the length of Bronte Road”. As they approached the shopping area of Bondi Junction, Detective Perry observed pedestrians moving away from the road. The applicant’s vehicle proceeded along Grosvenor Street into Grafton Street, which was described as a two-way road with a fenced median strip. The applicant drove on the wrong side of the road at a speed of around 140kph and then turned left through a red light onto Nelson Street, then along Oxford Street on the wrong side to York Street and into Syd Einfeld Drive, heading east. At that point, Detective Perry allowed another pursuing police vehicle to take the lead, and around then, the front tyre of the applicant’s vehicle burst, although it continued to be driven.
68. The intersection of Syd Einfeld Drive and Old South Head Road was backed up with traffic. As the applicant’s vehicle approached, it crashed between two cars, forcing its way through and turning left onto Old South Head Road. The applicant again drove on the wrong side of the road, turned right into Flood Street, left into Orr Street and left again into New Street which was a dead end, where his vehicle became wedged between a brick wall and a bus stop.
69. Detective Senior Constable Jennings gave evidence that he was in the front passenger seat of the vehicle driven by Detective Perry. Detective Jennings stated that he saw the applicant’s vehicle turning off Bondi Road, after which Detective Perry stated, “That’s him”, and the pursuit commenced.
70. Detectives Perry and Jennings gave evidence that they activated the lights and siren on their unmarked police vehicle at the outset of the pursuit. The lights were described by Detective Jennings as “on either side inside the windscreen and the rear of the vehicle as well as ... two sets of lights, one on either side”. He said that the windscreen lights were mounted at the top of the windscreen and flashed red and blue. Neither police officer was challenged on that evidence in cross-examination.
71. Senior Constable Southam gave evidence that he was the front passenger in a marked police vehicle that joined the pursuit on Bronte Road, with its siren and lights on. His evidence was that the applicant’s vehicle had come into Bronte Road from Birrell Street, before heading in the direction of Bondi Junction. He said that the applicant’s vehicle drove on the wrong side on Bronte Road and on Grafton Street, at which point it was travelling at “close to 100 kilometres an hour” in a 50kph zone. When the applicant’s vehicle turned into Syd Einfeld Drive, the marked police vehicle that Senior Constable Southam was travelling in took over as the lead police vehicle in the pursuit. Senior Constable Southam estimated that the applicant’s vehicle was travelling at about 150kph along Syd Einfeld Drive. When the applicant’s vehicle eventually crashed, Senior Constable Southam approached the vehicle with other police and arrested the applicant, who resisted arrest. Senior Constable Southam’s evidence was corroborated by evidence from a rear passenger in that vehicle, Constable Fielding.
72. Senior Constable Liddiard gave evidence that he was the driver of another marked police car that joined the pursuit from Bronte Road, with police lights and siren activated. His evidence was also that the applicant’s vehicle turned left into Bronte Road from Birrell Street.
73. A taxi driver gave evidence that while he was driving his taxi on Syd Einfeld Drive, he heard sirens. His vehicle was then clipped by another vehicle coming from behind that was travelling “very fast” through the intersection with Old South Head Road, being chased by “three, four” police cars.
74. The applicant gave evidence in the trial. His account was as follows. On the morning of 25 June 2016, from around 7:20am, he was in the Eastern suburbs to look for a place to rent and to visit a family friend at Rose Bay. He was there early because the night before he had taken cocaine, been up all night and was still “scattered”. At some point that morning, he had driven across to Redfern and purchased some items in a bag from a man “for a couple of hundred and ... some drugs”. The items included a necklace and a box with earrings, but he did not see what else was in the bag. The man placed the bag in the back seat of the applicant’s car. The applicant denied he had stolen the items. He said he had never been to Vaucluse, although he had driven past it. He said that other items located in his vehicle after his arrest that had been stolen from the Vaucluse residence, and foreign currency found in his wallet, had been planted by police.
75. At about 11:25am he was driving and noticed that “cops are everywhere” so was reluctant to make phone calls. He telephoned a real estate agent to organise an inspection of a property in Bondi and, whilst driving around the area waiting for the agent, a green car “came right beside [him]” in the traffic. Through the applicant’s window, which he had been lowered around 3 inches, he saw a male with a beard “pull out his weapon”, being a black Glock pistol. The male then stated to the applicant, “Get the fuck out’”. There was no one in the car with that male. The applicant, believing he was about to be “shot or killed”, “put [his] foot on the accelerator” and “took off”. The male was not in a police uniform and did not announce himself as a police officer; rather, he was bearded, in a “black hoodie jumper” and looked like one of the “Muslim boys in [his] area”, being people the applicant grew up with from around Auburn, Granville and Merrylands.
76. The applicant stated that he was “in a pursuit”. He said that “there was no sirens at all” at the beginning of the pursuit. He stated that the route he was alleged to have taken “never happened” and that he only remembered “going right into a dead end street, then onto a grass area”, after which he “turned left and then right onto a main road”. He recalled taking a U-turn at some point but did not know the names of the streets. He denied travelling near a shopping area, stating “there was no shops, just ... houses”. He denied driving on the incorrect side of the road, overtaking other vehicles or hitting any vehicles. He stated that he panicked after the firearm was drawn at the beginning of the pursuit and was unable to confirm the speed at which he travelled.
77. The applicant said, “there was only sirens on that main road”, which he marked on a map as being Old South Head Road. He stated that: “[a]s soon as I heard the sirens, I came to a stop very, very soon ... I wanted to stop somewhere where everyone can see me”.
78. When asked why he wanted to stop where everyone could see him, the applicant stated: “I was freaking out and I just wanted to be somewhere everybody could see me when I get arrested or whatever happens next”.
79. Once he became aware that he was being pursued by police, the applicant went “on top of the gutter, where everybody could see me”, and proceeded into a bus lane where he “got stuck”. Police officers then approached with firearms and yelled at him to get out of the vehicle. One officer with “a bat” began “smashing the window”. The applicant jumped into the front passenger seat in response. The rear right door opened, and an officer stated, “put your hands up”, which he did. As he began to crawl out of the vehicle, police officers pulled him to the ground and “[bashed] him for about a good minute ... or two”. The applicant estimated that around five or six firearms were drawn and directed to him.
80. It had been put to Detective Perry in cross-examination that on Bondi Road he had pulled up alongside the applicant, pointed a firearm to the applicant and said, “Get the fuck out”, which he denied. However, the propositions that Detective Perry was alone in the vehicle, that he had a beard at the time and that he had been wearing “a black hoodie”, had not been put to either him or Detective Jennings. In addition, the applicant’s account of the pursuit route, its exclusively residential nature and his assertion that he never travelled on the wrong side of the road or overtook other vehicles, had not been put to any prosecution witness.
81. In my opinion, the evidence established that the sirens and lights of all three police vehicles involved in the pursuit were activated from the time that each entered it. One of those vehicles did so from the outset of the pursuit and the other two did so from a point of the pursuit that, on the basis of a tendered map showing the route of the pursuit (“Exhibit 8”), would have been less than one-fifth of the distance into the pursuit. The applicant’s evidence, that he did not hear the sirens or otherwise become aware that it was police who were pursuing him until shortly before he crashed, is untenable. There was a considerable body of evidence as to the nature of the applicant’s driving during the course of the pursuit being reckless or at a speed or in a manner dangerous to others, including from a taxi driver.
82. The evidence of items stolen earlier that morning from the Vaucluse residence being located in the applicant’s vehicle was evidence of a motive for the applicant to not stop when directed by police to do so.
83. The effect of all of this evidence, which was properly admitted, is to prove beyond reasonable doubt the applicant’s guilt of count 3. If the jury had been unaware that the applicant was a disqualified driver at the time of the incidents, his conviction on count 3 was nevertheless inevitable. I do not consider that the wrongful admission of the evidence that the applicant was a disqualified driver was an error which constituted a substantial miscarriage of justice, irrespective of the inevitability of conviction.

Conclusion

84. Returning to the question of r 4.15, it is apparent that declining leave would not deprive the applicant of an opportunity for an acquittal. I would refuse the applicant leave to pursue this ground, on the basis that the questions that elicited the evidence said to have been wrongly admitted were not objected to at the time they were asked, although the defence had been on notice prior to that time that it comprised part of the Crown case against the applicant.
85. Accordingly, in relation to ground 1, I would refuse leave to appeal pursuant to r 4.15.

Ground 2: The trial miscarried when the Court prevented the applicant from calling an expert witness in his case

Relevant background

86. As noted above, the Prosecution Notice was filed and served on 16 April 2018 and the applicant did not file a Defence Response, contrary to s 141(b) of the Criminal Procedure Act, which obliged an accused person to “give notice of the defence response to the prosecution’s notice in accordance with section 143”. Section 143 relevantly provided:

“143 Defence response
(1) For the purposes of section 141 (1) (b), the notice of the defence response is to contain the following:
...

(b) the nature of the accused person’s defence, including particular defences to be relied on,
(c) the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue,

...”

87. Section 48 relevantly provided:

“148 Court may waive requirements
(1) A court may, by order, waive any of the pre-trial disclosure requirements that apply under this Division, but only if the court is of the opinion that it would be in the interests of the administration of justice to do so.
...”

88. Counsel for the applicant did not open at the outset of the trial or at the commencement of the case for the defence, so that the nature of the defence case, other than what had been put in cross-examination to some of the prosecution witnesses, was not known by the time the applicant gave evidence.
89. The applicant’s evidence in chief commenced on the fifth day of the trial, being 12 June 2018. The last question asked at the end of that day was:

“Q. At the time of this incident, were you taking any medication for any mental health issues?
A. I was taking – I believe it was called Zyprexa ... It’s for chronic schizophrenia OCD and all this other stuff.”

90. In the absence of the jury, counsel for the applicant said that the following morning she would make an application to interpose a witness who “has professional obligations elsewhere” and was “only available at 10am tomorrow”. After Court was adjourned, counsel informed the Crown that she would be calling a forensic psychiatrist, Dr Olav Nielssen. This was the first time the Crown was informed that any such evidence would be called in the defence case.
91. The following morning, the Crown indicated to the Court what it had been told by counsel for the applicant and said that it would oppose Dr Nielssen being called, on the basis of relevance. The trial judge indicated that he would deal with the issue “later”, preferring to continue with the evidence of the applicant. In further examination in chief, the applicant was again questioned about any medication he was taking at the time of the offences. He responded that he was also taking “Abilify” and that he could not recall if he had taken his medication that day.
92. At the completion of the applicant’s evidence that afternoon, the trial judge returned to the issue and was advised that Dr Nielssen had left the precincts of the Court but would be available again the following morning at 10am. The trial judge dismissed the jury for the day and considered whether the evidence was admissible. Counsel for the applicant framed the relevance of Dr Nielssen’s evidence in the following terms:

“[The] issue goes to the state of mind of [the applicant] at the time that [the applicant] began the pursuit and during the pursuit. It goes to his mental state, his forensic opinion as to his mental conditions that he has.”

93. Counsel said that she did not have a report from Dr Nielssen, but that she had conferenced him and she knew what his evidence would be, which she summarised as follows:

“... what he’s going to say, [is] that [the applicant] suffers from a particular type of schizophrenia and that Dr Nielsen [sic] said that he had spoken to [the applicant] about this issue of the pursuit, and it goes to the relationship between [his] ... mental state ... and the case that he seeks to put before the jury with respect to fleeing on the basis of fearing for his life or being shot.
...
[The applicant] does not exhibit similar signs that other people with schizophrenia exhibit. But where if he was ... placed in this position where he thought that a gun was put to him ... it’s quite possible that he would have been in a situation of trauma ... and that would go to some extent to explain his behaviour in it ...”

94. The Crown indicated that it would make an application for Dr Nielssen to give evidence on the voir dire, as no expert report or proof of evidence taken by counsel for the applicant in her conference with Dr Nielssen had been served.
95. The following morning, 14 June 2018, the Crown informed the Court that it no longer sought that Dr Nielssen give evidence on the voir dire, because a report by him had been served that morning.

Dr Nielssen’s report

96. In his report, dated 13 June 2018, Dr Nielssen stated that his findings were based on an interview with the applicant conducted on 13 February 2018 via Audio-Visual Link (“AVL”) at Parklea Correctional Centre and three interviews conducted in early 2013 and late 2015, all four of which were “in relation to previous matters”. Dr Nielssen stated that although he had read the Prosecution Notice and a transcript of the applicant’s evidence:

“We did not specifically discuss the circumstances of the police chase or his arrest, although I have viewed a brief video of what looks like him being kicked by a police officer and photographs of [the applicant’s] injuries.”

97. Dr Nielssen diagnosed the applicant as having a substance use disorder (in remission), chronic schizophrenia (in partial remission), obsessive compulsive disorder and a possible developmental disability arising from an acquired brain injury in infancy.
98. Dr Nielssen concluded that the applicant was suffering from chronic schizophrenia on account of his history of hallucinations of voices and his belief that he could read the thoughts of others, his positive response to antipsychotic medications and his presentation in early 2013 in which he was “labile in his mood, disorganised in his thinking and expressed persecutory delusional beliefs”. Dr Nielssen noted that:

“At the time of the interviews in 2015 and recently, [the applicant] reported that he continued to experience hallucinations of voices, which he recognised to be hallucinations ... at the time of the recent interviews he was comparatively calm, organised in his thinking and did not express any obviously delusional beliefs, despite not having had any form of antipsychotic medication or any other treatment for more than a year in 2015, and only intermittent adherence recently.”

99. Dr Nielssen made the diagnosis of substance use disorder on the basis of the applicant’s account of his past use of cannabis and stimulant drugs. The applicant reported smoking cigarettes at age 12 or 13 and cannabis soon after. He stated that he started taking ecstasy around age 14 or 15 and methylamphetamine within a year, and that he had never attempted drug rehabilitation.
100. The applicant reported suffering from a head injury as a child which he believed affected his memory and learning ability. Dr Nielssen stated that the applicant may have a development disability arising from his reported head injury, although “more detailed corroborative information would be required”. Dr Nielssen assessed the applicant’s cognitive function to be within normal limits, but noted that his reported brain injury might have contributed to impaired impulse control and mental illness.
101. In relation to the diagnosis of obsessive compulsive disorder, Dr Nielssen noted that the applicant reported having a history of “intrusive unwanted thoughts about contamination”, and performed anxiety reducing rituals such as compulsive cleaning of his cell. Dr Nielssen stated that such symptoms are common in schizophrenia and are often triggered by brain injuries and the use of methylamphetamine.
102. The Crown objected to “any evidence” by Dr Nielssen being admitted, on the grounds that the defence had not complied with ss 141(1)(b) and 143 of the Criminal Procedure Act and s 135 of the Evidence Act 1995 (NSW), the latter of which provides as follows:

“135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party ...”

103. The Crown explained:

“Admitting the expert evidence of Dr Nielsen [sic] this late in the trial is unfairly prejudicial to the prosecution case. The prosecution simply cannot get any evidence of its own expert in the short time that might be available to it if your Honour were to, for instance, grant an adjournment ... A psychiatric expert would have to go out to the prison and make an assessment of [the applicant]. Just getting an expert is going to be difficult enough ...”

104. The Crown observed that although the report had been requested by the applicant’s solicitor by letter dated 8 June 2018, which was four days after the trial had commenced, it was based on an interview held in February 2018, suggesting that it could have been sought well before the start of the trial.
105. Counsel for the applicant made an application pursuant to s 148(1) of the Criminal Procedure Act seeking that the trial judge waive the pre-trial disclosure requirement “in the interests of the administration of justice”, in the following terms:

“... the administration of justice would be assisted by the evidence of ... Dr Nielsen [sic], who can shed light upon [the applicant] and give a professional opinion as to his ... psychiatric background. That would assist, in my submission, the jury to have a more well-rounded viewpoint as to what it was happening with [the applicant], rather than [the applicant] just telling the jury himself that he is on medication for schizophrenia. It’s left in the state of affairs where the jury, as the tribunal of fact, have somebody who, it appears from Dr Nielsen’s [sic] report, is suffering from some significant mental conditions. And in fact also has brain impairment from when he was a child.
That reliance upon the evidence of someone in those circumstances being the only evidence that’s relied upon to assist the jury to understand what was going on with respect to [the applicant] at the time, and give them a professional viewpoint would be, in my submission, in the interests of the administration of justice for an accused to have a fair trial and for the jury to have a proper basis upon which they could come to a conclusion with respect to the interaction of the psychiatric condition of [the applicant] and his actions on that day.
HIS HONOUR: First of all, you might need to address what evidence it is that you propose to adduce from Dr Nielsen [sic] ... So, you need to outline clearly what the evidence is that you intend to adduce.
[Counsel for the applicant]: So, the evidence would be specifically with respect to what mental conditions that he has, such as the schizophrenia and also the brain impairment. He also has a history of anxiety.
HIS HONOUR: He refers to that as a possible disability. That is, the brain impairment, not as being in fact an issue.
[Counsel for the applicant]: Sorry, possible development disability. But he does have an acquired brain injury. So, he does have that, and just how the psychiatric diagnoses that [the applicant] has, how that affects his functioning, how it may have impaired him with respect to his judgment on that day.
HIS HONOUR: In what respect?
[Counsel for the applicant]: With respect to his reactions, with respect to the way that he dealt with the situation within the pursuit, and how any medication that he may or may not have been on at the time may have affected that situation. So that is basically it, and then it would be up to the jury to come to their own conclusion with respect to linking the evidence of Dr Nielsen [sic] with [the applicant’s] evidence as to the way that he behaved on that occasion, and the reasons why – whether the behaviour was, in the circumstances, through the eyes of [the applicant], reasonable in the circumstances or not ...”

106. After discussion between the parties as to the nature of Dr Nielssen’s evidence, the trial judge stated:

“[Dr Nielssen] hasn’t provided any report in respect of having read [the applicant’s] evidence ...
The difficulty I have, Mr Crown, is that I don’t wish to deprive [the applicant] of the benefit of expert evidence in relation to a relevant issue. Which is his state of mind at, as I see it, the commencement of the police pursuit. In view of his evidence of being confronted with a Glock, presumably being produced through the window of an oncoming vehicle. That is the driver’s window ...
There are several ways of dealing with it. One is to simply abort the trial and require the defence to do its job property for a change ... I have already raised the possibility of Dr Nielsen [sic] being required to give evidence on a voir dire as to the admissibility of his evidence in the trial ... it would really be a Basha inquiry. ...
The third possibility, Mr Crown, is that ... we simply proceed with Mr Nielsen [sic] being called to give some evidence to the extent that he can.”

107. The trial judge resolved to proceed by allowing Dr Nielssen to be called to give evidence but was then informed by counsel for the applicant that, following further inquiries, he was not at Court and, contrary to what the trial judge had previously been told, he had not been in the Court precinct at all during the trial. The Crown opposed a proposal by the defence that Dr Nielssen give evidence immediately by way of AVL, because he wished to have an opportunity to conference Dr Nielssen. The applicant said that Dr Nielssen would be available to give viva voce evidence the following afternoon, being Friday 15 June 2018, but the jury had been advised that day was to be a non-sitting day, so that the earliest possible date for Dr Nielssen to give evidence was the following Monday. There were no other witnesses to be called in the defence case and the Crown was ready to commence his address. The Crown renewed its application that the evidence should not be admitted, “because of the delay that it’s causing”.
108. The trial judge delivered an ex tempore judgment that afternoon, refusing the application to adjourn the proceedings so that Dr Nielssen could be called. His Honour briefly outlined the procedural history of the matter, noting the “plethora” of orders sought on behalf of the applicant to vacate the trial dates. The trial judge noted that, in relation to Dr Nielssen’s evidence, the defence had failed to comply with the mandatory pre-trial disclosure provisions of the Criminal Procedure Act and that the report had only been served that morning.
109. The trial judge also noted that:

“Despite having been provided with the Notice of the Prosecution case in relation to the present trial matters and [the applicant’s] evidence Dr Nielsen [sic] appears to be offering opinions relevant to some entirely unrelated matter ...”

110. His Honour accepted that Dr Nielssen would be available to give evidence via AVL the following day, however:

“The Court still faces the prospect that any evidence from Dr Nielsen [sic] will not be in accordance with any statement that has been previously served on the prosecution, that is, the prosecution will be taken by surprise, and that in itself may require the prosecution to seek to rebut Dr Nielsen’s [sic] evidence by obtaining its own expert evidence which could only be achieved, it would seem to me, by significant adjournment into the course of next week.
Indeed, it may well be that it might lead the Crown to make an application to abort the trial in order to deal with the evidence, although that cannot be determined in the absence of having heard the evidence of Dr Nielsen [sic].
...
I do not propose to adjourn the proceedings until tomorrow so that Dr Nielsen [sic] may give evidence of an unknown nature or relevance in the circumstances where the reason that he has not been available is entirely the result of the failure of the defence to have any regard for their obligations.”

111. The defence did not call any further witnesses, and counsel then addressed.

Applicant’s submissions

112. The applicant submitted that any mental illness the applicant was suffering which may have affected or distorted his perception of what was happening during the pursuit was relevant to a fact in issue, being the element of the offence in s 51B(1)(a) of the Crimes Act concerning his awareness that police required him to stop the vehicle. The applicant submitted that Dr Nielssen had consulted with him over a number of years and, had Dr Nielssen been called as an expert witness, he would have given evidence as to “the mental health illnesses suffered by [the applicant] at the time of the alleged offences”.
113. In relation to the failure of the defence to comply with s 141(b) of the Criminal Procedure Act, the applicant referred to the limited opportunity that counsel had to prepare her brief and “the failure of the Court and the Crown to put the Defence on notice that they have not met any past requirements made in their absence”.
114. The applicant submitted that there were alternative ways in which the defence could have been accommodated without causing unfair prejudice to the Crown. As to how the Crown could call its own expert evidence if it wished to do so without prior notice of the issue, the applicant submitted that the trial judge could have allowed “a short adjournment (1 or 2 days) to allow the Crown to obtain another psychiatric assessment”.
115. The applicant stated:

“The requirement to wait 24 hours to receive that evidence could and should have been facilitated. The relatively short delay and the Crown’s enthusiasm to start his closing addresses were neither a justifiable basis for the Court to prevent [the applicant] from calling a key witness in their criminal trial. As a result of this decision the trial miscarried and [the applicant] has not received a fair trial.”

116. On the hearing of the appeal, counsel for the applicant conceded that it is still not known what Dr Nielssen’s evidence would have been, had he been called to give evidence in the trial.

Respondent’s submissions

117. The respondent submitted that although the applicant sought to explain his counsel’s lack of awareness as to the Prosecution Notice and the failure to serve a Defence Response on the limited time she had to prepare the trial, no challenge had been made to the trial judge’s refusal of the adjournments sought from him at the trial’s outset. Further, it was the responsibility of the fresh trial counsel and solicitor to check that the defence had previously complied with their mandatory disclosure obligations.
118. The respondent submitted that the applicant had not demonstrated that the trial judge’s exercise of discretion in refusing the application for an adjournment in order to call Dr Nielssen miscarried in the sense of House v The King (1936) 55 CLR 499 at 504-505. In any event, the applicant had failed to demonstrate that a miscarriage of justice occurred as a result of the fact that evidence from Dr Nielssen was not called in the trial.
119. The respondent noted that the applicant had still not produced a report of what Dr Nielssen’s evidence would have been. The respondent referred to Amagwula v R [2019] NSWCCA 156, a conviction appeal in which the applicant, who had been unrepresented at trial, complained that the trial judge had failed to arrange for a particular person to attend court to be made available for examination and cross-examination. In Amagwula, Basten JA stated, at [54]:

“If the appellant had provided further evidence which he had been unable to call at trial, this Court would have been required to consider whether, taken with the evidence called at trial, there was a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant. Mason and Deane JJ in [Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 2] identified the requisite criterion as there being ‘no significant possibility that the unavailability to the applicant of the new evidence at the time of the trial had resulted in a miscarriage of justice in the relevant sense.’ The issue in Gallagher was whether a possibility of a different outcome would suffice, or whether a likelihood was required; the possibility test was recently affirmed in a slightly different statutory context in Van Beelen v The Queen [(2017) 262 CLR 565; [2017] HCA 48 at [75]]. The point for present purposes is that the allegation of miscarriage does not reach the stage of assessing the possible effect of evidence which had been unavailable at trial ...” (footnotes omitted)

Consideration

120. Expert evidence of the applicant’s mental health at the time of the pursuit was said by the applicant’s counsel at the trial to be relevant in some way to whether the jury could be satisfied that the applicant, in modified terms of s 51B(1)(a) of the Crimes Act, knew, ought reasonably to have known, or had reasonable grounds to suspect that police officers were in pursuit of his vehicle and that he was required to stop his vehicle.
121. The applicant’s account in his evidence was that the pursuit came about because of an interaction between him and Detective Perry, that Detective Perry denied had occurred. The pivotal significance of this allegation by the applicant was the subject of an observation by the trial judge in his summing up:

“Whatever you make of [the applicant’s] initial evidence of seeing a ‘Muslim boy’ with a Glock pointed at him, if you do not accept that explanation, then of course there can be no issue of self-defence at all. If you do accept that [the applicant] believed that Officer Perry was one of the ‘Muslim boys’ then pointing a gun at him through the window of a car, and that this was a threat to his life, then of course you might think that he had some justification in speeding off, and indeed, maybe some justification in self-defence of driving at times in a manner dangerous.”

122. However, Dr Nielssen’s report makes no reference to the differing accounts between the applicant and Detectives Perry and Jennings of this key event. Indeed, it would appear that Dr Nielssen was not provided with copies of the transcript of their evidence, only of the applicant’s evidence.
123. Dr Nielssen’s only reference in his report to the applicant suffering hallucinations is to hallucinations of voices and him being aware at the time that they were hallucinatory rather than real. Accordingly, there would appear to be little scope for Dr Nielssen to have provided an opinion that the applicant’s account of the interaction between him and Detective Perry, in which Detective Perry pulled out a pistol, was an hallucination. That being so, the applicant has failed to demonstrate that Dr Nielssen’s expert evidence would have been relevant to a fact in issue.
124. In any event, this Court does not have evidence of an expert opinion of Dr Nielssen to assist it to understand what his evidence would have been, if he had been called to give evidence in the trial. In those circumstances, the applicant has failed to discharge its onus to demonstrate that a miscarriage of justice was occasioned by the trial judge’s refusal to adjourn the proceedings so that Dr Nielssen could give expert evidence.
125. I would add that it is quite unrealistic to expect that the Crown, or the defence for that matter, could obtain a forensic psychiatric opinion within one or two days and have the psychiatrist immediately available to give evidence. There is a practical purpose behind the legislative provisions that mandate pre-trial disclosure by both the Crown and defence, as is demonstrated by this case.
126. For those reasons, in relation to ground 2, I would refuse leave to appeal.

Ground 3: The trial judge misdirected the jury when answering jury question MFI 8 which asked whether they could find the applicant not guilty in certain circumstances

Relevant background

127. According to the applicant, the pursuit ended when he realised he was being pursued by police on Old South Head Road, which he termed “the main road”. His evidence was as follows:

“Once I got onto that main road, at the end of that road, I realised the police sirens. Once I realised police sirens, I then went on top of the gutter, where everybody could see me. So I thought, you know, ‘Now there's police’. I was a bit comfortable with what was going on. As I went into the bus lane, I went in the middle of the bus thing, so it got stuck.
...
As soon as I heard the sirens, I came to a stop very, very soon, but I wanted to stop somewhere where everybody can see me, like a crowd, and where I stopped as a massive amount of people there ... I was freaking out and I just wanted to be somewhere everybody could see me when I get arrested or whatever happens next.
...
Then when I heard the sirens, I thought, ‘Wait a second,’ now I realised it was police, then I thought, ‘I have to stop somewhere and then let a crowd see what’s going to happen as I’ve seen a lot of things happen on TV with police. And if you really want me to say in my area, that’s the kind of things that happens.’”

128. Following counsels’ addresses, the trial judge received a jury note, marked MFI 8, which read as follows:

“Your Honour, am I allowed to say not guilty if in the pursuit eventually later on [the applicant] saw the police car. By later on I believe at the or towards the end of the pursuit”.

129. The trial judge read the note to the parties and stated that he would deal with it in the course of his summing-up, which commenced later that day, Friday 15 June 2018. On the Monday morning, by which time the note had not yet been dealt with by the trial judge, the following exchange between counsel for the applicant and the trial judge took place in the absence of the jury:

“[Counsel for the applicant]: With respect to the note that the juror sent, your Honour ... regarding whether he or she could find [the applicant] guilty or not guilty at a certain time with respect to the pursuit. ... [what] would your Honour be intending to say with respect to that particular issue?
HIS HONOUR: Do you have some suggestions as to what I should say ...?
[Counsel for the applicant]: The suggestion that I would have, your Honour, would be that that they could find [the applicant] not guilty if they found that [the applicant] acted in self-defence.
HIS HONOUR: Yes ... I intend to give them instructions about self-defence ...”

130. Counsel for the applicant submitted to the trial judge that the applicant’s evidence that he has “seen a lot of things happen on TV with police” and “if you really want me to say in my area that’s the kind of things that happens” raised self-defence in respect of the applicant failing to stop immediately upon realising that the police were pursuing him and directing him to stop:

“[Counsel for the applicant]: ... then if they found it reasonable in the circumstances through looking from [the applicant’s] viewpoint, but looking at it from the objective subjective test, that they could find him not guilty in those circumstances but depending on what they considered to be reasonable in the circumstances, looking through the eyes of [the applicant].
...
HIS HONOUR: I don’t see that as raising an issue of self-defence in relation to the police ...”.

131. The trial judge continued with his summing up, in the course of which he said:

“... if you were to find that, if at any time during the course of the pursuit, [the applicant] became aware that it was not the ‘Muslim boys’ who were after him, and hence he was not about to be shot by them, then if he heard the police vehicles’ sirens - and you’ll recall that for part of the chase there were three vehicles in pursuit, all of whom had their sirens and lights on - so if he heard the sirens and lights at some stage and realised that it was police that were following him rather than the ‘Muslim boys’ from the west, then of course - there is no dispute that he was driving the vehicle - and if he knew that the police were in pursuit of the vehicle and that they were requiring him by way of that pursuit, the sirens and lights, to stop the vehicle and he then failed to stop the vehicle, and then drove the vehicle in a manner dangerous to others - that is, after that realisation of knowing it was the police and that he was required to stop the vehicle, if he then drove the vehicle in a manner dangerous to others, that is the offence.
So ladies and gentlemen, it all depends on what you make of the evidence of [the applicant] in relation to the initial contact or sighting, what occurred at that point, and what you make of his evidence as to when he realised that it was the police, because he did say towards the end that he actually realised that it was the police who were chasing him. So ladies and gentlemen, I hope that assists that member of your jury who wrote the note, ‘Am I allowed to say not guilty if in the pursuit eventually later on he saw the police car? By ‘later on’ I believe at or towards the end of the pursuit.’ Certainly, if he was engaging in escaping from the ‘Muslim boys’ and never realised that it was the police that were following him and trying to get him to stop his vehicle, then of course he would not be guilty of an offence because he has to have realised at some point, for it to be an offence, that it was the police that were in pursuit of him, and that he was required to stop, and then failed to stop as required and then drove in a manner dangerous to others. So if he had never realised, although his evidence is that he did eventually realise it was the police, if he had never realised that it was police that were pursuing him then he might have committed another offence of dangerous driving, but he is not charged here with dangerous driving in relation to a non-police chase.”

132. No further direction was sought by either party on this issue.

Applicant’s submissions

133. The applicant submitted that the trial judge’s response failed to address the question posed by the jury note. Although the juror had specifically queried whether a verdict of “not guilty” was appropriate if the jury accepted that the applicant later realised he was being pursued by police, the trial judge’s response was in terms of the applicant never realising he was being pursued by police. The applicant submitted that the appropriate response was to give the jury three alternative scenarios. The first was that the appropriate verdict for count 3 would be “not guilty” if the jury concluded that the applicant realised, at a point during the pursuit, that it was police who were pursuing him and “he then stopped the vehicle and did not continue to drive in a manner dangerous”. The second was that, if the applicant did not then stop and “continued to drive in a manner dangerous to others”, the appropriate verdict was “guilty”. The final scenario was that:

“... if [the jury] decide that it was only at the end of the pursuit that [the applicant] realised it was police, then [the jury] could say [the applicant] is not guilty to the charge.”

Respondent’s submissions

134. The respondent submitted that leave should be refused pursuant to r 4.15 as no further direction was sought by the applicant following the trial judge’s response to the jury note. However, if leave is granted, the respondent submitted that the trial judge’s response to the note appropriately focussed on the elements of the offence.

Consideration

135. The applicant’s complaint was that the trial judge failed to address the reference in the jury note to the situation where the applicant realised, at or towards the end of the pursuit, that those pursuing him were police. The applicant’s submissions referred only to the second paragraph I have extracted from the trial judge’s summing up at [131] above. When read in isolation, that paragraph conveys the concern expressed by the applicant. However, the preceding paragraph expressly addressed the situation posed in the jury note and assisted the jury with the relevant legal framework in which to consider the evidence of the applicant and police as to what the applicant did, including the manner in which he drove, from Old South Head Road to the point at which his vehicle came to a stop.
136. The first two scenarios posed by the applicant are consistent with the trial judge’s directions to the jury in the first extracted paragraph. The third scenario, to the extent I understand it, is simply incorrect as a proposition of law in the context of the facts of this case.
137. For those reasons, in relation to ground 3, I would refuse leave to appeal pursuant to r 4.15.

Ground 4: The summing up was unbalanced and created a substantial risk that the jury were persuaded of the applicant’s guilt by the trial judge

Background

138. The Crown addressed the jury on 14 June 2018 and the defence did so the following day. Both addresses were relatively brief. Following the defence address, the trial judge and Crown expressed concerns as to five submissions that had been made by counsel for the applicant in her address. The trial judge indicated that he intended to deal with them during the course of his summing up.
139. The trial judge commenced his summing up that afternoon and continued into the next morning. His Honour gave directions on self-defence, and then summarised the respective cases on the pursuit, first referring to the Crown case and then describing the applicant’s account of the route taken. The trial judge then said:

“You have heard all of the police officers - that is, those who were involved in the pursuit - give evidence about the course that was followed and the various acts that were done by [the applicant] in terms of speed, driving on the wrong side of the road, causing cars to have to evade him, and of course colliding with the vehicles at the intersection of Syd Einfeld Drive and Old South Head Road before finally passing through the park at the end of New Street, and being forced to in effect turn left because of the guardrail, once he came back out onto the footpath of South Head Road and then jamming his vehicle in between the bus stop and the brick wall.
[The applicant’s] version of the course that he took is so fundamentally different to that which the police officers said he took, but it is a version which was required to properly put the defence case, to be put to each of the police officers who gave evidence as to what they saw during the course of the pursuit. They were not cross-examined at all about the course of the pursuit, and it is a fundamental principle in a criminal trial that if the defence case is contrary to the prosecution case, or the prosecution is contrary to the defence case, that the contrary case should be put to the witnesses who give evidence that is not accepted. There was, as I said, no cross-examination of officers, any officer, as to the different course as marked in Exhibit K4. That is a matter for your consideration.”

140. When the trial judge came to summarising the parties’ cases, he summarised the defence case as follows:

“As you know, the defence case is in some ways rather simple and easy to state. That is, that [the applicant] was in the Eastern Suburbs looking for accommodation for himself and his girlfriend, that at no time did he attend or break into the premises, that there is no fingerprint or DNA evidence located at [the premises] that identifies him as being the person that broke into the premises and stole items.
Having been in the Eastern Suburbs looking for accommodation, he travelled to an unspecified street somewhere in the vicinity of the Block in Redfern and purchased for $200 odd and an unspecified quantity of an unspecified value of cocaine from an unnamed person, whose name he declined to state, a bag of what you now know to be stolen property in circumstances where all he had seen of the contents were the sapphire and diamond earrings and the two strands of pearls, freshwater and cultured pearls. He was then again back in the Eastern Suburbs area looking for accommodation for himself and his girlfriend, when, travelling upon Bondi Road at the intersection with Paul Street, he observed the driver of another vehicle pointing a Glock at him and interpreted that person as being a ‘Muslim boy’ from the west, and that what he did thereafter was of necessity in the sense of needing to defend himself from the prospect of being shot by an enemy of some nature. He didn’t say he particularly recognised the person he said was pointing the Glock at him as being someone he knew, who he might expect to want to shoot him, just that he identified him from the fact that he had a beard. So thereafter what he did, according to the defence case, was react to the prospect of being shot.”

141. The trial judge then addressed 10 issues of concern arising from the address of counsel for the applicant. Whereas the above summary of the defence case occupied one page of the transcript of the summing up, the corrections are the following 13 pages, out of a total of 57 pages. The trial judge then again summarised the defence case:

“Now you may think that I have been somewhat critical of [counsel for the applicant’s] closing address. The Crown does not get another address in order to deal with these issues and it has been necessary for me to refer to these matters because in my view there were a number of matters as I have taken you to which were not accurate reflections of the evidence. Nonetheless you must consider all of the submissions made by [counsel for the applicant] and take them into account when you retire to consider your verdicts.
...
However the defence case is in short that he travelled to the eastern suburbs to find accommodation for himself and ... his girlfriend, that having done so for some period of time, he attended premises in Redfern, where for several hundred dollars and an unknown quantity and value of cocaine supplied by him to someone, unidentified, he obtained what he only saw as being the sapphire and diamond earrings and the two strands of pearls and a bag filled with other material, that he did not put the - I think it was the Ilford box - under the driver’s seat at the back as you can see in the foot well or any other item there.
Having bought this property from the unidentified person, he then returned to continue looking for accommodation, when during the course of that, prior to any inspection of the premises that may have been going to occur that day, he observed what he took to be a Muslim boy from the west pointing a Glock at him at the intersection of Bondi Road and Parry Street, and he then as a matter of self defence took off. Now perhaps I have not done full justice to the defence case, but that in a nutshell appears to be what it is.
On the other hand, you have the Crown case ...”

The trial judge then briefly referred to the Crown case, without any qualification of it.

142. Eight of the 10 concerns involved misstatements or misleading summaries of evidence by counsel for the applicant in her address to the jury, some of which were, in my opinion, egregious. As an example, counsel for the applicant referred to the evidence of a neighbour of the property that was broken into, as follows:

“Now, well, what did [the neighbour] see? She saw a man putting stuff into a boot. She said that she had a conversation with the man. Now she says specifically ‘there were no weird hairdos and no tattoos’. So, you might think that the first thing that you see when you see [the applicant], because you’ve seen him, is that he does have some tattoos on his face. So, [the neighbour] who spoke to this individual said that that male never had any tattoos and he was putting stuff in the vehicle.
... So, if anybody may have been the person, it may have been that person at the time that this incident was going on, but it wasn’t [the applicant]. It was someone else. Who was that person? We don’t know, but it wasn’t [the applicant].”

143. The evidence from the neighbour was that she first heard the alarm at about 8:30am and then after some “30 to 40 minutes”, she went for a walk to find out where it was coming from. The evidence was that the alarm had motion sensors and that they were activated between 8:33am and 8:38am, leading to an inference that the intruder had left the premises by 8:38am, which therefore would have been between 22 and 32 minutes before the neighbour set out for her walk. When the neighbour got to the residence in question, she found that a side glass door was shattered. As she walked away, she saw a man 10m from the house, “having a look in” his car boot; not putting things into it. She spoke to him to confirm that Triple Zero was the correct phone number to call in an emergency. He confirmed it was the correct number, and she rang it. In his summing up, the trial judge reminded the jury of the submission of counsel for the applicant and then brought this evidence to the jury’s attention.
144. In her address, counsel for the applicant had criticised the Crown for not calling more witnesses than it did. She said, for example:

“Not one witness came here with respect to handling exhibits; not one witness came here with respect to guarding the crime scene, not one. So, is he expected to cross-examine witnesses that don’t turn up?”

145. Before the trial, the solicitor for the applicant had notified the Crown that only 10 of the 50 witnesses on the Crown witness list annexed to the Prosecution Notice were required. As noted at [49] above, the solicitor who appeared in the trial instructing counsel for the applicant was advised on 4 June 2018 of this prior agreement. The solicitor did not dispute at that time that the agreement still applied, nor did she file a Defence Response. It is apparent that the continuity of exhibits had not been identified before the defence address as an issue and witnesses of that nature had not been requested. The trial judge advised the jury during the course of his summing up that the reason that these witnesses had not been called was because of a prior agreement between the parties that the evidence was not in dispute.
146. Another example of an issue of concern raised by the trial judge concerned a complaint by counsel for the applicant of an absence of forensic examination. The evidence was that entry had been gained to the Vaucluse residence by smashing a glass panel in a door with a brick, which was found nearby. Counsel for the applicant said to the jury:

“... if you’re investigating that type of a crime you might think to yourself, well, why wouldn’t he go and get the brick examined. So, it’s no use saying that there’s no DNA when the brick wasn’t examined. Why wasn’t it examined, you might ask yourself why? Is it poor policing? What is it? No other DNA or prints at the scene, nothing.”

147. The trial judge directed the jury as follows:

“There is no evidence before you in relation to the circumstances in which DNA or fingerprints may be left by a particular person on any particular form of surface. You should not assume, simply from your knowledge, the unrealistic CSI shows on TV that every time someone touches something, they leave either a fingerprint and/or DNA. The fact is, and it is not controvertible, that there was no DNA of the accused located at [the premises] and indeed there is no evidence of anyone else’s DNA being located at those premises. And there is no evidence before you as to whether a brick in particular is a suitable surface from which one might recover, depending on how it was handled, DNA or a fingerprint.”

148. The trial judge also directed the jury that the manner of the arrest of the applicant, which his Honour said, “may have been done in an entirely more gentle fashion”, was not relevant to the charges he faced.
149. At the conclusion of the summing up, the only complaint by counsel for the applicant as to the summing up was in relation to this last point. She submitted that the violence exhibited by police when arresting the applicant was relevant to the issue of self-defence, since it gave credence to his evidence that he feared he would be assaulted if he pulled over when he realised he was being pursued by police. The trial judge responded that “the fact that it did occur can’t be relevant” and declined to re-direct the jury on that point.

Applicant’s submissions

150. In written submissions, the applicant characterised the part of the summing up comprising the trial judge’s corrections in the following way:

“... the judge [engaged] in the presentation of counter arguments to each of the points made by Defence counsel in her closing. Whilst the Crown raised a couple of matters after the closing address, the Crown did not raise every single aspect of the Defence case as problematic and had not sought any re-directions on all of these matters.
...
It is submitted that the ... counter arguments presented, not only were outside of the judge’s role in summing up in a criminal trial, they had also amounted to a presentation of arguments to persuade the jury of the accused guilt and were unfair. They clearly amounted to a Crown address in reply and in particular were detrimental and unfair to the accused where the trial judge raised arguments outside of the Crown’s address. Not only removing the accused person’s right to ... have the last say in a jury trial before summing up, but presenting new arguments of which the accused had no ability to then respond.
...
The provision by the trial judge of counter arguments to at least 10 key points made by Defence Counsel in their closing, amounted clearly to an exercise in persuading the jury of [the applicant’s] guilt. It was not a summary of the Crown’s closing address, it had the qualities of what one might describe as a quasi-Crown closing address, simply in reply.
Regardless of the accuracy or cogency of the arguments made, such opinions should not have been expressed by a trial judge as part of the summing up in a criminal trial. It is submitted that it should not matter that the statements may have been 100% accurate, it is argued that they should never have been made.
This process undertaken in the summing up was unfair to [the applicant] and has resulted in a miscarriage of justice. In relation to this ground, the convictions should be quashed and a new trial ordered.”

Respondent’s submissions

151. The respondent submitted that a trial judge has a duty to ensure fairness to both parties by, on occasion, correcting inaccurate or misleading submissions in closing addresses, relying upon the judgment of the plurality in McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 (Bell, Keane, Gordon and Edelman JJ) at [54]:

“The present case affords another example of an appropriate occasion for judicial comment, in that fairness required that the trial judge correct the impression mistakenly left by the plainly untenable suggestion by the appellant’s counsel to the jury that the appellant’s online accounts were evidence that the appellant was a successful gambler. A correction of this kind, to correct errors of expression or errors that might otherwise adversely affect the jury’s ability to decide the case fairly on the merits, is plainly not objectionable.”

152. The respondent submitted that all of the corrections made by the trial judge were necessary and had been “largely canvassed” in the exchange immediately after the address by the counsel for the applicant. The respondent quoted from McKell at [3], submitting that, when read as a whole, the summing up did not “add to the force of the case for the prosecution or the accused so as to sway the jury to either view”. As no redirection had been sought, leave pursuant to r 4.15 should not be granted. Alternatively, the ground should be dismissed.
153. The responded submitted that two of the corrections, being the absence of evidence as to whether the brick was suitable for a DNA or fingerprint examination, and the evidence of the neighbour, were of no consequence since the applicant was not convicted of count 1.

Consideration

154. The address by counsel for the applicant presented the trial judge with a dilemma, in that many of the submissions made as to the evidence either misrepresented it or were simply incorrect. The manner in which the trial judge responded to that challenge was to remind the jury of the terms of each such submission and then forensically dismantle it by referring to the actual evidence or aspect of trial procedure, so that the reason that it should be disregarded was apparent. The inevitable effect of this process from the perspective of the jury would have been to affect their view of the reliability of what they were told by counsel for the applicant and the regard they would have for the defence case as a whole.
155. In those circumstances, it was particularly important that when the trial judge came to summarise the defence case, he did so in neutral terms, without any diminution. On both occasions that the trial judge summarised the defence case, he failed to do so. Intended or not, the use of adjectival qualifications and comments beyond a plain restating of the defence case conveyed scepticism at best, and ridicule at worst, as is evident in the below extracts of the trial judge’s summing up:

“... an unspecified street somewhere in the vicinity of the Block in Redfern and purchased for $200 and an unspecified quantity of an unspecified value of cocaine from an unnamed person whose name he declined to state, a bag of what you now know to be stolen property in circumstances where all he had seen of the contents were the sapphire and diamond earrings and the two strands of pearls, freshwater and cultured pearls.” (emphasis added)

156. In relation to the driver who allegedly pulled out a pistol, the trial judge stated:

“He didn’t say he particularly recognised the person he said was pointing the Glock at him as being someone he knew, who he might expect to want to shoot him, just that he identified him from the fact that he had a beard. So thereafter what he did, according to the defence case, was react to the prospect of being shot.” (emphasis added)

157. Read as a whole, the summing up lacked balance. It was unnecessary for every error made by counsel for the applicant to be corrected. An example is counsel for the applicant stating: “There was no independent evidence from ... red light cameras”, which drew a half-page correction in the summing up, being in essence a reminder to the jury that the evidence was that the pursuit only went through one red traffic light, so that there was only one opportunity to trigger a red-light camera.
158. Although the applicant was not convicted of count 1, he received a special verdict, meaning that the jury had determined that the applicant either stole the property or received it. In that sense, the corrections made by the trial judge concerning the forensic testing of the brick and the neighbour’s evidence are relevant to that conviction.
159. The Browne v Dunn (1893) 6 R 67 direction given by his Honour concerning the failure of counsel for the applicant to put the applicant’s version of the pursuit route to the police witnesses, extracted at [139] above, although correct, should have been accompanied by alternative explanations that could have been canvassed beforehand with counsel for the applicant and the Crown: see RWB v The Queen (2010) 202 A Crim R 209; [2010] NSWCCA 147 per Simpson J at [101], [116].
160. The case against the applicant on the special verdict and on count 3 was strong, if not overwhelming, and the applicant’s version of events would stretch the credulity of any jury. It is often those matters with a strong Crown case that are the most challenging in securing a fair trial, and this trial is no exception. It is in those trials in particular that care must be taken to ensure that the defence case is put by the trial judge fairly and in neutral terms. The following observations by the plurality in McKell at [44] are appropriate to the instant case:

“... It may be accepted that the prosecution case here was indeed a strong one, but the lack of balance in the comments by the trial judge cannot be justified as no more than a reflection of the relative strengths of the arguments made by each side. In some cases where the prosecution case is strong even a neutral summary of that case by the trial judge may sound adverse to the accused, but there is a real and well-recognised difference between the statement of a case and the advocacy of that case. The observations of which the appellant complains were couched in the forceful language of persuasion. Further, the circumstance that a case against an accused person appears a strong one in no way diminishes the obligation of those conducting the trial to ensure that it is a fair one.” (citations omitted)

161. The combination of the sheer volume of criticism by his Honour of counsel for the applicant’s address concerning the ten issues, although in the main part individually justifiable, when considered with the summary of the defence case in terms favourable to the Crown, rendered the summing up as a whole so lacking in balance as to give rise to a miscarriage of justice.
162. Accordingly, in relation to ground 4, I would grant leave to appeal pursuant to r 4.15, allow the appeal and quash the conviction.

Ground 5: The comments made by the sentencing judge during the proceedings after conviction raised a real risk of an apprehension of bias against the applicant, existing both during the trial and the sentence proceedings

163. During the sentence hearing on 16 November 2018, the trial judge made the following observation:

“For the benefit of both the parties I should indicate that had this been a judge alone trial I would not have hesitated in convicting [the applicant] of the principal offence count 1.”

164. In the course of his remarks on sentence, the trial judge stated:

“It falls to the Court to determine the facts relevant to sentence. I have previously today at some length indicated, in respect of Counts 1 and the alternative Count 2 and the Special Verdict, that had the trial been a judge alone trial, I would without hesitation have convicted [the applicant] in relation to Count 1, that is the break and enter and commit serious indictable offence, namely stealing. I express that view because I was of the opinion that there was a very strong Crown case that he had in fact committed that offence and that the defence to that charge raised by [the applicant] when he gave evidence was entirely implausible.”

Applicant’s submissions

165. The applicant submitted that the statements made by the trial judge quoted above:

“... arguably demonstrates that his Honour’s view of the guilt of [the applicant] in fact crystallised well before the jury verdict and well before the judge’s summing up to the jury, at a point during the trial when [the applicant] gave evidence. If that is a correct assessment of the trial judge’s words, it is of significant concern. If such a bias view was held before the summing up was conducted, then the trial has miscarried.”

166. The applicant submitted that these post-trial remarks should be considered alongside a remark made by the trial judge following the defence address in the absence of the jury. The Crown said that the violence deployed by police in the applicant’s arrest was explained, at least in part, by the seriousness of other offences for which the applicant was being sought by police. The trial judge said:

“My only understanding of that is that [the applicant] was wanted in relation to a number of sex offences. I don’t know what the allegations were in relation to those sex offences; whether it was suggested that he was violent to women. I did notice in passing through the court file the other day, that there are a couple of other indictments.”

167. Immediately after the jury returned with its verdicts, the trial judge said to the jury that they may have wondered why the police were looking out for the applicant at the time the pursuit. His Honour said:

“The answer to that, and perhaps part of the explanation for the presence of so many police officers, and the somewhat heavy-handed tactics that may have been involved in his arrest, is that the police were already on the alert looking for [the applicant] because of allegations that he had committed a number of very serious offences in the lead-up to 25 June. Those being indeed, as I have said, I won’t give you the detail of those matters, but very serious matters.”

168. The applicant submitted that the trial judge’s observations made in the sentence hearing and in the remarks on sentence:

“... raised the real risk that bias existed against [the applicant] during the trial and at the time of sentence ... the existence of an apprehension of bias in these circumstances has caused the trial to miscarry.”

169. However, it was conceded by counsel for the applicant at the hearing of this appeal that the trial judge’s comments were only made in the sentencing proceedings and that “nothing was said of any kind during the trial, itself”.

Respondent’s submissions

170. The respondent submitted that no objection had been taken to the trial judge’s comments at the time they were made and therefore r 4.15 applied. On both occasions, the comments were made in the context of the trial judge considering the appropriate manner in which he was to determine the facts for the purpose of sentence. During the sentence hearing, the trial judge went on to say:

“... whatever I find factually in terms of whether he was or was not the person that broke into the premises and stole the material, I am constrained to dealing with him on the basis of the maximum sentence for receiving.”

171. In his remarks on sentence, the trial judge followed the passage extracted above at [164] with this observation:

“As a result of the special verdict I am constrained by the limitation on sentence as provided by s 121. Despite what I have said about being convinced beyond reasonable doubt that he in fact committed the break and enter, I must sentence him on the basis of the lesser sentence provided for the s 188(1) offence, and in my view, despite what I have stated, I need to make some accommodation in relation to the jury’s doubt as to which of the offences was committed, and I will do so in due course.”

172. Accordingly, the trial judge’s view of the evidence, expressed after the verdicts were delivered, do not provide a reasonable basis for an apprehension of bias.

Consideration

173. The relevant test when apprehension of bias is alleged was stated by Ward JA in Potier v R [2015] NSWCCA 130:

“169 Apprehended bias arises where a fair-minded person might reasonably suspect the judge of prejudging the case or might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide.
170 The hypothetical observer is taken to be a reasonable person. The hypothetical observer would not come to a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their legal representatives taken out of context.
171 Observations made in the course of argument (such as his Honour’s comments in the course of the withdrawal and adjournment applications) even if of a robust kind will not necessarily demonstrate bias. It is well recognised that in the course of a hearing there may be exchanges and even robust expression of views without leading to a conclusion that there was a reasonable apprehension of bias.
172 In the case of apprehended or ostensible bias the matter is determined by an objective examination of relevant facts. All the relevant circumstances of the particular case may be taken into account in applying the test, though only such knowledge of matters of legal or other specialist practice and process as can reasonably be attributed to the lay observer (including, perhaps, matters of which the observer would inform himself or herself before reasonably forming any firm apprehension) will be taken into account.
173 The application of the test for apprehended bias requires: first, the identification of what it is said might lead the decision-maker to decide a question other than on its merits; and, second, articulation of the logical connection between the matter identified and the feared deviation from the course of deciding the question other than on its merits.” (citations omitted)

174. A trial judge is, of course, entitled to his or her own view of the evidence in a criminal trial. It does not follow from the fact that a trial judge has a view of the evidence, even a strong view, that an apprehension of bias arises. In this case, the trial judge had a view which he expressed publicly after the verdicts were delivered, and in the context of a determination of the correct approach to the sentencing exercise. The observation made by the trial judge to the effect that he had noticed other indictments in the court file was innocuous.
175. In my view this ground is not made out. The question of leave pursuant to r 4.15 does not arise, because the comments were made in the context of the sentence proceedings and remarks on sentence, and were thus not amenable to objection at that point.
176. Accordingly, in relation to ground 5, I would refuse leave to appeal.

Conclusion

177. As noted, the non-parole period expired before the hearing of this application. The total sentence will expire in 3 months, so there is little utility in there being a fresh trial. Accordingly, the orders I would propose are as follows:

(1) Refuse leave to appeal against conviction in relation to grounds 1, 2, 3, and 5.

(2) Grant leave to appeal against conviction in relation to ground 4 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

(3) Allow the appeal against conviction.

(4) Quash the conviction.

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Amendments

30 June 2021 - Typographical errors corrected at [7], [140] and [147]