R v Fowler [2003] NSWCCA 321 (11 November 2003)

Last Updated: 24 November 2003

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Fowler [2003] NSWCCA 321

FILE NUMBER(S):

60073/02

HEARING DATE(S): 23 July 2003

JUDGMENT DATE: 11/11/2003

PARTIES:

Regina

Warwick Geoffrey Fowler

JUDGMENT OF: Tobias JA James J Howie J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC70137/91

LOWER COURT JUDICIAL OFFICER: Simpson, J

COUNSEL:

A: M Ramage QC

C: Mr M Grogan

SOLICITORS:

A: M Rumore

C: S E O'Connor

CATCHWORDS:

CRIMINAL LAW - Accused convicted of murder - Appeal against conviction - Whether trial Judge erred in her directions to the jury on: lies as evidence of consciousness of guilt; circumstantial evidence; motive; accessorial liability - Whether trial Judge should have warned the jury with respect to particular evidence - Whether trial judge erred in permitting cross-examination of particular witness - Whether trial Judge erred in admitting particular evidence - Whether trial Judge erred in her directions to the jruy on the meaning of an unsworn statement - Appeal agaisnt sentencing - Whether trial judge should have imposed a lesser sentence on the basis that the accused's liberty had been affected over a length of time due to the circumstances of the case.

D

LEGISLATION CITED:

Evidence Act, ss 32(2)(b)(i), 38, 55, 137, 165, 192

Criminal Appeal Rules, r4

Crimes (Sentencing Procedure) Act, s44

DECISION:

a) Appeal against conviction is dismissed

b) Leave to appeal against sentence is granted but the appeal is dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60129/03

SC 70137/91

TOBIAS JA

JAMES J

HOWIE J

Tuesday 11 November 2003

R v WARWICK FOWLER

Judgment

1 The Court: On 21 February 2001, the appellant was convicted by a jury of the charge of murdering Trevor Climpson (the deceased) on 8 January 1988. This was his third conviction for that offence, the two previous convictions having been set aside after successful appeals to this Court. Simpson J sentenced the appellant to 10 years and 10 months imprisonment, commencing on 20 February 2001, with a non-parole period of 6 years and 10 months to expire on 19 December 2007. The appellant appeals against both the conviction and sentence.

2 Thirteen grounds of appeal are relied upon by the appellant in respect of his conviction for murder. These relate to the admissibility of evidence and the contents of the summing up. There is no ground of appeal asserting that the conviction was unreasonable or cannot be supported having regard to the evidence.

THE CROWN CASE

3 The Crown case was that the appellant was either the person who inflicted one or more of the bullet wounds to the deceased or, alternatively, was present at the time of the shooting, aiding or encouraging the person responsible for inflicting the wounds. It was a circumstantial case based upon the following categories of evidence: the opportunity of the appellant to be present at the time of the killing; motive; inclination; evidence linking the appellant to weapons associated with the killing; and behaviour evidencing a consciousness of guilt. In the last category of evidence there were three sub-categories: five instances of lies; the concealment of weapons; and statements of the appellant in a telephone call.

4 In light of the grounds of appeal filed on behalf of the appellant, the facts can be stated relatively briefly. The deceased had been married to the appellant's sister, but had left her approximately 5 weeks prior to his death. He had then moved into a caravan with his son, Ian Climpson, on a property where the deceased worked, known as the "Plough and Harrow".

5 At about 10.58 pm on 8 January 1988, the police attended 2 Villiers Road, Cecil Park, the property where the deceased had previously resided with his wife and where she was still living after their separation. The deceased had apparently been shot dead and was lying in a crouched position beside the open door of his vehicle. The police searched the house on the property and retrieved a number of firearms.

6 The next day, the police recovered a .38 calibre spent projectile on the ground near where the deceased's head had been lying. They also located a .22 calibre Winchester fired cartridge near the door of a shed, not far from where the deceased's body had been found. When the deceased's body was searched at the morgue, a .22 revolver was located in his pocket. The revolver contained four unfired and two fired .22 calibre Winchester cartridges.

7 A post-mortem examination of the deceased revealed that he had sustained three bullet wounds: a wound to the back of the head above and behind the ear; a wound to the left loin; and a wound to the left chest under the collar bone near the fourth rib. A .38 calibre projectile was recovered from the left chest area. All three wounds were potentially fatal, although the wound to the left loin would not have caused immediate death. Due to the amount of blood in the chest cavity, it is possible to infer that the wound to that area of the body was the first wound inflicted upon the deceased.

8 The wounds to the deceased's head and chest were the same size and were consistent with having been caused by a .38 or .357 calibre projectile. The wound to the loin area was larger and was consistent with having been caused by a .22 calibre projectile. Although two .38 projectiles were recovered, the police were unable to locate a .22 projectile, notwithstanding an intensive search of the yard at 2 Villiers Road on 18 January.

(a) Opportunity of the appellant

9 On 21 January 1988, the police attended the premises of the appellant at Boggabilla Road, Moree. A search of the premises failed to locate any firearms. During the course of a recorded interview following the search, the appellant said that on 8 January he had attended his sister's home at Villiers Road and returned home at about 6 pm. He had stayed with his father until later that evening when he left to purchase some cigarettes from a vending machine. He was, however, unsuccessful in doing so as there had been a blackout in the area. He ended up driving to the Villiers Road property, arriving there at approximately 10.10pm. At the property he encountered Deborah Dickson, who told him that his sister was asleep. The appellant gave evidence that he subsequently left the property and returned to his home, after having stopped at a hotel at approximately 10.30 pm to purchase cigarettes (after power had been restored).

10 The appellant told the police that he used to own two rifles, including a .22, but that he had sold them the previous year. He denied ever having owned a pistol.

11 Deborah Dickson, who kept horses at 2 Villiers Road, gave evidence that she had arrived at the property at approximately 7pm on 8 January. A storm arose and she stayed in the house with the deceased's wife and another woman until such time as the storm passed. She left the property at about 9.45pm, at which time it was still raining. As she walked to her vehicle, she saw the appellant drive his vehicle up the driveway. They greeted one another as she passed by his vehicle. She then entered her vehicle and drove away from the property.

12 Kathleen Lancaster gave evidence that the appellant left her premises at around 10.30 pm and drove off towards the "Plough and Harrow". She said that it took approximately 10 minutes to drive from her house to 2 Villiers Road, a distance of 4.8 kilometres.

13 The appellant's son, Adam Fowler, gave evidence that on the night in question the appellant had not returned home by the time he retired to bed at 11pm. That evidence, however, is in issue, as one of the grounds of appeal in the present case relates to her Honour's comments about Adam Fowler's evidence in summing up. Therefore, we will return to consider his evidence in more detail when considering that ground of appeal.

(b) Motive and inclination

14 The Crown called Ronald Doran, a one-time friend of the appellant, to give evidence. The witness proved unfavourable to the Crown and the trial judge granted leave to the Crown under s 38 of the Evidence Act to cross-examine him in relation to a statement he made to the police in December 1992 about events in 1986, two years before the shooting. In his statement, Mr Doran said that the appellant had spoken to him about the deceased in 1986. His statement went on:

"Fowler and I were talking and he started telling me about what a prick his brother-in-law was and that he was giving his sister a hard time. He said, "I've had a gutful of him and he has got to go". He said his sister rang him up all the time complaining about her husband treating her badly."

Mr Doran told the police that the appellant had complained on numerous occasions about the trouble the deceased was causing his sister. These conversations occurred after the appellant had spoken to his sister. He said that the appellant was in general a placid sort of person and that each time he was in a state of agitation, the cause appeared to be his brother-in-law or his sister.

15 Mr Doran also told the police that the appellant had said that he was going to shoot his brother-in-law. He said that the appellant asked him to drive his car and pick him up "after he had done the job", for which the appellant offered him "10 grand". He also told the police that when he suggested to the appellant that he would get caught, the appellant replied, "No way. I'll use hot ice and it will melt". He also said that the appellant told him he was going to Sydney "to do something with his brother-in-law" but that he understood from the appellant that his brother-in-law had gone away and that nothing had happened. When the police asked Mr Doran whether the appellant had discussed plans about how he would kill his brother-in-law, he replied, "A couple of ideas. One with hot ice and the other with a .22 rifle and silencer".

16 There is a ground of appeal relating to the admission of this evidence and the directions given by her Honour in relation thereto, hence we will return to this evidence in more detail later.

17 The appellant's ex-wife, Noella Harb, gave evidence that the appellant's sister had rung at some unspecified time and was "quite upset and hysterical almost". Ms Harb passed the phone to the appellant. Later he told her that his sister was very upset and that the deceased had been abusing her. The appellant "was quite upset at the time as well". The appellant told her that the deceased had been drugging his sister and that "she was being injected or it was being put in her tea".

(c) Evidence linking the appellant with the alleged murder weapons

18 On 19 September 1990, the police searched the appellant's premises at Boggabilla Road. They located a .22 calibre Sterling rifle with a telescopic sight between the mattress and the base of the bed in the front bedroom. This weapon became Exhibit E in the trial. The appellant's nephew, Bradley Walsh, who was living in the premises and apparently occupying that room, said that he owned the rifle. At the trial it was an agreed fact that Bradley Walsh's statement was untrue and that he did not in fact own the rifle.

19 Ian Climpson, the deceased's son, gave evidence that Exhibit E was one of two .22 calibre rifles owned by the deceased and kept in the bedroom at 2 Villiers Road. The .22 calibre cartridge located by the police in the yard of that property was discharged from that weapon. However, evidence was given that both .22 rifles owned by the deceased had been fired regularly in the yard in order to ward off unwanted visitors including stray dogs. The ballistics expert was unable to indicate how long the cartridge had been exposed to the elements. There was also evidence as to the varying factors that would impact upon the distance travelled by a fired cartridge when ejected from such a rifle.

20 The appellant was present while the police were searching the lounge room of the premises at Boggabilla Road. After he left the room, the chair in which he had been sitting was searched and a sawn-off .357 Armi Jager pistol was found in the cushion. This weapon became Exhibit K in the trial. According to the police, the appellant said that the pistol had been left two or three months earlier by a truck driver, whose name he did not know. In his unsworn statement at the trial, the appellant denied having said this to the police. He told the jury that he had refused to answer police questions at that time.

21 Following the search, the police interviewed the appellant and a typed record was made of the interview. According to the recorded interview, the appellant confirmed having told the police that the Armi Jager pistol had been left on the premises by a truck driver who was to have collected it on his return from Brisbane. The appellant denied ever having fired it. In respect of the .22 Sterling rifle, the appellant told police that it belonged to Bradley Walsh and denied having fired it also. The appellant signed each page of the typed record of the interview. At the conclusion of the interview, the Inspector in charge of the police station at the time spoke to the appellant and confirmed that he had made the record and signed the interview of his own free will. The appellant completed and signed a form to this effect.

22 In his unsworn statement at the trial, the appellant told the jury that the police fabricated the type-recorded interview and threatened that his house, which was for sale at the time, would be ripped apart and his yard dug up if he did not sign it. He said that he had not read the interview because he did not have his glasses with him. He also did not read the form that he signed in front of the police inspector.

23 On 11 October 1990, the appellant was arrested for the murder of Trevor Climpson. He maintained his right to silence at that time. On 12 October 1990, a further search was conducted of the appellant's premises. The police found in the freezer chest a box containing three .357 Magnum cartridges and seven .38 special calibre PMC cartridges. The evidence was that the box was damp but not frosted, as were other items contained in the freezer. A ballistics expert gave evidence that these cartridges were all suitable for use in the Armi Jager pistol, Exhibit K.

24 On 21 September 1993, the police once more searched the premises at Boggabilla Road. They located a bullet hole in the floor and recovered a projectile from under the house. Evidence was given at the trial that the projectile had been fired from the Armi Jager pistol.

25 A substantial part of the Crown case at the trial was concerned with proving that the appellant was in possession of the Armi Jager pistol found in the chair. The Crown's case was that this pistol and the .22 Sterling rifle found in the bed at Boggabilla Road were the weapons used to shoot the deceased. However, neither of those weapons could be positively identified as those which fired the projectiles inflicting the fatal wounds.

26 Noella Harb gave evidence that the appellant had bought a couple of pistols during their married

life. She could not remember exactly when they had been purchased, but said that at the time, their son (who was born in 1986) was a baby and still wearing nappies. She described the pistols as a "475 magnum or 357 Magnum, the one that Clint Eastwood uses". She did not recognise the Armi Jager pistol (Exhibit K). She said that the appellant used to keep his rifles under the bed and she believed that she had seen a weapon similar to the .22 Sterling rifle (Exhibit E).

27 Ronald Doran, in his statement to police made in 1992, described the appellant's weapons at the relevant time as being a Ruger mini 14 rifle, a .223, a .22 rifle with a scope and a .222 rifle with a scope. He told police that he had never seen the appellant with a handgun.

28 Michael Clarke gave evidence that in 1987 the appellant used to come to his property to shoot feral animals. The appellant used a .223, being a Ruger mini 14 semi-automatic rifle, a .222 bolt action rifle and, on occasions, a .22 rifle. He also saw the appellant with two pistols, one of which the witness described as an Uberti six-shot revolver but which he identified as the Armi Jager pistol (Exhibit K). He said he was confident that it was the appellant's weapon because of a white paint mark. Mr Clark told the jury that he had seen the two pistols towards the end of 1988, although he conceded that on a previous occasion he had given a date of June 1989. He also gave evidence that the appellant had left in his safekeeping three rifles, the two pistols and a box of ammunition, all of which he had returned to the appellant in early 1990. He identified the box of ammunition found by police in the freezer as that which he had returned to him.

29 In October 1990, Mr Clarke gave the police a box containing spent cartridges which had been fired by him using the weapons left at his property by the appellant. Seventy-two of these cartridges were found to have been fired by the Armi Jager pistol (Exhibit K). There were also 28 cartridges found to have not been fired from that weapon.

30 As has already been noted, the ballistics evidence was that the .22 cartridge found in the yard at 2 Villiers Road had been fired from the deceased's Sterling rifle (Exhibit E), found by the police in the bed at Boggabilla Road. In respect of the two .38 cartridges, one recovered from the deceased's body and the other located on the ground near where his head had been lying, the ballistics evidence was less certain. They were both discharged either from the same weapon or from two weapons with identical rifling characteristics. The cartridge found in the yard was in a damaged condition, but the other showed a skid mark that indicated that it had been fired from a weapon with a revolver action, such as the Armi Jager pistol (Exhibit K). The two .38 cartridges had similar characteristics to cartridges obtained from test-firing that weapon. However, the evidence was that there were possibly 20 different types of weapons manufactured by Colt and Rutgers, which could produce similar characteristics. It was estimated that there might be 20,000 Rutgers weapons alone which would do so. There have been several thousands of Armi Jager pistols lawfully imported into Australia.

(d) Evidence of consciousness of guilt

(i) Lies

31 The Crown relied upon a number of alleged lies told by the appellant. These related to the following: his denial of ownership of pistols; his statement that the Armi Jager pistol was left by a truck driver; his denial of owning rifles at the relevant time; his statement that the .22 Sterling rifle found in the bed belonged to Bradley Walsh; and his statement to Ms Harb that he had never seen the weapons found by police at Boggabilla Road. The appellant admitted that he had lied in relation to his possession of the rifles but had told the truth about his non-ownership of pistols. He denied that he made the statements attributed to him by the police about the truck driver or Bradley Walsh. He asserted that what he said to Ms Harb was true.

(ii) Concealment of weapons

32 Noella Harb gave evidence that when the appellant returned to Moree after the deceased's death, he moved his weapons from the Boggabilla Road premises to a storage shed off the property. The appellant later told her not to tell the police about the guns in the shed. In his statement to the jury the appellant said that he had taken this action because he did not have a current shooter's licence at the time. The appellant held a shooter's licence between 2 June 1983 and 1 June 1986. Ms Harb agreed in cross-examination that in July 1990 she had told police that the appellant took his rifles to the shed and she did not know whether he had any pistols at that time.

(iii) Telephone conversation

33 After Ms Harb had spoken to police in July 1990, a listening device was lawfully installed by police into a telephone in the Boggabilla Road premises. This fact was unknown to Ms Harb. On 24 September 1990, a conversation between the appellant and Ms Harb was recorded, during which the appellant told her that the police had found weapons in his house, and that he had never seen these weapons before. When the appellant told her that a pistol had been found, Ms Harb said, "Which one? Not the, not the Magnum". The appellant told her that "telephones have ears" and "not to say anything". He informed her that police had planted a pistol and rifle in the house and forced him to sign a statement.

THE DEFENCE CASE

34 The appellant's case was that he was not responsible for the killing of the deceased and that there were other persons who had a motive for wanting to harm him. Defence counsel at the trial referred to the "secret life of Mr Climpson".

35 The appellant made an unsworn statement denying that he had any dispute with the deceased, asserting that as brothers-in-law they got on fairly well. He was not aware of the deceased mistreating his sister. The appellant denied ever having owned a pistol. He told the jury that Ms Harb's brothers and their mates owned a number of firearms, including an Armi Jager pistol that had been left with Mr Clark. It had been returned to the owner in 1990. He said that there were a number of persons who could have placed the pistol in the chair, including Ms Harb or the police. He believed that Ms Harb was trying to set him up in the telephone call when she mentioned a Magnum. He said that Mr Doran had lied to the police and that he suspected that Doran had been in a relationship with his, the appellant's, wife.

36 There is no ground of appeal that the verdict of the jury was unreasonable or could not be supported by the evidence, hence it is unnecessary to detail the material relied upon in the defence case. In summary, there was evidence called as to the involvement of the deceased in illegal activity in relation to greyhound racing and the hostility of bookmakers toward him. Evidence was given that the deceased had expressed fears for his life and had armed himself accordingly. He had also told a number of persons that his vehicle had been shot at and he had indicated the bullet holes.

37 Before dealing with the grounds of appeal, some comment should be made about the conduct of the trial and the grounds of appeal raised. The appellant was represented at the trial by a Public Defender, a counsel very experienced in criminal matters, who frequently appears before the Supreme Court and this Court. There is no ground of appeal, nor could there be, that defence counsel acted in any way incompetently in the defence of the appellant. To the contrary, the transcript reveals that he was assiduous to ensure that his client received a fair trial, within the bounds of ethical conduct, the responsibilities of counsel and his duty to the court. As seems to be almost inevitably the case, counsel unconnected with the trial has conducted the appeal and, not uncommonly, grounds are raised in respect to matters which were not the subject of complaint before the trial judge. Less common is the fact that complaint is now made about the admission of evidence where no such objection was raised at the trial. Quite exceptionally, there is at least one ground asserting that trial counsel was mistaken in concessions he made to the judge as to the manner in which her Honour should direct the jury on certain aspects of the trial.

38 We take this opportunity for the Court once again to deprecate what has been referred to as an "armchair appeal" (see R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310 at [40]), where counsel briefed on appeal takes points, often of a technical nature, without any apparent regard to the manner in which the trial was conducted by competent defence counsel and where an easy remedy would have been available at trial, had counsel believed that his or her client was prejudiced by what the trial judge said or failed to say. Once again, there is little if any regard to rule 4 of the Criminal Appeal Rules in raising such grounds of appeal, treating it as a technicality of little or no moment, notwithstanding repeated statements of this Court to the contrary: see for example R v King [2000] NSWCCA 507; the long line of authorities referred to in the judgment of Whealy J; R v Button and Griffin [2002] NSWCCA 159 per Heydon JA; and most recently R v Ita [2003] NSWCCA 174.

39 These preliminary observations having been made, we turn now to consider the grounds of appeal.

Appeal against Conviction

Ground 1: The trial judge erred in her directions to the jury on lies

40 We have referred in [31] to the reliance placed by the Crown upon a number of lies told by the appellant to the police and, on one occasion, to Ms Harb, as evidence of consciousness of guilt.

41 Her Honour, in [149] of her summing up, noted that the Crown relied upon five categories of circumstantial evidence. The fifth category was the behaviour of the appellant in the months following the murder, which behaviour the Crown submitted was suggestive of an awareness that he was guilty of the offence charged. One of the three sub-categories of this fifth category concerned five lies told by the appellant.

42 It was necessary for her Honour not only to precisely identify each of the lies relied upon by the Crown to prove guilt, but also to identify the circumstances and events that were said to indicate that the lies constituted an admission against interest. Further, it was necessary for her Honour to instruct the jury that they might take the lie into account only if they were satisfied, having regard to those circumstances and events, that it revealed a knowledge of the offence or some aspect of it, and that it was told because the appellant knew that the truth would implicate him in the commission of the offence or because of "a realisation of guilt and a fear of the truth". It was also necessary to instruct the jury that there might be reasons for the telling of a lie apart from the realisation of guilt, and those reasons needed to be identified and explained: Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-211. As the Crown had argued that the appellant lied due to a consciousness of guilt, it was mandatory for her Honour to give what has been referred to as an Edwards-type direction: Zoneff v The Queen (2000) 200 CLR 234 at 244 [16]; Dhanhoa v The Queen [2003] HCA 40; (2003) 77 ALJR 1433 at 1438 [34].

43 The appellant's complaints regarding her Honour's directions on this issue are that they were unbalanced, that they attached excessive significance to the issue and that they over-emphasised its importance, causing the jury to focus unduly on the issue. It was observed that her Honour's directions concerning lies as consciousness of guilt occupied some 90 paragraphs of the 431 paragraphs of her summing up. In the main, however, her Honour's directions with respect to the issue of lies commenced at [268] of the summing up and concluded at [346], comprising 79 paragraphs.

44 Her Honour commenced her directions on the issue of lies in [268] of the summing up in these terms:

"The lies that the Crown alleges the accused told is quite an important part of the circumstantial case. So I need to say something to you about the manner in which you can use evidence of lies."

45 In [269] of the summing up, her Honour told the jury that a person who is accused of a crime may tell a lie to investigating police or some other person because that person knows that he or she is guilty of a crime and does not want that guilt to be discovered. Then, in [270], she gave an example of such a lie in a context removed from the issues of the case. In [271]-[273], her Honour explained the necessity for the jury to be cautious about relying on a lie as a relevant circumstance to found an inference of guilt and, as required by Edwards, instructed them to the effect that there may be reasons for the telling of a lie apart from the realisation of guilt.

46 In [274], [276] and [281], her Honour set out the three conditions which the Crown had to satisfy before lies could be used as evidence as part of a circumstantial case. In [286], she recapped those three conditions. She was clearly correct in so doing.

47 In the remaining paragraphs [287]-[346], her Honour, as mandated by Edwards, identified with precision the five lies upon which the Crown relied. She dealt with the first lie in [287]-[295], the second in [296]-[317], the third in [318]-[323], the fourth in [324]-[329] and the fifth in [330]-[334]. In so doing she referred to the evidence relied upon by the Crown in support of each lie. After identifying the relevant facts, circumstances and events relied upon by the Crown in respect of each, she reminded the jury that before they could take that lie into account as evidence of a consciousness of guilt they had to be satisfied of the three conditions to which she had earlier referred. Apart from the second, each of the other four lies were dealt with by her Honour with reasonable brevity, involving no repetition except, as we have indicated, with respect to the requirement that each of the three conditions to which she had earlier referred be satisfied in respect of each lie.

48 With respect to the second lie, her Honour was more expansive. This was because there was a conflict between the evidence of the police and that of the appellant, the latter having denied the truth of the police evidence in his statement. In our opinion, her Honour's directions with respect to this lie were proper and, given the issues that the evidence raised, balanced and not unduly emphatic.

49 Finally, in [336]-[346], her Honour summarised the evidence concerning the lies and the competing positions of the Crown and the appellant in relation to them.

50 Having concluded her directions with respect to the issue of lies, her Honour, in the absence of the jury, asked counsel whether at that point they had anything they wished to submit. Relevantly, the following exchange took place:

"HAESLER: The only matter I would ask your Honour to add, in the various summaries that you have given of lies you have usually finished off by words, `If you find it is a lie, you will consider it as one of the strands in the case' and there is no problem with that. But I would ask when you tie it altogether at the end. And you did make this point at the very beginning, but once, but unfortunately the care which your took on the lies direction may well have given it more importance in the overall scheme of things than perhaps it deserves.

I would ask you to add `consider as one of the strands which, together with the other evidence, which as a whole' - reading from Shepherd which, as a whole, must establish guilt beyond reasonable doubt if the accused is to be convicted.

That last rider, you did say it at the beginning but you didn't mention it each of the times that you raised the question of strands.

HER HONOUR: So you want me to say...

HAESLER: If you consider them to be strands in the case, then just to repeat essentially what you said at the very beginning, that they must be together with the other evidence, establish the guilt beyond reasonable doubt before the accused can be convicted.

HER HONOUR: I thought I had made that quite clear.

HAESLER: You said it once.

HER HONOUR: I thought I said that in relation to each.....I said a number of times, in fact, I think perhaps more favourably than necessary to the accused, that if they are satisfied of these things, they can use them as strands in their cable and that may be taken to imply that they have got to be satisfied of individual facts, which is not really correct. More favourable perhaps than it needs to be.

HAESLER: I only as at some stage, when you are tying it altogether...

HER HONOUR: I probably will do something like that."

51 It is apparent from the above exchange that trial counsel for the appellant was asserting that the careful manner in which her Honour had given directions on the issue of lies "may well have given it more importance in the overall scheme of things than perhaps it deserves". This seems to have been more an observation than a complaint. In any event, insofar as it is a criticism, in our view it has no substance.

52 Reliance was placed by the appellant upon a passage in the decision of the Privy Council in Broadhurst v The Queen (1964) AC 441 where, at 457, Lord Devlin observed that it was very important that a jury should be carefully directed on the effect of a conclusion, if reached, that the accused is lying. This passage was cited with approval by Kirby J (dissenting) in Zonoff (at 257 [57]) and, again, by King CJ in Harris v The Queen (1990) 55 SASR 321 at 323 in a passage, which, in our opinion, reflects the later statement of principle articulated by Deane, Dawson and Gaudron JJ in Edwards at 210-211.

53 In our opinion, her Honour's directions with respect to the issue of lies accorded with these principles. They were accurate, balanced and went no further than was necessary to ensure that the jury was in no doubt as to the manner in which it could utilise such lies as evidence of guilt.

54 The appellant further submitted that, because the issue of lies as consciousness of guilt was such

an essential part of the Crown case, consciousness of guilt should have been regarded as an essential intermediate fact to be established beyond reasonable doubt and the jury should have been so directed.

55 In our opinion, there is no substance in this submission. As her Honour made clear throughout her summing up, the Crown's circumstantial case involved a series of strands and, as she indicated in [295] and [314] of her summing up, each lie, if established, could be added to the strands of the cable in the jury's consideration of the Crown case. Being a "strands in a cable" case rather than a "links in a chain" case, none of those strands, including each of the lies, was an intermediate fact the proof of which was an indispensable link in a chain of reasoning towards an inference of guilt. Accordingly, none of the strands, including any of the lies, was required to be proved beyond reasonable doubt: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579-580; 585 per Dawson J with whom Mason CJ, Toohey and Gaudron JJ agreed; at 593 per McHugh J; R v Dellapatrona & Duffield (1993) 31 NSWLR 123 at 149-150. In the latter case where the Crown relied upon lies as evidence of consciousness of guilt, it was expressly held by this Court that there was no need for the Crown to satisfy the jury beyond reasonable doubt that the accused lied with a consciousness of guilt on his part before that lie can amount to corroboration of the Crown evidence against him: at 150 E-F.

56 Finally, in R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 at 52 [55], this Court (constituted by Spigelman CJ, James and Bell JJ) expressed itself thus:

"Since Edwards it has been repeatedly held by this Court that "where lies are used merely as evidencing a consciousness of guilt, as part of the circumstantial evidence case, it is unnecessary to establish either the lie or its character beyond reasonable doubt" (Taylor (unreported, Court of Criminal Appeal, NSW, 18 April 1995) at p 19 per Hunt CJ at CL, citing Dellapatrona (1993) 31 NSWLR 123 at 150; Sandford (1994) 72 A Crim R 160 at 181; Small (1994) 33 NSWLR 575 at 596; 72 A Crim R 462 at 481-482."

57 We would therefore reject this ground of appeal.

Ground 2: The trial judge erred in her directions to the jury on circumstantial evidence;

AND

Ground 5: The trial judge erred in her directions to the jury on motive

58 It is convenient to deal with these grounds together. With respect to Ground 2, it was submitted by the appellant that as the Crown case involved proof that the accused was present at the time of the murder and that the pistol and rifle used in the killing belonged to him, in order for the Crown to establish these facts it was also necessary for the Crown to establish the following: that the appellant was not at his mother's home at the time of the murder; that he owned or had in his possession the weapons that were used in the murder; and that the projectiles which caused the death of the deceased were fired from those weapons at the time. Accordingly, it was open to the jury to regard these matters as intermediate facts constituting indispensable links in a chain of reasoning towards an inference of guilt. This being so, her Honour should have directed the jury that, if they considered that such facts were indispensable links in their chain of reasoning, they would need to be satisfied of them beyond reasonable doubt before they could convict the appellant.

59 In her final written directions to the jury, her Honour stated the following [415]:

"1. A circumstantial case depends upon inferences to be drawn from a collection of facts, events and circumstances.

2. No individual fact or circumstance needs to be established beyond reasonable doubt.

3. Individual facts and circumstances on which the Crown relies may draw strength from one another. Even weak strands may be strengthened by being put together with other evidence."

These written directions also included a direction that, before the jury could convict on the basis of circumstantial evidence, they must be satisfied that the guilt of the appellant had been proved beyond reasonable doubt. These written directions were "settled" with the approval of the appellant's trial counsel.

60 Motive was the second of the five different categories of evidence on which the Crown relied as part of its circumstantial case. Her Honour directed the jury with respect to motive in [180]-[202] of the summing up. In the first of those paragraphs she directed the jury that where, as in the present case, the Crown sets out to prove that the accused had a motive, that was one piece of evidence or one circumstance on which they could rely.

61 The appellant submitted that, because the Crown had opened motive to the jury and had relied upon it "as an essential part of its case" in respect of which her Honour had given extensive directions, the jury should have been directed that they could not use motive unless they were satisfied that it had been proved beyond reasonable doubt.

62 We have already referred in [53] to the decision of the High Court of Australia in Shepherd. The appellant sought to call in aid that decision, in particular the statement of Dawson J (at 579) that:

"If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn."

His Honour then made it clear that, where the evidence consists of strands in a cable rather than links in a chain, it is not appropriate to give such a warning, and that in any event it should not be given where it would be unnecessary or confusing to do so. He continued:

"It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt when the other inference consistent with innocence is reasonably open on the evidence."

63 As we have already observed, the Crown's case, as accepted by her Honour, was one in which the evidence consisted of strands in a cable rather than links in a chain. This notwithstanding, the appellant submits that some of these "strands" were in fact "links" and constituted indispensable intermediate facts which required proof beyond reasonable doubt. Reference was made to the decision of this Court in R v Merritt [1999] NSWCCA 29 at [70] and [71], where the Court said (omitting citations):

"70. Ultimately, of course, it is for the trial judge to determine whether to give directions that relate to the standard of proof to what are, or might be, intermediate facts `which constitute indispensable links in a chain of reasoning towards a inference of guilty. It is important in this regard, we think, to appreciate that the trial judge should, in considering this question, ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light...In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it would usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting. If the case is one where, in the judge's opinion, there were no such crucial intermediate facts, it "will generally be sufficient to tell jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence'."

64 The Court then referred to the words of McHugh J in Shepherd which we have emphasised in the following passage (at 693):

"In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt."

65 The Court then considered in [71] that, as there were relatively few incriminating facts in that case, it was both desirable and necessary for the trial judge to have identified for the jury the crucial factual issues and assisted them to apply to them the legal rule requiring proof beyond reasonable doubt of the Crown case. In particular, the jury should have been directed that, if they regarded any particular fact as being an indispensable link in the chain of proof, that fact must be proved to their satisfaction beyond reasonable doubt before they could convict.

66 Given the appellant's submission that it was an essential part of the Crown case that the jury should be able to infer that the appellant was present at the time of the killing and, hence, the facts necessary to enable this inference to be drawn could have been regarded by the jury as intermediate facts which constituted indispensable links in their chain of reasoning towards an inference of guilt, the following passage from the judgment of Dawson J in Shepherd (at 579) is apposite:

"For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed."

67 One of the facts, which if proved would assist any inference that the appellant was present when the crime was committed was, as the appellant submitted, whether he had returned to his mother's home before the murder took place. But we see no basis upon which it can legitimately be argued that this fact was other than a "strand in the cable" along with many other strands upon which the Crown relied. In our opinion, no proper basis existed for erecting that or any other fact into an intermediate fact constituting an indispensable link in a chain of reasoning towards an inference of guilt and thus requiring proof beyond reasonable doubt.

68 It was acknowledged by the appellant that his trial counsel made no objection at the trial to that part of her Honour's summing up which repeatedly asserted that the case was a "strand in a cable" case: nor was a direction sought. In fact, counsel for the appellant at the trial conceded that it was a "strands" case and disavowed any submission that any individual fact had to be established beyond reasonable doubt. We see no merit in the appellant's submissions on the matter and as such we would refuse leave under rule 4 of the Criminal Appeal Rules to rely on this aspect of Ground 2.

69 The appellant further submitted that, as it was an essential part of the Crown's case that the wounds fatal to the deceased were made by a .357 Armi Jager pistol and a .22 calibre Sterling rifle, her Honour should have referred in her summing up to the evidence of Sgt. Constable that there have been several thousand Armi Jagers lawfully imported into Australia and that such a weapon was only one of a number of weapons that could have been used to fire the fatal projectile, there being some twenty different types of weapons produced by other manufacturers with similar rifling characteristics. It was also submitted that her Honour had failed to make specific reference to the evidence with respect to the .22 shell casing which was found near the deceased's body and that the most that could be said was that the .22 Sterling rifle could have fired the projectile that caused or contributed to the fatality. There was also evidence from Sgt. Constable as to where a shell casing would be projected from a .22 on ejection which, it was submitted, cast real doubt on whether the casing found at the scene could be linked to the murder.

70 Her Honour directed the jury with respect to the .22 cartridge case found at the scene in [213] of the summing up. She referred to the submissions of the appellant's counsel and to the evidence suggesting that the jury could not be satisfied that the cartridge case was in any way connected with the murder, given the location in which it was found.

71 In [214], in the absence of the jury, counsel were asked whether there was anything arising "out of what I've said so far"? The appellant's counsel answered in the negative. As to the Armi Jager pistol, her Honour directed the jury at [366] of the summing up that Sgt. Constable had said that the Armi Jager pistol could have been the murder weapon, not that it was in fact the murder weapon.

72 In our opinion, her Honour's failure to refer to each and every aspect of these two matters does not constitute a valid basis for criticising the summing up on these issues. It is trite that, in a summing up, a trial judge is not required to refer to each and every piece of evidence. In the paragraphs referred to, her Honour emphasised the essential fact that there was no evidence that the Armi Jager pistol was in fact used in the murder, only that it could have been, as one of the projectiles found in the deceased's body was from a weapon of a similar calibre. Equally, her Honour directed the jury as to the appellant's case at trial that the .22 cartridge had nothing to do with the murder. Further, as no objection was made at the trial by the appellant's counsel to the relevant omissions, we would refuse leave under rule 4 of the Criminal Appeal Rules to rely on that part of Ground 2.

73 As to motive, we noted earlier that the appellant submitted that motive was an intermediate fact indispensable to a chain of reasoning towards an inference of guilt. However, her Honour made it clear to the jury that motive was one of the "strands" upon which the Crown relied as part of its "cable". Reliance was placed by the appellant upon the decision of this Court in R v Murphy (1985) 4 NSWLR 42, where, applying the decision of the High Court in Chamberlain v The Queen (No 2) (1984) 153 CLR 520, it held that, because the evidence was relevant as tending to show that the accused had the intention asserted by the Crown, it was not merely a subsidiary fact and was therefore required to be proved beyond reasonable doubt.

74 However, Murphy was decided prior to the High Court decision in Shepherd, which explained Chamberlain. Shepherd was not referred to by Callinan J (with whom the other members of the Court agreed) in the later High Court decision Penny v The Queen [1998] HCA 51; (1998) 72 ALJR 1316 at 1321 [26], where his Honour, in obiter, seems to have resurrected Murphy. However, in R v Pantoja [1998] NSW CCA 5, James J (with whom Wood CJ at CL agreed) noted that the decision in Murphy was based on what is now known to be an erroneous interpretation of Chamberlain, and that Callinan J in Penny had made no reference to Shepherd, which had made it clear that in a case resting upon circumstantial evidence it was not necessary that each individual fact be proved beyond reasonable doubt. Adams J, who agreed with James J, also referred to Murphy, Penny and Shepherd and concluded that, although there may be cases depending upon circumstantial evidence in which proof of motive is an indispensable link in the chain of proof of guilt of the accused and would thus need to be established beyond reasonable doubt, such cases would be rare and the present was not one of them.

75 These issues also came before this Court in R v Plevac [1999] NSWCCA 351, where Grove J, with whom James and Dowd JJ agreed, after referring to Murphy, Penny and Pantoja, held at [28] that, as the case before the Court was circumstantial and the jury was not being invited to infer guilt from motive alone, it was not one of the rare cases referred to by Adams J in Pantoja that required a direction that motive need be proved beyond reasonable doubt.

76 Finally, we refer to R v Fowler (No 2) [2000] NSWCCA 142, which concerned an appeal from the second conviction of the appellant in respect of the murder of the deceased, and where the same evidence of motive was relied upon as in the present case. Wood CJ at CL, with whom Hulme and Barr JJ agreed, said [83]:

"This was not a particularly helpful direction, although so far as it went it was correct in law. Preferably, his Honour should have explained that motive was a matter relied upon by the Crown as a strand in a circumstantial case, which if made out would support that case but if not made out would be neutral. It was not an intermediate fact and the reasoning in Shepherd [1990] HCA 56; (1990) 97 ALR 161 applied. It was accordingly not necessary that motive be established in this case beyond reasonable doubt: Penny [1998] HCA 51; (1998) 155 ALR 605; Plevac (1999) NSW CCA 351."

77 As already noted, her Honour dealt with motive as one of the "strands" and no request for further directions in the nature of that which it is now submitted should have been given was sought. In our opinion, the appellant's submissions lack merit and we would refuse leave under rule 4 of the Criminal Appeal Rules to rely upon Ground 5.

Ground 3: The trial judge erred in not referring the jury to the evidence of Sgt. Constable as to other weapons

78 This ground overlaps with part of Ground 2 and relates to the expert evidence of Sgt. Constable that several thousand Armi Jager pistols were lawfully imported into Australia and that it was only one of a number of weapons that could have been used to fire the fatal projectile. Sgt. Constable also gave evidence that other manufacturers, including Colt and Rutger, produced weapons with rifling characteristics similar to the Armi Jager and that there were probably 20 different types of such weapons and 20,000 Rutger weapons alone.

79 After the jury retired, her Honour asked counsel whether there were any further matters for consideration. The following exchange then took place between her Honour and counsel for the appellant:

"HAESLER: Just two matters: I would ask your Honour, your Honour mentioned in regard to Sgt. Constable and raised the topic of the probability of the Armi Jager. You said the question of possibility and you mentioned Sgt. Constable again in summary. I would ask your Honour to remind that that when he was speaking of the probability of the Armi Jager being the murder weapon, he agreed there were many other weapons with those same characteristics. He agreed there were many thousands of weapons. The probability depends upon how many other weapons could have been the murder weapon.

HER HONOUR: What do you say, Mr Crown?

CROWN PROSECUTOR: I take a neutral stand, your Honour, but if you do that, I would ask that you do it this afternoon rather than tomorrow morning.

HER HONOUR: I have told them they can go now and my guess is they are out the door. I am not inclined to, it was said in address and to do it now would give it too much emphasis and confuse them."

80 We have already referred to the fact that her Honour had extensively summarised the principal points of Sgt. Constable's ballistics evidence. As her Honour indicated in the exchange referred to above, then counsel for the appellant had in his address to the jury referred to the evidence in respect of which the appellant now submits that her Honour should have further directed the jury. In fact, his submissions on this point took up approximately one page of the transcript of that address. It could hardly have been overlooked by the jury given her Honour's directions referred to above. In our opinion, no relevant prejudice to the appellant arose from the failure of her Honour to accede to counsel's request. It is clear that the jury were fully cognizant of the issue and it required no further emphasis.

81 Accordingly, we would reject this ground of appeal.

Ground 4: The trial judge erred in the directions to the jury on accessorial liability

82 In [61] and [62] of her summing up, her Honour directed the jury in the following terms:

"61. Now, let me just say, firing three bullets into another person is quite obviously done with the intention of killing or causing really serious injury to the person who is shot.

62. There is no dispute in this case that Trevor Climpson was murdered, that whoever fired those shots did so deliberately and with the relevant intention. So you are not concerned about whether the act of killing, the act that caused death, amounts to murder or not; your concern is whether it was the accused who did it."

83 In [63] she turned to the question of accessorial liability. She said this:

"But that brings me to another matter which is slightly more complex. A person may also be guilty of murder by being present when another person commits the murder and the first person intentionally gives assistance or encouragement in that murder."

She then repeated the last sentence.

84 She elaborated on the foregoing in [64] and [65]. In [67] she directed the jury that:

"There is no dispute that Mr Climpson was murdered. The issue is whether the Crown has proved either that it was the accused who fired those shots, or that he was present giving assistance or encouragement to the person who did fire the shots."

85 Her Honour returned to the matter at [72] and directed the jury in the following terms:

"The intention to assist or to encourage must have been based on knowledge of the essential facts. Now, what does that mean? I know it probably sounds quite confusing. If you were to find the accused guilty of murder on the basis that he was present assisting or encouraging the actual killer, you would have to be satisfied beyond reasonable doubt of these things: 1. That the murder was committed by somebody else; 2. That he was present - I have already mentioned these; 3. He knew all the essential facts or circumstances necessary to show that the murder was committed by the other person; and 4. With this knowledge, he intentionally assisted or encouraged the principal offender to commit the crime."

86 Her Honour then referred in [73] to "the essential facts or circumstances", being that the principal offender or the actual killer fired the shots and did so with the intention of killing or causing really serious harm. In [74] she referred to the statement of the Crown Prosecutor in his address that:

"a person is guilty of murder if he is present when somebody else commits and he knows what that person is up to. That is the colloquial way of putting it. It is fairly accurate. What he has to know is, firstly, the other person does the act that causes the death and b) that the other person has the intention of killing or causing really serious injury."

87 In [75] her Honour directed the jury as follows:

"You might think it is perfectly clear that a person who fires three shots at another person intends to kill or do really serious injury, so that if you were satisfied that the accused was present and he knew that somebody else fired the shots did so with the relevant intention, then he knew the essential facts or circumstances."

88 After the jury had retired, her Honour asked whether counsel on either side had anything further to submit. The following exchange took place:

"HAESLER: The other question is, the Crown in his address without specifically mentioning Vicki Climpson, did point out to the jury that it would not be enough on the Crown case to prove murder if they were satisfied (paraphrasing) that the accused had disposed of weapons on behalf of some other person and that was not mentioned by her Honour.

HER HONOUR: I have made it perfectly clear the accessory case is - I have said it over and over again - being present and helping."

89 Notwithstanding the limited nature of counsel's request to her Honour identified in the above exchange, it was submitted by the appellant that her Honour's directions in [61], [62] and [75] would have entitled a jury to convict the appellant merely on the basis that he was present at the time of the shooting, it being obvious from the shots fired that the person(s) firing intended to kill. It was contended that such directions did not bring home to the jury the necessity to be satisfied that the person present was linked in purpose with the person(s) actually committing the shooting.

90 One day following retirement the jury returned with the following question:

"Further, can we have a clarification of the issue of whether the accused would be guilty of murder if he assisted in hiding the murder weapons after the fact, when he did not (`did not') have any knowledge of the essential facts in the circumstances at the time?"

91 The jury was brought back and her Honour further directed it as follows:

"402. The third part of your question concerns the question of whether the accused would be guilty of murder if he assisted in hiding the murder weapon, but did not have any knowledge of the fact of the essential facts and circumstances at the time. The answer is that if the accused did no more than hide a murder weapon after the murder was committed, without knowledge of those essential facts and circumstances, he would not be guilty of murder.

403. I will, if you wish, remind you of the directions I gave you about what constitutes murder in both of the senses which I referred to during the course of the directions, but it does not include mere concealment of the weapon. There would have to be some act of the accused causing the death, or his presence aiding or encouraging the person who did."

92 The jury once again retired but shortly returned when her Honour gave directions in the following terms:

"409. The Crown put before you the various facts and events and circumstances that I have already directed you on and invited you, from that collection of facts and circumstances, to draw the inference that the accused is guilty of the murder. You may not convict on that basis unless you are satisfied beyond reasonable doubt that a combination of those facts and circumstances establishes that the accused did commit the murder in one of the two ways that I have already mentioned to you. That is, acting by himself or being present while somebody else committed the murder and being ready to offer assistance of encouragement."

93 It was submitted that from the tenor of the question referred to in [90], the jury may well have thought that being present when the shots were fired and then removing and hiding the weapons was sufficient for the appellant to be convicted. Criticism was also made of the further directions given by her Honour at [402] and [403] of the summing up.

94 In support of his submissions which we have summarised in [89] above, the appellant referred to the following passage of Wood CJ at CL (with whom McClellan J and Smart AJ agreed) in R v Phan [2001] NSWCCA 29; (2001) 123 A Crim R 30 at 45, where his Honour said:

"69. Moreover, mere acquiescence or assent to a crime does not make a person liable as a principal in the second degree. What was needed in such a case is proof that the principal in the second degree was linked in purpose with the person actually committing the crime, and was by his or her words or conduct doing something to bring about, or rendering more likely, through encouragement or assistance, its commission."

95 To similar effect, in R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 this Court held that a person who is present at the commission of a crime is not liable as an accessory unless she or he intentionally assists or encourages the principal offender to commit the crime. The trial judge's directions must be sufficient to instruct the jury that on the accessorial basis of liability it must be satisfied that the accused was not merely present but was intentionally assisting or encouraging those inflicting grievous bodily harm.

96 In our opinion, her Honour's directions on this issue accord with authority. She made it patently clear to the jury that if it was not satisfied beyond reasonable doubt that the appellant, being present at the shooting, fired the fatal shots, it could only find him guilty of murder if the following criteria were proved beyond reasonable doubt: firstly, he had knowledge of all the essential facts or circumstances necessary to show that the murder was committed or going to be committed by a third person; and secondly, he intentionally assisted or encouraged the principal offender to commit the crime. The combination of directions adopted by her Honour made clear the elements of which the jury needed to be satisfied and left no room for the jury to interpret her directions as suggesting that mere presence at the scene of the crime would be sufficient to found liability. Accordingly, there is no substance in this ground of appeal.

97 It is to be noted that after directing the jury in terms of [402] and [403] of her summing up, her Honour asked whether either counsel wanted anything added to what she had just said. Mr Haesler answered in the negative. In these circumstances, we would in any event refuse leave under rule 4 of the Criminal Appeal Rules to rely on this ground of appeal.

Ground 6: The trial judge inaccurately summarised the effect of Adam Fowler's evidence

98 Earlier in this judgment, we briefly referred to the evidence of Adam Fowler, the appellant's son, concerning the night of 8 January 1988. In order to determine the sixth and seventh grounds of appeal, it is necessary to examine his evidence in more detail.

99 Adam Fowler gave evidence that he was born on 2 November 1976. Hence he was eleven years of age at the time the alleged offence occurred and was twenty-four years of age when he gave evidence at the trial before the primary judge.

100 Adam Fowler gave evidence in chief that his parents had separated when he was about six years old. After his parents had separated, he lived with his mother but regularly visited his father.

101 In January 1988, Adam Fowler travelled with the appellant to the home of the appellant's parents at Wallacia. On 8 January 1988, Adam Fowler went with the appellant to the home of his aunt, Vicky Climpson. He and the appellant stayed most of the day at Vicky Climpson's house and then returned to the house at Wallacia.

102 On the night of 8 January 1988, Adam Fowler did not leave the house at Wallacia. He recalled that there had been a storm that night, that there had been a power failure, but that the power had later been restored.

103 The concluding part of Adam Fowler's evidence in chief was as follows:-

"Q. At any time during the storm did your father leave the house?

A. Yes.

Q. What were you doing when your father was away from the house?

A. Oh as I remember I was staying with my grandfather.

Q. What were you doing?

A. Waiting for the power to come back on.

Q. Did you watch TV that night?

A. Yes.

Q. Do you recall watching a Sherlock Holmes movie?

A. I don't really recall it but, yes, it was in the statement, so yes.

Q. In any event you remember watching a movie that night.

A. That's correct, yes.

Q. And while you were watching television, was your father out?

A. I think so.

Q. When the film finished, did you then go to bed?

A. No, I flipped channels I think and then yeah watched a bit more and then I went to bed.

Q. When you went to bed was your father home?

A. No.

Q. When was the next time you saw your dad?

A. The next morning."

104 The reference in the above exchange to "the statement" is a reference to a statement Adam Fowler had made to police in question and answer form.

105 In cross-examination, Adam Fowler was asked whether the first time he was asked to recall the events of the night of 8 January 1988 was when police had interviewed him in Queensland "on 25 February". He answered in the affirmative and said that he had made a statement to the police on that date. He also said in cross-examination that he had no independent recollection of the events of 8 January 1988, and that he was giving evidence on the basis of that earlier statement.

106 Cross-examining counsel read the following questions and answers in Adam Fowler's statement:

"Q. Do you remember what movie you were watching?

A. Yeah it was a Sherlock Holmes movie, it was on channel 7.

Q. How long did you watch television that night?

A. I watched the end of that movie and when we changed channels and we watched something about Jesus on another channel, it was the end of another show, then we talked for a while, then I went to bed.

Q. Do you know what time that was?

A. It was about 11 o'clock".

107 Adam Fowler was then shown two television programme guides, one for 8 January 1988 and one for the following day, 9 January 1988. The following exchange took place.

"Q. I will show you two documents. (Documents shown). They have been marked. They are both television programmes and the first document has a red mark with a Sherlock Holmes movie on Channel 7?

A. Yes.

Q. You will see if you have a look at the time the Sherlock Holmes movie is scheduled to finish, there are no Jesus movies on that night, are there?

A. No, there aren't.

Q. If you look at the second document, the next page?

A. Yes.

Q. You will see marked is a movie or a mini series called "Anno Domini"?

A. Yes.

Q. It is a movie about Jesus?

A. Yes.

Q. It is on the following night?

A. Right.

Q. Do you accept that?

A. Yes.

Q. Would you accept that when you were trying and doing your best to answer the questions of the police in February 1988, you did make a mistake about the Jesus movie?

A. Yes, quite possible.

Q. Would you concede, having made that mistake, that you may have made a mistake about you watching the Sherlock Holmes movie until its very end?

A. That could be possible, yes".

108 The television program guide for 9 January 1988 was marked for identification and was later tendered and admitted into evidence in the defence case.

109 Her Honour summarised Adam Fowler's evidence at [171]-[174] of the summing-up. Her Honour said:

"171. There is also evidence of Adam Fowler, the accused's son. He was a 12 year old at the time. He did not live with his father. He was on, what used to be called at least, an access visit. He said he had gone with the accused to the accused's mother's home at Wallacia and they had spent the afternoon of 8 January at Vicky Climpson's house at Villiers Road. Adam Fowler said they stayed there most of the day, they had arrived about lunchtime and they left about what he called the end of the day. He said they drove back to Wallacia, which wasn't very far away and he spoke about the storm also. There is no question there was a violent storm that night and there was a blackout in some parts of the areas we are concerned about.

172. Now, this question, the significant evidence given by Adam Fowler, was that the accused left the house and that after power was restored and that was at 9.30, Adam watched television for a time. When he gave evidence in this Court, not surprisingly, he did not have a very clear recollection but he agreed that he had made a statement to police shortly afterwards in which he said he had watched a Sherlock Holmes movie and we know there was a Sherlock Holmes movie on that night and it finished at 11.08 pm.

173. He said he flicked channels and watched another film which he said was something about Jesus. Then he and his grandmother - he said `they', but presumably he means he and his grandmother, talked for a while, went to bed about 11 o'clock and his father was still not home when he went to bed.

174. It is quite clear from evidence produced in the defence case, that is the photocopies of the TV programmes for that night, that Adam's recollection was imperfect from the point there was a religious film on television the following night, but not that night, but we do know that he was correct in saying there was a Sherlock Holmes movie on that night. So if he was correct in saying that he watched that to the end and we know it finished at 11.08, the accused was still not home by that time".

110 In the present appeal, it was submitted by the appellant that her Honour's summary of Adam Fowler's evidence in her summing-up was inaccurate in certain respects. We will deal separately with each of the submissions made by counsel for the appellant.

111 (i) It was submitted that her Honour said, inaccurately, that Adam Fowler had given evidence that the appellant left the house at 9.30 pm, after power was restored.

112 It is correct that Adam Fowler did not give evidence that the appellant had left the house after power was restored. However, her Honour did not say that Adam Fowler had given evidence that the appellant left the house after power was restored. What her Honour said in [172] of her summing-up was that Adam Fowler had given evidence that the appellant left the house, and that after power was restored, he watched television for a time. In actual fact, the event which her Honour related to the restoration of power was Adam Fowler watching television, not the appellant leaving the house.

113 (ii) It was submitted that her Honour said, inaccurately, that in his evidence Adam Fowler agreed that he had made a statement to police "shortly afterwards".

114 Her Honour did say in [172] of the summing-up that Adam Fowler "agreed that he had made a statement to police shortly afterwards". This was, however, warranted with regards to his answers to the questions asked in cross-examination, which established that he had made a statement on 25 February 1988. In our opinion, the statement made on 25 February 1988 could accurately be described as having been made "shortly afterwards".

115 (iii) It was submitted that there was no evidence to support what her Honour said in [172] and substantially repeated in [174] of the summing-up that "we know there was a Sherlock Holmes movie on that night and it finished at 11.08 pm." A related submission was made that television programme guides could not establish whether particular programmes listed in the guides were actually shown or whether they were shown at the times stated.

116 At the trial there was no dispute that a Sherlock Holmes movie had been shown on television on the night of 8 January 1988 and that it had finished at 11.08 pm. There were a number of agreed facts at the trial and in his closing address the Crown Prosecutor, without any complaint from counsel for the appellant at the trial, said: "it is an agreed fact that the show that was being screened on television that particular night (8 January 1988) finished at eight minutes past eleven".

117 Adam Fowler was cross-examined by counsel for the appellant at the trial, on the basis that the programme guides were evidence of what programmes had actually been shown on the nights of 8 and 9 January 1988 and of what time the Sherlock Holmes movie shown on 8 January 1988 had finished.

118 As previously indicated, the television programme guide for 9 January 1988 was tendered by counsel for the appellant at the trial and admitted into evidence, as being evidence that the film about Jesus had been shown on the night of 9 January 1988.

119 It was put to Adam Fowler in cross-examination that he might have been mistaken about watching the Sherlock Holmes movie "until its very end". It was not put to Adam Fowler that he might have been mistaken about watching a Sherlock Holmes movie at all or that the Sherlock Holmes movie might have finished at some time other than 11.08 p m.

120 No objection was made at the trial to any part of her Honour's summary of Adam Fowler's evidence and we would refuse leave under r 4 of the Criminal Appeal Rules to rely on this ground of appeal.

Ground 7: The trial judge failed to give the jury a warning in respect of the evidence of Adam Fowler

121 It was submitted that the trial judge should have given the jury a warning about Adam Fowler's evidence "pursuant to the provisions of s 165 of the Evidence Act" having regard to the following factors: his age as at 8 January 1988; the number of years which had elapsed between 8 January 1988 and the time of the trial in February 2001; his lack of any independent recollection of the events of 8 January 1988; and the answers he gave in the concluding part of his cross-examination in which he conceded that he might have been mistaken in two parts of his evidence.

122 Under s 165(2) of the Evidence Act, a trial judge is required to give a jury directions in accordance with s 165 only if "a party so requests". At the trial, no such request was made. Accordingly, the trial judge was not required by s 165 to give directions in accordance with that provision in relation to the evidence of Adam Fowler.

123 At the trial, not only was no request made that a s 165 direction be given in relation to Adam Fowler's evidence, but no application was made by appellant's counsel for any kind of warning to the jury in relation to his evidence.

124 Shortly prior to commencing her summing-up, the trial judge invited submissions from counsel about a number of matters, including s 165 of the Evidence Act. Counsel for the appellant submitted that her Honour should give a s 165 warning in relation to the evidence of Ronald Doran. However, as we have already observed, counsel did not make any submission of the kind in relation to Adam Fowler's evidence. We would, therefore, infer that counsel made a considered decision not to seek any kind of direction or warning in this regard.

125 Section 165(5) of the Evidence Act provides that s 165 does not affect any other power of a trial judge to give a warning to a jury. Even if no party requests that a warning be given, one must be given "whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case". Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ; R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301 per Howie J at 318 (86). A warning may be required where the courts have special knowledge or experience about the kind of evidence which has been given which a jury may not possess or where there is a risk that a jury may attribute more weight to the evidence than it actually deserves. See R v Baartman [2000] NSWCCA 298 at [62] and R v Stewart at [97] and [101].

126 In the present case, the evidence given by Adam Fowler was not evidence about which the Court had any special knowledge or experience not shared by the jury, nor was it evidence to which the jury was likely to attribute more weight than actually deserved. It would have been quite obvious to the jury that his evidence concerned events, which had happened when he was eleven years old and that thirteen years had elapsed by the time of the trial. The jury also would have been aware that he had no recollection independent of the statement he had made to the police of what had happened on 8 January 1988 and that he had conceded in cross-examination that he might have been mistaken in two parts of his evidence.

127 We would refuse leave under r 4 of the Criminal Appeal Rules to rely on this ground of appeal.

Ground 8: The trial judge erred in permitting cross-examination of Ronald Anthony Doran

128 Earlier in this judgment, we referred to evidence given by Mr Doran about a statement made in 1992, in which he described conversations between himself and the appellant concerning the appellant's brother-in-law. In order to consider properly the present ground of appeal (and the following ground of appeal, which also relates to Mr Doran), it is necessary to examine in greater detail the evidence given by him at the trial and the stages in which such evidence was given.

129 Mr Doran was called by the Crown. He gave evidence in chief that he had been good friends with the appellant from his teens until his early twenties. Mr Doran was forty-one years old at the time of the trial. The Crown Prosecutor then asked him a number of questions, the answers to which were unresponsive or largely uninformative. The following exchange provides an example of such:

"Q. Have you ever had a conversation with Mr Fowler about his brother-in-law?

A. We could have done.

Q. Has he ever said anything to you nasty about his brother-in-law?

A. We all say nasty things about people from time to time, don't we?

Q. Has he ever said anything nasty about his brother-in-law?

A. He may have done. I don't know".

130 The Crown Prosecutor indicated that he wished to make an application in the absence of the jury, who then left the courtroom. Whilst the jury was absent, the Crown Prosecutor asked Mr Doran questions about the statement he had made to the police in 1992. He admitted to having said in that statement that the appellant had approached him in 1986 asking for help to kill the appellant's brother-in-law and that on a number of occasions the appellant had spoken ill of his brother-in-law. During this examination by the Crown Prosecutor, Mr Doran gave the following answer:

"A. Your Honour, in 1992, I was well and fit. I have gone through hell. I have gone through a drought that is a one in one hundred year drought. I have had four floods in three years. I have just been wiped out. I - I have just about put my brains through our family home because of the bloody financial bloody troubles. This is bloody insignificant to the battles we have had at home. I have been on drugs for bloody depression and whatever and I just - look, if I made this - at the time I made it, I signed it - I signed it, fine, that's great, but I can't - they handed me this here and I said, `Look, I cannot learn it like Shakespeare because it is not in my heart what is written'".

131 The Crown Prosecutor made an application that the trial judge give leave for the statement made in 1992 to be used to revive Mr Doran's memory. Her Honour said that her "immediate reaction" to the application was that a statement made in 1992 was not made at a time when the events recorded in it were "fresh" in Mr Doran's memory (s 32(2)(b)(i) of the Evidence Act) within the restrictive interpretation of the word "fresh" in Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606. The Crown Prosecutor did not further pursue his application under s 32.

132 The Crown Prosecutor then made an application pursuant to s 38 of the Evidence Act for leave to cross-examine Mr Doran. The application was based on s 38(1)(b), that is that Mr Doran did not in his examination in chief make a genuine attempt to give evidence about matters of which he might reasonably be supposed to have knowledge. The Crown Prosecutor said that he could call a police witness who could give evidence that Mr Doran had refused to read his statement before giving evidence.

133 Counsel for the appellant at the trial opposed the finding that Mr Doran was not making a genuine attempt to give evidence. However, her Honour expressed the tentative view that she was against counsel for the appellant on this point and hence it was not pressed any further.

134 The appellant's counsel then said:

"Let us presume for the moment that leave might be granted under s 38. The question then comes as to the potential for unfair prejudice under s 137..."

135 In support of this submission, counsel for the appellant pointed out that the statement was made in 1992; six years after the alleged conversation took place. It was further pointed out that the account of the conversation in the statement was in indirect rather than direct speech. It was also said that the conversation, if indeed it did occur, did so more than one year before the death of the deceased, "so there is a degree of remoteness in regard to the evidence the Crown wished to lead".

136 It was further submitted that Mr Doran had admitted to having psychiatric problems. Counsel for the appellant said:

"...if he is suffering from a mental illness at this time and he is allowed to be cross-examined, then the jury will be left with an inference that he is either bunging it on to retract or to protect the accused or that he is somehow associated with the accused and doing it to assist the accused, when in fact it may be merely a product of his own mental illness..."

137 It was also submitted that it was possible that Mr Doran had not told the truth when he made the statement to the police in 1992 and that he was seeking to avoid giving "an accurate recollection" because he was fearful of repeating his original lies.

138 On the basis of the above arguments, counsel for the appellant submitted that "the prejudice outweighs the probative value of any such conversation and to allow it would be unfair" and that leave should not be granted under s 38 (the transcript refers to s 138 but this is obviously an error).

139 After hearing brief submissions from the Crown Prosecutor, her Honour announced her decision on the application under s 38 in the following terms:

"It does appear to me that Mr Doran is not, so far as he has been examined in chief, making a genuine attempt to give evidence and I will grant leave to the Crown to cross-examine in relation to the matters that are contained in the record of interview of 8 December 1992 and evidence given by him on 8 May 1997".

Apart from the above passage, the trial judge gave no further judgment on the application under s 38.

140 After leave had been granted, the Crown Prosecutor cross-examined Mr Doran in the presence of the jury about the statement he had made to the police in 1992, which was in question and answer form. Mr Doran said that what he had told the police in 1992 was true. However, at the time of giving evidence at the trial, he had a "very poor recollection" of the conversations between himself and the appellant concerning the appellant's brother-in-law. Mr Doran agreed that the following questions and answers appeared in the statement:

"Q. Is it correct during the course of our conversation that you told me that you had some information regarding the death of Fowler's brother-in-law and that you had been approached by Fowler to help kill his brother-in-law

A. Yes.

Question 9:

Q. Can you now tell me in as much detail as you remember the conversation that you had with Warwick Fowler in relation to this incident?

A. Some time later in 1986 I was at Fowler's Disco Donuts and having something to eat after hours. Fowler and I were talking and he started telling me about what a prick his brother-in-law was and that he was giving his sister a hard time. He said, `I've had a gutful of him and he has got to go. He said his sister rang him up all the time complaining about her husband treating her badly. He then asked me to go and give him a hand. I said `To do what?' He said he was going to shoot his brother-in-law and to go with him and drive the car and pick him up after he had done the job. He said there was 10 grand in it.

"Question 10:

Q. What did you say in reply to this proposition?

A. I said `Get real. You must be joking' or words to that effect. I said, `You're mad, you'll get caught'. He said, `No way. I'll use hot ice and it will melt and there will be no evidence'.

Question 12:

Q. Did he ever discuss this matter with you again?

A. Yes. On one occasion not long after, he said he was heading for Sydney and if I wanted to come along.

Question 14:

Q. Did Fowler ever discuss instances about his brother-in-law on other occasions?

A. On numerous occasions he commented on what a prick his brother-in-law was and the trouble he was causing his sister. These conversations appeared to happen after he had spoken to his sister. Generally he was a placid sort of bloke. Every time he seemed agitated it was over his brother-in-law or his ex missus.

Question 15:

Q. Do you know if Fowler ever went to Sydney in relation to doing something against his brother-in-law?

A. On one occasion he said he was going to Sydney to do something with his brother-in-law. He led me to believe he went to Sydney there but apparently his brother-in-law went away and nothing happened.

Question 16:

Q. How do you know this information?

A. He told me.

Question 17:

Q. Do you remember the time and date this took place?

A. In the last four months of '86.

Question 29:

Q. Is there anything else that you can help us with in this enquiry?

A. I'm absolutely certain of the facts about the conversations however the exact times and dates I am not certain of but the years they took place are correct".

141 In cross-examination, Mr Doran agreed that he had made the statement in 1992, after the police had come to his property and given him the impression that he was in some sort of trouble because a car had been dumped on his property by Noella Harb's brother. He denied having made up a story about the appellant in order to get rid of the police.

142 As to his medical condition at the time of giving evidence, Mr Doran said, "I consider myself to be back on my feet, sort of". He said that he was not currently taking any anti-depressants and had taken them for less than a year in about 1998. When asked, "Can you remember what your mental state was like when you came to sign that statement?" he replied, "I didn't think I had any problems at the time".

143 As to the fact that his account of the 1986 conversation was in indirect speech, he explained that they were "just general summaries of what was said", "because (he) could not remember the exact words of what was said six years after the event".

144 As to whether what he had said in the 1992 statement was true, he said that at the time of giving evidence he was unsure, but that "I'm not in the habit of signing a false document" and that he would only have signed the statement if it were true.

145 Mr Doran agreed in cross-examination that the arrest of the appellant in October 1990 had received publicity in the Moree area, and that despite being aware of such, he did not provide the information contained in his statement to the police until 1992.

146 In re-examination by the Crown Prosecutor, two answers given by Mr Doran to the police in 1992 were read. In these, Mr Doran said that he had not told the police about the appellant approaching him to help kill his brother-in-law at the time because he was frightened of what the appellant might do to him and his family if the former thought that he was informing on him. He finally told the police in 1992 because they had come to his property about another matter. In this regard, he said, "I can't live with myself. It's worried me ever since he asked me. I finally decided it was time to clear the air". Mr Doran agreed that what he had said in those answers was true.

147 In the present appeal, the appellant has submitted that the trial judge should have rejected the evidence of the alleged conversations between the appellant and Mr Doran on the ground that the evidence was not relevant. It was submitted that the times at which the conversations occurred were not sufficiently proximate to the time of the alleged murder to enable any inference that any state of mind of the appellant manifested in those conversations had continued up to the time of the alleged murder. Counsel cited R v O'Leary [1946] HCA 44; (1946) 73 CLR 566 at 577 and R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 at 516.

148 However, counsel for the appellant at the trial did not submit that Mr Doran's evidence of the conversations was irrelevant. The submission which counsel made in opposing the granting of leave under s 38 was that the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant. In doing so, counsel implicitly accepted that the evidence was at least relevant.

149 In our opinion, Mr Doran's evidence regarding the conversations with the appellant, including the conversation described in the answers to questions 9 and 10, satisfied the criterion of relevance under s 55 of the Evidence Act, namely that it was evidence which, if accepted, could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue at the trial. Further, we consider that evidence of the conversation described in answers 9 and 10 would have been relevant, even if it had stood by itself. The other evidence that on an occasion "not long after", "in the last four months of '86", the appellant said that he was going to Sydney to do something about his brother-in-law and asked Mr Doran if he wanted to accompany him heightened its relevance. There was also other evidence that "on numerous occasions" the appellant had talked of "what a prick his brother-in-law was" and of "the trouble he was causing his sister".

150 O'Leary and Adam, which the appellant has sought to rely on, differ from the present case, and what was said therein on the subject of relevance must be understood contextually. In each of those cases, the question arose whether evidence of an incident was admissible on the basis that it was an integral part of a connected series of events, lasting over a few hours or no more than a day. In Adam, the evidence in question (the admissibility of which is discussed at p 516 of 106 A Crim R) was that earlier on the night of the offence, the appellant had stared in a hostile manner at a person other than the victim of the offence.

151 The principal submission made by the appellant in relation to this ground of appeal was that her Honour erred in granting leave under s 38 of the Evidence Act to cross-examine Mr Doran because she had not taken into account s 192 of the Evidence Act.

152 Section 192 of the Act provides:

"(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b) the extent to which to do so would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d) the nature of the proceeding, and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence".

153 In Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115, the High Court held that, in deciding whether leave should be granted under s 112 of the Evidence Act to cross-examine an accused about matters arising out of evidence of a kind referred to in Pt 3.8 of the Act (relating to "character"), a court must have regard to the matters contained in s 192.

154 In R v Hogan [2001] NSWCCA 292, this Court referred to Stanoevski and held that s 192 applies generally to applications for leave under the Evidence Act, including applications for a grant of leave under s 38.

155 Nowhere in the submissions made to her Honour or in any of the remarks made by her Honour in the course of the application is there any reference to s 192 of the Evidence Act. In our opinion, it can be inferred from this that in granting leave her Honour did not have regard to the provisions of s 192. The Crown has not disputed this conclusion in the present appeal.

156 However, the above conclusion does not necessarily mean that the appeal should succeed. In Stanoevski, McHugh J said at [56] that, notwithstanding a failure by a trial judge to refer to s 192 in deciding whether to grant leave under the Evidence Act, an appeal against conviction will not be upheld if the prosecution can establish that the conviction has not resulted in a miscarriage of justice. His Honour elaborated that one of the ways in which the prosecution can establish that no miscarriage of justice has occurred is by establishing that, had the trial judge had regard to s 192, "the trial judge could not reasonably have refused to grant leave".

157 In R v Le [2002] NSWCCA 186, a case in which the trial judge had made a grant of leave under s 38 without having had regard to either s 192 or s 137, Heydon JA said at [49]:

"It follows that the s 38 order which the trial judge made was under an error of law. However, the conviction could still stand if the Crown could establish that the trial judge could not reasonably have refused to grant the prosecution's application under s 38 even if all relevant provisions had been taken into account: Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 at par 56 per McHugh J".

158 In our opinion, for the reasons given below, had the trial judge had regard to s 192, she could not reasonably have refused to grant leave under s 38.

159 As regards s 192(2)(a), it was apparent from the evidence Mr Doran had already given in the absence of the jury (that he had no independent recollection of the contents of the statement) that the taking of his evidence would not be likely to add unduly to the length of the trial. Mr Doran's entire evidence, interrupted though it was by the applications made by the Crown Prosecutor, was given in less than an afternoon of court time.

160 As to s 192(2)(b), the appellant submitted that Mr Doran's evidence should be excluded under s 137 of the Evidence Act because the probative value of the evidence he would give would be outweighed by the danger of unfair prejudice to the appellant. However, her Honour found that this was not the case. Given this conclusion, it is our opinion that, had she had regard to s 192(2)(b), her Honour could not reasonably have found that it would be unfair to the appellant to grant leave under s 38 so that the evidence could be elicited by cross-examination.

161 As to s 192(2)(c), Mr Doran's evidence would clearly be an important part of the Crown's circumstantial case. As to s 192(2)(d), the proceedings were a criminal trial for murder. As to s 192(2)(e), there was no other power available to her Honour, the exercise of which would have brought about the adducing of evidence from Mr Doran.

162 We would reject this ground of appeal.

Ground 9: The trial judge erred in failing to direct the jury pursuant to s 165 of the Evidence Act in respect of the evidence of Mr Doran.

163 In dealing with the eighth ground of appeal, we summarised the evidence given by Mr Doran at the trial and the stages in which his evidence was taken.

164 Shortly before her Honour began her summing-up, she raised a number of matters with counsel, including "the s 165 direction sought".

165 Counsel for the appellant had prepared a document containing a "brief resume" of a direction under s 165, which he submitted her Honour should give. The Crown Prosecutor opposed the giving of such directions. This document was not available on the hearing of this appeal.

166 There was discussion between her Honour and counsel about whether Mr Doran's evidence fell within any of the kinds of evidence listed in s 165(1). It was suggested that Mr Doran's evidence might be evidence of "admissions" made by the appellant (s 165(1)(a)), within the definition of "admission" in Part 1 of the Dictionary at the end of the Act. Her Honour commented that, if a trial judge was required to give a warning under s 165 about any evidence which fell within the definition of "admission", "that would have to mean that any evidence of what the accused person said that was proposed to be used by the Crown would have to be the subject of a s 165 warning" and that she would have to give a s 165 warning with respect to all the evidence relied on by the Crown as being evidence of lies told by the appellant in consciousness of guilt.

167 On the question of whether evidence of lies told in consciousness of guilt is evidence of "admissions", the Crown Prosecutor referred to the decision of Hulme J in R v Esposito (22 August 1997). However, as counsel for the appellant later pointed out, Hulme J was overruled on this point on appeal to this Court: R v Esposito (1998) 45 NSWLR 442. In Esposito, it was held that evidence of statements made by an accused, even if on their face they were exculpatory, were nonetheless "admissions" within the definition in the Evidence Act if they were relied on as implied admissions of guilt as being lies told in consciousness of guilt.

168 After hearing further argument her Honour said at p 603 of the trial transcript:

"What I had in mind doing was reminding the jury of the evidence given before they were sent out, which was fairly short, but suggest they might have thought he was being evasive, and not attempting to answer the questions. That he had said when he was cross-examined, he said he had no recollection of what he had said but he wasn't in the habit of signing false statements. And then give another direction that they may have formed the view he was not being completely truthful. That they might find it difficult to believe the assertion that because of all that has happened to him since 1992 this event was insignificant. If they are sceptical about part of his evidence they might be sceptical about other parts of his evidence they might be sceptical about other things but they should scrutinise his evidence with some care and, having done so, decide to accept or reject it.

That witnesses who tell the truth about one thing are not necessarily telling the truth about everything, and vice versa. Refer to such evidence as there is of his mental condition, and then refer to his evidence which would include a reference to that part of it that is consistent with Noella Harb, and then remind them of the explanation given to the police for not having gone to the police sooner.

That is some sort of compromise. It is not intended to be a 165 unreliability direction and I do have difficulty with the proposition that it is a 165 case".

169 There was further discussion between her Honour and counsel, parts of which were as follows:

"HER HONOUR: Do you persist in the submission that it is evidence properly characterised as 165 evidence?

HAESLER: Yes, I do.

HER HONOUR: Under which subparagraphs?

HAESLER: Mental health.

HER HONOUR: Not the admission?

HAESLER: Well, your Honour, the dictionary points to the part of the Evidence Act concerning admissions.

HER HONOUR: As I said to the Crown, I have difficulty with the proposition it is an admission in any sense, but it does seem to fit within the language".

...

HER HONOUR: Do you accept that on that construction, on the most obvious construction of the definition, anything said by an accused of which the Crown sought to lead evidence, other than in its duty of fairness, would have to be the subject of a 165 direction unless the judge found there were good reasons for not doing so?

HAESLER: It would appear to be the case.

HER HONOUR: That would be the case in relation to any lies the Crown relied on?

HAESLER: Yes, it would, your Honour.

HER HONOUR: That points up how ludicrous it is.

HAESLER: That appears to be what it says. The law is not always rational, your Honour.

HER HONOUR: It may be a good reason under subs (3), but what the law apparently requires is ridiculous".

...

HER HONOUR: The difficulty I have is not giving a direction about the potential difficulties with Mr Doran's evidence. I recognise that that's necessary. The difficulty is the warning in terms of subs (2), because that specifically requires the jury to be told that it might be unreliable.

HAESLER: I framed my written submissions in terms of (c) the mental health reasons, but there is nothing, and I wouldn't resile from saying that the nature of the admission is something that requires that direction. Your Honour could say "No, in the circumstances, having considered all the matters, I will not exercise my discretion to give that warning or caution". But in my submission, it would be appropriate to give that warning. That doesn't mean you can't say it with other things, giving balance to the Crown. But there is a real danger of this particular evidence, in the way it fell, being given too much prominence in this case.

HER HONOUR: I can't make a decision at the moment. I will have a look at that overnight. I will certainly give some sort of direction about Mr Doran's evidence, but whether it goes so far as to classify it as unreliable, potentially unreliable, I haven't yet decided. Do you say I should go that far, Mr Crown?

CROWN PROSECUTOR: No your Honour".

170 The question of whether a s 165 direction should be given in regards to Mr Doran's evidence was not raised again before her Honour gave her summing-up.

171 In [100] of the summing-up, her Honour told the jury that "there are two (witnesses) whose credibility has been put in issue and who you have been invited to treat either very sceptically or with caution". Her Honour told the jury that the first of these witnesses was Noella Harb and at [101]-[112] of her summing-up she discussed the evidence of that witness. In [113] of the summing-up, her Honour turned to Mr Doran.

172 [113]-[124] of her Honour's summing-up were in the following terms:

"113. The next witness about whom I wish to speak is Mr Doran. This is evidence that does require careful scrutiny on your part. You might remember there was something unusual about the way in which he gave his evidence. I will just remind you of the circumstances in which his evidence was given.

114. Initially he came into the witness box, as did every other witness in the case and when he was asked questions by the Crown, he said he could not remember anything. You might remember that I then asked you to leave the Court for a short time, we had some discussions in the Court and when you came back I allowed the Crown to adduce Mr Doran's evidence in a way that was different from the way other witnesses gave their evidence.

115. Effectively, what happened was that the Crown read to him answers that he had previously given in 1992 to police. Mr Doran continued to maintain that he had no recollection and he said that was because of all the unfortunate and disastrous things that had happened to him since 1992. He said he had four floods in three years, he had to shoot stock and he had suffered from depression. You may have formed the opinion that as a witness Mr Doran was somewhat fragile. You might remember he turned directly to you and explained to you that he regarded these events as insignificant because of what had happened to him in the meantime.

116. It is also necessary to observe that the position he adopted, that is that he could not remember anything, made it extremely difficult for Mr Haesler to cross-examine him. You might ask yourselves how do you cross-examine a witness who simply says, `I don't remember anything'. Further, the events to which he referred in his interview with police which were put to you in that indirect way, allegedly occurred in 1986. He had said nothing about them until December 1992. In other words, he was telling police in 1992 about something that he said had happened six years previously.

117. The only evidence Mr Doran gave directly in this Court was that he was not in the habit of signing false statements and he maintained that. So that what you had, and what Mr Haesler had to deal with, is the contents of some information given by Mr Doran to police in 1992 about events in 1986 and of which Mr Doran said he now has no recollection. You can imagine I think, how difficult that would be to, that would make it for Mr Haesler to test that evidence.

118. One of the purposes of cross-examination is to test what the witness says, to possibly put alternative propositions, to confront the witness sometimes with something that has been said that was different. In the case of a witness who simply says, `I don't remember anything now', it is very difficult indeed to cross-examine and that was a handicap that Mr Haesler had to face.

119. You need to bear all this in mind in assessing Mr Doran's credibility. I am going to read to you at a later stage the substance of the evidence he gave. The direction I am giving you at the moment is concerned with your approach to his evidence, given in this very unusual way.

120. In addition to that, Mr Haesler referred to what he described as Mr Doran's mental illness and again, it is for you to assess whether that evidence has any impact on your acceptance of the substance of what he said in 1992. I will just remind you what was said about his mental condition and I will read it to you directly so it is completely accurate. Mr Haesler said:

"Q. What is your present diagnosis in regard to your mental condition, what do the doctors say?

A. I consider myself to be back on my feet, sort of.

Q. Are you taking antidepressants?

A. No.

Q. Were you taking antidepressants?

A. I was.

Q. What years were you taking antidepressants?

A. I couldn't tell you.

Q. For years?

A. No, I wasn't taking it for years. I stopped taking them because I found it was making me worse in some instances.

Q. When did you stop taking it?

A. That would be a couple of years ago "98.

Q. How many years did you take them for?

A. I didn't take them for long actually.

Q. For more than a year?

A. No, it was under a year.

Q. You were suffering depression all through the nineties, weren't you? It's just got worse as the nineties went on?

A. I couldn't tell you.

Q. Back in 1992 you were having trouble sleeping at night?

A. I wouldn't know.

Q. Would you describe yourself as scared and paranoid?

A. No.

Q. You used those terms to police though, didn't you?

A. I can't remember''

121. And we will come later to the passages in the statement made by Mr Doran to police in which he used those expressions.

122. As I said, it is for you to assess whether Mr Doran was, in 1992, suffering from any mental illness such as to affect the credibility of what he said to police. I remind you how difficult it was for Mr Haesler to cross-examine or to test what he had said in 1992, in the face of his denials that he recalled anything of what had been said, either by him by police or by Mr Fowler to him.

123. In this context I point out it is not in dispute that Mr Doran told police in 1992 that the accused had stated an inclination and even an intention to harm Mr Climpson and he had given a reason for that. What is at issue here is whether what Mr Doran said in 1992 was the truth. As I said, it is very difficult to cross-examine on that when he maintains that he can't remember any more.

124. I will come back to the detail of what Mr Doran said later. At the moment I mention him only as an example of a witness whose evidence you should look at carefully. I do not say by that, that you could not accept what he said previously, but you do need to give careful consideration to what he said for the reasons I have just outlined to you".

173 At [189]-[198] of the summing-up her Honour summarised the evidence given by Mr Doran. In [191], she said:

"191. I have reminded you Mr Doran told you from the witness box he had no recollection of telling this to the police and no recollection of the accused having said it to him, but it is accepted that he made that statement to police in 1992".

174 In [392]-[393] of the summing-up, her Honour said:

"392. ... One strand (of circumstantial evidence) may gain strength from another and in that respect I give you one illustration - I could use any of the pieces of evidence in this case, but I will refer to Mr Doran's evidence about which you have been given a warning, a caution.

393. Those cautions do not mean that you must reject his evidence. They mean that you should not act on his evidence without giving it careful scrutiny. But, if having scrutinised the evidence you thought that his evidence gained some support, for example from the evidence given by Noella Harb, you would be entitled to use that as one of the strands in your cable".

175 At [411] of her summing-up, her Honour reminded the jury about "what I said to you about treating his (Mr Doran's) evidence with some caution".

176 It was submitted by the appellant in support of this ground of appeal that his counsel at the trial had made a request for the trial judge to give directions in accordance with s 165 in relation to Mr Doran's evidence. This request was based on: firstly, Mr Doran's evidence being evidence of admissions by the appellant within the definition of "admission" in Part 1 of the Dictionary at the end of the Act and hence was evidence within s 165(1)(a); and secondly, Mr Doran's evidence being evidence the reliability of which might be affected by mental ill health and hence was evidence within s 165(1)(c). The appellant submitted that further grounds that could have been relied on were: firstly, "the age" of the alleged conversations and the inconsistency between Mr Doran's evidence in chief and his evidence when cross-examined by the Crown; and secondly, although the trial judge had given certain directions about Mr Doran's evidence, she had not, as required by s 165(2)(a), warned the jury that Mr Doran's evidence might be unreliable.

177 The relevant provisions of s 165 are as follows:

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,

(b) identification evidence,

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

(e) evidence given in a criminal proceeding by a witness who is a prison informer,

(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,

(g) in a proceeding against the estate of a deceased person---evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

178 It seems clear from the trial transcript that defence counsel did request that a warning be given under that section in respect of Mr Doran's evidence on two bases: firstly, that it contained an "admission" under Part 3.4 of the Act; and secondly, the effects that the state of the witness's mental health may have had on the reliability of the evidence. It also seems to be reasonably clear that her Honour ultimately declined to give a warning under that section as she was not persuaded that it applied to Mr Doran's evidence. In particular, she thought it was inappropriate to warn the jury that his evidence may be unreliable in accordance with s 165(2)(a). Her Honour's chief concern appeared to be the width of the term "admission" as defined for the purposes of the Act, and the potentially "ludicrous" or "ridiculous" results that would arise if the section applied to all evidence amounting to an admission under Part 3.4. There is some support for this view that a section of the Act should not be read literally if to do so would result in absurdity.

179 Section 116 of the Act appears to mandate that where "identification evidence" as defined in the Act is admitted, the jury is to be informed of the "special need for caution" in respect of such evidence and the reasons for such caution. However, in Dhanhoa v The Queen [2003] HCA 40; [2003] 77 ALJR 1433 the High Court held that, despite the wording of the section, it had no operation where the reliability of the identification of the accused was not an issue in the trial. Gleeson CJ and Hayne J in a joint judgment stated (at 1436):

"[19] If read literally, and apart from its statutory context, s 116 could be taken to mean that a judge is always required to inform the jury that there is a special need for caution before accepting identification evidence whenever identification evidence has been admitted, even if the reliability of the evidence is not in dispute. That would be absurd. If a witness claims to have seen an accused at a particular place on a particular occasion, and the truth of that assertion is not questioned or in any way put in issue, then ordinarily there is no special need for caution before accepting the evidence. The common law principle, expressed in the passage from Domican quoted above [(1992) [1992] HCA 13; 173 CLR 555 at 561], contains the obvious qualification that the warning is to be given where the reliability of the evidence of identification is disputed. The same qualification is implied in s 116; if it were otherwise the provision would offend common sense."

180 McHugh and Gummow JJ stated (at 1441):

"[53] The obligation imposed by s 116 must be read in the context of the adversarial system of criminal justice. It is not to be supposed that, in enacting that section, the legislature intended that juries be given directions concerning identification evidence when identification was not an issue. It is not to be supposed that the legislature intended a trial judge to give a direction that was not relevant to the issues in the case. Not only would it be a waste of curial time and effort but the giving of an irrelevant direction would be likely to confuse the jury who understandably would be puzzled as to what significance the direction had."

181 However, it is unnecessary to construe s 165 in any particular way in order to avoid an absurd result or to ensure that unnecessary directions and warnings are not given to a jury. As her Honour noted, s 165(3) provides that the trial judge is not required to comply with s 165(2) where "there are good reasons for not doing so". Clearly, if the reliability of any evidence falling within the section was not in issue at the trial, that would be a good reason for not complying with s 165(2).

182 Further, it has been held that even though the evidence before a particular jury falls within one of the categories specified in s 165(1), a trial judge is not required to give a warning unless there is a real possibility that the evidence is unreliable: see R v Flood [1999] NSWCCA 198 at [14]; and generally R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301 at [95]. In R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 at [70], this Court held that the opening words of the section qualified the words of the particular categories mentioned in s 165(1), so that even though the evidence fell within one of the categories, a warning was not required by the section where the evidence was not of a "kind that may be unreliable". In Clark it was held that, in the circumstances of that case, there was no need for the trial judge to give a warning in relation to an indemnified witness, even if it were assumed that he was a witness otherwise falling within s 165(1)(d), because there was nothing about his evidence to suggest that it might be unreliable. In any event, a finding by a trial judge that there was no reason to suppose that the particular evidence under consideration might be unreliable would itself provide a good reason for the trial judge not to give a warning.

183 The present ground of appeal asserts that her Honour erred in determining that the section did not apply in respect of Mr Doran's evidence and, therefore, in failing to give a warning in terms of s 165(2). We are prepared to consider the matter on the basis that, prima facie at least, the section did apply to the evidence of Mr Doran in that it contained an admission for the purposes of Part 3.4. Although her Honour was concerned that inappropriate warnings might have to be given because of the width of the meaning of the word "admission" for the purposes of the Act, we do not believe that there is any need to read down the words in s 165(1)(a) or otherwise to limit the operation of s 165 in order to avoid the problems referred to in the passage we have quoted from the judgment of McHugh and Gummow JJ in Danhoah.

184 The purpose of the section is to ensure that the jury is alive to any factor that might adversely affect the weight to be given to evidence before them. If there is a real possibility that, without an appropriate warning from the trial judge, the jury might not identify such a factor or might not appreciate its importance or might in some other way be misled about the weight to be given to the evidence, a warning should be given. The risk of unreliability might arise for various reasons: the evidence is of a certain kind (such as hearsay evidence); the witness is of a certain class (such as a person implicated in the offence); the evidence might be affected by some personal characteristic of the witness (such as age); or the witness may be honestly mistaken (such as in identification evidence).

185 Of course, the risk of unreliability might arise from the presence of a number of circumstances that impact upon the weight to be given to the evidence in different ways. For example, in the case of an admission there may be an issue about the reliability of the evidence that the accused made the statement amounting to the admission. That issue will arise where the evidence of the making of the admission is itself evidence of a kind that might be unreliable because, for example, the evidence comes from a prison informer. There may be a further issue about whether the statement made by the accused might itself be unreliable as an admission because, for example, of the accused's mental condition at the time the statement was made.

186 Where a party has requested a warning under s 165 about a particular witness or a particular piece of evidence, the trial judge must consider what issues (if any) were raised during the course of the trial about the reliability of the witness or the evidence, in order to determine whether a warning is required by the section and what the content of any such warning should be. If there was no issue raised about the reliability of any aspect of the evidence, then no warning should be given, notwithstanding that it might otherwise have fallen within the ambit of the section.

187 If, for example, the Crown relies upon a lie allegedly told by an accused as evidencing a consciousness of guilt, the lie will amount to an admission for the purposes of Part 3.2 of the Act. Whether a warning under s 165 should be given about that evidence depends upon the issues raised in relation thereto during the trial. If there is no issue that the accused made the statement upon which the Crown relies, it is unlikely that any warning will be required. The directions to be given to the jury identifying the pre-conditions that must be fulfilled before the statement can be used as evidence of a consciousness of guilt would be sufficient to fully alert the jury as to the way in which they are to consider that evidence and determine the issues raised before them. In such a case, there will usually be no risk of unreliability notwithstanding that the statement may amount to an admission for the purposes of the Act. A warning is not required where, even though it falls with the ambit of s 165(1)(a), the evidence is not "of a kind that might be unreliable" (applying Clarke), or where there are good reasons for not giving a warning (applying s 165(3)). If the accused denies making the statement relied upon by the Crown, the question of whether a s 165 warning is required will depend upon the nature of the attack made upon the evidence of the making of the disputed statement.

188 Where the issue raised concerns the honesty of the witness's evidence, a warning will not normally be required unless the witness falls within a category mentioned in s 165(1). As a general rule, the court has no particular advantage over a lay jury in determining whether a witness is telling the truth. General matters used by a tribunal of fact to assess a witness's credibility, such as demeanour, consistency, recent invention, and the presence of a motive to lie are readily appreciated by members of a jury as part of their normal life experiences. In such a case, if anything needs to be said by the trial judge about the evidence, it would normally be sufficient for the judge to comment on the evidence by reminding the jury of criticisms of it made by counsel during addresses.

189 In the present case, the evidence given by Mr Doran amounted to an admission for the purposes of Part 3.4 of the Act because the Crown was relying upon statements allegedly made by the appellant to him as proving a motive to kill the deceased and a previously expressed intention to do so. The two issues raised in respect of Mr Doran's evidence were his honesty as a witness and, to a much lesser extent, whether he was suffering from some mental disorder at the time of making his statement to police or when giving evidence. The appellant's case was that he never made the statements attributed to him by Mr Doran and he was deliberately lying when he made the statement to the police in 1992. In his address, defence counsel put to the jury that Mr Doran's evidence was "complete nonsense" and "an invention from someone who was and is mentally ill". He was critical of the circumstances in which Mr Doran came to give his statement to the police and submitted to the jury that he was lying, in particular, when he explained that he delayed telling the police about what the appellant had said because he was frightened of him.

190 Insofar as the evidence of Mr Doran contained an admission, her Honour was right not to give a warning to the jury under s 165. The evidence did not fall within the ambit of the section. The principal attack upon the witness was that his statement to the police was untrue. In order to determine that issue, the jury was asked to take into account the circumstances in which Mr Doran came to make his statement to the police in 1992, including the period of delay after the appellant's arrest and the fact that the police were investigating possible illegal activity by the witness at the time. There was nothing in the matters placed before the jury on the issue of Mr Doran's credibility which the jury could not appreciate, understand and evaluate, relying only upon the collective common sense and experience of its members. We are of the opinion that, applying Clark, the evidence was not "of a kind that might be unreliable" within the terms of the section, notwithstanding that it was an admission under s 165(1)(a). We note that her Honour appropriately told the jury that the issue was one of Mr Doran's credibility.

191 In respect of the witness's mental state, her Honour quoted verbatim the evidence arising from Mr Doran's cross-examination. We have set out that passage earlier in the judgment. There was little (if any) evidence that the witness was suffering from a "mental illness" as defence counsel described it, either at the time he made the statement to the police, or at the time of giving evidence before the jury. The evidence revealed no more than that for some unspecified period the witness had suffered from depression and that he had taken anti-depressant medication for less than a year, ceasing its use in 1998. There was no evidence as to the effect of his depression or any medication he might have taken on his reliability. In any event, the witness stated in evidence that at the time of making the statement in 1992 he was "fit and well". There was no evidence to the contrary. The jury was able to assess his demeanour at the time of giving evidence and what he said about his recollection of events. Her Honour left it to the jury to determine whether he might have been suffering from some "mental illness" and what effect it might have had on his reliability. There was no error in this approach, which, with respect, appears unduly favourable to the appellant. The evidence was not such that a warning was required under s 165.

192 There was only one matter which might have been of importance to the assessment of the weight to be given to Mr Doran's evidence in respect of which the jury needed the assistance of the trial judge: namely, the difficulty confronted by the defence in testing the evidence because of its nature and the way in which it was presented to the jury. However, as revealed in the passages of the summing up referred to above, her Honour was at pains to alert the jury to this difficulty and to assist them in understanding its relevance in an assessment of the witness's credibility. Her Honour warned the jury on more than one occasion to approach Mr Doran's evidence with care before acting on it. In our opinion, nothing more was required.

193 In any event, the principal criticism made of what her Honour said about Mr Doran's evidence was that she had not told the jury that it might be unreliable in accordance with s 165(2)(a). However, it is not necessary that any particular form of words be used where a warning under the section is being given: s 165(4). As we have already noted, unreliability might arise either because the evidence is deliberately untrue or because it is honest but mistaken. There is no reason why, in an appropriate case, the trial judge cannot choose some other word in preference to the word "unreliable" to make the distinction plain for the jury. In the present case, her Honour made it clear that the principal issue was one of credibility, in the sense that the defence was asserting that Mr Doran was lying to the jury. Her Honour told the jury why his evidence might be unreliable in that respect and cautioned them about relying upon it.

194 The submission that there were further grounds for a warning under s 165, other than those relied upon by defence counsel at the trial, has no substance at all. The fact that the evidence concerned alleged conversations which took place in 1986 and which were not reported to the police until 1992 are not matters which fall within the ambit of s 165. This is not "evidence of a kind that might be unreliable". Nor did the fact that there were inconsistencies in the witness's evidence require or justify a warning. These are matters upon which her Honour might have made comment to the jury, but she was not required to do so in order for the appellant to receive a fair trial.

195 This ground should therefore be rejected.

Ground 10: The trial judge erred in admitting evidence of a conversation between the appellant and Noella Harb

196 Earlier in this judgment, we summarised the evidence given at the trial by Noella Harb, the appellant's former wife. This evidence concerned a telephone call by Vicky Climpson and a subsequent conversation between the appellant and Ms Harb, in which the appellant had said that Vicky Climpson was very upset, that the deceased had been abusing and drugging her. Ms Harb said that the appellant "was quite upset at the time as well".

197 Ms Harb said in her evidence that she could not remember when this telephone call and conversation had occurred, or how long it was prior to the death of the deceased. However, the telephone call was to the house into which the appellant and Ms Harb had moved in 1985.

198 In cross-examination, it was put to Ms Harb that she had invented the evidence about the telephone call and her conversation with the appellant and about the appellant himself being upset. This she denied.

199 On this appeal, it was submitted that her Honour erred in admitting this evidence of Ms Harb, on the basis that it did not pass the test of relevance enunciated in R v Adam.

200 No objection was made at the trial to the giving of any of this evidence. Accordingly, leave under r 4 of the Criminal Appeal Rules is required before the admission of this evidence can be relied on as a ground of appeal.

201 As we explained earlier in this judgment when dealing with the eighth ground of appeal, the statements of this Court in R v Adam on the subject of relevance must be understood in the particular context of that case.

202 In our opinion, even though Ms Harb could not say how long before the death of the deceased the events of which she gave evidence had occurred, the events must have occurred no earlier than 1985 and her evidence passed the test of relevance under s 55 of the Evidence Act.

203 We would refuse leave under r 4 to rely on this ground of appeal.

Ground 11: The trial judge erred in directing the jury that they could use the evidence of

the witness Noella Harb to support the evidence of Mr Doran

204 A preliminary submission was made that her Honour misstated Noella Harb's evidence in the summing-up, saying at [101] and [108] that she had given evidence of telephone calls (in the plural) by Vicky Climpson, whereas Ms Harb had in fact given evidence about only one telephone call.

205 However, when her Honour summarised Ms Harb's evidence, she referred, and in detail, only to one telephone call. There was no risk of the jury being misled into thinking that Ms Harb had given evidence about more than one telephone call.

206 In order to consider properly the principal submission made in support of this ground of appeal, it is necessary to say something about the structure of her Honour's summing up. At [149], her Honour told the jury that the Crown relied on five different categories of circumstantial evidence, the second of which was evidence of motive. Her Honour dealt with the evidence of motive relied on by the Crown in [180]-[196] of the summing up. In [182], she said that evidence of motive came from two sources, the first being Noella Harb. In [183]-[185], her Honour accurately summarised the evidence of Ms Harb regarding the telephone call by Vicky Climpson, the subsequent conversation between herself and the appellant, and the appellant's emotional state. In [189], her Honour said that the other source of evidence of motive was Mr Doran. Her Honour commented that Mr Doran's evidence, insofar as it was evidence of motivation "is, to some extent, consistent with the evidence of Noella Harb". In [190], her Honour quoted accurately the evidence, which Mr Doran had given, by means of his statement, about the conversation in 1986 between himself and the appellant and about what the appellant had said on other occasions about his brother-in-law.

207 In [362], her Honour, as part of what she described as a "very short sharp summary" of the Crown's circumstantial case, said with respect to the evidence of motive:

"The next circumstance is motive. The Crown Prosecutor relies on the evidence of Noella Harb and Ron Doran. Remember what I have said to you about the evidence of each of those and also you are entitled to use the evidence of each of them to strengthen the other..."

208 After her Honour had concluded her principal summing-up, the jury asked, at intervals, a number of questions. In particular, the jury asked whether it could have a copy of her Honour's directions or whether her Honour could clarify "the direction with regards to circumstantial evidence". Her Honour gave the jury further directions, including the following:

"410. I pointed out that it is not necessary for each one of those facts and circumstances to be proved to you beyond reasonable doubt. Sometimes one fact on which the Crown relies might initially appear not very strong, but may gain strength when you put it together with the evidence, or with another fact or circumstance, or you put the evidence of a witness together with the evidence of another witness.

411. An example of that in this case is the evidence of motive. Ms Harb gave evidence on which you might infer that the accused had a motive to kill Mr Climpson. That of course was attacked on behalf of the accused. There was some support for what she said in the evidence of Mr Doran and you will remember the attack that was made upon Mr Doran and what I said to you about treating his evidence with some caution. But those two pieces of evidence are an example of what I am saying to you now about how one circumstance or one fact might gain strength from another circumstance or fact in the case, or the evidence of one witness might gain strength from the evidence of another witness in the case".

209 It was submitted that [362] and [410]-[411] of her Honour's summing up were erroneous and unduly magnified the strength and reliability of Noella Harb's evidence.

210 At the trial, no complaint or request for a re-direction was made by counsel for the appellant with respect to what her Honour had said in either [362] or [410]-[411], and accordingly leave under r 4 is required to rely on this ground of appeal.

211 In our opinion, there was no error in what her Honour said in either [362] or [410]-[411]. A jury is entitled, if it sees fit, and particularly in a circumstantial evidence case, to regard evidence of one circumstance as strengthening the evidence of another circumstance and the evidence of one witness as strengthening the evidence of another witness. Although certain parts of the joint judgment of Gibbs CJ and Mason J in Chamberlain v The Queen (No.2) [1984] HCA 7; (1983-1984) 153 CLR 521 no longer represent the law, the following passages at 535 are still authoritative:

"At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed.

...

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider `the weight which is to be given to the united force of all the circumstances put together'".

212 We do not accept that in [362] or [410]-[411] or elsewhere in the summing up her Honour inaccurately magnified the strength and reliability of the evidence of Noella Harb. In the summing up, her Honour referred to the criticisms, which had been made of Ms Harb's evidence, and to the appellant's response to her evidence in the statement he had made at the trial.

213 We would refuse leave under r 4 to rely on this ground of appeal.

Ground 12: The trial judge erred in her directions to the jury in respect to Noella Harb

214 In cross-examination, Noella Harb was shown copies of a number of cheques, with the corresponding cheque butts, which had been drawn on the bank account of the business conducted by the appellant and herself. She agreed in cross-examination that she had written out or altered the cheques. She further agreed that the amount shown on each cheque was greater than the amount shown on the corresponding cheque butt. The following question and answer then occurred:

"Q. And what you were doing was writing in the cheque butt an amount which matched the amount for which a bill was due, and on the cheque itself you were adding, in some cases, a couple of hundred dollars and you were pocketing the difference, paying the bill with the amount matched on the cheque butt, but keeping the true amount which was written on the cheque or the difference between that butt and the true amount written on the cheque?

A. That's right."

215 Ms Harb said that she had engaged in this conduct because she knew that she would soon be leaving the appellant and she was in need of money. She agreed that her conduct had been deceptive and dishonest.

216 It was submitted that, in [109] of the summing-up, her Honour erred in leaving it to the jury to determine whether Ms Harb's conduct had been dishonest or deceitful.

217 What her Honour said at [109] of the summing up was as follows:

"Mr Haesler's submission to you was in quite clear terms: That you would not believe Ms Harb because she had shown herself to be dishonest and deceitful during her preparations for departure from the matrimonial home and after her husband had been charged with murder when she sought to take money from the drawer at the shop. It is for you to consider whether her conduct in that way was dishonest, in the sense that would affect your assessment of her credibility. Was her conduct in her preparations for leaving the matrimonial home dishonest or deceitful and, if it was, does that have a bearing on whether you accept her evidence in this Court? The Crown argued that her behaviour in relation to the separation from her husband is irrelevant to her truthfulness on oath in a criminal court".

218 At the trial, no complaint or request for a redirection was made in relation to [109].

219 In our opinion, there was no error in what her Honour said at [109]. The evaluation of Ms Harb's conduct and the making of an assessment of whether her conduct, should it be regarded as dishonest, affected the credibility of her evidence were pre-eminently matters within the province of the jury. Her Honour was not obliged to direct the jury that it had to regard Ms Harb's conduct as dishonest.

220 It was also submitted that her Honour erred in telling the jury in [111] of the summing up:

"It is necessary to comment on the level of iniquity of which Ms Harb is accused by Mr Haesler on behalf of his client. It is difficult to imagine a more serious or evil act than to take steps to have another person charged with murder, that is, to have another person falsely charged with murder. This is one of those instances in which you make your assessment of the witnesses. You had the opportunity of observing Ms Harb in the witness box, you should consider how she impressed you. Did she strike you as the sort of person who might engage in the sort of behaviour that is now attributed to her? Remember, it was not just any person she is said to have set up for a murder charge, it is the father of her children".

221 It was submitted that the terms of [111], and in particular the use of the expression "level of iniquity", amounted to an invitation to the jury to reject the defence submission that Ms Harb had been lying in her evidence.

222 At the trial, no complaint or request for a redirection was made in relation to [111].

223 In a criminal trial, it is permissible for a trial judge, within certain limits, to comment on arguments advanced by counsel, including defence counsel. The argument by defence counsel did postulate "a high level of iniquity" on the part of Ms Harb, namely a preparedness to give knowingly false evidence in support of a charge of murder against the father of her children. In our opinion, her Honour's comment was permissible.

224 We would refuse leave under r 4 of the Criminal Appeal Rules to rely on this ground of appeal.

Ground 13: The trial judge erred in her directions to the jury on the accused's statement.

225 The appellant made an unsworn statement. Her Honour's directions with respect thereto are to be found in [159] and [160] of the summing up, where she directed the jury as follows:

"159. An unsworn statement is something the law requires you to take into account as one possible version of the facts. What weight you give it is a matter for you. Such a statement is not evidence in the same sense as the statement of a witness given on oath. It has not been made under the sanction, that is, the binding obligation imposed by an oath or affirmation to tell the truth. You saw some witnesses take oaths, some affirmations. It makes no difference, it obliges them to tell the truth. Nor has it been possible to test what the accused said in his unsworn statement by cross examination. An unsworn statement is not subject to cross-examination by the Crown.

160. You may take those circumstances into account in determining what weight you give to the statement he made. That is not to suggest that the sworn evidence is to be preferred to an unsworn statement. My only purpose in giving you this direction is to point that when determining what weight should be given to that statement, you are entitled, if you think it appropriate, to take into account the fact that it is not on oath and it has not been subject to cross-examination, but you must nevertheless keep firmly in mind that the onus at all times remains on the Crown to prove the guilt of the accused beyond reasonable doubt. He had a right not to give sworn evidence and indeed he had a right to say nothing to you at all. He has exercised the right to make an unsworn statement."

226 Her Honour returned to this matter in [370] and [371], where she reminded the jury of her earlier directions as follows:

"370. But I remind you firstly about the statement made to you by the accused. As I said, he was not obliged to give sworn evidence. He could have done so if he had chosen. Equally he could have remained silent if he had chosen. You may think in fact he has taken the middle course. The unsworn statement must be taken into account as one possible version of the facts. The weight you give it is a matter for you. It is not evidence in the same sense as evidence given by witnesses from the witness box. That evidence is given on oath, a statement is not. A statement is not made under an obligation to tell the truth. It has not been possible for the Crown to test what the accused said by cross-examination.

371. You can take those circumstances into account in determining the weight that you give to what he said. I am not suggesting that sworn evidence is to be preferred to the unsworn statement, I am giving you this direction in order to point out that when determining what weight should be given to the statement, you are entitled to take into account the fact that it is not on oath, it has not been the subject of cross-examination, you should not lose sight of the fact that the onus at all times remains on the Crown to prove the guilt of the accused beyond reasonable doubt."

227 The appellant submitted that her Honour erred in instructing the jury that the appellant's statement had "not been made under the sanction, that is, the binding obligation imposed by an oath or affirmation to tell the truth" ([159]) and that "a statement is not made under an obligation to tell the truth" ([370]). It was submitted that the effect of these directions was to unduly emphasise that what the appellant had said was in a different and possibly inferior category to the other evidence given in the trial. It was further submitted that such directions were of particular concern where so much emphasis had been placed by the Crown and by her Honour on established and asserted lies.

228 In our opinion, there is no substance in these submissions. As was submitted by the Crown on this appeal, it would have been apparent to the jury that the appellant gave "evidence" in a manner notably different to that of the other witnesses. It was important that the jury be given proper instructions concerning the distinction between the different modes of evidence in order that it not make any inappropriate assumptions. In any event, her Honour made it clear in [160] of her summing up that it was not suggested that sworn evidence was to be preferred to an unsworn statement.

229 There was a morning tea adjournment shortly after the directions in [159] and [160], when the opportunity arose the appellant's counsel to raise any objection or concerns with respect to the passages in question. No such objections or concerns were raised. Furthermore, just prior to the luncheon adjournment on the same day, her Honour asked counsel whether there was anything arising out of what she had said thus far and counsel answered in the negative. In addition, before the summing up commenced, the appellant's counsel had discussed with her Honour her proposed directions with respect to the appellant's unsworn statement. It was after that discussion that her Honour instructed the jury in the terms recorded above. Given that there was no request by counsel for a further direction on this matter, it can be inferred that counsel considered that her Honour's directions were consistent with those which he had himself sought prior to the commencement of the summing up, and that they manifested no unfairness to the appellant.

230 For the foregoing reasons, we would refuse leave under rule 4 of the Criminal Appeal Rules for the appellant to rely upon this ground of appeal.

Appeal against sentence

231 As was indicated at the commencement of this judgment, the primary judge sentenced the appellant to 10 years and 10 months imprisonment commencing on 20 February 2001, with a non-parole period of 6 years and 10 months to expire on 19 December 2007. It is asserted by the appellant that her Honour made three errors in arriving at this sentence: firstly, it was not open to her to sentence the appellant on the basis that he fired one or more of the shots that killed the deceased; secondly, that her Honour failed to take into account the period during which he was subject to bail conditions; and thirdly, that her Honour ought to have found special circumstances.

232 In order to indicate the basis upon which her Honour determined the period of the sentence imposed, it is necessary to refer briefly to the history of the matter. The appellant was first convicted of the offence on 28 October 1993. Newman J sentenced him, in accordance with the statutory regime then operating, to a minimum term of 13 years 6 months imprisonment with an additional term of 6 years imprisonment. The sentence was to begin on 18 March 1994, the date upon which the sentence was imposed. The minimum term fixed by his Honour took into account a period of 6 months that the appellant had spent in custody on remand. The total sentence was, therefore, effectively 20 years imprisonment.

233 The appellant was released to bail following the quashing of his conviction on 15 November 1995. He had served about 1 year and 8 months of the sentence imposed upon him. He remained on bail until he was convicted after the second trial.

234 The appellant was again convicted of murder on 4 June 1997. Dowd J sentenced the appellant on 23 June 1997 to a minimum term of 9 years 10 months imprisonment with an additional term of 4 years. The sentence was to commence from the date of the conviction. This sentence was less severe than that imposed after the first trial because, unlike Newman J, Dowd J was not satisfied on the material before him that the appellant had fired any of the shots that wounded the deceased. Taking into account the period served by the appellant, the effective total sentence imposed was 16 years imprisonment.

235 The appellant was again released to bail on 31 May 2000, following the quashing of the second conviction. The primary judge calculated that, at the time she was to sentence the appellant, he had spent a total of 5 years, 1 month and 16 days in custody.

236 Her Honour approached the task of sentencing the appellant having regard to the usual convention that the sentence following re-trial should normally be no greater than that imposed after the original conviction: see R v MM [2002] NSWCCA 431, and the cases cited and discussed therein. As the Crown did not contend otherwise, her Honour determined to impose the same sentence that had been imposed by Dowd J. This was notwithstanding that her Honour found beyond reasonable doubt that the appellant fired at least one of the shots, which fatally wounded the deceased.

237 Although it was argued before us that her Honour was not entitled to come to that finding, there is no need to resolve that issue. Her Honour indicated that she was not increasing the sentence beyond that imposed by Dowd J, even though she was sentencing the appellant upon a different factual basis. Apart from the matter to which we will shortly refer, there was no reason for her Honour to have imposed a sentence less than that imposed by Dowd J, even had she not found that the appellant was a principal in the first degree. In any event, we doubt that on the facts and circumstances of this particular matter there was a significant difference in the degree of criminality between the person firing the shots and a person present assisting or encouraging the principal to do so, given that the killing was obviously premeditated and planned. Both Newman and Dowd JJ described it as an assassination. The deceased was murdered in retribution for his conduct towards the appellant's sister.

238 The only basis upon which it is asserted that the primary judge should have imposed a lesser sentence was that her Honour failed to take into account: the history of the appellant's conditional liberty pending the proceedings leading to his conviction on the third occasion; the uncertainty for the appellant caused by three trials; and the length of time since the commission of the offence. This criticism must be viewed in the light of the manner in which the sentencing proceedings were conducted before her Honour.

239 During the course of her sentencing remarks, her Honour said:

"Although counsel for the prisoner has noted that the prisoner has undergone the undoubted stress of three trials and has, whilst at liberty, endured and complied with relatively onerous bail conditions, including regular reporting, he has not argued that the sentence now to be imposed should be any less than the sentence selected by Dowd J, other than to take account of almost three years of that sentence served before the prisoner was released to bail."

Her Honour then stated that she did not believe that the appellant was entitled to any other reduction of the sentence imposed by Dowd J.

240 The appellant relied upon the decision of this Court in R v Keyte (unreported, 16 March 1986) to support the submission that the sentence was excessive. In that case, conditional liberty by way of bail over a lengthy period was taken into account in determining the outcome of the appeal as representing a "penal consequence" already suffered by the applicant before the Court. The appeal related to a sentence of 2 years imprisonment imposed for an offence of supplying a relatively small quantity of Indian hemp. The applicant was 29 years of age, without any previous convictions and had been on bail for three years leading up to the hearing of the appeal. Although the Court considered that some custodial sentence would have been called for at the time of sentence, it intervened to quash the sentence and imposed a bond and fine.

241 In the present case, the appellant was first granted bail on 14 November 1990, approximately one month after his arrest for the murder. The conditions of bail required him to remain in Moree, unless he was attending conferences with his legal advisers, and to report to the police three times a day. On 18 November 1991, the reporting conditions were varied so that he was required to report to police twice daily. On 8 April 1993, the bail conditions were again varied, requiring him to report once a day. The appellant went into custody following his conviction before Newman J on 28 October 1993. After this conviction was quashed on appeal, he was again released on bail on 15 November 1995. It was a condition of his bail that he was to reside with his mother and to report to police twice a week. He was also required to surrender his passport. He was returned to custody on 4 June 1997, following his conviction before Dowd J. On 31 May 2000, he was again released on bail following the quashing of the conviction on appeal. It was a condition of that bail that he was to reside with his mother and report to police once a week.

242 We accept that in an appropriate case the length and terms of an offender's period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such a consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence.

243 There was here an obvious and significant disruption to the appellant's life and restrictions upon his liberty over a lengthy period as a result of the offence he committed. Dowd J, while accepting that this was a relevant matter, declined to reduce the sentence by reason of the period served on bail. The primary judge also appears to have accepted that it was a relevant matter, as was the uncertainty undoubtedly felt by the appellant during the period involving the three trials. But her Honour was not required to reduce the sentence because of these considerations. Clearly her Honour viewed the sentence imposed by Dowd J as the very least that the appellant should serve for the offence he committed. Experienced counsel, who appeared for the appellant, seems to have been of the same view. We are also of that opinion. There was no error in the sentence imposed on the appellant.

244 Nor is there any merit in the submission that these same considerations should have given rise to a finding of special circumstances. They are not the type of matters that would justify a reduction in the non-parole period from that which would automatically flow from the operation of s 44 of the Crimes (Sentencing Procedure) Act. There is nothing to indicate that a longer period of supervision on parole is warranted and no other reason why the otherwise appropriate non-parole period should be reduced.

Conclusion

245 It follows from the foregoing that the orders of the Court are as follows:

a) Appeal against conviction is dismissed;

b) Leave to appeal against sentence is granted but the appeal is dismissed.

**********

LAST UPDATED: 20/11/2003