Evans v R

No judgment structure available for this case.

Reported Decision:
164 A Crim R 489

New South Wales

Court of Criminal Appeal

CITATION: Evans v Regina [2006] NSWCCA 277

HEARING DATE(S): 22/05/2006

JUDGMENT DATE:
7 September 2006

JUDGMENT OF: James J at 1; Hidden J at 290; Hoeben J at 292

EX TEMPORE JUDGMENT DATE: 09/04/2006

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW: - appeal against conviction - armed robbery - whether items of clothing similar to those worn by robber found at accused's home admissible - whether permissible for prosecutor to show witnesses items of clothing and ask them to comment upon them - whether permissible for Crown prosecutor to have accused put on item of clothing and repeat words of robber - rejection of alibi evidence because of absence of notice - failure of trial judge to give any or adequate reasons for rulings during trial - application of proviso

LEGISLATION CITED: Evidence Act 1995
Criminal Procedure Act
Criminal Appeal Act

CASES CITED: R v Kirby (unreported 2000 NSWCCA 330
Scott v Numurkah Corporation (1954) 91 CLR 300
R v Milat (NSWSC Hunt CJ at CL 12 April 1996
FD v Regina [2006] NSWCCA 31
Bulejcik v The Queen (1994-1995) 185 CLR 375
KNP v Regina [2006] NSWCCA 213
Skondin v Regina [2005] NSWCCA 417
Harris v Regina NSWCCA (2005) 432
Fleming v The Queen (1998) 197 CLR 250
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Niass v Regina [2005] NSWCCA 120
Weiss v The Queen (2005) 80 ALJR 444

PARTIES: Graham John Evans (appellant)
Regina (Crown)

FILE NUMBER(S): CCA 2006/328

COUNSEL: G Bashir (appellant)
D Frearson (Crown)

SOLICITORS: Legal Aid Commission (appellant)
Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0254

LOWER COURT JUDICIAL OFFICER: Backhouse DCJ

LOWER COURT DATE OF DECISION: 22/11/2004

2006/328

JAMES J
HIDDEN J
HOEBEN J
7 September 2006

GRAHAM JOHN EVANS v REGINA

Judgment

1 JAMES J: Graham John Evans appealed against his conviction on two charges of armed robbery (the first two counts in the indictment) and one charge of assault with intent to rob (the third count in the indictment). The third count in the indictment had originally charged a third offence of armed robbery. However, at a late stage in the trial the prosecutor, with the leave of the trial judge, amended the third count to a charge of assault with intent to rob.

2 It was alleged by the Crown that the three offences of which the appellant was convicted had been committed on the same day, 28 February 2002, in the chambers of the Strathfield Municipal Council. At the trial there was no dispute that on 28 February 2002 a man had entered the Council chambers and had committed the three offences. This man was wearing overalls and a balaclava which covered his head. The live issue at the trial was whether the Crown could prove that the appellant was the offender.

3 At the time the offences were committed there were a number of persons in the Council chambers, both employees of the Council and members of the public. Employees of the Council who were in the chambers at the time the offences were committed included Helen Connell, Patricia Smith, Lesley Thompson, Nasim Samad and Laura Gleeson. Members of the public who were in the chambers at the time the offences were committed included Zbigniew Marszalek and Bo Qin Huang. All the persons I have mentioned gave evidence for the Crown at the trial.

4 The victim of the offence charged in the first count in the indictment was Laura Gleeson from whom the robber took cash belonging to the Council. The victim of the offence charged in the second count in the indictment was Mr Marszalek who was robbed of his own cash. The victim of the offence charged in the third count in the indictment was Mr Huang. In response to a demand by the offender Mr Huang put cash belonging to himself on the counter but, according to evidence given by Mr Huang and Mrs Gleeson, this cash was not ultimately taken by the offender.

5 A number of persons who had been in the Council chambers gave evidence tending to show that, after the offender left the Council chambers, a baseball cap and a tissue were lying on the floor of the chambers and that they had not been on the floor before the offender entered the chambers and it was part of the Crown case that the cap and the tissue had been dropped by the offender.

6 Surveillance cameras were installed in the Council chambers and were operating at the time the offences were committed and some film showing the commission of the offences was taken. The film was taken using three cameras situated in different locations in the chambers and the resulting film was not a continuous film but a succession of still images, with the point of view constantly changing. The film was in black and white and the quality of the images was far from ideal. Nine still photographs were selected and these photographs, together with enlargements of them, all of which showed the offender, were admitted into evidence.

7 The cap which according to the prosecution case had been dropped by the offender was forwarded to the Division of Analytical Laboratories in March 2002. After it was received the cap was stored in a secure location at the Laboratories. In August 2003, a forensic biologist succeeded in lifting DNA material from an area on the inside front brim of the cap, which was a part of the cap which would have been likely to have been in contact with the forehead of any person wearing the cap. An analyst was able to obtain a DNA profile for the material lifted from the cap.

8 On 30 December 2003 the appellant was arrested for an unrelated matter at his home in Campbelltown, which was a house owned by his father, and the appellant was taken to a police station. The appellant was then taken back to the house in Campbelltown, where a search warrant was executed by police. In the course of the execution of the search warrant a balaclava was found in a bedroom in the house and was seized and a pair of overalls were found in the laundry of the house and were seized. A box containing a large number of balaclavas similar to the balaclava found in the bedroom was found in the basement of the house. There was evidence at the trial that the balaclavas had been obtained by the appellant in the year 2000.

9 The appellant was taken back to the police station. He participated in an electronically recorded interview in which, for the most part, he declined to answer questions. He did, however, consent to a buccal swab being taken from him.

10 On 8 January 2004 the buccal swab taken from the appellant was forwarded to the Division of Analytical Laboratories. The swab was subjected to DNA analysis and a DNA profile obtained.

11 On comparing the DNA profile of the material lifted from the cap and the DNA profile of the swab taken from the appellant it was found that the profiles matched. That DNA profile would be expected to occur in fewer than 1 in 10 billion people in the general population.

12 Later in 2004 the tissue which had been seen on the floor of the Council chambers and the balaclava which had been seized in the execution of the search warrant were submitted or re-submitted to the Division of Analytical Laboratories.

13 As regards the tissue, Ms Michelle Franco, a forensic biologist employed by the Division of Analytical Laboratories, gave evidence at the trial that attempts had been made to recover DNA from three areas of the tissue. No DNA was recovered from one area. The amount of DNA recovered from the other two areas was too low, according to Ms Franco’s evidence, to enable profiles of the contributors to the DNA to be determined and, in Ms Franco’s opinion, the appellant could not be excluded as a possible contributor. It was not possible to determine whether any DNA was present on the balaclava.

14 The Crown case at the trial was principally based on the evidence tending to show that the cap had been dropped by the offender, the evidence that the DNA profile of the material lifted from the cap matched the DNA profile of the swab taken from the appellant and the low frequency of that DNA profile in the general population, the security video and the enlarged still photographs showing the offender, the evidence that the appellant had had access to a balaclava and a pair of overalls, which, it was submitted, were similar to the balaclava and the pair of overalls the offender had worn, the comparison which the jury were asked to make between the appearance of the offender in the video and photographs and the appearance of the appellant when wearing the balaclava and the overalls which had been seized during the execution of the search warrant (at the request of the Crown prosecutor the appellant had put on the balaclava and the overalls during his cross-examination) and evidence of respects in which, it was submitted, the appellant tallied with such descriptions as the eye witnesses to the offences had been able to give about the offender’s sex, voice, height, age, manner of walking, build, hair and skin complexion.

15 The appellant gave evidence at the trial. He denied having gone to Strathfield Council chambers and committing the offences. He said that he could not be sure where he had been on 28 February 2002. He gave evidence about the balaclavas and the overalls which police had found at his home and about the cap. The appellant’s brother Allan Evans and the appellant’s father Douglas Evans also gave evidence in the defence case.

16 Dr Brian McDonald gave evidence in the defence case, as being an expert in the testing and analysis of DNA. Dr McDonald accepted that it was probable that the source of the DNA material on the cap was the appellant. He said that the DNA material on the cap could have got on to the cap, otherwise than by the person who contributed the DNA wearing the cap. The DNA could have been transferred to the cap from any item which came into contact with the cap. Dr McDonald was of the opinion that sufficient DNA had been recovered from the tissue to enable the appellant to be excluded as a contributor to the DNA on the tissue.

17 I will be making further references to the evidence of the accused and the other defence witnesses, when I consider some of the grounds of appeal against conviction.

Evidence of some of the Crown witnesses

18 I will now summarise the evidence of some of the Crown witnesses. I will deal with these witnesses in the order in which they were called at the trial.

19 In February 2002 Ms Connell was an employee of the Council. At about 4:00 pm in the afternoon of 28 February 2002, while walking along a pathway leading to the building in which the Council chambers were situated, she passed a man who she thought was oddly dressed. It was February and a warm day but the man was wearing overalls, a bright red beanie and sunglasses. The beanie seemed to be too big for the man. When asked by the Crown prosecutor to describe the material of the beanie, Ms Connell said that it looked woollen.

20 Ms Connell was able to see part of the man’s face and could tell that it was not a young person’s face.

21 Ms Connell was asked to describe the overalls the man was wearing. She said that they were dark, with long sleeves and were not new “they looked like they’d been worn for a while”.

22 Ms Connell estimated that the man’s height “in a hunched position” was about her height (5’ 6 ½”). The man had a normal build. Ms Connell was not able to see any of his hair.

23 Ms Connell was shown, without any objection, the balaclava which had been seized during the execution of the search warrant and was asked “Are you able to say anything about that?” she replied:-

“It’s a similar colour as the beanie that the man was wearing. Considering the size of it, if he had that on your head there would be an excess amount sitting at the top so yes, it could be the same beanie”.

24 After the balaclava was shown to Ms Connell it was marked for identification 1.

25 Ms Connell was then shown, without any objection, the overalls which had been seized during the execution of the search warrant. Without actually being asked any question, she said:-

“They’re a similar style though they look a lot dirtier than what the man had worn and probably a little faded as well but they look exactly the same style and they yeah, they looked like the same sort of style the man was wearing”.

26 After the overalls had been shown to Ms Connell they were marked for identification 2.

27 In cross-examination Ms Connell agreed that the overalls the offender had been wearing were not as dirty or as faded as the overalls which had been shown to her and that “the only thing about the overalls that’s the same is that they’re the same style of overall”.

28 In February 2002 Ms Smith was working as a town planner at the Council. She said that:-

“While I was serving the customer my attention was drawn to a person coming through the doors that slid back. That person had a dark pair of overalls on and a bright ski mask and was adjusting the ski mask over what looked like to me wraparound sunglasses”.

29 This person was carrying a bag and took out what Ms Smith observed to be a gun. From a distance of approximately one metre he pointed the gun at Ms Smith and said “give me all your serious cash”. Ms Smith replied “I don’t have any cash” and the offender turned his attention from her to one of the Council’s customer service officers.

30 Ms Smith was asked to describe the man’s clothes and she replied:-

“Heavy duty, dark coloured overalls that appeared to be too large on the person that was wearing them, a bright coloured balaclava, with wraparound sunglasses.”

31 Ms Smith was asked to describe the overalls and she replied:-

“They were sort of like the heavy duty King Gee type overalls with the various pockets with buttoned up, you know, studs on the body”.

32 Ms Smith was asked to describe the “ski mask” and she said “it was woollen and from my recollection it was orange or a bright colour like that”. It looked like “a fisherman knit type of fabric”, although the witness conceded that she herself was not a knitter.

33 The sunglasses the offender was wearing were covered by “the balaclava”. All the witness could see of the sunglasses were the lenses, which appeared very dark and wraparound.

34 After the offender turned his attention to a customer service officer, he kept demanding that he be given “all your serious cash”. The tone of the voice was very relaxed.

35 Ms Smith saw two members of the public who were at the counter take cash out of their pockets and put it on the counter. Laura Gleeson, the customer service supervisor, came over, took money out of a drawer and provided it to the offender.

36 Ms Smith is recorded in the transcript of her evidence in chief as estimating that the man was four inches taller than herself, she being between five foot six and five foot eight and she said that the man was of a slight build.

37 Ms Smith, without any objection, was asked to look at the balaclava MFI 1 and was asked “what if anything can you say about that item?” Ms Smith replied “it’s very similar to the one that I recollect”. When asked to explain how it was similar, she said “just the knit” and when asked if there was anything else she could comment on, she said “not really, no”.

38 Ms Smith, without any objection, was asked to look at the overalls MFI 2. The following questions and answers occurred:-

“A. That was the style of overalls, but I – it looks very similar.

Q. Are you able to say what it is about these overalls that I’m showing you that appear to be similar?

A. It’s the same style with a collar. And studs and the pockets and so on.

39 Ms Smith was cross-examined about parts of a statement she had made to police in the evening of 28 February 2002. In her statement she had said about the offender:-

“He was also wearing a pair of clean, dark coloured, heavy duty style overalls with a collar”.

40 Ms Smith had also said in her statement that the offender spoke “reasonably slowly and in clear English”.

41 In cross-examination Ms Smith said that she herself was only five foot two inches tall, although she had said or was recorded as having said in her evidence in chief that she was five foot six to five foot eight tall.

42 Ms Smith was cross-examined about part of her statement to the police in which she had said:-

“I would describe the man with the overalls as about five foot eight to five foot ten tall, thin build. He sounded like he could possibly be in his mid 20s, maybe younger, and he spoke with a clear English accent but slowly”.

43 In re-examination Ms Smith said that, at the time she filled in an offender’s description form about 20-25 minutes after the incident, she was “totally traumatised”. At the time she made her statement to the police, about one and a half hours or longer after the incident, she was still extremely upset.

44 In re-examination Ms Smith explained what she had said about the offender’s accent as being “a clear English accent”. The offender’s accent was “English Australian accent but very slow and almost purposeful”.

45 Ms Smith was re-examined about a description of the offender she had given in the offender’s description form, namely “man in red overalls and balaclava approached the counter and pulled out sawn-off shot gun”. She said that what she had intended to convey was that the man was wearing a red balaclava and overalls.

46 In further cross-examination, when asked what was her best recollection of the colour of the balaclava, Ms Smith said “it was red or a bright colour orange”.

47 Ms Thompson gave evidence that on the afternoon of 28 February 2002 she was a customer service officer employed by the Council. She said that:-

“A man walked in and I actually looked up and then looked down again, not thinking, and I looked up and he had a balaclava on and blue overalls and he asked for the serious money”.

48 Ms Thompson estimated the man’s height at five foot six inches to five foot eight inches. She was asked what he was wearing and she replied:-

“Worn blue King Gee overalls, light blue, lighter blue, not the navy blue, and a red balaclava that was worn. The eyes were stitched and nose was stitched and the mouth, so you had the stitching around the openings of the eyes and nose and the mouth”.

49 Ms Thompson said that the overalls were long sleeved, not brand new, had no stains on them, had a collar and had press-stud buttons.

50 Ms Thompson described the balaclava as being red, woollen, matted, with “white stitching around the nose and white stitching around the mouth”.

51 The man was carrying a sports bag out of which he took a gun. “He asked for the serious money”.

52 Laura Gleeson came down and asked the man to remove the balaclava. The man asked again for the “serious” money and said “this is not a joke”. Ms Gleeson unlocked and opened a drawer, took money out of the drawer and handed it over. A member of the public put money on the counter and the offender swept it into his bag.

53 Ms Thompson described the man as fairly thin because the overalls looked a bit large for him, his skin complexion was “fair to medium”, he was “late 30s to mid 40s”. After a lapse of approximately three years, Ms Thompson was unable to describe his voice.

54 The Crown prosecutor then said “I would just like you now to have a look at this item, please, which is MFI 1”.

55 Counsel for the appellant at the trial objected to the witness being shown the balaclava, on the grounds that the witness had given a description of the balaclava she had seen, which was in some respects inconsistent with MFI 1. The trial judge permitted the Crown prosecutor to show the balaclava MFI 1 to the witness.

56 Ms Thompson, without actually being asked a question, said “it’s very similar”. The following question and answer then occurred:-

57 Counsel for the appellant at the trial then said that he could see what the Crown prosecutor was about to do with the overalls MFI 2 and counsel raised a similar objection to the witness being shown the overalls, on the grounds that the description the witness had given of the overalls she had seen, which had included that the overalls were light blue and not stained, was inconsistent with MFI 2.

58 This objection was argued at length. The Crown prosecutor submitted that the description of the overalls the witness had given was consistent with MFI 2 in a number of respects, including that they were King Gee overalls, long sleeved and with a collar and that they were blue in colour, even though the description the witness had given was that they were light blue, rather than dark blue, in colour. Counsel for the appellant at the trial submitted that the description the witness had given of the overalls she had seen was inconsistent with the overalls MFI 2, in that the witness had described the overalls she had seen as being light blue in colour and not stained. Counsel for the appellant at the trial submitted that what the Crown prosecutor proposed should be done was similar to a dock identification and suffered from the same vices as a dock identification and amounted to an encouragement to the witness to recognise the item shown to her as being the same as the overalls she had seen and to change her evidence.

59 In the course of the argument it was pointed out that counsel for the appellant at the trial had not objected to Ms Connell or Ms Smith being shown MFI 1 and MFI 2. Counsel for the appellant at the trial replied that he had not objected “because the descriptions given by the witnesses in their evidence were consistent (with MFI 1 and MFI 2) and it was then a legitimate exercise to show them”.

60 The trial judge ruled that she would allow the Crown prosecutor to show the overalls MFI 2 to the witness and to ask the witness “what, if anything, are you able to say about this item?”

61 When the trial resumed in the presence the jury, the following questions and answers occurred:-

62 Ms Thompson gave further evidence relating to the cap and the tissue as follows:-

63 In cross-examination Ms Thompson confirmed that she remembered white stitching around the eyes and mouth of the balaclava she had seen on 28 February 2002 and had seen no white stitching on the balaclava MFI 1. She confirmed that she had described the overalls as light blue and not stained. The following questions and answers occurred:-

64 Mr Marszalek was a member of the public who went to the Council chambers on 28 February 2002 to pay a bill.

65 While in the Council chambers he looked around and saw “a masked man with a gun…standing next to me, demanding money”. The man was wearing a red woollen balaclava over his whole head and “bluey grey overalls”. The overalls were not new, they were loose on the wearer’s body, long sleeved and with a collar.

66 Mr Marszalek saw the back of the man’s head when the man left the building and took the balaclava off and Mr Marszalek noted that the man had dark hair.

67 Mr Marszalek estimated the man’s height as pretty similar to his own height (175cms). The man was a bit slimmer than Mr Marszalek, who weighed about 80kgs.

68 Mr Marszalek heard the man demand money a number of times. The tone of his voice was quite calm. He had an Australian, not a foreign, accent. Mr Marszalek handed over the money which he had previously placed on the counter.

69 Without any objection being taken, Mr Marszalek was asked to look at the balaclava MFI 1. The following questions and answers occurred:-

“Q. I will just ask you to have a look at this item, please. (Handed). That is MFI 1.

70 Without any objection being taken, Mr Marszalek was asked to have a look at the overalls MFI 2. The following questions and answers occurred:-

71 In cross-examination Mr Marszalek said that, although he had looked closely at the balaclava he had been shown in his evidence in chief, he had not noticed, as was the fact, that it was inside out.

72 Mr Marszalek said in cross-examination that he had not observed anything white on the balaclava he had seen on 28 February 2002.

73 When Mr Marszalek was shown the overalls MFI 2 again, Mr Marszalek said that “I work in an industry where we get heavily stained. That’s not stained by my criteria”, although he conceded it was “very likely” that the overalls MFI 2 had a grease or oil stain. The colour of the overalls MFI 2 was what Mr Marszalek would describe as “bluey grey”.

74 Nasim Samad was an employee of the Council who was working in the Council Chambers on the afternoon of 28 February 2002.

75 Mr Samad overheard words spoken by Patricia Smith, who was working alongside Mr Samad, and someone else, including Ms Smith saying that she had no money. The man with whom Miss Smith had been speaking turned towards Mr Samad, pointed a gun at him and asked Mr Samad to hand over money. Mr Samad “just froze”. The man said “I’m serious. I need serious money”.

76 Laura Gleeson, who was the customer service manager, walked across and said to Mr Samad, “Nasim, do as he says”. Mrs Gleeson provided some money to the man.

77 After the man left the chamber Mr Samad saw a baseball cap and a white tissue on the floor, which had not been there previously.

78 Mr Samad described the man as 5 feet 2 inches tall, the same height as himself, and “skinny”. His head was covered by a balaclava, with only two eyeholes and a hole for the nose.

79 Mr Samad was asked to describe the balaclava. He said that “it had some red and black, or some — I can’t remember the colours correctly but it was pulled down up to his neck”.

80 The man was wearing overalls which were deep blue in colour. Mr Samad was asked to describe the overalls in more detail and he said that they had buttons in the front and long sleeves.

81 Mr Samad said that the man had had an “Anglo Saxon” accent.

82 Mr Samad was shown, without any objection, the balaclava MFI 1. He was asked what, if anything, he could say about it. Mr Samad answered that it was “more or less similar” to the balaclava he had seen, in that it had two eyeholes and a hole for the nose. When asked “anything else?”, Mr Samad said “nothing more”.

83 Mr Samad was shown, without objection, the overalls MFI 2 and was asked what, if anything, he could say about them. Mr Samad replied, “It seems more or less to the description I’ve given”, in that it had buttons and full sleeves “and I can’t remember any more. Just the colour seems to me very faded here. This one (balaclava MFI 1) seems to be very faded.”.

84 In cross-examination Mr Samad agreed that in the statement he had made on 28 February 2002 he had described the overalls as “bright blue overalls slightly soiled”. He agreed that the overalls MFI 2 were not bright blue.

85 Mr Samad also agreed that in his statement he had described the balaclava as “red with some white”. In the statement he had said that he could not recall whether the balaclava had a hole for the mouth.

Laura Gleeson

86 In February 2002 Mrs Gleeson was employed by the Council as the customer service co-ordinator.

87 Mrs Gleeson gave evidence as follows:-

“A. A person walked in through two glass doors, which is right diagonally opposite where I was standing, and had a red balaclava on. And when they started walking in, I didn’t think about what I was saying, I asked the person to take off their balaclava, and they just kept walking towards me. I said “Excuse me”. I said “Can you please take off your balaclava”. And the next thing I got told, “This is serious. Give me your money.”. Nasim, who was the cashier at the time, who was standing at the actual terminal serving somebody, had froze, and the guy said, “Give me your money. This is serious. Give me your money”. I took the keys, I opened up the drawer, gave the money to the person, triggered the alarm, and I said, “I’ll go and check the other drawer. I think it’s locked but I’ll check it”. I walked over, pulled the drawer, and it was locked, triggered the other alarm, and I said, “That’s all we got, nothing else”. And he said, “Yes I’m sure it is.” And (he) turned around and walked out.”

88 Mrs Gleeson was asked to describe the balaclava in more detail. She replied:-

“A. It was red. Had an eye and a nose cut out. The eyes you couldn’t see in because he had dark sunglasses on. And that was pretty much it. I remember it was frayed.”

89 Mrs Gleeson said that the balaclava looked like a wool balaclava but she would not know the exact material. It had not looked like an expensive balaclava. It was a thinner knit. She could not remember anything else about the balaclava.

90 Mrs Gleeson described the overalls the man was wearing as follows:-

“He had King Gee overalls on. And they looked fairly new. Because normally when you see them stained, the stains stick out because it’s like a watermark. But they were quite new. …. Like the overalls were from wrist down to his ankles.”

91 Mrs Gleeson added that the overalls were long-sleeved, they had a logo on the left side, “there were buttons but I can’t remember, they were blue King Gee – a darker blue, not a pale blue”.

92 Mrs Gleeson gave evidence that she had put the Asian gentleman’s (Mr Huang’s) money under the counter and after the man had left she had given Mr Huang his money back.

93 Mrs Gleeson had had a second job at a liquor outlet and in that job had been trained in how to proceed, if a hold-up occurred. Mrs Gleeson described the man’s voice as very slow, very dull and very calm. She had not detected any accent but when the man said “this is serious”, it almost came over as “sherious”.

94 Mrs Gleeson believed the man to be 180 cm tall because she saw him walk past a marker on a door. He was “very slender”, ”the overalls were a little bit baggy on him”.

95 After Mrs Gleeson had put the money in the man’s bag, he turned around “and something fell out of his bag and at the time I didn’t know what it was but I watched the path he walked ………………… he had a real relaxed walk ………………… just bouncing, walking out”.

96 After the man had left the chamber Mrs Gleeson got Lesley Thompson to lock the door, the area was sealed off and a direction was given that no one was to walk there.

97 After the man had left Mrs Gleeson saw the cap and the tissue on the floor.

98 Mrs Gleeson was shown, without objection, the balaclava MFI 1 and was asked what, if anything, she could say about it. Apparently the balaclava MFI 1 was inside out, when shown to Mrs Gleeson. Mrs Gleeson observed that MFI 1 was inside out and said that the balaclava the man had been wearing had not been inside out on 28 February 2002, because Mrs Gleeson had not seen a tag. The balaclava MFI 1 was the same sort of knit as the balaclava the man had been wearing on 28 February 2002 but there was nothing else she could comment on.

99 Mrs Gleeson was shown, without objection, the overalls MFI 2 and was asked what, if anything, she could say about them. She said that the overalls MFI 2 were “a dirtier pair of overalls”. She remembered the overalls she had seen on 28 February 2002 as being clean. She was asked “apart from the colour, are you able to say anything else about them?”, and she replied “no”.

100 In cross-examination Mrs. Gleeson agreed that in the statement she had made to police shortly after the incident she had stated “he had Key G Workware overalls on, that were yellow in colour”. Mrs Gleeson said in cross-examination that “Key G” was a typographical error for “King Gee” and that in her own copy of the statement she had corrected “yellow” to blue and had added the words “yellow logo”. Mrs Gleeson said that at the time she signed her statement “I was not taking notice of anything on it”.

101 In her statement Mrs Gleeson had said that the overalls worn by the man must have been a new pair, because the logo on the left hand pocket stood out. The sleeves of the overalls were rolled down and there were no stains on the overalls.

102 In cross-examination Mrs Gleeson agreed that the overalls MFI 2 were “nothing like the pristine, clean, not stained, must have been new, overalls that you saw on the robber that day”.

103 In cross-examination Mrs Gleeson agreed that the only similarities between the balaclava MFI 1 and the balaclava the robber had worn were that they were red in colour and a similar knit and that in other respects the two balaclavas were quite dissimilar.

104 In her statement Mrs Gleeson had described the man’s walk as, “he walked like he was a black guy in those home-boy movies”. She agreed “It’s a sort of swagger style of slow walk”.

105 In cross-examination Mrs Gleeson agreed that in her statement she had not mentioned seeing anything fall out of the man’s bag or of seeing any items on the floor after the man left. However, she continued to maintain that she had seen something fall out of the man’s bag.

106 Mr Bo Quin Huang was a member of the public who went to the Council chambers on 28 February 2002. Mr Huang gave evidence through an interpreter.

107 In the chamber Mr Huang heard someone behind him yell “give me money.” and he turned around. Mr Huang’s evidence continued:-

“I saw a person, a man. He was about 1.7 metres high. He had some sort of a hat but his face was covered. He was wearing overalls, blue in colour. The overalls were long sleeves, and his whole arms were covered by the sleeves. He held a bag in his left hand. In his right hand he had a gun. That gun was in the colour of brown. He was yelling, “give me the money”. I took money out. And I saw two other people behind me who were waiting in the queue, they also took their money out. So I took my money out as well. I left the money on the counter. The lady who was at the counter brushed my money to the side and took some money from the drawer. The man then left. And after that the lady gave me my money back. “

108 As a result of this evidence from Mr Huang (and certain other evidence) the third count in the indictment was amended to a charge of assault with intent to rob.

109 Mr Huang was asked what the man had been wearing on his head. He replied “It was kind of a winter sort of hat. It’s a balaclava. Only the eyes and mouth were exposed”. The balaclava was woollen. When asked what colour the balaclava was, Mr Huang replied, “I think it was blue” and added “my recollection of his balaclava is not as strong as his overalls”.

110 The following questions and answers occurred in relation to the overalls the man had been wearing:-

111 When asked to describe the man’s voice, Mr Huang said it was “not very loud”.

112 Mr Huang did not pay any attention to the floor of the chamber.

113 Mr Huang was shown, without objection, the overalls MFI 2. He said that the overalls the man had worn on 28 February 2002 “looked newer, brighter than this one. This one appears to be very dirty and old”. He could not say anything else about the overalls that the man had been wearing.

114 Mr Huang was not shown the balaclava MFI 1.

115 In cross-examination Mr Huang said that the overalls he had been shown were the same style as the overalls the man had been wearing. He agreed that the style was “the only thing about the overalls you see today compared with the overalls you saw in Strathfield”.

Grounds of Appeal

116 I will now proceed to consider the various grounds of appeal against conviction.

1. The trial miscarried as a result of the trial judge allowing the prosecutor to show the eyewitnesses to the robbery a balaclava and pair of overalls seized from the home of the appellant and ask them to comment on the items.

117 All of the witnesses Connell, Smith, Thompson, Marszalek, Samad and Gleeson were shown by the Crown prosecutor both the balaclava (MFI 1, exhibit M) and the overalls (MFI 2, exhibit O). The witness Huang was shown only the overalls and was not shown the balaclava. Presumably, the Crown prosecutor did now show Mr Huang the balaclava, because of Mr Huang’s evidence that he thought that the balaclava worn by the robber was blue in colour and that his recollection of the balaclava was not as good as his recollection of the overalls.

118 The procedure generally adopted by the Crown prosecutor in questioning the witnesses was to ask a witness to describe the balaclava or the overalls the witness had seen the robber wearing, to have exhibit M or exhibit O shown to the witness, and then to ask the witness to comment on the object which had been shown to the witness.

119 In most cases in which exhibit M or exhibit O was shown the witness was expressly asked by the Crown prosecutor to comment on the object. After the trial judge had overruled the objection to Ms Thompson being shown the overalls and had permitted the Crown prosecutor to ask a question in the form, “what, if anything, are you able to say about this?” the Crown prosecutor, in asking a witness to comment generally asked a question in that form. The questions seeking comment which the Crown prosecutor had asked the earlier witnesses were similar in form. In a few cases the witness, having been shown exhibit M or exhibit O, immediately made some comment, without the Crown prosecutor having expressly asked any question.

120 It is apparent that the Crown prosecutor’s purpose in showing exhibit M or exhibit O to a witness and asking the witness to comment was, not to obtain evidence of identification, that is evidence that the object shown to the witness was the object which the witness had seen the robber wearing on 28 February 2002, but to obtain evidence that the object shown was similar, at least in some respects, to the object which the witness had seen on 28 February 2002.

121 It is noteworthy that the only witness in respect of whom any objection was made to exhibit M or exhibit O being shown to the witness and the witness being asked to comment was Ms Thompson. No objection was made by counsel for the appellant at the trial to any other witness being shown either object or being asked to comment on either object.

122 Counsel for the appellant at the trial objected to Ms Thompson being shown exhibit M, because part of the description given by Ms Thompson of the balaclava worn by the robber was not consistent with exhibit M, in that Ms Thompson described the balaclava worn by the robber as having had white stitching.

123 Counsel for the appellant objected to Ms Thompson being shown exhibit O, because part of the description given by Ms Thompson of the overalls worn by the robber was not consistent with exhibit O, in that Miss Thompson described the overalls worn by the robber as having been light blue, not dark blue, in colour and as not being stained.

124 The objection by counsel for the appellant to exhibit M being shown to Ms Thompson was summarily overruled by the trial judge. However, the objection to Ms Thompson being shown exhibit O was argued at considerable length, before it was ultimately overruled by the trial judge.

125 The trial judge did not give any separate judgment stating her reasons for overruling the objection to exhibit O being shown to Ms Thompson but it is apparent from a remark made by the trial judge towards the end of the argument, that “there are certain consistent points of identification”, that her Honour considered that there were a sufficient number of respects in which the description given by Ms Thompson of the overalls worn by the robber was consistent with exhibit O that it was permissible for the exhibit to be shown to the witness and for the witness to be asked what, if anything, she could say about the exhibit.

126 The principal submission made by counsel for the appellant in support of the first ground of appeal was that showing a single object to a witness and asking the witness to comment was similar to a dock identification, that is an identification by a witness in the court room of the accused person in the dock as being the offender, and suffered from the same vices as a dock identification. Counsel referred to Davies, Cody v The King (1937) 57 CLR 170 especially at 182 where the court said:-

“Similarly, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question.”

127 Counsel for the appellant also referred to R v Clout (1995) 41 NSWLR 312.

128 I accept that showing a witness a single object of the same general kind as an object observed by the witness at the scene of the crime and asking the witness to comment can be objectionable, as tending to influence the witness to give evidence which is not solely based on the witness’s own independent recollection.

129 Section 37 of the Evidence Act provides that, subject to certain exceptions, a leading question is not to be put to a witness in examination-in-chief or in re-examination. In Part 1 of the dictionary at the end of the Act “leading question” is defined, so far as is relevant, as meaning a question asked of a witness that directly or indirectly suggests a particular answer to the question.

130 A question of the kind I have described could suggest to a witness that the object shown to the witness is identical with, or similar to, the object observed by the witness at the scene of the crime.

131 In the present case I consider that the extent to which the questions asked of the witnesses were leading was reduced, if not completely eliminated, by a number of factors.

132 Each witness was asked to describe the balaclava or the overalls the witness had seen on 28 February 2002, before the corresponding exhibit was shown to the witness. According to the Crown prosecutor, none of the witnesses had previously been shown either of the exhibits.

133 The descriptions given by the witnesses in their evidence in the courtroom were not the first descriptions they had given of the objects they had seen on 28 February 2002. On 28 February 2002 all, or most, of the Council employees had completed a Council offender description form in which they had described the robber, so far as they were able, and, within a couple of hours of the robbery occurring, all of the witnesses had made statements to the police in which they described the robber.

134 In these circumstances, if a witness asserted that an object shown to the witness was similar to an object worn by the robber, the witness could be effectively cross-examined on inconsistencies between the descriptions of the object the witness had given and the features of the object shown to the witness and could also be cross-examined on any absence from the descriptions the witness had given of any features which the witness asserted in his or her evidence were points of similarity between the object worn by the robber and the object shown to the witness.

135 As already indicated, the questions the witnesses were asked were not in a leading, or at least were not in a seriously leading, form.

136 From my survey of the evidence of the witnesses I am satisfied that, when the whole of the evidence of each witness is taken into account, the witnesses were not in fact led into giving evidence which did not reflect their own recollection. Even Mr Marszalek, who initially claimed that he thought that the balaclava he was shown was the balaclava the robber was wearing, qualified that evidence by saying “I have no idea but to me I think that is the balaclava” and ultimately conceded that all he could remember about the balaclava was the colour and the texture of the wool.

137 Each of the witnesses was cross-examined by counsel for the appellant at the trial and a number of concessions were obtained, which were forensically advantageous to the appellant. For example, Mrs Gleeson conceded that the overalls shown to her were “nothing like” the new, unstained overalls which she had seen the robber wearing and that the only respects in which the balaclava shown to her and the balaclava the robber had been wearing were similar were the colour and the kind of knit and that in other respects the two balaclavas were quite dissimilar.

138 I would not accept that, in the circumstances of this case, the Crown prosecutor was required to show each witness a number of balaclavas or a number of pairs of overalls, rather than a single balaclava and a single pair of overalls.

139 I also consider that the Crown prosecutor was not precluded from showing a witness exhibit M or exhibit O, merely because the description already given by the witness of the balaclava or the overalls worn by the robber was in some respects inconsistent with the exhibit, provided that there were some points of similarity between the description and the exhibit. The description given by Ms Thompson of the balaclava worn by the robber was inconsistent with exhibit M in that Ms Thompson remembered white stitching on the balaclava but the description given by Ms Thompson was consistent with exhibit M in a number of respects, including that the balaclava was red and had openings for the eyes, nose and mouth.

140 The description given by Ms Thompson of the overalls worn by the robber was inconsistent with exhibit O, in that Ms Thompson said that the overalls had been light blue, and not dark blue, in colour and had not been stained, but the description given by Ms Thompson was consistent with exhibit O in a number of respects, including that the overalls were King Gee overalls, blue, long sleeved, with a collar and press stud buttons.

141 It would be open to a jury, particularly in the light of the evidence of the other witnesses, to conclude that Ms Thompson’s recollection could have been mistaken in the respects in which her recollection was inconsistent with an exhibit. Even in those respects in which Ms Thompson’s recollection was apparently consistent with an exhibit, it would be relevant to know whether, when actually shown the exhibit, Ms Thompson maintained that the exhibit was, in those respects, similar to what she had observed the robber wearing.

142 Counsel for the appellant referred to R v Clout and particularly the judgment of Kirby ACJ. However, Clout was a case concerning the directions which should have been given by the trial judge and was not a case on the admissibility of evidence.

143 I conclude by saying that I do not consider that the trial miscarried for the reasons asserted in the first ground of appeal. As regards Ms Thompson, I would reject the first ground of appeal. As regards all the other witnesses, I would grant leave to argue the ground of appeal but would reject the ground of appeal.

2. The trial judge erred in failing to exclude evidence from the eyewitnesses commenting on the balaclava and the overalls, the tender of the balaclava and overalls themselves and evidence of the search of the appellant’s home where they were found.

144 This ground of appeal contains a number of parts relating, respectively, to:-

1. the evidence of the eyewitnesses commenting on the balaclava and the overalls.

2. the admission into evidence of the balaclava Exhibit M and the overalls Exhibit O.

145 1. In the course of the argument on the appeal it became clear that the error which it was asserted the trial judge had made extended to not excluding the showing of the balaclava and the overalls to the witnesses, as well as not excluding the evidence of the comments made by the eyewitnesses.

146 As I already noted earlier in this judgment, counsel for the appellant at the trial did not, at the time the evidence was adduced, make any objection to any of the witnesses, apart from Ms Thompson, being shown the balaclava exhibit M or the overalls exhibit O and being asked to comment on them. After all of this evidence had been admitted, an application was made at the trial to have the evidence excluded.

147 In making the application for the exclusion of the evidence, counsel for the appellant at the trial described the application he was making as “a renewal” of an application he had made earlier. However, this was a misdescription of the application counsel for the appellant was making. The application which counsel had made earlier in the trial had been limited to an application that the video recording of parts of the execution of the search warrant at the appellant’s home should not be admitted into evidence.

148 It was submitted at the trial that the evidence of the showing of the balaclava and the overalls and the evidence of the comments of the witnesses should be excluded, on the grounds that the evidence was irrelevant or, if it had any relevance, it should be excluded under s 137 of the Evidence Act, because any probative value it had was outweighed by the danger of unfair prejudice to the appellant. It was submitted that the evidence was irrelevant, because the evidence, considered in its totality, demonstrated that the balaclava and the overalls found at the appellant’s home which had been shown to the witnesses were not the balaclava and the overalls worn by the robber on 28 February 2002.

149 It was submitted by the Crown prosecutor that the evidence was relevant as showing that, at the time of the robbery, the appellant had had access to a balaclava and a pair of overalls which were consistent with the descriptions given by at least a number of the witnesses of the balaclava and the overalls worn by the robber. It was further submitted by the Crown prosecutor that, when the whole of the evidence in chief and the cross-examination of the witnesses was taken into account, there was no danger of unfair prejudice to the appellant.

150 After protracted argument and discussion occupying more then 50 pages of the transcript of the trial, the trial judge said that she was “against” counsel for the appellant and that she had drafted reasons which she would not give immediately but would give later in the trial. However, the trial judge never did give any judgment on this application.

151 Although the trial judge did not give any judgment on the application I consider that it can readily be inferred from remarks made by her Honour in the course of the hearing of the application that she concluded that the evidence was relevant and that there was little or no danger of unfair prejudice to the appellant.

152 I do not consider that this part of the second ground of appeal should be upheld. Much of what I have written in rejecting the first ground of appeal is applicable to this part of the second ground of appeal. Except in the case of the showing of the objects to Ms Thompson and the asking of Ms Thompson to comment, no objection was made to the adducing of the evidence at the time the evidence was adduced. A trial judge should not readily accede to an application that evidence which has already been given and which counsel did not object to when the evidence was given, should be excluded from the evidence before the jury.

153 In my opinion, the evidence sought to be excluded had some relevance for the reasons given by the Crown prosecutor at the trial and I also accept that, when the whole of the evidence was taken into account, including the concessions favourable to the appellant made in both evidence in chief and cross-examination, there was little danger of unfair prejudice to the appellant.

154 2. The balaclava which had been marked for identification 1 and the overalls which had been marked for identification 2 were admitted into evidence as exhibits M and O during the evidence of a police officer, Constable Swift, who was the officer-in-charge of the investigation into the robbery, and he gave evidence about inter alia the finding of the balaclava and the overalls at the appellant’s home on 30 December 2003. At the time the balaclava was tendered counsel for the appellant at the trial said “your Honour is aware of my position” and I accept the trial judge would have accepted that counsel for the appellant at the trial objected to the tender of both the balaclava and the overalls. I infer that the trial judge was satisfied that the objects were relevant and that their probative value was not outweighed by the danger of unfair prejudice to the appellant.

155 For similar reasons to those I have given in rejecting the first ground of appeal and the first part of this ground of appeal, I do not consider that the trial judge erred in finding the balaclava and the overalls were relevant and, having regard to the totality of the evidence, there was little or no danger of unfair prejudice to the appellant.

156 I would reject this part of the second ground of appeal.

157 3. At the beginning of the trial counsel for the appellant made an application for the exclusion of certain evidence which the Crown proposed to lead of the search of the appellant’s home on 30 December 2003. However, the application was limited to the excluding of the parts of the audio/video recording of the search which recorded the locating of the balaclava in the bedroom, the locating of the stock of balaclavas in the basement and the locating of the pair of overalls in the laundry. These were the only parts of the recording of the execution of the search warrant which the Crown prosecutor wish to show to the jury.

158 Counsel for the appellant said that he would not object to evidence being given, by a means otherwise than by the playing of the recording, of the locating of the items and of what was said by the appellant and police when the items were located.

159 The ground on which counsel for the appellant sought to have the audio/video evidence excluded was that, if the jury saw the video evidence, the jury would infer that the police had gone to the appellant’s home, so long after the robbery was committed on 28 February 2002, because information had been received pointing to the appellant as having been the robber. It was submitted that the likelihood of such an inference would give rise to a danger of unfair prejudice within s 137 of the Evidence Act.

160 The trial judge gave a brief judgment referring to ss 135 and 137 of the Evidence Act, in which she refused the application.

161 I do not consider that it has been shown that the trial judge erred in holding that the evidence should not be excluded under either s 135 or s 137 of the Evidence Act and I would reject this part of the second ground of appeal.

162 I have now rejected all parts of the second ground of appeal and accordingly I reject the ground of appeal generally.

3. The trial miscarried as a result of the dressing of the appellant in exhibits and an item which was not in evidence in the trial, the direction that he repeat the words of the robber and that he walk up and down in front of the jury.

163 As noted earlier in this judgment, the appellant was asked by the Crown prosecutor during cross-examination to put on the balaclava exhibit M. Counsel for the appellant at the trial objected but his objection was overruled and the appellant put on the balaclava.

164 The appellant was then asked by the Crown prosecutor to put on a pair of sunglasses which the Crown prosecutor had produced and then to put the balaclava on, over the sunglasses. Counsel for the appellant objected on grounds including that there was no evidence about the provenance of the sunglasses.

165 It is correct that no evidence had been given about the sunglasses which the Crown prosecutor produced. The Crown prosecutor later informed the Court that the sunglasses were her own old skiing sunglasses.

166 The Crown prosecutor handed up to the trial judge a copy of the judgments of the Court of Criminal Appeal in R v Kirby (unreported 2000 NSWCCA 330). Having consulted the judgments in Kirby, the trial judge ruled that the Crown prosecutor would be permitted to “invite (the appellant) to go ahead with the demonstration”.

167 In compliance with the invitation by the Crown prosecutor, the appellant put on the sunglasses and then the balaclava. The appellant complied with requests by the Crown prosecutor that he face the jury and then turn side on to the jury.

168 The Crown prosecutor asked the appellant to say the words “give me the serious cash” and “I want the serious cash”.

169 Counsel for the appellant objected on the grounds that it was not a voice identification case, that the saying of the words by the appellant would not serve any useful forensic purpose and that asking the appellant to speak as if he was a robber would be prejudicial. The trial judge overruled the objection and the appellant said both sets of words.

170 Later in the cross-examination the appellant was asked to put on the overalls exhibit O. Counsel for the appellant objected and said that he had already “ventilated” his objection. The trial judge overruled the objection. The circumstances in which the appellant then put on the overalls gave rise to part of the sixth ground of appeal against conviction which I will deal with later in this judgment.

171 In accordance with a request from the Crown prosecutor, the appellant, dressed in the overalls, walked up and down in the courtroom in front of the jury box.

172 A general submission was made by counsel for the appellant that all of the things the appellant had been asked to do and had done, that is the putting on of the balaclava and the overalls, the putting on of the sunglasses, the saying of the words and the walking up and down in the courtroom were all “demonstrations” falling within s 53 of the Evidence Act. If s 53 of the Evidence Act applied, it had not been complied with, in that no application had been made as required by sub-s (1) and the trial judge, in deciding whether to order each demonstration, had not taken into account the matters she was required to take into account under sub-s (3). Counsel referred to Scott v Numurkah Corporation (1954) 91 CLR 300, a decision on views at common law.

173 It is, in my opinion, clear that, if s 53 of the Evidence Act was applicable, her Honour failed to take it into account. However, all the things the appellant was asked to do, and did, were done by him in the courtroom and the question arises whether s 53 of the Evidence Act applies to demonstrations in the courtroom or whether it applies only to demonstrations outside the courtroom.

174 Section 53 of the Evidence Act is headed “Views” but this word is not used in the section itself. The section itself speaks of “demonstration, experiment or inspection”. None of these terms is defined in the section or elsewhere in the Act. As the submission made by counsel for the appellant was that each of the things the appellant was asked to do and did was a “demonstration”, I will focus on the word “demonstration” in s 53.

175 There are not in s 53 any express words limiting the application of the section to demonstrations outside the courtroom. Apparently founding on this aspect of the drafting of the section, Odgers Uniform Evidence Act (seventh edition) at 1.2.5580 expresses the opinion that “although the ALRC (the Australian Law Reform Commission) was considering out of court inspections etc, this provision applies to any ‘demonstration, experiment or inspection’ whether in court or out of court”.

176 On the other hand, Anderson Hunter and Williams the New Evidence Law note at p 121 that “section 53 does not expressly limit its operation to out of court contexts, though it is clearly assumed to be the sphere of its operation”.

177 In my opinion, notwithstanding the absence of express words limiting its operation, s 53 of the Evidence Act is limited to demonstrations, experiments or inspections taking place outside the courtroom.

178 As already indicated, Odgers refers to the proposals by the Australian Law Reform Commission on which s 53 is based (The Law Reform Commission Report No 26 1027-1029 “Views demonstrations and experiments”).

179 As Odgers accepts, it is clear that the Commission was limiting its consideration of “views demonstrations and experiments” to views demonstrations and experiments occurring outside the court.

180 Paragraph 1027 of the Report commences with the words:-

“The judge or jury may leave the court to observe places or objects that cannot be brought or reproduced successfully in the court.”

181 Section 53 is headed “views” and, although this word is not used in the section itself, it is legitimate to have regard to it in interpreting the section. In the absence of any definition in the Act of the word “view”, one can have regard to the meaning of the word “view” at common law. At common law a “view” was a view of a place or object outside the courtroom. An example of a view at common law is Scott v Numurkah Corporation, to which counsel for the appellant referred.

182 Although not conclusive, there are indications in some of the terms of the section that the section is intended to apply only to demonstrations, experiments or inspections outside the courtroom. The conditions that an order should not be made unless the parties will be given a reasonable opportunity to be present and that the judge, and if there is a jury, the jury will be present would be unlikely to be necessary in the case of demonstrations, experiments or inspections taking place inside the courtroom during a trial.

183 Section 53 enacts a quite elaborate procedure to be followed. An application for an order must be made. A judge is not to make an order unless the judge is satisfied that the conditions in sub-s (2) are satisfied and the judge is required to take into account all of the matters in sub-s (3). In R v Milat (NSWSC Hunt CJ at CL 12 April 1996) it was held that a judge must comply with sub-ss (2) and (3), even though the parties are in agreement that an order should be made.

184 However, demonstrations by witnesses in the course of giving evidence occur in a great number of criminal trials and often a number of times in the same criminal trial. For example, a witness is asked to demonstrate how a particular object such as a knife or gun was held or how a particular part of the human body was moved, for example in striking or punching. Expert witnesses are asked to demonstrate, for example where a particular part of the body is situated or what kind of blow might have inflicted a particular kind of injury.

185 In my opinion, it is not to be supposed that the elaborate procedure in s 53 is required to be applied, whenever a witness in giving evidence in court is asked to engage in a demonstration.

186 In Kirby the accused was asked in cross-examination to put on a hat which he had agreed was similar to a hat worn by the offender as seen on video stills of the commission of the offence. This incident was referred to by the Court of Criminal Appeal as a “demonstration” but there is no reference anywhere in the judgments of the Court of Criminal Appeal to s 53 of the Evidence Act. Wood CJ at CL who delivered the leading judgment in the Court of Criminal Appeal referred to such demonstrations as being “a common place event” (par 47).

187 Counsel for the appellant referred to FD v Regina [2006] NSWCCA 31. In FD the accused during cross-examination was asked by the Crown prosecutor to demonstrate how he had pulled away a knife. The Crown prosecutor offered to participate himself in the demonstration. Counsel for the accused objected to what was proposed on the grounds that anything that happened would be difficult to record in the transcript. The Crown prosecutor referred to s 53 of the Evidence Act and the trial judge permitted the demonstration to occur. In his summing-up the trial judge told the jury that there was no way that the Crown prosecutor in his wig and gown and the accused could replicate whatever had happened at the scene of the alleged offence.

188 The grounds of appeal taken in Kirby were that the jury should not have been in court during the argument about the propriety of the proposed demonstration and that the demonstration had caused some impermissible prejudice. There was no ground of appeal that the procedure in s 53 had not been followed. I conclude that FD is not an authority in the Court of Criminal Appeal that an in-court demonstration falls within s 53 of the Evidence Act.

189 I have held that s 53 of the Evidence Act does not apply to demonstrations, experiments or inspections in the courtroom. However, if a proposed demonstration, experiment or inspection to be held in the courtroom is objected to, some of the matters set out in sub-s (3) of s 53 may well be relevant in determining whether what is proposed should be permitted or should be rejected, for example pursuant to s 137 of the Evidence Act.

190 Quite apart from s 53 of the Evidence Act, it was submitted on behalf of the appellant, both at the trial and on appeal, that it was unfairly prejudicial to the appellant for the trial judge to permit the Crown prosecutor to ask the appellant to put on the balaclava and the overalls, when it had not been established that the balaclava or the overalls the appellant was asked to put on were the balaclava or the overalls worn by the robber or were even similar to the balaclava or the overalls worn by the robber.

191 In my opinion, it was not unfairly prejudicial to the appellant to ask the appellant to put on the balaclava and the overalls which, according to the evidence of at least some of the eyewitnesses, were similar to the balaclava and the overalls worn by the robber, so that the appearance of the appellant in the courtroom wearing the balaclava exhibit M and the overalls exhibit O could be compared by the jury with the security video and the still photographs derived from the security video showing the robber in the balaclava and the overalls he was wearing. The respects in which the balaclava exhibit M and the overalls exhibit O might have differed from the balaclava and overalls worn by the robber, as described in the descriptions by the eyewitnesses, had been explored in the examination and cross-examination of the eyewitnesses.

192 The conclusion I have drawn derives some support from the decision of this Court in Kirby, where the accused was asked to put on a hat found at the accused’s house so that the jury could compare the appearance of the accused wearing the hat with the appearance of the offender in the still photographs. The Court of Criminal Appeal rejected submissions that the procedure was unfair on the basis that it was akin to a dock identification.

193 As regards the sunglasses, I accept that the appellant should not have been asked to put on sunglasses which had not been admitted into evidence, which had not been shown to any witness and which were produced for the first time when the prosecutor asked the appellant to put them on.

194 I consider that it was permissible for the Crown prosecutor to ask the appellant to say sentences including the word ”serious”. There was no tape recording of the offender’s words saying the word “serious”. However, the witness Mrs Gleeson had given evidence that, when the offender said the word “serious”, it almost sounded like “sherious”. The Crown prosecutor was entitled to ask the appellant to say the word “serious” in a sentence, for the purpose of determining whether the appellant had the same speech idiosyncrasy.

195 As regards asking the appellant to walk up and down in front of the jury, the witness Mrs Gleeson had given evidence that the offender had “a real relaxed walk”, “a bouncing walk”, “a sort of swagger style of slow walk”.

196 It was submitted on behalf of the appellant that any walking by the appellant in the courtroom in front of the jury would be unlikely, even if he was the offender, to replicate the movements of the offender walking at the crime scene. There is some force in this submission but I do not consider, in the light of Mrs Gleeson’s evidence, that the trial judge should be held to have erred in permitting this demonstration.

197 I upheld the third ground of appeal in so far it relates to asking the appellant to put on the sunglasses. Otherwise, I reject the third ground of appeal.

4. The failure to of the trial judge to direct the jury as to the dangers of the use of the evidence relating to the clothing, walk and voice demonstration occasioned a miscarriage of justice.

198 After the closing addresses had been given, the trial judge discussed with counsel what directions she should give in her summing-up. The trial judge commenced part of this discussion by saying that, on one view, some, if not all, of the evidence could be described as “identification evidence”. Counsel for the appellant at the trial then submitted that “your Honour would give the usual warnings about the dangers (of identification evidence)”.

199 After further discussion, the trial judge said that no witness had given evidence of visual identification of the appellant as being the offender. Counsel for the appellant remarked “nobody ever says “that’s him””.

200 The trial judge then said that, as there was no evidence of visual identification, it would be “inappropriate” to “give all those usual directions”. Counsel for the appellant did not dissent from the view expressed by the trial judge but submitted that there was a need for the jury to be directed to “exercise caution”. The Crown prosecutor submitted that the evidence of the witnesses about the balaclava and the overalls should be described as “resemblance” evidence and not “identification” evidence and directions of the kind given where there has been evidence of identification should be modified.

201 Towards the end of this part of the discussion the trial judge said, without any dissent from counsel, that the Crown prosecutor had been correct in telling the jury in the prosecutor’s opening address that the primary issue in the trial was whether the appellant was the robber and that some of the evidence could be described, in one sense, as being “identification evidence” but not in the sense in which that expression is used in the Evidence Act.

202 In the part of her summing-up which is recorded at pp 45-50 of the transcript of the summing-up the trial judge gave the jury certain directions. At p 45 her Honour said:-

“Now the next direction I give you is a direction in relation to identification. As I have said earlier today that really is what this case is all about, this trial. Members of the jury, I say to you immediately that there is what is called visual identification before you in the sense that it is normally used, namely that people come along and say that they were present and sighted the person or persons in the particular case and are able to give if not a positive identification – when I say positive, they go beyond saying that it looks similar or something of that nature.

In this case, this case is devoid of that sort of visual identification and that is why we have spoken mainly about circumstantial evidence in the Crown case. Nevertheless you do have evidence from a number of witnesses describing the appearance of the person who came into the council demanding money on 28 February ’04 and you do have witnesses who describe the wearing apparel and you have also got the security video and the stills, the still photographs. And when the accused gave evidence he was asked to do certain things in relation to exhibits M and O, that was to put on the red balaclava and the pair of overalls so a comparison could be made between the person described as the robber by the various witnesses and the accused.”

203 Her Honour then referred to other parts of the Crown case and then continued:-

“…although I have said to you there is no visual identification in the ordinary sense of the word but I am still bound to give you a direction which in effect is a special caution about identification evidence.

I say to you at the outset that in the case of identification evidence the warning of a need for special caution before accepting of identification is one which is given in every case in which such evidence is disputed by the accused. It is not given because of any particular view which I may have formed concerning the reliability of – when I say that I am not really giving you this direction at the moment. I am telling you this is the sort of direction that is given in every case and the principal reason for it being given is because of the nature of this type of evidence and I will direct you now specifically that the type of evidence that you have heard in this case here which goes to the identification in the Crown case which is led for the purpose of or the foundation of its submission in the evidence is of such a type that you could safely act on it providing you are satisfied yourselves about the evidence and you accept the evidence.”

204 In this part of the summing-up the trial judge subsequently twice repeated the need for the jury to exercise “special caution” in considering this evidence.

205 Her Honour continued at p 48 of the transcript of the summing-up”-

“There are however a number of matters in this case which I propose to draw to your attention which are relevant to the reliability of the evidence that has been given and my direction is that you are bound to consider those matters in determining whether you will accept that evidence as reliable. I do not say that you must regard all of any of them as necessarily undermining the reliability of the evidence and I repeat that I do not express any opinion myself as to whether they should lead you to reject that evidence as unreliable. My purpose in referring to these matters is only to assist you in your task by pointing them out as warranting your attention. Now as I said I do not intend to go through them in any detail. The first one that I will refer you to is the limited time that the witnesses were giving evidence, the limited time with which they had to make observations, also the fact that they have in the particular circumstances of the events taking place they can affect or influence the ability of the person to make the observations and here, I think it is apparent from the evidence of a number of the witnesses that they reacted to the presence of a gun being held by the person who was on the premises that day.

There has been in the evidence of what I will call the lay witnesses, that is the employees at the council and also the customers. There has been in respect of some matters a different description given, particularly in relation to the age of the person and also to the build and the height of the person said to be the description of the robber on 28 February 2002.”

206 At the conclusion of the summing-up, the Crown prosecutor submitted that the trial judge had not given the jury a direction about the need for special caution in considering the resemblance evidence of the witnesses about exhibits M and O.

207 Counsel for the appellant did not himself seek any further direction and did not support and actually opposed, the submission made by the Crown prosecutor. Counsel for the appellant said:-

208 On this appeal it was submitted that the directions the trial judge had given were inadequate, particularly in regard to the comparison the jury had been invited to make between the video and still photographs showing the robber and the appearance of the appellant wearing exhibits M and O. It was further submitted that the trial judge had weakened the effect of such directions as she had given by repeatedly saying that she was required to give the directions and that the directions were not being given because of any view of the facts she herself had formed and by the direction her Honour gave to the effect that the jury could safely act on the evidence, provided that they were satisfied that they should accept the evidence.

209 It was submitted by the Crown on this appeal that the present case was not a case in which “usual” identification directions were required or in which voice identification directions were required, that the directions the trial judge had given were sufficient, that no complaint had been made by counsel for the appellant at the trial about any of the directions the trial judge had given and no request had been made by counsel for the appellant for any further direction.

210 The expression “identification evidence” as used in the Evidence Act is defined in part 1 of the dictionary at the end of the Act as follows:-

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or

211 It is clear that no witness at the trial made any assertion that the appellant was the robber. It is also clear, in my opinion, that no witness at the trial made any assertion to the effect that the appellant resembled the robber. Accordingly, there was no evidence given at the trial which fell within the definition of “identification evidence”. It is unfortunate that the trial judge in directing the jury referred to evidence which had been given in the trial as being “identification evidence”.

212 Because no evidence had been given in the trial which was “identification evidence” within the definition in the Evidence Act, the trial judge was not required to give directions of the kind prescribed by s 116 or s 165 of the Evidence Act.

213 Nor was there any evidence given in the trial which could be described as voice identification evidence. There was no recording of the voice of the offender and, therefore, there could be no attempt by the jury to undertake a comparison of the voice of the offender and the voice of the appellant to determine whether the voices were identical. Consequently, the decision of the High Court in Bulejcik v The Queen (1994-1995) 185 CLR 375, a case referred to by counsel for the appellant was not relevant or, at least, not directly relevant. All that the jury could essay or were invited to essay was to determine whether the appellant’s voice and accent was consistent with the very general descriptions of the offender’s voice and accent given by the witnesses and whether the appellant had the speech idiosyncrasy which Mrs Gleeson had observed in the offender of pronouncing the word “serious” as if it was “sherious”.

214 In Kirby the jury had been invited to compare the appearance of the accused wearing the hat which the prosecutor had asked him to put on with still video photographs of the offender which showed the offender wearing a hat. Wood CJ at CL, who delivered the leading judgment in the Court of Criminal Appeal, held that the jury were not being asked to make an identification from their own memories but to make a comparison between two parts of the evidence. Consequently, no directions had been required to be given pursuant to s 116 or s 165 of the Evidence Act.

215 However, Wood CJ at CL proceeded to hold that, independently of s 165, a warning should be given to a jury which is invited to make a comparison of the kind the jury were invited to make in Kirby.

216 In the present case the jury were invited to make a somewhat similar comparison between the appearance of the appellant wearing the balaclava exhibit M and the overalls exhibit O and the appearance of the offender wearing a balaclava and overalls in the video and the still photographs derived from the video.

217 In Kirby Wood CJ at CL said that the warning to the jury should be “appropriate to the circumstances of the case”, that “each case must depend upon its own facts” and that “there is no universal formula”. Notwithstanding a number of criticisms which were made of the directions given by the trial judge in Kirby, Wood CJ at CL held that the directions given, which were quite brief, were sufficient.

218 I have already set out the relevant parts of the trial judge’s summing-up in the present case. What the trial judge said could clearly have been improved on, both in its expression and in its content. However, I have concluded that, in the absence of any request for any further direction by counsel for the appellant at the trial, what the trial judge said should be regarded as sufficient.

219 In her summing-up the trial judge referred to the evidence by the witnesses describing the appearance and the apparel of the robber and to the video and the still photographs showing the offender and told the jury a number of times that there was a need to exercise special caution in considering that evidence. The trial judge referred to some specific factors which could have adversely affected the witnesses’ ability to accurately observe the offender and to the presence of differences in the descriptions given by the witnesses of the offender.

220 It would have been preferable if the trial judge had not referred so often to the directions she was giving as being directions of a kind always given by trial judges in case of this sort and as not reflecting any views of the facts her Honour herself had formed. Nevertheless, I do not consider that these references diminished the force of the warning her Honour gave or reduced the warnings to a mere matter of routine. See KNP v Regina [2006] NSWCCA 213. The particular direction criticised by counsel for the appellant could have been better expressed but was unexceptional.

221 I would reject this ground of appeal.

5. The trial miscarried owing to the trial judge refusing to waive the notice requirements relating to alibi evidence and refusal to allow evidence of alibi in the trial.

222 In the appellant’s evidence in chief at the trial the following questions and answers occurred:-

223 In cross-examination the appellant said that there were no records of when vehicles were displayed. The appellant that he did not know where he had been on the afternoon of 28 February 2002 and about the only thing he did know was that he had not been at Strathfield.

224 At the next adjournment the Crown prosecutor submitted that the evidence given by the appellant which I have quoted was evidence of alibi but no notice of alibi had been given in accordance with s 150 of the Criminal Procedure Act. The Crown prosecutor said that she would cross-examine the appellant on the evidence of alibi the appellant had given but that she would object to any evidence of alibi being given by any other witness.

225 Counsel for the appellant did not, at this stage, concede that the giving of the evidence had involved any contravention of s 150 of the Criminal Procedure Act. Counsel said that the appellant’s brother and father were outside the courtroom waiting to give some evidence and that he had no objection to the Crown interviewing them.

226 On the next day of the hearing counsel for the appellant at the trial told the trial judge that he conceded that the evidence the appellant had given was evidence of alibi and that a notice of alibi should have been given. No notice of alibi had been given.

227 Counsel for the appellant sought leave, retrospectively, under s 150 (2) of the Criminal Procedure Act for the appellant to give the evidence he had already given and sought leave, prospectively, under s 150 (3) of the Criminal Procedure Act for the appellant’s brother and father to give evidence in support of the alibi. Counsel for the appellant said that neither the appellant’s brother nor the appellant’s father could remember where the appellant had been on 28 February 2002 but each could give evidence that there had been a usual practice that on Thursday afternoons the appellant would prepare for display the vehicles in the appellant’s brother’s business.

228 The Crown prosecutor opposed the granting of any leave. The Crown prosecutor pointed out that statements of the Crown witnesses, which had been served on the defence ten months earlier as part of the Crown brief, referred to “Thursday 28 February 2002”. A subpoena for production of documents issued on behalf of the appellant showed that the defence had previously investigated the possibility of an alibi. The Crown prosecutor said that she would not ask that the evidence of alibi already given by the appellant be withdrawn.

229 During the argument the trial judge said that she did not think that it was within her power to grant leave, unless the Crown consented to the granting of leave.

230 Counsel for the appellant submitted that the proper course would be for the trial judge to grant leave and then to adjourn the trial for such period as might be necessary for the Crown to make inquiries about the alibi. Counsel said that the appellant’s brother and father would be giving evidence and the jury would anticipate that each would give evidence confirming the evidence of alibi given by the appellant. If such evidence was not given by the appellant’s brother and father, the jury would be likely to draw an inference adverse to the appellant.

231 The trial judge refused to grant leave for evidence in support of the alibi to be given by the appellant’s brother and father. The trial judge also refused the application for retrospective leave, even though the Crown prosecutor had said that she would not seek to have the evidence of alibi already given by the appellant withdrawn from the jury and the appellant’s own evidence remained before the jury.

232 When the appellant’s brother Allan Evans was called as a witness, he gave evidence about his business of operating a limousine and car hire service and about the appellant helping him in the maintenance and upkeep of the vehicles. The appellant’s brother said that he did not remember where he had been or what he had been doing on 28 February 2002.

233 The appellant’s father gave evidence about his son Allan operating a hire car and limousine hire service and also a jewellery business. When asked whether he could remember where he had been on 28 February 2002, the appellant’s father said that he would have been at the jewellery shop, because that was where he would normally have been.

234 The Crown prosecutor submitted to the trial judge that the leading of this evidence from the appellant’s brother and the appellant’s father about Mr Allan Evans’s limousine and car hire business amounted to a contravention of the ruling the trial judge had made refusing leave for evidence of the alibi to be given. The trial judge accepted the Crown prosecutor’s submission and made a ruling prohibiting counsel for the appellant from asking any further questions connecting the appellant’s father or the appellant with the operation of the car hire business.

235 Counsel for the appellant submitted that the exercise by the trial judge of her discretion under s 150 of the Criminal Procedure Act had miscarried. Various reasons were given by counsel for the appellant and counsel for the appellant referred to Skondin v Regina [2005] NSWCCA 417.

236 In my opinion, the exercise by the trial judge of the discretion under s 150 of the Criminal Procedure Act did miscarry.

237 Her Honour did not give any judgment stating her reasons for refusing to grant leave under s 150 and the only material before this Court is the transcript of the discussion and argument on the application for leave.

238 As already noted, the trial judge said that she did not think it was within her power to grant leave, unless the Crown consented to the granting of leave. In making this remark her Honour clearly misdirected herself.

239 In Skondin v Regina Studdert J, who delivered the leading judgment, said at par 47:-

“A court should be slow to refuse a leave application under s 150(2) unless prejudice arises such as is incapable of being addressed without significant disruption of the trial”.

240 The same principle would apply to a leave application under s 150 (3) of the Criminal Procedure Act. There is no indication in the transcript of the discussion and argument that her Honour applied this principle in reaching her decision.

241 It would seem unlikely that, if leave had been granted, there would have been any significant disruption of the trial. Counsel for the appellant had offered to make the appellant’s brother and father available to be interviewed by the Crown. Each later gave evidence that he had no actual recollection of where he had been on 28 February 2002. The appellant had given evidence before the jury that there were no records of when vehicles in his brother’s business had been displayed.

242 I consider this ground of appeal should be upheld. Although I have upheld the ground of appeal, the question remains whether such limited evidence as the appellant’s brother and father could have given, to the effect that the appellant usually prepared vehicles for display on Thursday afternoons, could have had any real significance.

6. The trial miscarried by the failure of the trial judge to discharge the jury following the admission into the trial of evidence and conduct which was unfairly prejudicial to the appellant and incapable of cure through directions.

243 Several matters were relied on by counsel for the appellant in support of this ground of appeal.

244 Police officer Const Swift gave evidence about the execution of the search warrant at the appellant’s home on 30 December 2003. In evidence in chief, Constable Swift was asked by the Crown prosecutor whether he had been accompanied by certain police officers, who the Crown prosecutor named. Constable Swift answered in the affirmative and added “two other constables were there as well, two dog handlers”.

245 At the next adjournment counsel for the appellant said that it had been agreed between the Crown prosecutor and counsel for the appellant that evidence would not be given about the two dog handlers but the witness had then volunteered that there were two dog handlers. Counsel said he would take instructions when his solicitor arrived at the court.

246 In further evidence in chief Constable Swift said that there had been quite difficult conditions during the search. The following question and answer then occurred:-

247 Counsel for the appellant made an application for the discharge of the jury on the grounds that unfairly prejudicial evidence had been placed before the jury, namely that two dog handlers had joined the other police executing the search warrant and that there were a large number of uncapped syringes at the appellant’s home. It was submitted that this evidence would lead the jury to infer or speculate that the appellant had had a connection with drugs.

248 The Crown prosecutor submitted that the attendance of the dog handlers was equally consistent with the police suspecting that there might be a firearm on the premises and that any prejudice from the evidence about syringes could be cured by eliciting evidence that one of the occupants of the house was a diabetic.

249 The trial judge refused the application for a discharge of the jury. She was asked by counsel for the appellant to give reasons for her decision “at some stage” and her Honour agreed to do so. However, no reasons were subsequently supplied. The trial judge that it was up to the Crown prosecutor whether or not she asked Constable Swift in re-examination any question about a person in the house being a diabetic.

250 In re-examination of Constable Swift by the Crown prosecutor the following questions and answers occurred:-

“Q. You mentioned some syringes being found in the premises but you were informed they were because an occupant suffered diabetes -

PULLINGER: I object to any further mention of syringes. It’s not a relevant part of this trial.

HER HONOUR: I think what the Crown is seeking to do is to put some evidence in its right and proper context. I’ll allow it.

251 Accordingly, the witness having been asked a leading question in re-examination, the answer to which might have alleviated any problem arising from the mention of syringes, failed to give the answer suggested by the question.

252 Having regard to the fact “that the attempted cure just didn’t arrive” counsel for the appellant renewed the application for a discharge of the jury. The trial judge adhered to her original decision refusing to order the discharge of the jury. In adhering to her original decision the trial judge relied on information from the Crown prosecutor that the Crown prosecutor would adduce further evidence from another witness, Constable Hayden.

253 In the evidence in chief of Constable Hayden the following questions and answers occurred:-

254 A further matter on which counsel for the appellant sought to rely was that during the trial the appellant was, in the presence of the jury, “taken down” from the dock in the courtroom thereby disclosing to the jury (it was submitted) that the appellant had been refused bail and was in custody.

255 The first occasion on which this happened was when the appellant, while being cross-examined, was asked to put on the overalls exhibit O. The appellant himself said “perhaps I can go down the stairs and do it”.

256 Shortly afterwards, after the appellant had put on the overalls and had walked up and down in front of the jury, his counsel asked whether the appellant could change out of the overalls. The trial judge told the appellant he could step down and “perhaps at this stage you could go downstairs with the officer and then come back up”.

257 Counsel for the appellant applied for a discharge of the jury because “in the presence of the jury he (the appellant) was taken down from the dock indicating to the jury that he was a person in custody and again an indication of bad character”.

258 The Crown prosecutor opposed the application on the grounds that the jury would have seen Corrective Services officers sitting in court throughout the trial, that the jury would expect that a person charged with an armed robbery with a firearm would be held in custody pending trial, that the appellant had been the first to suggest that he go down the stairs to change and that the jury would simply think that there was a convenient place underneath the courtroom where the appellant could change in and out of the overalls.

259 The trial judge gave a judgment in which she refused the application and relied on the submissions which had been made by the Crown prosecutor.

260 I do not consider that the various matters complained of, taken individually or in combination, required the trial judge to discharge the jury.

261 I do not consider that the brief reference by Constable Swift to two police dog handlers being part of a large group of police who executed the search warrant would have conveyed to the jury the sinister implication feared by counsel for the appellant. Dogs are used by police in a number of different kinds of operations.

262 The reasons given by the Crown prosecutor and adopted by the trial judge in her judgment were a sufficient basis for rejecting the application for a discharge, insofar as it was based on the appellant being “taken down” from the dock. In any event, I consider it likely that there is an awareness among jurors that the bail laws have become increasingly stringent and that a person standing trial on a charge involving the use or threatened use of violence with a firearm is quite likely to be in custody, bail refused.

263 The evidence given by Const Swift about there having been a large number of uncapped syringes at the appellant’s home which had made the execution of the search warrant more difficult is more troubling. However, evidence was ultimately given by Const Hayden to the effect that the syringes belonged to the appellant’s girlfriend who was a diabetic and this evidence would have reduced any prejudicial effect of the earlier evidence.

264 I would reject this ground of appeal.

7. The failure to the trial judge to give any or adequate reasons in the trial created procedural unfairness to the appellant.

265 During the trial, the trial judge was required to make a number of rulings on disputed issues.

266 On a few occasions the trial judge, after reaching a decision on such an issue, gave a brief judgment. An example is a judgment her Honour gave in refusing the application for a discharge of the jury because the appellant had, allegedly, been “taken down” from the dock in the presence of the jury.

267 However, on a number of occasions, her Honour did not give any judgment in which she stated her reasons for refusing an application by counsel for the appellant. For example, her Honour did not give any judgment in deciding to refuse the application by counsel for the appellant for a discharge of the jury on the basis of the evidence given by Const Swift about two dog handlers being included in the police who went to the appellant’s house on 30 December 2003 and about there being a large number of uncapped syringes in the premises.

268 On some of the occasions on which her Honour did not give reasons her Honour was expressly requested by counsel for the appellant to provide reasons and her Honour undertook to do so. This Court was informed that on those occasions where her Honour did not give reasons at the time of making her ruling she has not subsequently provided any reasons for her rulings.

269 Counsel for the appellant informed the Court that attempts have been made to communicate with her Honour for the purpose of requesting reasons for her rulings but that these attempts have been unsuccessful.

270 Counsel for the Crown on this appeal suggested that the legal representatives of the appellant should have attempted to utilise the procedure under s 11 of the Criminal Appeal Act, whereby a trial judge, if requested by the Chief Justice, is obliged to furnish to the Registrar of the Court of Criminal Appeal a report giving the judge’s opinion upon any point arising in the case. However, s 11 of the Criminal Appeal Act does not provide any direct remedy for an appellant and I would not hold it against the appellant that, apparently, no request has been made to the Chief Justice to exercise the Chief Justice’s power under s 11 of the Criminal Appeal Act.

271 The various rulings her Honour made were significant rulings and the appellant was entitled to have reasons given by her Honour for her rulings, particularly where reasons were requested and her Honour undertook to provide reasons. See Harris v Regina NSWCCA (2005) 432 at par 21 per Studdert J on behalf of the Court.

272 Her Honour was remiss in not stating, even if quite succinctly, her reasons for a number of her rulings. However, I do not consider that her Honour’s failure to state her reasons in separate judgments amounted, as was submitted by counsel for the appellant, to such a fundamental procedural irregularity as to warrant setting aside the appellant’s convictions. All, or almost all, of the applications by counsel for the appellant at the trial were argued at considerable length. The competing submissions of the parties were stated and, indeed, often repeated a number of times. The views the trial judge was forming on each application were revealed by frequent remarks made by her in the course of the argument. I consider that in the present case it can be inferred from the transcript of the argument what were her Honour’s reasons for making each of her rulings and it is possible for this Court to determine whether her Honour erred in making the rulings.

273 Counsel for the appellant referred to Fleming v The Queen (1998) 197 CLR 250. However, Fleming, while of some indirect relevance, was a case of a trial by a judge alone.

274 I would reject this ground of appeal.

8. The trial miscarried as a result of the impropriety of the prosecutor.

275 It was submitted on behalf of the appellant that what in the earlier grounds of appeal were alleged to have been miscarriages of justice had resulted from improper conduct on the part of the Crown prosecutor at the trial. Accordingly, whether this ground of appeal could succeed would depend on this Court upholding some of the earlier grounds of appeal. However, I have rejected almost all of the earlier grounds of appeal and I have therefore rejected almost all of the foundation for the present ground of appeal. The only respect in which I would consider the Crown prosecutor’s conduct is open to criticism is in her producing, and asking the appellant to put on, her own sunglasses, which had not been the subject of any evidence.

276 It was submitted that the Crown prosecutor had acted improperly in making some of the submissions she made to the trial judge. However, even if the prosecutor’s submissions were to be regarded as not well-founded, there was no impropriety in the Crown prosecutor making the submissions that she did about the directions the trial judge should give in summing-up to the jury and in opposing the application by the appellant for leave to rely on the alibi evidence.

277 I would reject this ground of appeal.

9. The verdict of the jury was unreasonable.

278 The principles to be applied by the Court of Criminal Appeal in considering such a ground of appeal are now well settled. See M v The Queen (1994) 181 CLR 487 at 492-495: MFA v The Queen (2002) 213 CLR 606; Niass v Regina [2005] NSWCCA 120 per Hunt AJA at paras 6,7,8. These principles include that the Court of Criminal Appeal is required to make its independent assessment of the evidence and determine whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

279 Earlier in this judgment I summarised the Crown case at the trial and also the defence case.

280 Having made by own independent assessment of the evidence I consider that it was clearly open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

281 The evidence about the cap provided powerful evidence of the appellant’s guilt. Each of the Crown witnesses Thompson, Samad and Gleeson gave evidence that immediately after the robbery they observed the cap on the floor of the Council chambers, the cap not having been there before the robber entered the Council chambers. In his evidence the appellant said that the cap was “vaguely familiar”. It was open to the jury to reject as lacking any plausibility the submission made by counsel for the appellant that the cap had been deliberately left by a robber who was not the appellant so as to incriminate the appellant.

282 If the jury were satisfied that the cap had been left by the robber and had been dropped, not planted, by the robber, then the DNA evidence about the matter lifted from the cap provided powerful evidence of the appellant’s guilt. The other parts of the Crown case could then be added to the evidence about the cap.

283 I would reject this ground of appeal.

Proviso

284 I have allowed part of the third ground of appeal in that I have held that the appellant should not have been asked to put on the Crown prosecutor’s sunglasses and I have allowed the fifth ground of appeal in that I have held that the trial judge should have granted the application for leave to adduce evidence in support of the alibi from the appellant’s brother and father. In these circumstances the question arises whether the proviso to s 6 (3) of the Criminal Appeal Act should be applied in favour of the Crown.

285 I would not regard either of the flaws I have found in the trial as having significance.

286 The prosecutor’s sunglasses were wraparound sunglasses of a kind which, according to the evidence of a number of witnesses, the robber had been wearing and the appellant was asked to put on the balaclava over the sunglasses, so that what the jury saw on the appellant’s head was the balaclava worn over the sunglasses.

287 The evidence the appellant himself gave in support of the alibi was not withdrawn from the jury. There were no records to support the alibi. Neither the appellant’s brother not the appellant’s father could have given positive evidence of where the appellant was on 28 February 2002. They could only give evidence of a general practice of which the appellant had already given evidence. Both the appellant’s brother and the appellant’s father were able to give some evidence about the nature of the appellant’s brother’s business.

288 Applying the principles stated by the High Court in Weiss v The Queen (2005) 80 ALJR 444 especially at par 31-41, I have made my own independent assessment of the whole record and, after making due allowance for the limitations that exist in the case of an appellate court proceeding on the record, I am satisfied that the evidence properly admitted at the trial proved the guilt of the appellant beyond reasonable doubt and that there is no reason why the appeal should, nevertheless, be allowed.

289 I would dismiss the appeal against conviction.

290 HIDDEN J: The defects in the conduct of this trial identified by James J are troubling. Nevertheless, the case is one in which it is appropriate to apply the proviso.

291 I agree with James J.

292 HOEBEN J: I agree with James J.

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Citations

Evans v R [2006] NSWCCA 277

Most Recent Citation

R v C, CJ (No 2) [2019] SADC 21

Cases Citing This Decision

8

High Court Bulletin [2007] HCAB 10

High Court Bulletin [2007] HCAB 8

BTU v The King [2023] NSWCCA 36

Cases Cited

13

Statutory Material Cited

3

Kirkland v The Queen [2021] SASCA 14

Fleming v The Queen [1998] HCA 68

CITATION:	Evans v Regina [2006] NSWCCA 277
HEARING DATE(S):	22/05/2006
JUDGMENT DATE:	7 September 2006
JUDGMENT OF:	James J at 1; Hidden J at 290; Hoeben J at 292
EX TEMPORE JUDGMENT DATE:	09/04/2006
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW: - appeal against conviction - armed robbery - whether items of clothing similar to those worn by robber found at accused's home admissible - whether permissible for prosecutor to show witnesses items of clothing and ask them to comment upon them - whether permissible for Crown prosecutor to have accused put on item of clothing and repeat words of robber - rejection of alibi evidence because of absence of notice - failure of trial judge to give any or adequate reasons for rulings during trial - application of proviso
LEGISLATION CITED:	Evidence Act 1995 Criminal Procedure Act Criminal Appeal Act
CASES CITED:	R v Kirby (unreported 2000 NSWCCA 330 Scott v Numurkah Corporation (1954) 91 CLR 300 R v Milat (NSWSC Hunt CJ at CL 12 April 1996 FD v Regina [2006] NSWCCA 31 Bulejcik v The Queen (1994-1995) 185 CLR 375 KNP v Regina [2006] NSWCCA 213 Skondin v Regina [2005] NSWCCA 417 Harris v Regina NSWCCA (2005) 432 Fleming v The Queen (1998) 197 CLR 250 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Niass v Regina [2005] NSWCCA 120 Weiss v The Queen (2005) 80 ALJR 444
PARTIES:	Graham John Evans (appellant) Regina (Crown)
FILE NUMBER(S):	CCA 2006/328
COUNSEL:	G Bashir (appellant) D Frearson (Crown)
SOLICITORS:	Legal Aid Commission (appellant) Solicitor for Public Prosecutions (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0254
LOWER COURT JUDICIAL OFFICER:	Backhouse DCJ
LOWER COURT DATE OF DECISION:	22/11/2004

[2006] NSWCCA 277

04/09/2006