Darragh v The Queen
[2004] WASCA 244
•2 NOVEMBER 2004
DARRAGH -v- THE QUEEN [2004] WASCA 244
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 244 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:147/2003 | 2 JULY 2004 | |
| Coram: | MALCOLM CJ MURRAY J ROBERTS-SMITH J | 2/11/04 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM KEVIN DARRAGH THE QUEEN |
Catchwords: | Criminal law and procedure Evidence Stealing Whether evidence of the existence of a claim for maintenance of a child of whom the appellant was alleged to be the father admissible Evidence relevant to motive and not simply to attack the character or credit of the appellant Evidence admissible Evidence not merely collateral |
Legislation: | Criminal Code (WA) s 378(5)(b) |
Case References: | Attorney-General v Hitchcock (1847) 1 Exch 91 Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 Attwood v R (1960) 102 CLR 353 Papakosmas v R (1999) 196 CLR 297 R v BD (1997) 94 A Crim R 131 R v Christie [1914] AC 545 R v Pfennig (1995) 182 CLR 461 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DARRAGH -v- THE QUEEN [2004] WASCA 244 CORAM : MALCOLM CJ
- MURRAY J
ROBERTS-SMITH J
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : NISBET DCJ
File Number : IND 1019 of 2002
Catchwords:
Criminal law and procedure - Evidence - Stealing - Whether evidence of the existence of a claim for maintenance of a child of whom the appellant was alleged to be the father admissible - Evidence relevant to motive and not simply
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to attack the character or credit of the appellant - Evidence admissible - Evidence not merely collateral
Legislation:
Criminal Code (WA) s 378(5)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M R Gunning
Respondent : Mr R E Cock QC and Mr C G Astill
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Attorney-General v Hitchcock (1847) 1 Exch 91
Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533
Case(s) also cited:
Attwood v R (1960) 102 CLR 353
Papakosmas v R (1999) 196 CLR 297
R v BD (1997) 94 A Crim R 131
R v Christie [1914] AC 545
R v Pfennig (1995) 182 CLR 461
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1 MALCOLM CJ: This is an appeal against conviction. On 28 August 2003, the appellant was convicted after trial of the offence of stealing a sum of money and gemstones, the property of a person or persons unknown under circumstances of aggravation, namely, that the property was stolen in a dwelling and was of a value exceeding $10,000 contrary to s 378(5)(b) of the Criminal Code.
2 The grounds of appeal as amended at the hearing are as follows:
"1. The learned trial Judge erred in allowing the State to use evidence of a claim for child maintenance made against the appellant in 1996 to attack the credit of the appellant.
PARTICULARS
(a) The State led evidence that at the time of the alleged theft, the appellant had a conversation with a witness in which the appellant said that he needed money to pay arrears of child maintenance, and evidence was led to prove that the appellant did have a claim for maintenance made against him shortly prior to the alleged theft;
(b) Although the appellant denied the claim until paternity was established, which was some time after the alleged theft, the State was permitted to cross-examine the appellant to the effect that he always well knew that he was the father of the child, that he would be liable for maintenance, and that he had lied in a letter written in 1996 denying paternity;
(c) The evidence should have been admitted solely to establish motive by proving that the appellant was aware of a potential liability to pay child maintenance, and should not have been permitted to be used to attack the appellant's character and credit.
2. The learned trial Judge erred when having directed on motive and credibility failed to warn that the Appellant being involved in contesting a family law matter did not mean that the was more likely to have committed any
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- crimes, and any feelings as to the rights or wrongs of his conduct would not assist the jury in determining his innocence or guilt as to the charge before them."
3 The prosecution case was that in 1997, the appellant was the proprietor of a cleaning business, G K Darragh Cleaning Services. He was engaged to clean premises located in Wattle Street, South Perth, which was part of a deceased estate. There was evidence that the premises were in an appalling state of cleanliness. The appellant was engaged to clean the premises and to deliver any documentation and valuables to the solicitors on behalf of the estate, the firm of Downing Legal. The cleaning commenced on 14 January 1997 and continued for about three days. At that time, the appellant had a friend staying with him, one John Fox. Mr Fox agreed to help the appellant with the cleaning of the property, the subject of the deceased estate.
4 In June 1999, Mr Fox completed a statutory declaration which was forwarded to a Mr Paul Collins, an articled clerk with the law firm, in January 1997. A statement was later taken by the Victorian police which was in similar terms to the letter and the statutory declaration. Mr Fox alleged that during the cleaning of the deceased estate, a tin was found and taken back to the appellant's house. Fox alleged that the tin contained the sum of $24,000 in cash, together with a quantity of gems. This information was passed on to the police.
5 Police investigated the appellant's bank records and discovered that three cash deposits in amounts of $3507, $1028 and $1005 respectively were made by the appellant into various accounts within days of the commission of the alleged offence. The total of these amounts were $6040.
6 At his trial, the appellant was found not guilty of the charge contained in the indictment, but was found guilty of stealing only, on the basis that the jury were not satisfied that an amount of more than $10,000 had been stolen from the deceased estate. In the result, the appellant was sentenced to imprisonment for 12 months and the sentence was suspended for 12 months.
7 At a directions hearing on 21 and 22 August 2003 prior to the trial, the appellant objected to evidence proposed to be led by the prosecution from a E, a former partner of the appellant. The evidence sought to be led was that E had given birth to a child of whom the appellant was the father in 1984. She said that she was seven months' pregnant when she
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- separated from the appellant and that the appellant had treated the child as his own. He had done this by maintaining contact with the child, buying gifts and flying him from Queensland to Perth to meet his family.
8 In 1996, E applied for maintenance for the child from the appellant. The appellant contested paternity. In doing so, he relied on the fact that the name of another man was on the child's birth certificate as the father. In March 1997, the Wodonga Family Court ordered DNA testing by consent. This concluded that the appellant was the father and he then became liable to pay arrears of maintenance. The relevant orders by the Family Court were made in March 1998. In that month, the appellant paid in excess of $6000 by way of arrears of maintenance. That money was paid by a cheque from one Lloyd Collins who was a regular employer of the appellant.
9 This evidence was said to be relevant because Fox gave evidence that the appellant said that he needed the money to pay maintenance. The prosecution sought to provide support for that evidence by proof that there was a maintenance application on foot at the relevant time. The appellant did not object to evidence being given that there had been an application for maintenance made. It was conceded that such evidence was relevant to support the evidence of Mr Fox and also as evidence of motive. It was contended, however, that the appellant had a legitimate interest in contesting paternity and that his liability to pay maintenance was not established until well after commission of the alleged offence. When the maintenance was in fact paid, it was not paid with the appellant's own money. In this context, the appellant's counsel had no objection to the State seeking to bolster Fox's evidence by demonstrating a potential liability to pay maintenance, but objected to the proposed evidence from E that the appellant was at all times fully aware that the child was his and that he would have to pay maintenance. Objection was taken to cross-examination of the appellant regarding the truth of his denial of paternity.
10 In this context, it was submitted on behalf of the prosecution that the evidence should be confined to the following, namely:
(1) that the appellant and E separated while she was pregnant;
(2) that she did not form a relationship with the man whose name was on the birth certificate until she was seven months' pregnant; and
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- (3) that the appellant treated the child as his own.
11 Counsel for the State said that the prosecution would not go into the Family Court proceedings and would not suggest that the appellant had lied in the Family Court.
12 It was contended on behalf of the appellant that the difficulty with this apparent concession was that the jury would have been fully aware that there had been Family Court proceedings. The existence of such proceedings was referred to in the evidence of E.
13 It was contended on behalf of the prosecution that the application for maintenance was made when the relevant child was aged 13. Consequently, if the appellant was the father of the child, there would be a substantial obligation to pay back maintenance which the prosecution contended was relevant to motive. It was conceded on behalf of the appellant that, on that basis, the evidence was properly led and was admissible. Mr Fox gave evidence that the appellant had commented that the money coming would be handy for the payment of maintenance. This comment was made on two occasions, one close to the time when the maintenance proceedings were on foot and another at a later time. The appellant said that at the relevant time he believed that he may not have been the father or, at least, there was a chance he may not have been the father. In fact, the result of DNA testing was that it was proved beyond doubt that he was the father.
14 It was accepted by counsel for the appellant that the potential or possible liability for maintenance provided some evidence of a motive to steal the money in question. In this context, the relevance of the DNA testing results was that it gave rise to a basis for concluding that the appellant must have actually believed or known that he was the father. It was against this background that the appellant was cross-examined specifically on the topic of his knowledge or belief that he was in fact the father of the relevant child.
15 The submission on behalf of the appellant was that the prosecution should not have been permitted to cross-examine the appellant to the effect that he always well knew that he was the father of the child; that he would be liable for maintenance; and that he had lied in a letter written in 1996 denying paternity.
16 In support of ground 1 it was submitted that the relevant evidence should have been admitted solely to establish motive by proving that the appellant was aware of a potential liability to pay maintenance, and
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- should not have been permitted to be used to attack the appellant's character and credit.
17 Evidence was given by E that the appellant was the father of the child and that the appellant admitted that he was the father. The appellant eventually accepted that he was the father, although he said that there was a possibility that the child was not his, and that is why he contested the maintenance application. It was in that context that evidence was led from the mother to say that the appellant was the father and that he knew at the material time that this was the case, although it also appears to have been contended that he defended the application because there was a possibility that the child was not his.
18 Some reliance was placed on a letter dated 30 November 1996 from the appellant to the solicitors for E in response to her request that he pay maintenance for the child. In the letter the appellant noted that a Mr John Faint had signed the birth certificate of the child stating that he was the biological father and said:
"Whilst I acknowledge that I have had vague connections with [the child] over the years, there is no Prime [sic] Facie evidence, that I, Graham Darragh, am the father of [the child]."
19 It was also made clear in the pre-trial proceedings before Kennedy DCJ (as she then was), that E had a relationship with the appellant; that she separated from the appellant when she was pregnant with the child; that she did not enter into the relationship with the man who put his name on the birth certificate until she was seven months' pregnant; and that the appellant treated the child as his own from the time he was born.
20 The prosecution case was that by his actions and his relationship with the child, in the context of the evidence, the appellant indicated his knowledge and acceptance that he was the father; and that this provided evidence of a motive for taking the money and corroborated the evidence of Mr Fox concerning the appellant's motivation at the relevant time.
21 It was contended on behalf of the appellant, however, that the prejudicial effect of the relevant evidence outweighed its probative value. In his cross-examination, the following passage occurred:
"You've already acknowledged you treated him as if he were your son. Is that the case?---I treated with the respect that children should be treated with, that's correct.
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- Answer my question. Did you treat him like he was your son or not?---Well, if you put it in the context of was I loving towards him like a father, yes, I'd say that.
You sent him birthday cards signed 'Dad', didn't you?---Down the track, yes.
When you related to him, you allowed him to call you Dad and you called yourself Dad in relation to him?---Well, he called me Dad when he was four or five years old.
Yes?---When I was staying in Townsville.
And you sent him a birthday card indicating the same thing?---And he called me Dad."
22 Later, the following passage appears in the cross-examination:
"But what you're suggesting to the ladies and gentlemen of the jury is that at the very least your view was that there was a fifty-fifty chance. Is that your evidence?---Well, I might have had a bit more of a view there's a possibility he was mine, a bit more than fifty, but the doubt was there.
All right. And you knew that at the time - - -?---Let's put it down to 80:20; that's fair; 80:20 per cent because I still about 20 per cent doubt that the child wasn't mine and that's why I paid for it.
And that was how it stood when the family law proceedings were instituted. You thought 80 per cent this child was yours but you a doubt?---A possibility, yeah."
23 At the same time, however, his response to the application was that a mistake had been made and that there was no prima facie evidence that he was the father of the child, notwithstanding that he thought that there was an 80 per cent chance that he was the father and had maintained a connection with the child over the years. He also bought the child presents and sent him cards and had him stay with him in Perth for a period of six weeks on one occasion.
24 The essence of the prosecution case at the trial was that on 14 January 1997, while involved in cleaning the house formerly occupied by the deceased, the appellant stole a sum of money and gemstones. In the meantime, in November 1996, he was served with the Family Court
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- application seeking payment of child maintenance in respect of the child in question who was said to be his son.
25 Although the appellant disputed that he was the father of the child, it was contended that he well knew that the child was his and that he would be liable for a substantial payment of child support by way of back payments. It was in this context that, some three months after the alleged theft, the appellant said to Mr Fox in a telephone conversation, words to the effect that "… they'll help me with the child maintenance".
26 In my opinion, it was clear that the appellant had the opportunity to steal the money and the gemstones, as well as a motive, in the context of the expectation that he would have to make a substantial payment to the mother by way of back payments of child support.
27 It was made clear by counsel for the prosecution that it was not intended to use the evidence to suggest that the appellant had lied in his affidavit to the Family Court or in his evidence in the Family Court. The appellant conceded, however, that there was a potential liability to make back payments of maintenance in respect of the child.
28 Against this background, the prosecution case was that the appellant recognised that there was a real possibility that he would be required to make a substantial payment to E in respect of the child on account of arrears of maintenance. In this context, I consider that the appellant's state of mind as of 14 January 1997 which, with respect to his potential liability for back payments, was such that he was aware that he could be required to make a substantial payment to the child's mother, was highly relevant to the prosecution case in the context of motive. This was more than a merely collateral issue. In my view, it went directly to whether or not Fox and the appellant had the relevant conversation regarding what the appellant was going to do with the money the prosecution alleged that he stole.
29 The guide for determining whether a matter is collateral or not was formulated by Pollock CB in Attorney-General v Hitchcock (1847) 1 Exch 91 at 99 as follows:
"… the test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence – if it have such a connection with the issue, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him."
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30 While the decision of the High Court in Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 questioned whether the text formulated in Attorney-General v Hitchcock was of universal application, it does provide an appropriate basis for the admission of the relevant evidence in the present case.
31 In my opinion, the learned trial Judge was correct in his ruling that the evidence with respect to the paternity dispute was "all directed really … to one issue, that is [the appellant's] state of mind in January 1997 in respect of a liability or a pending liability for maintenance". It was made clear on behalf of the prosecution at the directions hearing on 21 August 2003 that this was the position, while at the same time it was acknowledged that the matters of credit would still be of particular significance. It was expressly stated, however, that the relevant evidence would not be used to attack the appellant's character on the basis that he was being obstructive in relation to his obligations to the child.
32 In my opinion, given the context, the learned Judge did not err in admitting the evidence of the claim for child maintenance. In particular, I consider that the evidence was rightly admitted as being relevant to the appellant's state of mind at the material time and to provide evidence of a motive to commit the offence alleged.
33 As has been seen, the appellant's evidence regarding his state of mind as at 14 January 1997 with respect to the potential liability for maintenance back payments was both inconsistent and self-contradictory. In my opinion, the cross-examination was permissible in order to establish this point and also in an endeavour to show that the appellant's evidence that he had a doubt that the child was his was not truthful.
34 In the result, the learned Judge at the directions hearing ruled that the evidence was admissible, but that the use to which the State could put that evidence was limited and could not be used to attack the appellant's character because the matter of paternity was in issue.
35 In this context, the learned Judge made the following ruling:
"So my ruling is that this evidence is relevant, and it is relevant to support Mr Fox's statement that the accused told him what he was going to do with the money. Whether he did that with the money or not is another matter. It can be led for that purpose but the Crown is under an obligation to ensure that all emotional aspects are cut out of this and that the witness is warned in advance that this is not the Family Court and that it is not to
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- contain the evidence – unless she is asked something specifically in cross-examination it is not to contain criticisms of the accused.
I would expect that the trial Judge would give a warning to the jury at the end about this evidence and I would also expect that the prosecutor, in opening, would say what the purpose of this evidence is and to warn the jury that disputes in family law situations happen and that many people involved in those disputes do not commit crimes and even if they thought – not that you're asking them to make a decision about it but they wouldn't have enough evidence to make a decision about the actual case and even if they thought they did and they thought he was in the wrong that doesn't tell them anything about his guilt of the offence."
36 There was evidence given by E to the effect that her then husband:
"… was very angry. As far as he was concerned [the appellant] had no real place in [the child's] life at that time because he'd run out on him."
37 This evidence was given in re-examination following upon a question asked in cross-examination for the purpose of clarifying E's evidence. In my opinion, this evidence was admissible in the context of the case. The evidence was relevant to the appellant's relationship with Faint and was not evidence which was critical of the appellant's character. The nature of the relationship between the appellant and Faint was critical to the question of the appellant's state of mind and was probative evidence. In my view, the probative value of such evidence significantly outweighed its prejudicial effect so far as the appellant was concerned.
38 The appellant had given evidence of his good character. Once the issue of paternity was satisfied, the appellant accepted responsibility for both ongoing and back payments of maintenance. He also gave evidence that the only reason he disputed paternity was because of concerns that the child may not be his. A summary of the appellant's evidence to this effect was put to the jury by the trial Judge. The only purpose sought to be achieved by the State's cross-examination of the appellant was to demonstrate that there was a good chance that the child in question was his and that it was more than a "possibility". The nature of the questions in this context was not such as to put doubts in the mind of the jury about the appellant's general good character. Counsel for the State warned the
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- jury in his opening address that it would be impermissible to use evidence given relating to the paternity dispute to draw any negative inference regarding the appellant's character.
39 The inference which the State asked the jury to draw was that the appellant was prepared to lie and change his story in order to suit his defence. In this context, it was suggested that the appellant had lied when describing his conversation with the child as a "vague connection" not because he was trying to evade his obligations with respect to maintenance but because he was fighting the case "until there was proof that [he] was the father of [the child]".
40 The thrust of this evidence was not that the appellant was avoiding his obligations, but that his evidence was not worthy of belief. In the particular circumstances of this case, I am persuaded that this was the case. The probative value of the relevant evidence outweighed its prejudicial effect on the accused. The evidence did not invite the jury to draw any negative inference regarding the appellant's character. The evidence was, therefore, both relevant and admissible in the present context.
41 For these reasons, I would dismiss the appeal.
42 MURRAY J: I agree that this appeal should be dismissed. There is nothing I could usefully add to the reasons of Malcolm CJ and Roberts-Smith J.
43 ROBERTS-SMITH J: By ground 1 the error is said to be in allowing the Crown to use evidence of the claim for child maintenance "to attack the credit of the appellant".
44 Particular (c) of ground 1 asserts the evidence should not have been used "to attack the appellant's character and credit".
45 The Crown case was that the money and gemstones were stolen on 14 January 1997. The appellant had been served with a Family Court application by Ms Eggert for payment of child maintenance in November 1996.
46 The witness Fox was staying with the accused and his then partner, a Valerie Boekelman, at the time. He stayed with them for about 10 days. He stayed a further one or two days after the removal of the items from the deceased's house.
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47 Fox testified that during that time there were discussions about the money and that knowing it was wrong, he urged the accused to "think about it". He further testified that the accused told Fox he was having trouble with the mother of his child in Townsville relating to the payment of child support and back payments. The accused told Fox that his ex-partner had found him and was chasing him for money and that "this will be able to help him".
48 Fox then left to live in Victoria. He and the appellant remained friends and maintained contact. Three months later, in the course of a telephone conversation in April 1997, Fox asked the appellant what type of gemstones they were. He testified that the accused told him they were opals and that he had had them valued. Fox could not remember whether the accused said they were worth $3,400 or $3,500, but the accused did say "they'll help me with the child maintenance".
49 That the accused had a particular motive for stealing the money and gemstones in January 1997 was clearly relevant, as was the evidence of Fox that he had expressly admitted to having had that motive. It was not a collateral issue, but bore directly upon proof of the offence. The strength of the motive was also important, both to the force with which the jury might think it operated to drive the appellant, and as to the fact whether he spoke about it to Fox.
50 The appellant's evidence was that he did not take the items from the deceased's house. It was implicit that there was no conversation with Fox about that, either in the day or so following, or three months later. His evidence with respect to the issue of child maintenance was as described by Malcolm CJ.
51 In the circumstances, cross-examination of the appellant to show not only that a claim for child maintenance had been made against him, but that to his knowledge he was in fact the father of the child and he was therefore realistically facing the prospect of having to pay a substantial amount by way of past and future maintenance, was entirely proper.
52 The appellant's stated knowledge about that was important. It can be tested the other way. Had the evidence been that he did generally believe he was not the father and that the claim would certainly fail, the jury might well have found it difficult to accept that he would have then have made the remarks Fox attributed to him - or, indeed, that he had stolen the money. Thus, cross-examination directed to show he was untruthful when he denied paternity, or in his reasons for contesting the application, bore
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- directly on that issue. As well, of course, it went to his credit. That was a significant but nonetheless incidental aspect of the cross-examination.
53 Ground 1 asserts the learned trial Judge erred in allowing the evidence to be used to attack the appellant's credit. For the reasons briefly set out above, I do not accept that assertion. That is sufficient to dispose of the ground. However, particular (c) refers to character and credit.
54 The evidence was expressly not led for that purpose and nor in my view would it have had that effect.
55 So too, I consider there is no substance to ground 2.
56 True it is the learned trial Judge did not give the jury a direction in the terms set out in ground 2, but he did direct them on how the evidence on the issue of the maintenance application and the appellant's paternity of the child bore upon the case and how it could be used. At AB 338-341 he said:
"Now, the crown relies upon this aspect of the proceedings in two respects, ladies and gentlemen. The first respect is that this shows that as Mr Fox said that the accused said to him when he took the money, this could assist with the maintenance of his son, that there was indeed a real and present risk to the accused by way of court proceedings that he would become liable for a significant sum by way of arrears of child support or child maintenance. That is the first way in which the crown uses it in order to establish, if you like, some additional motive in the accused for being in the position for stealing this money as the crown alleges.
The crown also use it in a second and subsidiary way to attack the credibility of the accused. Having offered himself as a witness of the truth, the crown says, 'Look, his dealings in respect of his maintenance application showed that he's not a truthful person, he's a liar in effect, who is prepared to tell lies when convenient.' That's how the crown put it to you precisely. They say that because notwithstanding that he had acknowledged that he was the father of this trial (sic: child) for the first 12 years of his life by the various acts that you have heard, which are all consistent with an acknowledgment of paternity, payment of money, gifts, holidays and things of this, calling him dad and so on - notwithstanding that he was
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- prepared in a letter that was sent by him to his son's mother's solicitor's (sic) in November 1996, which is exhibit 9, he was prepared to say that his link to this child was tenuous or vague.
So the crown attacks his credibility. What I want to tell you about in relation to this evidence, ladies and gentlemen, again is a very particular warning that I want to give to you in relation to this. When I come to the accused I will - in fact, what I should do is in fact come to the accused's testimony in relation to it so that this direction that I give you can be put in perspective.
The accused told you that at all times he wasn't really 100 per cent sure that he was the father of [the child]. He admitted that he behaved as if he was his father and this is for you to determine, ladies and gentlemen, if you think it's necessary. The crown says that his evidence showed a begrudging, unwilling acceptance of this fact that was clearly established, namely his acknowledged paternity of [the child], and that in the witness box the crown attacks him as a person who was backing and filling and trying to get away from, if you like, distance himself between his denial of paternity and his admission of it and the reflections that might make upon his truthfulness or credibility as a witness.
The accused, on the other hand, says to you, 'Look at the position I was in. Sure I had treated this child as my own, sure I was 80 per cent certain that I was his father at all relevant times, but there was this nagging doubt and in the circumstances that I found myself in, any reasonable person would have done what I did.' In fact the accused said, 'Look, any bloke would have done the same. If you thought there was a chance you weren't the father in the circumstances that I found myself in, you'd do the same.'
Basically, the circumstances that he found himself in, ladies and gentlemen, from what I could glean from the evidence - it wasn't put with precision but I think it was certainly exposed enough by the accused that I think boils down to this: whereas the mother of the child, Linda Eggert, had a relationship, and indeed it seems might have married a person with whom she lived for 12 years, Mr [- - -] being the name that was put on the birth certificate by her at the time. That relationship had broken down and she had formed another relationship and the new
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- husband was saying, 'Well, if I'm going to be bearing any responsibility for this child you had better make a claim for maintenance against the real father,' and so whereas the accused was prepared to acknowledge paternity of [the child] and do whatever he could for 12 years, in the circumstances that then applied he thought it was a bit rough that some new bloke coming into the family situation with his son would all of a sudden turn around and, in effect, be the instigator of a hit on him for back child support.
So what he says is, 'Look at the circumstances of this case. Anyone else would be a bit angry and a bit annoyed faced with a claim made in those circumstances simply because, you know, the mother's new man puts her up to it,' was the way in which I think he basically was saying. 'Anyone else would say, "Well, look, why should I - if there is this 20 per cent chance that I'm not the father, why shouldn't I explore it and deny paternity?"' and he says in those circumstances, 'That's why I wrote the letter and that's why I took the stand of denial of paternity, not because, you know, I'm generally speaking a liar and unreliable and incredible as a witness.'
He just says, 'Look, the reasons why I did that - you can see in the circumstances of the case why I did it, and really I'm not the only bloke who would have done something like that in those circumstances.' That's how he puts it to you. You know how the crown puts it to you that this was a deliberate willed act done to avoid the consequences of his actions. Now, in this context let me tell you this, ladies and gentlemen: if you, during the course of your deliberations, want to, or find it necessary to, or decide to determine how that is a pointer to the accused's credibility, then I want to give you this particular warning.
You have obviously heard a lot of questions from the prosecutor and I have reminded you of the evidence which suggest that the accused was a liar in respect of this collateral issue. Ladies and gentlemen, you will make up your own mind about whether he was telling lies and, if he was, whether he was doing so deliberately. It's for you to decide what significance those suggested lies have in relation to the issues in the case, but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that is evidence of guilty (sic)."
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57 Whilst his Honour could have given a direction in the terms advanced in this ground, in my opinion it was not necessary that he do so, particularly as the Crown had expressly disavowed any reliance upon the evidence in that way, and the appellant has accordingly not demonstrated any error in that regard.
58 I agree that this appeal must be dismissed for the reasons set out above and those given by Malcolm CJ.
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