Casey v The Queen

[2016] NSWCCA 77

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Casey v R [2016] NSWCCA 77
Hearing dates:	8 February 2016
Decision date:	04 May 2016
Before:	Johnson J at [1] Schmidt J at [68] Wilson J at [69]
Decision:	1. Leave to appeal granted. 2. Appeal against conviction dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – judge-alone trial – robbery with wounding – approach to conviction appeal from judge-alone trial – alleged error in assessment of credibility and reliability of Crown witness – alleged unfairness in findings made concerning Crown witness – errors not demonstrated – whether verdict unreasonable or not supported by the evidence – Crown case dependent upon truthfulness of initial interviews of Crown witness in which he implicated the Applicant (his brother) in the crime – Crown witness retracted this account at trial – leave to cross-examine under s.38 Evidence Act 1995 – trial judge satisfied beyond reasonable doubt that initial accounts implicating the Applicant were true – verdict of guilty was reasonably open – appeal dismissed
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Browne v Dunn (1894) 6 R 67 Cawthray v R [2013] NSWCCA 105 Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 Filippou v The Queen [2015] HCA 29; 89 ALJR 776 Khamis v R [2010] NSWCCA 179; 203 A Crim R 121 Murray v The Queen [2002] HCA 26; 211 CLR 193 R v Le [2002] NSWCCA 186; 54 NSWLR 474 R v Murray (1987) 11 NSWLR 12 R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 RP v R [2015] NSWCCA 215 RWB v R [2010] NSWCCA 147; 202 A Crim R 209
Category:	Principal judgment
Parties:	Terrence Trevor Casey (Applicant) Regina (Respondent)
Representation:	Counsel: Mr E Ozen (Applicant) Mr E Balodis (Respondent)   Solicitors: Aboriginal Legal Service (NSW/ACT) Limited (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2010/43710
Decision under appeal	Court or tribunal: Wagga Wagga District Court Date of Decision: 20 February 2014 Before: Mahony SC DCJ File Number(s): 2010/43710

Judgment

1. JOHNSON J: The Applicant, Terrence Trevor Casey, seeks leave to appeal against his conviction on 20 February 2014, following a Judge-alone trial before Mahony SC DCJ at Wagga Wagga District Court, upon a charge of robbery with wounding under s.96 Crimes Act 1900.

2. His Honour sentenced the Applicant on 15 August 2014 to a term of imprisonment comprising a non-parole period of two years and three months commencing 26 October 2013 and expiring 25 January 2016, with a balance of term of two years and three months commencing on 26 January 2016 and expiring on 25 April 2018.

3. The Applicant seeks to challenge his conviction only. No application for leave to appeal is brought with respect to sentence.

Grounds of Appeal

4. In Grounds of Appeal filed on 17 September 2015, the Applicant identified the following grounds of appeal:

1. Ground 1 - the verdict was unreasonable or otherwise unsupportable having regard to the evidence.

2. Ground 2 - the trial Judge failed to properly apply the law as to assessing the reliability, as opposed to credibility, of a witness.

3. Ground 3 - a significant part of the trial Judge’s reasoning toward a finding of guilt was based on propositions that were not put to the witness - that witness should have had an opportunity to respond to such matters.

5. As the grounds extend beyond grounds which involve a question of law alone, leave to appeal against conviction is required: s.5(1)(b) Criminal Appeal Act 1912.

The Trial

6. The indictment alleged that the Applicant, on 16 June 2008 at Griffith, did rob Zahid Bashir of a jacket, a wallet and cash, the property of Mr Bashir, and that immediately before the robbery, he used corporal violence upon Mr Bashir thereby wounding him.

7. The Applicant applied to be tried by a Judge alone, a course to which the Crown consented: ss.132(1) and (2) Criminal Procedure Act 1986.

8. It was the Crown case that on 16 June 2008, the Applicant, in company with his brother, Chad Casey, and another male, robbed and wounded Mr Bashir.

9. The Crown case at trial was largely a documentary one. The only witness called by the Crown to give oral evidence was the Applicant’s brother, Chad Casey. The Applicant did not give evidence at the trial.

10. The Crown case against the Applicant was based upon the evidence of Chad Casey who gave an account to police, implicating the Applicant in the commission of the crime. Chad Casey later recanted this version and stated that the Applicant was not involved in the crime.

11. The Crown said that Chad Casey’s initial account to the police was the truth. It was the Applicant’s case that Chad Casey had lied to the police when he implicated the Applicant.

The Reasons of the Trial Judge

12. Given the grounds of appeal, it is appropriate to set out parts of the trial Judge’s reasons for convicting the Applicant.

13. His Honour set out the terms of the charge and adverted to the fact that both the Applicant and the Crown consented to the trial proceeding as a Judge-alone trial. Thereafter, his Honour set out the elements of the offence and directed himself concerning onus and standard of proof.

14. The trial Judge recited the unchallenged account of Mr Bashir (trial judgment, 20 February 2014 at [6]-[9]):

“6   The Crown bundle exhibit A included two statements from the victim, Zahid Bashir. On Monday 15 June 2008 he finished work at 10.20pm and at about 11.10pm he was walking along Banna Avenue in Griffith on his way to a friend’s house. Three males, on the other side of Banna Avenue, standing near the front of the old Police station, yelled out to him and he kept walking. Mr Bashir gave the following description of the three men:

‘5.    One was about five eleven, he was wearing a whitish/creamy coloured jersey and pants, he had black hair and light brown skin, like a Samonen (sic) and he had a clean face with no hair on his face. The second male was about six foot tall wearing a black jumper with a collar, black pants like jeans and a bucket hat. He had white skin but I’m not sure what coloured hair. The third male was shorter than the first male and he was wearing a light coloured hooded jumper. I saw that they were walking towards the old Police station from the direction of the post office. I did not know any of the males.’

7   The men ran across the road towards Mr Bashir and asked him what his name was. He kept walking and turned into Banna Lane. The men ran across to him and surrounded him. One of them punched him twice, following which Mr Bashir hit him on the left side of the face with his right hand. He then felt a hit to the back of his head and thinks he got knocked out. When he woke he was lying on the ground and did not have his jumper and shirt on any more. His statement read:

‘The males were all standing around me and kicking me in my ribs. I jumped up and realised that my mouth and nose were bleeding. I thought my mouth was cut open and my teeth were missing. I started swinging punches and kicking out. They spread out a bit away from me and then I ran to my friend’s house.’

8   An ambulance was called and Police attended. Mr Bashir was taken to hospital by ambulance. It was when he was in the ambulance that he realised that his wallet was missing.

9   In a second statement made one week later on 27 June 2008, Mr Bashir gave a more detailed description of the men who he saw on Banna Avenue. The street lighting was on and he could see them well. His statement read:

‘7.    The first man, who had light brown skin, looked like he was aged in his early 20’s. He had a medium build.

8.    The second man who was wearing the bucket hat, also looked like he was aged in his early 20’s. He was skinny and clean shaven.

9.    At the time, I was wearing a black, short-sleeved shirt. Over the top of the shirt, I was wearing a camouflaged coloured zip up jacket. I was wearing long pants. When the three men surrounded me, it was close to where Banna Lane meets Ulong Street. The men started hitting me. I was hit in the head, I fell to the ground and I was knocked out for a short time. When I woke up the three men were all standing over me and I felt them kicking me to the ribs. I managed to get to my feet. When I stood up, I could feel blood dripping from my face. I couldn’t really hold my head up because my face was hurting.

10. I tried to walk away towards Mohammed’s place. As I walked away, the three men were still grabbing at me. I felt hands feeling around the pockets of my pants. I felt someone remove my wallet from my pants pocket’.”

15. His Honour turned to other documentary evidence adduced in the Crown case and then referred to the evidence of the principal Crown witness, Chad Casey (trial judgment, 20 February 2014 at [13]-[30]):

“13   The Crown called Chad Casey to give oral evidence. He is the brother of the accused and had been charged with the same offence. He had entered a plea of guilty to the offence on 25 March 2009 at the Griffith Local Court and had adhered to that plea when the matter came on for sentencing before Judge Charteris in June 2009.

14   On 11 November 2008 Chad Casey had undergone an ERISP interview at Wagga Wagga Police station in which he had made certain admissions (exhibit B). Prior to being dealt with by the Court on 3 February 2009, on the application of his solicitor, he made what is known as an induced statement to the Police, providing further details of the offence (exhibits C & D). In both his original interview and in the induced statement, he implicated his brother, Terrence Casey, as being a co-offender. The details of that will appear below.

15   Chad Casey gave an undertaking to give evidence at his sentence hearing in accordance with his induced statement. He therefore obtained the benefit of a 35% discount on sentence, made up of a 25% utilitarian discount for his early plea of guilty, plus a 10% discount for the assistance that he had provided to the authorities. The sentencing Judge indicated that he would otherwise sentence him to 5 years imprisonment, but with the 35% discount, that became 3 years and 3 months. The sentencing Judge then further reduced the sentence by 6 months on the basis of Chad Casey’s promise to give evidence in line with his undertaking to assist in the future. He was therefore convicted to a term of imprisonment totalling 2 years and 9 months, with a non-parole period of 15 months. He served that sentence from 5 March 2009 until his release on 4 June 2010.

16   In his ERISP interview on 11 November 2008, when asked what he could tell the Police about the incident on 16 June 2008, he answered

‘It was me and me brother and me mate.’ (Q 19)

17   When asked his brother’s name he said ‘Terrence Casey’ (Q25). He identified the other person as someone named Tim who was a big Fijian bloke. When asked what they did when they observed the victim walk down Banna Lane, he said:

‘We were walking after him. He was, I was in front, Terry was behind and Tim was back at the road, and Terrence ran past me and grabbed the …’ (Q 62)

18   When asked what then happened he gave the following answer:

‘Well, the, Terry started hittin’ him and, I didn’t hit him, I was holding the, these beers, beer bottles in my hand. Tim ran up and started hitting him and I don’t know, they just kept saying, give us, take your jacket off. Tim was saying ‘take your jacket off’ to that bloke and he took his jacket off and then Tim ran off. Then I took off and then Terry stayed, and he was doing something and I yelled out to Terry said let’s go, and we took off.’ (Q 71)

19   He told Police that his brother Terry was in Queensland.

20   On 3 February 2009, when asked what he could tell about the incident on 16 June 2008, he gave the following answer:

‘Well, just me and Terrence Casey and Carl Paula, I think his name is, Paula, we were just up the main street of Griffith and we’ve seen the Indian, like I think he was Indian, his background I think, walking and the boys asked him for a cigarette and he didn’t have any so we followed him down to where the back of the alley is, behind Dick Smith and my brother Terrence ran past me and I asked, I grabbed the bloke and he was saying something and then, yeah, Terrence hit him and then they started fighting. I think the bloke was just defending himself or not, or something, I don’t know but Terrence just kept hitting him and Carl was behind me, then when we got up to where the bloke was, the boys just kept, just kept hitting him.’ (Q 9).

21   He identified himself, Terrence and Carl as all following the victim down the alley (Q 44). He repeated that Terrence ran past him and grabbed the bloke and then hit him in the face and just kept hitting him (Q 50-68). He then described Terrence chasing the victim into a house in the alley (Q 90). He and Terrence just then left, they ran to the shops and then they saw Carl at Willows Park (Q 103-104). He further stated that Terrence cut his right hand on a smashed beer bottle (Q 112-116).

22   When asked in chief of his recollection of the events on 16 June 2008, Chad Casey had little recollection of that evening. He was shown the transcript of his ERISP interview on 11 November 2008. He gave evidence that it was him and two Fijians who had been drinking on that night. Their names were Carl and Timothy. It was the two Fijians who first spoke to the victim in their own language and following the incident, they went their separate ways.

23 An application was then made by the Crown pursuant to s 38 of the Evidence Act 1995 and leave was given to the Crown to cross examine the witness Chad Casey. That evidence established that Chad and Terrence Casey had been working together ‘every now and again’ as contract house painters.

24   When questioned about his ERISP interview on 11 November 2008, Chad Casey gave evidence that some of his answers were lies. He was questioned about the matters referred to above in which he had implicated his brother Terrence and stated they were lies. He agreed that he had spoken to Police prior to his Court appearance in March 2009 and the DVD of that interview was played. It became exhibit C, and the transcript was tendered as an aide memoire (exhibit D). The matters referred to above were put to Chad Casey as implicating his brother Terrence, together with some additional matters. He understood that the purpose of the second interview with Police was to give them a fuller version which had to be the truth and that by giving that evidence it was to be used against the other two offenders, one of whom was his brother Terrence. He agreed that he had given an undertaking to give evidence in accordance with that statement. When asked whether he was telling the truth during that second interview, his answer was ‘No’. It was put to him that he had identified his brother Terrence in the two interviews as being a co-offender and that he had been telling the truth then, to which he answered ‘No’.

25   Chad Casey was then cross-examined by Counsel for the accused. He admitted that he was not at all times an honest person and that he had been dishonest about what happened on 16 June 2008. He had an extensive criminal record with a history of violence and dishonesty.

26   He was cross-examined about a number of prior offences including charges laid in August 2008 of uttering counterfeit money. He identified the person referred to by him in his first ERISP interview as Tim as being one Civiaro Paulo. The name that he gave to Police of Carl Paulo was not the truth. He agreed with Counsel that he did not like to give people up to the authorities.

27   Moreover, he agreed that on 16 June 2008 Terrence Casey had not been with him. He had not seen Terrence that night and in fact had not seen him in the previous weeks.

28   He gave further evidence that he had had a girlfriend by the name of Skye Connors for a number of years. He had learnt that that person was going out with his brother Terrence and that had made him ‘a bit angry’. For that reason he falsely implicated Terrence in the offence of 16 June 2008.

29   He agreed that he had given the second induced statement following receiving legal advice that he may get a lighter sentence. He was at that time not long out of gaol for previous offences and understood that he may be leniently treated by way of a discount off his sentence by assisting the authorities. He knew at the time that he made it that the statement was not true.

30   It re-examination Chad Casey said that he heard about Skye Connors seeing his brother Terrence while he was in gaol. It was after the offence but he was not sure how long after the offence. It was probably months after and was before his first ERISP interview with the Police on 11 November 2008.”

16. His Honour summarised the submissions on behalf of the Crown (at [31]-[32]) and the Applicant (at [33]-[38]).

17. The trial Judge then outlined a number of directions and warnings for the purpose of s.133(2) and (3) Criminal Procedure Act 1986. These directions and warnings included:

1. an unreliability warning with respect to the evidence of Chad Casey under s.165(1)(b) and (d) Evidence Act 1995 (at [40]);

2. a direction in accordance with R v Murray (1987) 11 NSWLR 12 concerning the need for great care in scrutinising the evidence of Chad Casey (at [41]-[42]);

3. an associated direction that the Court must be satisfied that the evidence of Chad Casey was both honest and reliable, with his evidence to be examined very carefully in order for the Court to be satisfied that it could safely act upon that evidence to the high standard required in a criminal trial (at [43]);

4. a direction that, as the Crown relied solely upon the evidence of Chad Casey, the Court must acquit the Applicant if it was unable to accept any part of the evidence of Chad Casey beyond reasonable doubt (at [44]);

5. a direction that the Court should have regard to the demeanour of Chad Casey in the witness box, but that the Court must be careful about drawing conclusions from demeanour alone (Cawthray v R [2013] NSWCCA 105 at [52]) (at [46]).

18. In moving to the Court’s decision, his Honour expressed satisfaction to the criminal standard with respect to the elements of the offences and the account of Mr Bashir concerning the commission of the offence (at [47]-[48]).

19. The trial Judge then turned to the question as to whether the Crown had proved beyond reasonable doubt that the Applicant was one of the three offenders. As this reasoning is under challenge on the appeal, it is appropriate to set it out in full (trial judgment, 20 February 2014 at [49]-[54]):

“49   The real issue in the trial is whether the Crown has established beyond reasonable doubt that the accused was one of the three offenders. It is clear that the description given by Mr Bashir of the three men is not evidence that could establish the identity of the accused beyond reasonable doubt. For that the Crown relies on the evidence of Chad Casey. His evidence, in terms of his ERISP interview and induced statement, and his oral evidence in the trial are set out above. It is clear that in both his ERISP interview and his induced statement he clearly identified his brother Terrence Casey, the accused, as one of the three offenders and described his role in the offence in some detail, consistently in both the interviews. He did so in his ERISP without any inducement. In the second statement on 3 February 2009, there was a real inducement, namely, that he could obtain a further discount on his sentence for providing assistance to the authorities and by undertaking to give evidence in accordance with that statement. However, in his evidence he denied telling the truth during that second interview and denied that his brother Terrence was a co-offender in the offence. In cross-examination by counsel for the accused he gave evidence that Terrence Casey was not with him on the night, and the reason he had falsely implicated the accused in the offence was that whilst he had been in prison (i.e. some time during the period 6 September 2008 and 5 March 2009) he had learnt that his former girlfriend was going out with his brother Terrence and that that had made him ‘a bit angry’.

50   I am mindful that the accused has the presumption of innocence in his favour and has not given evidence. The accused is entitled to say nothing and make the Crown prove his guilt. The right to silence and the presumption of innocence mean that the accused’s election not to call evidence cannot be used against him. His election not to offer any explanation constitutes no admission by the accused and no such inference must be drawn from that fact. Nor must such an election be used to fill gaps in the evidence tendered by the Crown.

51   The question whether the Crown has proved its case beyond reasonable doubt therefore must be determined as to whether or not I accept the version of events given by Chad Casey in his ERISP interview and his induced statement, or whether I accept his sworn evidence before me that he lied in those interviews when implicating his brother Terrence and that his motive for doing so was that he was angry that Terrence Casey had taken up with his ex-girlfriend. If I accept the latter, then I must acquit Terrence Casey of the charge on the indictment.

52   I do not accept the sworn evidence given by Chad Casey in which he recanted those parts of exhibits B and C in which he implicated Terrence in the offence. My reasons for not accepting that evidence are follows:

(1)   The version of events which Chad Casey gave in both exhibit B and Exhibit C are largely consistent, notwithstanding that there was more detail provided by him in his induced statement. His motive for giving that statement was clear, namely, to obtain a reduced sentence for himself.

(2)   At the time of giving his ERISP interview he knew that Terrence Casey was outside the jurisdiction and told Police that he was in Queensland.

(3)   The description given by the victim Mr Bashir in his statement to Police on 20 June 2008 identified only one of the three offenders as being ‘like a Samoan’. This is consistent with both exhibit B and C in that in each statement Chad Casey described only one man of Fijian heritage, albeit he provided no less than three different names for that person. That makes it inherently unlikely that his evidence in Court that there were two Fijians present was the truth.

(4)   Mr Bashir also described two of the assailants as being men in their 20’s.

(5)   The differences in description of the co-offenders as set out in the schedule relied on by Counsel for the accused which highlighted the differences between the various descriptions given by the victim Mr Bashir and Mr Chad Casey, are not determinative of the identity of the co-offenders. The fact that the victim gave indefinite descriptions as to the colour of the clothing worn by each assailant is of little weight given the circumstances in which he was attacked and robbed.

(6)   I had the opportunity of observing Chad Casey give evidence in the trial. His demeanour in the witness box, particularly when being cross-examined on the content of his ERISP interview and induced statement, was unimpressive.

(7)   Counsel for the accused submitted that Chad Casey was a proven liar and the Court would not accept anything he said. I do not accept that submission as the two parts of his evidence were diametrically opposed. Either he was truthful in his ERISP interview and induced statement, or in his sworn evidence on the issue of Terrence Casey’s involvement in the offences. This is the type of decision juries often have to make when assessing the evidence of witnesses.

(8)   The versions given by Chad Casey in exhibits B and C consistently implicated his brother Terrence. He had a motive to do so, namely to assist the Police and thereby gain a greater discount to his sentence. He understood the consequences of him doing so.

(9)   His explanation for recanting that evidence was implausible. It was inherently unlikely that he had given the Police on two occasions such consistent versions implicating Terrence Casey because he was ‘a bit angry’ with his brother for going with his ex-girlfriend. To accept the accused’s Counsel’s submission that none of his evidence could be accepted, it would apply equally to his evidence about his brother being with the ex-girlfriend. I find it inherently unlikely that that was truthful.

(10)   Moreover, there could be a number of reasons that would give Chad Casey a motive to exculpate his brother from the charge before the Court. They clearly have an ongoing relationship. They work together from time to time, although Chad Casey minimised that when asked about it. A motive of keeping his brother out of gaol would be sufficient for him to lie to the Court, in recanting his previous statements.

53   I therefore find that, on the basis of the content of the exhibits B and C referred to above, Terrence Casey was one of the three assailants and co offenders.

54   I therefore find that the Crown has proved each of the elements of the offence beyond reasonable doubt.”

Approach to Appeal Against Conviction from Trial by Judge Alone

20. Before moving to consider the grounds of appeal, it is appropriate to make some observations concerning the nature of a conviction appeal from a Judge-alone trial.

21. The grounds of appeal assert errors on the part of the trial Judge in aspects of his reasoning process (Grounds 2 and 3) and a contention that the verdict of guilty was unreasonable or cannot be supported having regard to the evidence (Ground 1).

22. The nature of a conviction appeal under ss.5 and 6 Criminal Appeal Act 1912 from a verdict at a Judge-alone trial has been considered recently by the High Court of Australia in Filippou v The Queen [2015] HCA 29; 89 ALJR 776 and in the subsequent decision of this Court in RP v R [2015] NSWCCA 215. In Filippou v The Queen, French CJ. Bell, Keane and Nettle JJ referred (at 781[8]) to the three limbs in s.6(1) Criminal Appeal Act 1912:

“Section 6(1) of the Criminal Appeal Act provides in effect that the Court of Criminal Appeal shall allow an appeal against conviction if:

(1)    the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(2)    where the judgment of the court of trial is wrong by reason of wrong decision of a question of law; or

(3)    for any other ground there has been a miscarriage of justice,

provided that the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

23. With respect to the first limb under s.6(1), the plurality said in Filippou v The Queen at 781 [11]-[12]:

“[11] Beginning with the first limb of s 6(1) of the Criminal Appeal Act, it is clear from the terms of s 133(1) of the Criminal Procedure Act that the effect of the latter provision is to equate a judge’s finding of guilt to a jury’s finding of guilt ‘for all purposes’. It follows from the natural and ordinary meaning of the words of s 133(1) that, for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge’s finding of guilt is to be treated as if it were the same as a jury’s finding of guilt.

[12]    Authority makes plain that a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v R [[1994] HCA 63; 181 CLR 487 at 494]:

It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

24. The second limb of s.6(1) was addressed by their Honours at 781-782 [13]:

“Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A ‘wrong decision of any question of law’ includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law.”

25. Their Honours said with respect to the third limb at 782 [14]:

“The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial.”

26. The plurality returned to the task of this Court under s.5 Criminal Appeal Act 1912 at 787 [48]:

“As was earlier explained, an appeal from judge alone under s 5 of the Criminal Appeal Act is not an appeal by way of rehearing. Having identified error, the task for the Court of Criminal Appeal is to determine whether the error is productive of a miscarriage of justice.”

27. Their Honours addressed the topic of warnings and directions in a Judge-alone trial at 788 [52]:

“Subject to statute, judges are required to give juries particular warnings such as a Longman warning, a Domican warning, an accomplice warning or a Pollitt warning, for the purpose of alerting juries to particular difficulties with particular classes of evidence with which they are unlikely to be familiar. Perforce of s 133(3) of the Criminal Procedure Act, the same applies to trial by judge alone. As was explained in Fleming, the obligation under s 133(3) ‘to take [a] warning into account’ requires that the particular warning be included in the judge’s reasons for judgment. But it is different in the case of directions other than warnings. Apart from warnings of the kind referred to in s 133(3), judges are required to give juries certain ineluctable directions as to matters such as the functions of the judge and jury, the burden and standard of proof, what constitutes evidence, the drawing of inferences from direct evidence, the care to be exercised in drawing inferences and, if an inference forms an essential step in the jury’s process of reasoning to guilt, the need to be satisfied of that inference beyond reasonable doubt. Such directions are principles of law within the meaning of s 133(2) and therefore, in the case of trial by judge alone, must be applied. But it is sufficient if a judge’s reasons show either expressly or by implication that they have been so applied.”

28. In RP v R, Davies J said (with the concurrence of myself), in the context of a conviction appeal from a Judge-alone trial (at [48]):

“For a verdict to be unreasonable it is not enough that review of the evidence demonstrates that it was possible for the tribunal of fact to reach a different conclusion: Lazaris v R [2014] NSWCCA 163 at [65]. As Hayne J said (Gleeson CJ and Heydon J agreeing) in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard,

or as the joint judgment said in Filippou at [56],

[T]he question for the Court of Criminal Appeal was not whether it was ‘satisfied that the judge’s account was correct’ but whether her Honour’s findings as to the sequence of events were not reasonably open.”

29. Davies J observed in RP v R at [52]:

“The significant difference between a trial with a jury and a judge alone trial is that the judge is obliged to make findings of fact and to identify the principles of law applied by the judge: s 133 Criminal Procedure Act 1986 (NSW). The reasoning the judge has employed to reach the relevant findings is exposed to examination and analysis in the way an inscrutable jury verdict cannot be. The reasoning will identify what matters have been considered by the judge in making any finding. That enables this Court to determine at least whether there is no or insufficient evidence to support a finding or that the evidence was all one way or has misdirected himself or herself on a matter of law.”

Ground 2 - Suggested Failure in Assessing Reliability of Crown Witness

30. It is appropriate to consider firstly the second ground of appeal which challenges part of the reasoning process of the trial Judge.

Submissions of the Parties

31. Mr Ozen, counsel for the Applicant, submitted that the trial Judge had erred in concentrating upon the credibility of Chad Casey and not reliability. It was submitted further that the trial Judge had erred in posing what were described as “binary choices” (at [51], [52](7) of the trial judgment (see [19] above) in identifying the need for a choice between the two parts of Chad Casey’s evidence which “were diametrically opposed”.

32. The Applicant submitted that the concentration upon issues of credibility of the witness did not comply with the requirements of the law to assess issues of reliability as well: Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at 1096 [46]-[48]; Cawthray v R at [53]-[55]; Murray v The Queen [2002] HCA 26; 211 CLR 193 at 201-202 [23], 212-213 [57].

33. The Crown submitted that the trial Judge had acknowledged the need to consider the questions of credibility and reliability with respect to the evidence of Chad Casey and that his Honour did consider both aspects in his reasons. The Crown submitted that there was no dispute that there had been a robbery committed upon Mr Bashir in this case, nor was there any dispute that Chad Casey was one of the robbers. Neither Mr Bashir’s account, nor the account of Chad Casey to the police, asserted the presence of more than three persons at the scene of the crime. Accordingly, the Crown submitted there was little opportunity for Chad Casey to confuse whether the Applicant (his own brother) had been involved or the role that he had played.

34. The Crown submitted that what had been said in Douglass v The Queen and Cawthray v R related to the importance of an assessment of the reliability (as well as credibility) of a young child witness in a sexual assault case and that the circumstances of those cases were far removed from the present case.

35. The Crown submitted that this was, in truth, a trial where the credibility of Chad Casey was the principal consideration as to the two different accounts he had given to police. It was submitted that the trial Judge had addressed the real issue which concerned the honesty of the account of Chad Casey.

Decision

36. The trial Judge was well aware of the need to consider both the credibility and reliability of Chad Casey and the accounts which he had given. In identifying the differing accounts of Chad Casey, his Honour did not erroneously set up “binary choices” as asserted by the Applicant.

37. There was no issue at this trial that Mr Bashir had been robbed by three men. Chad Casey admitted that he was one of the assailants. The real issue in contention was whether Chad Casey was truthful in asserting in two interviews with the police that one of the other assailants was his brother, the Applicant.

38. His Honour directed himself that it was necessary for the Court to be satisfied that the incriminating version of Chad Casey was both honest and reliable (trial judgment, 20 February 2014 at [43] at [17](c) above). The focus of his Honour’s reasons was the honesty or credibility of Chad Casey’s accounts to the police, which placed the Applicant as one of the offenders against Mr Bashir. There was no scope here for mistaken identity, or confusion or mistake on any other identifiable basis. It could hardly be suggested that he would mistakenly place his own brother as a person involved criminally in this offence.

39. There is no controversy with respect to the statements of principle contained in cases such as Murray v The Queen, Douglass v The Queen and Cawthray v R. However, what was said in those cases, in a very different context, has limited application to the resolution of the real issue in dispute in this trial.

40. No error has been demonstrated by the Applicant in this regard. I would reject the second ground of appeal.

Ground 3 - Complaint About Suggested Failures to Put Propositions to the Witness, Chad Casey

Submissions of Parties

41. It was submitted for the Applicant that the trial Judge’s reasoning (trial judgment, 20 February 2014 at [52](9)-(10)) (at [19] above) involved components which should have been put to Chad Casey in questioning by the Crown at trial, but which were not. In particular, it was submitted that it should have been put to Chad Casey that he was lying because of the nature of the ongoing relationship with his brother which, if put, would have given the witness an opportunity to discuss the nature of the ongoing relationship. Further it was submitted that it should have been put to Chad Casey that he was lying because of his concern about the possible consequences if he adhered to his versions in the record of interview. It was said that Chad Casey should also have been challenged concerning his “ex-girlfriend” explanation, so that he could respond to a contrary proposition on that topic. It was submitted that these matters should not have formed part of his Honour’s judgment as they had not been put to the witness.

42. The Crown submitted that no error had occurred on the part of the trial Judge in this respect. There had been cross-examination by the Crown of Chad Casey concerning the relationship he had with the Applicant at the time of the trial. Likewise, it was submitted that there was cross-examination as to the truthfulness of the account given by Chad Casey in his recorded interview with police. It was submitted that no error had been demonstrated.

Decision

43. By way of the third ground of appeal, the Applicant asserts that there has been unfairness in the trial arising from an alleged breach of the rule in Browne v Dunn (1894) 6 R 67. It is commonly accepted that this rule of practice is based upon the goal of achieving fairness in the conduct of litigation: RWB v R [2010] NSWCCA 147; 202 A Crim R 209 at 223 [93]. The nature of the rule, and its application to criminal as well as civil proceedings, were considered by this Court in Khamis v R [2010] NSWCCA 179; 203 A Crim R 121 at 128-130 [29]-[35].

44. In considering whether any unfairness has occurred in the context of this trial, it is appropriate to have regard to the course of evidence of Chad Casey. As noted by the trial Judge (at [23] of the trial judgment set out at [15] above), the examination-in-chief of Chad Casey reached the point where the Crown was granted leave to cross-examine him under s.38 Evidence Act 1995. It was put clearly to Chad Casey by the Crown that his first and second accounts given to police were truthful, where he said that the Applicant was one of the three persons involved in the commission of the offence against Mr Bashir (transcript, 13 February 2014, page 22; AB248).

43. It must be kept in mind that the matter referred to by the trial Judge (at [52](9) at [19] above) related to Chad Casey’s account, given under cross-examination by counsel for the Applicant, as to why he (the witness) had changed his story from one implicating his brother to one which exculpated him. It was open to the trial Judge to find that the account given by Chad Casey in this respect was implausible and inherently unlikely. It was not necessary for a question to be put to Chad Casey along those lines before the trial Judge could make a finding which clearly arose from the Crown case that these aspects of his evidence were untrue. The rule in Browne v Dunn does not require formulaic propositions to be put.

44. With respect to the matters raised by the trial Judge (at [52](10) at [19] above) as to reasons why Chad Casey may wish to exculpate his brother from the charge before the Court, there was cross-examination by the Crown concerning contact between the two brothers prior to the trial (transcript, 13 February 2014, pages 10-12; AB236-238).

45. After cross-examination by counsel for the Applicant, the Crown re-examined Chad Casey on aspects concerning the ex-girlfriend issue (transcript, 13 February 2014, pages 31-32; AB257-258).

46. In the circumstances of this trial, there could have been no doubt concerning the parts of Chad Casey’s evidence which the Crown submitted were truthful and those which were not. The explanations advanced by Chad Casey as to why his account changed from one which inculpated his brother to one which exculpated him, were matters for the trial Judge to assess in making findings of fact and reaching a verdict at the trial.

47. The Applicant has not demonstrated that any unfairness occurred in this case, let alone circumstances which were productive of a miscarriage of justice. I would reject the third ground of appeal.

Ground 1 - The Unreasonable Verdict Ground

Submissions of the Parties

50. It was submitted for the Applicant that the verdict of guilty was unreasonable and was not supported by the evidence.

51. Counsel submitted that there was inconsistency in the accounts given by Chad Casey such that it was not open to the trial Judge to find the Applicant guilty.

52. Counsel for the Applicant submitted that the verdict of guilty in this case was unreasonable and not supported by the evidence. He submitted that it was not open to the trial Judge, on the whole of the evidence, to be satisfied beyond reasonable doubt that the Applicant was one of the assailants in the offence committed against Mr Bashir.

53. It was submitted for the Applicant that it was not open to the trial Judge to be satisfied beyond reasonable doubt that the first account given by Chad Casey to police was reliable and credible so as to support the verdict. Counsel for the Applicant relied upon submissions made in support of the first ground of appeal.

54. The Crown submitted that it was open to the trial Judge to be satisfied beyond reasonable doubt of the guilt of the Applicant. His Honour saw Chad Casey give evidence and had regard to all the evidence in reaching the level of satisfaction beyond reasonable doubt disclosed in the trial judgment.

55. The Crown submitted that it was open to the trial Judge to convict the Applicant. The trial Judge had regard to all of the evidence, which included the police interviews with Chad Casey (including a video-recorded interview) which implicated the Applicant. Chad Casey was cross-examined by the Crown under s.38 Evidence Act 1995 which allowed his account to be tested. It was open to the trial Judge to accept the truth of what he said in the first and second interviews with police.

56. The Crown repeated submissions made in the context of the first ground of appeal. It was submitted that this case, in reality, was one where the credibility of Chad Casey was in question. He had nominated his brother as one of the three offenders in his initial interviews with police and there was no role for mistake which may bear upon reliability in this case.

57. The Crown submitted that the verdict of guilty was not unreasonable and was supported by the evidence.

Decision

58. I have had regard to the entirety of the evidence for the purpose of considering this ground of appeal. I bear in mind, as well, that the trial Judge has the advantage over this Court in that he had an opportunity to observe Chad Casey give evidence. That said, the trial Judge appropriately kept in mind that the role of demeanour in fact finding should be kept in proper perspective (see [17](e) above).

59. His Honour had the advantage, as well, of seeing the video-recorded interview of Chad Casey on the occasion when he gave answers implicating the Applicant.

60. The reasoning of the trial Judge is not attended by error. The question then arising for consideration is whether the verdict of guilty was not open to the trial Judge in the sense explained in Filippou v The Queen and RP v R (see [22]-[23], [28]-[29] above).

61. The role of the s.38 cross-examination of Chad Casey was important in this trial. What occurred here constitutes an illustration of what Heydon JA (Dunford and Buddin JJ agreeing) described in R v Le [2002] NSWCCA 186; 54 NSWLR 474 at 486 [66]:

“One purpose of a s 38 examination must be to enable counsel calling the witness to demonstrate that the evidence in chief which led to the s 38 order is false. Another must be to enable counsel to demonstrate that any prior statement inconsistent with it is true. That latter purpose is assisted by s 60, which permits a prior inconsistent statement to be considered as evidence of what is represented, not merely as a matter affecting credibility. But s 60 by itself is not wholly effectual unless the questioner is able to interrogate with a view to demonstrating the truth of the prior inconsistent statement. There would be little point in permitting s 38 examinations otherwise and no point in the existence of s 38(3). The purposes described can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence. One of these is the lateness with which the impugned story is advanced. Another is the inherent improbability of the impugned story. These purposes must also be capable of being assisted by the eliciting of evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity.”

62. As Ipp JA (Bell J agreeing) observed in R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 at 464 [83], the use of s.38 permits a truer picture of the situation to emerge, and that is the very purpose underlying the section.

63. In the present trial, his Honour was satisfied that Chad Casey’s first and second accounts to police were true. Further, his Honour considered that Chad Casey’s proffered reasons for changing his account were implausible, a finding which was open on all the evidence.

64. Having considered all the evidence, the Applicant has failed to demonstrate that the verdict of guilty was not open to the trial Judge. This was a case where Chad Casey’s first and second accounts implicated both himself and his brother in a credible fashion. The features of Chad Casey’s evidence which strained credulity were those where he sought to explain away why he had given the early accounts which implicated both himself and his brother. The findings of the trial Judge with respect to the implausibility of Chad Casey’s evidence in this respect were well open on the evidence.

65. It has not been demonstrated that the verdict of guilty was unreasonable or not supported by the evidence. I would reject the first ground of appeal.

Conclusion

66. I would grant leave to appeal, but dismiss the appeal against conviction.

67. I propose the following orders:

1. leave to appeal granted;

2. appeal against conviction dismissed.

68. SCHMIDT J: I agree with Johnson J’s conclusions as to each of the three grounds of appeal advanced by the Applicant. I also add that having myself considered the evidence, I consider that the trial Judge's conclusions were open and that his Honour was not bound to have entertained a doubt about the Applicant’s guilt of the offence charged.

69. WILSON J: I agree with the analysis and conclusions of Johnson J, and with the orders his Honour proposes.

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Decision last updated: 04 May 2016