Campbell and 4 Ors v Director of Public Prosecutions (NSW)

[2008] NSWSC 1284

CITATION:	Campbell and 4 Ors v Director of Public Prosecutions (NSW) [2008] NSWSC 1284
HEARING DATE(S):	11/03/08; 12/03/08
JUDGMENT DATE :	3 December 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Hidden J
DECISION:	Appeals allowed, convictions set aside.
CATCHWORDS:	CRIMINAL LAW - appeals against convictions in Local Court for affray, assault AOBH - admissibilty of recorded police interviews - evidence illegally obtained - contravention of LEPRA requirement to notify ALS of Aboriginal persons in custody - whether convictions should be set aside without remitter to Local Court - as to one plaintiff, whether conviction supported by the evidence
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Director of Public Prosecutions Act 1986. Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Criminal Appeal Act 1912 Justices Act 1902 (repealed) Law Enforcement (Powers and Responsibilities) Regulation 2005
CATEGORY:	Principal judgment
CASES CITED:	Acuthan v Coates (1986) 6 NSWLR 472 Colosimo v Director of Public Prosecutions [2005] NSWSC 854, 64 NSWLR 654 Williams v The Queen (1986) 161 CLR 278 Mitchell v Nestle Australia Ltd (1988) 36 A Crim R 119 Downes v DPP [2000] NSWSC 1054 Suthers v Director of Public Prosecutions [2003] NSWSC 570 Lake Macquarie City Council v Morris [2005] NSWSC 387, 63 NSWLR 263 Director of Public Prosecutions v Belani [2005] NSWSC 1013, 64 NSWLR 319
PARTIES:	Ian Campbell (1st plaintiff) Garry Campbell (2nd plaintiff) Vivian Campbell (3rd plaintiff) Brett Rotumah (4th plaintiff) Steven Rotumah (5th plaintiff) Director of Public Prosecutions (NSW) (defendant)
FILE NUMBER(S):	SC 13731 of 2007
COUNSEL:	P King with L Behrendt (plaintiffs) N Adams (defendant)
SOLICITORS:	Levitt Robinson Solicitors (plaintiffs) Solicitor for Public Prosecutions (defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Pearce LCM
LOWER COURT DATE OF DECISION:	26 June 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Wednesday 3rd December 2008

2007/13731 Ian Campbell & Ors v Director of Public
Prosecutions (NSW)

JUDGMENT

1 HIS HONOUR: The five plaintiffs, Ian Campbell, Garry Campbell, Vivian Campbell, Brett Rotumah and Steven Rotumah, were prosecuted in the Local Court at Bega for a number of charges arising from events at Bermagui on the night of 7 October 2006 and the early hours of the following morning. Most of the charges were dismissed, but all five were convicted of affray and Brett Rotumah was also convicted of assault occasioning actual bodily harm. All of them were placed on good behaviour bonds.

2 They have appealed to this Court against their convictions, pursuant to ss52 and 53 of the Crimes (Appeal and Review) Act 2001. Section 52 provides for an appeal as of right on a ground that involves a question of law alone. Section 53 provides for an appeal by leave on a ground involving a question of fact or a question of mixed law and fact. The defendant, the Director of Public Prosecutions, did not prosecute the matter in the Local Court, but has taken over the conduct of the proceedings in this Court under s10 of the Director of Public Prosecutions Act 1986.

3 The grounds of appeal which were pursued at the hearing are to be found in a further amended summons filed on 31 January 2008. For the most part, they relate to the magistrate’s admission into evidence of transcripts of electronically recorded interviews by police with four of the plaintiffs. (The amended summons also seeks a declaration that those documents were inadmissible but, in the event, that relief would be of no utility and was not pressed.) The other grounds challenge the magistrate’s reasoning in finding the plaintiffs guilty of the charges to which I have referred and assert that the convictions are unsupportable. Whether the various grounds fall within ss52 and 53 of the Crimes (Appeal and Review) Act is a matter to which I shall return. However, as to any grounds governed by s53, there was no issue that leave to appeal should be granted.

4 There are seven grounds of appeal. The first five are concerned with the admission of the police interviews, while the last two are directed to the soundness of the convictions. It will be necessary to examine some of the evidence when dealing with those last two grounds. However, it is convenient to consider first the grounds relating to the admission of the police interviews. For that purpose, a bare outline of the facts is sufficient.

5 The plaintiffs are all Aboriginals. It was the prosecution case that, on the night of 7 October 2006, they had been drinking in a park next to the Bermagui bridge. They saw some racist graffiti written on the bridge and became upset. This was said to have led to violent incidents involving the plaintiffs and two white men, Aaron King and David Campbell (who, I take it, is no relation to the three plaintiffs of the same name). These incidents led to the charges the subject of this appeal. The affray of which all the plaintiffs were convicted related to the incident with David Campbell. The victim of the assault of which Brett Rotumah was found guilty was Aaron King. Other charges arising from these incidents were dismissed.

6 There was a third incident of violence in the small hours of the following morning, 8 October, when David Campbell, Aaron King and a group of other men went to the street in Bermagui where the plaintiffs lived, apparently bent on revenge. Further charges against the plaintiffs arising from this incident were also dismissed (although I was informed from the bar table that it led to both David Campbell and Aaron King being convicted of affray).

The interviews

7 The grounds relating to the admission of the police interviews are relied upon by all the plaintiffs except Vivian Campbell, who declined to be interviewed. The other four plaintiffs took part in electronically recorded interviews, in which each of them made relevant admissions. It is not necessary to set out these grounds of appeal. It is sufficient to say that their principal focus is the way in which the magistrate dealt with an issue under s138 of the Evidence Act. Other matters were argued, including his Honour’s approach to the question whether it would have been unfair to those plaintiffs, within the meaning of s90 of the Evidence Act, to admit the evidence. In the event, I find it unnecessary to decide those other matters

8 The transcripts of the interviews were admitted after an inquiry on the voire dire. The evidence disclosed that the interviewing officer, Snr Cst Barry, had arranged for the plaintiffs to attend the Bermagui police station. Ian Campbell, Steve Rotumah and Brett Rotumah attended some time after 6pm on the Sunday, 8 October 2006. Garry Campbell presented himself at about the same time on the Monday, 9 October. Upon their arrival, they were arrested and Snr Cst Barry referred them to the custody manager on duty for the purpose of procedures under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”). On the Sunday the custody manager was Sgt Flood, and on the Monday Snr Cst Crouden.

9 Section 109 of LEPRA explains that the objects of Part 9 are to authorise the detention of a person under arrest for the purposes of investigation and to provide for the rights of that person. It is not necessary to examine the other provisions of that Part in any detail. The rights of the detained person are set out in Division 3, and include such things as the obligation of the custody manager to administer the conventional caution and to allow the person to communicate with a lawyer.

10 Of more importance for present purposes are certain clauses of the Regulation made under the Act. Clause 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 provides that certain persons should be categorised as “vulnerable”. Among those categories are “Aboriginal persons or Torres Strait Islanders”. Clause 27 entitles a vulnerable person to have a “support person” present during any investigative procedure in which he or she is to participate. Special provision for Aboriginals and Torres Strait Islanders can be found in cl 33, and it is this provision which lies at the heart of the appeal. Clause 33(1) is in these terms:

33(1) If a detained person is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must:

(a) immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified:
(i) that the person is being detained in respect of an offence, and
(ii) of the place at which the person is being detained, and
(b) notify such a representative accordingly.

11 The custody manager dealing with each of the plaintiffs read to him a document entitled “Caution and Summary of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)”, and gave him a copy of that document. Among other things, the document informed them of their right to silence and their right to seek legal advice. It also informed them of their right, as Aboriginals, to have a support person with them. However, it said nothing about the obligation of the custody manager under cl33.

12 The evidence was that all three police officers knew that the plaintiffs were Aboriginals. The officers were familiar with the LEPRA requirements, including cl33. The Aboriginal Legal Service in the relevant area was the South Eastern Aboriginal Legal Service, to which I shall refer as the “ALS”. It had been the practice of the custody managers to notify the ALS by fax if an Aboriginal person came into their custody, but his Honour found that none was sent on these occasions. In any event, to do so would have been a futile exercise. As the plaintiffs had attended the police station outside ordinary business hours, it was most unlikely that there would have been anyone at the ALS office. This also the police knew.

13 In the event, none of these plaintiffs had a lawyer present when interviewed or had access to a lawyer immediately before being interviewed. (Garry Campbell had his father with him as a support person during his interview, but nothing turns on this for present purposes.) His Honour found that cl33 had not been complied with, so that the plaintiffs were interviewed at a time when their custody was tainted by illegality. Accordingly, a question arose whether evidence of the interviews should be rejected pursuant to s138(1) of the Evidence Act 1995, on the basis that it had been obtained in contravention of an Australian law. That being so, it could not be admitted unless his Honour was satisfied that the desirability of doing so outweighed the undesirability of admitting it, given the way in which it had been obtained. In practical terms, then, it was for the prosecution to show that the evidence should be admitted notwithstanding the illegality attending it.

14 It was this balancing exercise which his Honour undertook, having regard to the relevant factors set out in s138(3). Putting aside cl33, he noted that the police had “sought to comply with the guidelines” given to them by the relevant legislation. In addition to the information conveyed to them about their rights, both orally and in writing, by the custody managers, his Honour noted that each of the plaintiffs had been cautioned at the outset of his interview. Thus, he found, it could not be said that the police ”deliberately went out of their way to cut corners and provide no assistance” to the plaintiffs concerning their rights “and the responsibilities the police had towards them”.

15 As to the breach of cl33, apart from finding that no fax had been sent to the ALS prior to any of the interviews, his Honour referred to the fact that that course would have been futile in the circumstances. Further, he found that sending faxes after hours had been “a general procedure” of the police, despite their knowledge that there would almost certainly be no response because a practice had developed that there was no ALS representative at the office after hours.

16 In the result, these four plaintiffs were interviewed without the ALS being notified of their being at the police station, and at a time when, realistically, no such notification was possible. His Honour referred to cl33 as a “mandatory provision” and conveyed a clear understanding of its purpose and significance. Nevertheless, he exercised his discretion to admit the evidence because he found that the LEPRA requirements had been met in other respects and because “there was no guarantee” that, if the interviews had been postponed to the following day, an ALS representative would have been available to attend the police station and speak to the plaintiffs. In my view, that last matter raises an important issue which did not receive the attention it deserved in evidence or in submissions on the voire dire.

17 The plaintiffs were represented in the Local Court by Mr King of counsel. He also appeared in this Court, assisted by Ms Behrendt as his junior. In cross-examination of one of the custody managers, Sgt Flood, he raised the possibility of adjourning the interviews to the following day during business hours. Sgt Flood said that he “could have told the arresting officer to cease the interview,” but added that “he’s the arresting officer.” The sergeant had a point. The interviewing officer, Snr Cst Barry had given evidence on the voire dire before Sgt Flood. The matter was not raised with him and, of course, it should have been.

18 To do so was as much the responsibility of the prosecutor as it was of Mr King. As I have said, for the purpose of the issue under s138 of the Evidence Act, it was the prosecution which bore the burden of satisfying the magistrate that the evidence should be admitted. From the fact that Snr Cst Barry had asked the plaintiffs to attend the police station voluntarily, and they had done so, it is reasonable to infer that he did not fear that any of them would attempt to evade arrest. Why they had to be arrested and interviewed on the evening they attended is not apparent. Whether or not there was good reason why those procedures could not have waited until the following day, and whether or not an ALS representative would have been available to assist them during ordinary business hours, were matters which were not explored in the evidence.

19 I should record that later in the proceedings, after his Honour had ruled on a submission that there was no case to answer, Mr King tendered a letter from a solicitor at the ALS which confirmed that no fax had been received from the police concerning the detention of any of these plaintiffs. It also asserted that a representative of the ALS would have attended a police station “during working hours” if requested to do so by any of them. It added that, if the ALS had been notified outside working hours of a request for a representative to attend during an interview, it would have asked the police to arrange for the interview during working hours and a representative would then have attended. At that stage of the proceedings, of course, the voire dire had been completed and his Honour had given his ruling. I do not think it appropriate for me to have regard to this evidence for present purposes. That said, it is reasonable to infer that any notification to the ALS made during business hours would have been received and that the attendance of a representative at the police station within a reasonable time could have been arranged.

20 The fact remains that the plaintiffs were interviewed at a time when cl33 had not been complied with and when, to the knowledge of the police, there could not have been effective compliance. No explanation was forthcoming on the evidence on the voire dire for the interviews being conducted at the time they were, rather than at another time when the requirements of cl33 could have been met. As the evidence stood, the failure to comply with the clause was deliberate, a relevant matter by virtue of s138(3)(e) of the Evidence Act.

21 His Honour’s judgment on the voire dire does not deal with this issue, a fact which can fairly be attributed to the way in which the proceeding had been conducted. I am mindful that it is not appropriate to subject to detailed analysis the ex tempore reasons of a magistrate in a busy local court: Acuthan v Coates (1986) 6 NSWLR 472, per Kirby P at 478-9. However, a crucial matter in the balancing exercise to be undertaken under s138 is the gravity of the contravention of the law which brought the section into play: subs 3(d). An important matter bearing upon the gravity of the contravention in the present case was not taken into account by his Honour. Accordingly, I am satisfied that the exercise of his discretion miscarried.

22 I should observe, in passing, that the obligation under cl33 is twofold: not only to notify the ALS that an Aboriginal person is in detention, but also to inform that person that the ALS will be notified. That additional requirement is itself an important safeguard, ensuring that the suspect is aware of the availability of legal assistance through that organisation. As I have earlier noted, the document summarising the LEPRA procedures which was furnished to the plaintiffs is silent about the requirements of cl33. This is not an issue which appears to have been raised at all on the voire dire in the present case and, of course, it is in no sense determinative of this appeal.

Remedy

23 It follows that the convictions of these four plaintiffs must be set aside. The recorded interviews were a significant part of the evidence against them. Indeed, in the absence of evidence of their interviews Ian Campbell, Garry Campbell and Steven Rotumah could not have been convicted. The question is whether their cases should be remitted to the Local Court for redetermination. Putting aside for a moment the other grounds of appeal raising the sufficiency of the evidence against them, that would be the normal course. It would be for his Honour to reconsider the admissibility of the interviews in the light of this judgment.

24 However, in the course of the hearing I raised with counsel the question whether, as a matter of discretion, the convictions could be set aside without remitter to the Local Court because of the penalties which have been imposed. As I have said, at the conclusion of the proceedings on 26 June 2007 all the plaintiffs were placed on good behaviour bonds. In Brett Rotumah’s case, the bond was for 2 years. For the other plaintiffs, the bond was only 9 months. On the face of it, Brett Rotumah has served more than half of his bond and the other plaintiffs’ bonds have expired. If that be so, a question arises whether the interests of justice would require that the cases of these plaintiffs be remitted for redetermination.

25 I am indebted to counsel for written submissions on this matter furnished after the hearing of the appeal. The starting point is s55(1) of the Crimes (Appeal and Review) Act, which provides:

s 55(1) The Supreme Court may determine an appeal against conviction:
(a) by setting aside the conviction, or

(b) by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with the Supreme Court’s directions, or

(c) by dismissing the appeal.

26 Counsel for the defendant, Ms Adams, submitted that the plaintiffs’ bonds had not expired because, by operation of s63 of the Act, they had been stayed pending the outcome of the appeal. Alternatively, she argued that the power conferred by s55(1)(a) simply to set aside a conviction without remitter is not unfettered, and should be exercised only where it appears that the conviction cannot be supported on the evidence.

27 It is unnecessary to set out s63. It is sufficient to say that the effect of s63(2) is that, when an appeal is brought which does not require leave (under s52), the operation of any penalty is stayed once the appeal is lodged. However, where the appeal requires leave (under s53), the stay takes effect when leave is granted. In either event, by subs(3) the stay remains in force until the appeal is finally determined.

28 Here, as I have said, most of the grounds of appeal relate to the exercise of the magistrate’s discretion under ss138 and 90 of the Evidence Act. The remaining grounds assert that his Honour erred in ruling that there was a case to answer and that, on the evidence, the convictions are unsupportable. Ms Adams acknowledged that the last of those grounds involves a question of mixed fact and law. Otherwise, she argued that the grounds raise questions of law alone. She referred to the decision of Johnson J in Colosimo v Director of Public Prosecutions [2005] NSWSC 854, 64 NSWLR 654, in which his Honour referred at [41] to authority that the decision whether at the end of the prosecution case there is a prima facie case is a question of law.

29 For the purpose of a stay under s63, the issue is whether or not leave to appeal is required. By s52, on a question of law it is not. However, by s53(1) leave is required where the appeal involves a question of fact or of mixed law and fact, and by subs(3) it is also required where the appeal is brought against an interlocutory order. As counsel for the plaintiffs pointed out in written submissions, the decision whether there is a case to answer, while it may be a question of law, is clearly interlocutory. The other grounds of appeal concerning the exercise of the magistrate’s discretion in admitting the recorded interviews involve questions of mixed fact and law: Williams v The Queen (1986) 161 CLR 278, per Gibbs CJ at 286-7 and Mason and Brennan JJ at 301-2.

30 Accordingly, all the grounds of appeal require leave. No stay under s63 would come into place until that leave is granted, which is yet to occur. In accordance with the usual practice, the question of leave and the merit of the appeal have been dealt with in the same proceeding. The plaintiffs’ bonds have not been stayed, so that those of all of them except of Brett Rotumah have expired and more than half of Brett Rotumah’s has been served.

31 I turn, then, to Ms Adams’ alternative submission that this Court should set aside a conviction without remitting the matter to the Local Court only if it is satisfied that the conviction is not supported by the evidence. For the purpose of that argument, I shall assume that the evidence against these four plaintiffs is sufficient to sustain their convictions. As is well known, there are a variety of circumstances in which the Court of Criminal Appeal might set aside a conviction on indictment and enter a verdict of acquittal, rather than order a new trial, even though the evidence appears to be capable of supporting a finding of guilt. Is such a discretion available to this Court in a case such as this?

32 Ms Adams referred to Mitchell v Nestle Australia Ltd (1988) 36 A Crim R 119, an appeal from the decision of Hunt J (as he then was) in a stated case under Part 5 of the Justices Act 1902 (since repealed). The proceedings in this Court had been brought by the unsuccessful informant in a summary prosecution. Hunt J had decided the question of law in favour of the prosecution but, for discretionary reasons, declined to remit the matter to the magistrate and terminated the proceedings. On appeal, it was held that his Honour had erred in taking that course.

33 The power of this Court upon a stated case was to be found in s106 of the Act, the relevant part of which provided:

The Court shall hear and determine the question or questions of law arising on such case; and shall -

(a) reverse, affirm, or amend the determination in respect of which the case was stated; or

(b) remit the matter to the Justice or Justices with the opinion of the Court thereon; or

(c) make such other order in relation to the matter as seems fit.

34 Kirby P, with whom the other members of the Court agreed, said (at 125):

The authority of Parliament and of this Court require that, in normal cases, the matter should be remitted to the Local Court with the expression of opinion of the Supreme Court on the stated case. This is because of the use of the affirmative word “shall”. But it is also to be derived from the proper relationship of the Supreme Court with the Local Court in stated case procedures. However, that leaves the wide discretion conferred by the closing words.

His Honour went on to observe that the exercise of discretion might be interfered with on appeal only if error were shown. In the event, the Court found error in Hunt J’s approach in the light of the legislation under which the prosecution had been brought.

35 The passage quoted from Kirby P’s judgment was referred to by Studdert J in Downes v DPP [2000] NSWSC 1054. That was an appeal against summary convictions under the predecessor to the current legislation, a new Part 5 of the Justices Act, inserted in 1998. That part provided for appeals to this Court, as of right or by leave, relevantly similar to the provisions under which the present appeal is brought. The power of the Court in determining appeals was to be found in s109, which provided:

The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:

(a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it,

(b) increasing or reducing the sentence appealed against,

(c) making such other orders as it thinks just,

(d) remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal.

36 The appeal in that case succeeded. However, Studdert J rejected a submission for the appellant that he should dismiss the charges, and determined that the matter should be remitted: see his Honour’s judgment at [31-32].

37 In another case under that legislation, Greg James J adopted the same approach: Suthers v Director of Public Prosecutions [2003] NSWSC 570. His Honour referred to the discretion sometimes exercised by the Court of Criminal Appeal, but observed that the structure of the Criminal Appeal Act 1912 was different from Part 5 of the Justices Act. At [28], he said that the “concept underlying” the relevant provisions of the Criminal Appeal Act “favours an order of acquittal unless a new trial is a more adequate remedy, and that concept does not inform or underlie the construction of the Justices Act 1902 provisions”. However, his Honour added that, although he was not persuaded that he should approach s109(c) of the Justices Act as if he were applying the provisions of the Criminal Appeal Act, he “might apply similarly the same policies”. By that, I take it, his Honour was referring to the jurisprudence concerning the exercise of the discretion by the Court of Criminal Appeal to be found in some familiar High Court decisions to which he referred in his judgment at [24]-[25].

38 Ms Adams also cited two decisions of Johnson J under the current legislation, both of them appeals by the Director of Public Prosecutions under s56 against the dismissal of charges in summary proceedings. By s59(2), this Court may determine such an appeal:

(a) by setting aside the order and making such other order as it thinks just, or
(b) by dismissing the appeal.

39 In Lake Macquarie City Council v Morris [2005] NSWSC 387, 63 NSWLR 263, his Honour found error of law by the magistrate and determined that the matter should be remitted to the Local Court. He said at [65] that such an approach “is consistent with the proper relationship between the Supreme Court and the Local Court in statutory appeals with respect to criminal matters”, citing Mitchell v Nestle Australia and Downes. However, it does not appear that in that case his Honour was asked to take any other course.

40 In Director of Public Prosecutions v Belani [2005] NSWSC 1013, 64 NSWLR 319, having again allowed the appeal, his Honour rejected a submission that the matters at hand “should be brought to an end in this Court”. He took the view that the proper approach was to remit the matters to the Local Court, citing the same passage from Lake Macquarie City Council v Morris: see the judgment at [66]-[68].

41 It is to be noted that Mitchell v Nestle Australia related to a stated case under the Justices Act prior to its amendment. Notwithstanding the plenary terms of s106 of the Act considered in that case, the stated case procedure, founded upon this Court’s supervisory jurisdiction over magistrates, was significantly different from the modern appellate procedure in the present case. Moreover, those proceedings were in the nature of an appeal by the prosecutor against the dismissal of a charge and, where such an appeal is allowed, one would expect it to be unusual for a residual discretion to be exercised against remitting the matter to the Local Court. The two decisions of Johnson J to which I have referred, of course, were also successful prosecution appeals.

42 Most importantly, the quoted passage from the judgment of Kirby P in Mitchell v Nestle Australia affirms the residual discretion. It does no more than remind us that the exercise of that discretion should be approached with an eye to “the proper relationship of the Supreme Court with the Local Court …”. What was said by Studdert J in Downes and Greg James J in Suthers should be understood in the same way, as should the observations of Johnson J. The actual outcome in all those cases, of course, turned upon the facts and circumstances of each of them.

43 The present case is concerned with events which took place in October 2006. No custodial order was made against any of the plaintiffs. Ian Campbell, Garry Campbell and Steven Rotumah have undergone the whole of the penalty imposed upon them, and Brett Rotumah has undergone a substantial portion of his. Section 55 confers upon me a discretion to set aside their convictions without remitting the matters to the Local Court and, in all the circumstances, I am satisfied that that discretion should be exercised in their favour.

Vivian Campbell

44 Let me turn, then, to the appeal of the remaining plaintiff, Vivian Campbell. As the argument developed, her appeal turns upon whether her conviction is supported by the evidence. As I have said, unlike the other plaintiffs, she declined to be interviewed. Accordingly, her conviction is founded upon the evidence of the complainant in the affray, David Campbell, although there is some other evidence to which I shall refer. Like the other plaintiffs, she did not give evidence.

45 David Campbell’s evidence was that he walked to the vicinity of the Bermagui bridge after leaving a club, at which he had had a considerable amount to drink. He was confronted by a group of five people, of whom he recognised Vivian Campbell and Brett Rotumah. They were yelling at him and he “got hit by something”. It happened quickly and he could not see who had hit him. He fell to the ground, and was punched and kicked “for a second”, whereupon he got up and ran away.

46 He gave evidence that he was injured, suffering bruising to his left eye, grazing around his nose, swelling to the left side of his face, and bruising to his arms and legs. He denied having suffered injuries of that kind after the incident at the bridge. It was upon this issue that his Honour had regard to other evidence in arriving at his decision. On the one hand, Mr and Mrs Campbell senior, the parents of Garry and Ian Campbell, gave evidence of seeing David Campbell in the course of the third incident in the small hours of the Sunday morning, and said that they saw no injuries to him. On the other hand, there is evidence from three witnesses that they did observe the injuries he complained of at a time before that third incident. These were his brother, Donald Campbell, Sam Wetzler and Brendon Matters. His Honour concluded that David Campbell had suffered those injuries during the incident at the bridge which he described.

47 Accepting that to be so, the question remains whether Vivian Campbell played a part in that incident which made her a participant in the affray charged. David Campbell may well have seen her with the group, but the crucial question is whether she joined them in inflicting violence upon him. This turned entirely upon his evidence. I appreciate the undoubted advantage enjoyed by his Honour having observed him as a witness: cf M v The Queen (1994) 181 CLR 487. Nevertheless, two matters bearing upon his accuracy and truthfulness give me cause for concern about his evidence as the foundation for this plaintiff’s conviction.

48 The first is his capacity for accurate observation in the circumstances, given that he had drunk a substantial amount of alcohol and that, on his own account, the incident occurred very quickly. The second is a spirited and, I would have thought, effective attack upon his credibility in cross-examination. Put shortly, despite his reasonably clear and concise account of the incident at the bridge, he claimed to have no memory of the incident the following morning. He maintained that claim notwithstanding evidence, which his Honour accepted, that he was one of a group who went to the relevant street at that time, bent on revenge, and that he was armed with a makeshift weapon. The only explanation he could offer for his lack of memory was that he had been “bashed pretty hard and was knocked out” during the incident at the bridge. This is hardly convincing. No doubt, he had a motive to lie about the events of the Sunday morning.

49 I have given this ground of appeal anxious consideration, recognising the primacy of his Honour as the finder of fact and the advantage he had of seeing and hearing the witnesses. Nevertheless, for the reasons I have expressed, I am left with a sense of real unease about this conviction. In all the circumstances, I am satisfied that his Honour ought to have had a reasonable doubt about this charge.

Conclusion

50 Accordingly, in each case leave to appeal is granted and the appeal is allowed. Pursuant to s55(1)(a) of the Crimes (Appeal and Review) Act, I set aside the convictions recorded against each of the plaintiffs. I shall consult the parties about whether any consequential order should be made and, if necessary, hear argument on costs.

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