Evans v The Queen - [2007] HCA 59

HIGH COURT OF AUSTRALIA
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ
GRAHAM JOHN EVANS   APPELLANT
AND
THE QUEEN   RESPONDENT
Evans v The Queen [2007] HCA 59
13 December 2007
S219/2007
ORDER
1.   Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal made on 7 September 2006, and in their place order that:
(a)the appeal to that Court be allowed,

(b)the appellant's convictions be set aside, and

(c)there be a new trial.

On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with G A Bashir for the appellant (instructed by Legal Aid Commission of NSW)
D C Frearson SC with M M Hobart for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Evans v The Queen
Criminal law – Evidence – Admissibility of in court demonstrations – An armed man wearing overalls, balaclava and sunglasses committed a robbery – During the trial the appellant was required to wear overalls and a balaclava found at his residence and sunglasses not in evidence as well as walk before the jury and say words attributed to the robber ("the in court demonstration") – Whether the in court demonstration was relevant – Whether the in court demonstration was unfairly prejudicial – Relevance of distinction between demonstrations, experiments, inspections, reconstructions and views – Whether s 53 of the Evidence Act 1995 (NSW) ("the Act") applied to in court demonstrations – Whether requiring the appellant to perform the in court demonstration was permitted either by s 53 of the Act or at common law.
Criminal law – Evidence – Admissibility – Whether showing witnesses the overalls and balaclava found at the appellant's residence was relevant – Whether showing witnesses the overalls and balaclava was unfairly prejudicial.
Criminal law – Appeals – Application of the proviso– Whether the trial judge's error in not admitting alibi evidence which the appellant proposed to call denied the application of the proviso – Whether the failure of the trial judge to give adequate reasons for rulings made during trial was a miscarriage of justice – Whether the judicial warnings to the jury were adequate – Whether the in court demonstration was so prejudicial as to deny the application of the proviso – Whether the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged.
Words and phrases – "demonstration", "experiment", "inspection", "unfairly prejudicial", "reconstruction", "relevance", "view".
Criminal Appeal Act 1912 (NSW), s 6(1).
Evidence Act 1995 (NSW), ss 53, 55, 137.

GUMMOW AND HAYNE JJ. In February 2002, security cameras photographed an armed man robbing persons of money. The offender was wearing overalls, sunglasses, and a balaclava which covered all of his face except eyes and mouth. After the robbery, a baseball cap and a tissue were found on the floor near where the robber had stood. The security photographs, taken at intervals, show where these items were found. The photographs tendered in evidence were not very clear. In some of the photographs something that could be a cap can be seen on the floor; in other earlier photographs that item cannot be seen.
In December 2003, nearly two years after the robbery, police went to the appellant's house. They found a red full‑faced balaclava in his bedroom and a pair of blue overalls in the laundry. They were directed to a box of similar balaclavas kept in the basement of the house.
The appellant provided a DNA sample. The profile of his DNA was the same as the profile of DNA recovered from the cap found at the scene of the robbery. The particular profile is expected to occur in fewer than one in ten billion individuals in the general population. Whether DNA recovered from the tissue was shown not to be his was disputed.
In the District Court of New South Wales, the appellant was charged with, and convicted of, two counts of armed robbery and one count of assault with intent to rob whilst armed with an offensive weapon.
The appellant appealed to the Court of Criminal Appeal of New South Wales against his conviction. He advanced several grounds of appeal and the Court of Criminal Appeal (James, Hidden and Hoeben JJ) held[1] that two of the grounds were made out.
[1]Evans v The Queen (2006) 164 A Crim R 489.
The first concerned the appellant being required, in the course of cross‑examination by the prosecutor, to put on not only the balaclava and overalls that had been found at his house but also a pair of sunglasses which were not in evidence but were produced by the prosecutor. The Court concluded[2] that although there was no error in requiring the appellant to put on the balaclava and overalls, he should not have been asked to put on sunglasses that were not in evidence.
[2](2006) 164 A Crim R 489 at 508‑512 [163]‑[197].
Secondly, the Court concluded[3] that the trial judge had wrongly excluded evidence which the appellant proposed to call from his brother and father concerning the appellant's practice of preparing for display vehicles used in his brother's business. The evidence was intended to demonstrate that the appellant prepared the vehicles at the same time and on the same day each week, at a place far from where the robbery occurred, and that the time at and day on which he regularly did this coincided with the time and day of the robbery. The trial judge rejected the evidence on the basis that no notice had been given of alibi evidence in accordance with s 150 of the Criminal Procedure Act 1986 (NSW). The Court of Criminal Appeal concluded[4] that "the exercise by the trial judge of the discretion under s 150 of the Criminal Procedure Act did miscarry". The correctness of this conclusion was not put in issue in this Court.
[3](2006) 164 A Crim R 489 at 516‑519 [222]‑[242].
[4](2006) 164 A Crim R 489 at 518 [236].
The Court of Criminal Appeal concluded[5] that neither of the errors it had identified was significant, and that[6] "the evidence properly admitted at the trial proved the guilt of the appellant beyond reasonable doubt". Accordingly, the Court of Criminal Appeal applied the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) and dismissed[7] the appellant's appeal to that Court. By special leave, he appeals to this Court. The appeal should be allowed.
[5](2006) 164 A Crim R 489 at 523 [285].
[6](2006) 164 A Crim R 489 at 524 [288].
[7](2006) 164 A Crim R 489.
In addition to the errors identified by the Court of Criminal Appeal, that Court should have held that the appellant should not have been required to put on the balaclava and overalls found at his house. Having the appellant dress in those items tendered no relevant evidence.
The Court of Criminal Appeal should not have applied the proviso. Consideration of that issue will require examination not only of the error constituted by requiring the appellant to dress in the balaclava and overalls found at his house (and to put on sunglasses) but also two other issues. The first concerned the trial judge's rejection of the alibi evidence which the appellant proposed to call from his brother and father. The second concerned features of the trial which, the appellant submitted, showed that the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged. Because of the possible prejudice worked at trial by having the appellant dress up like the robber, and the exclusion of the alibi evidence, the Court of Criminal Appeal erred in deciding that, on the material before it, the appellant was proved to be guilty beyond reasonable doubt. It will not be necessary to decide whether there was such a departure from the fundamental assumptions of a fair trial that the proviso could not or should not be engaged.
Showing the balaclava and overalls to other witnesses
In this Court, the appellant made two distinct points about the uses to which the balaclava and overalls found at the appellant's house were put at trial. The first concerned witnesses, who had seen the robber, being asked whether the articles produced at the trial were similar to those the robber had worn. The second concerned the appellant being required by the prosecution, in the course of cross‑examination, to do three things: to put on the balaclava and the overalls (together with a pair of sunglasses that were not in evidence); to walk up and down in front of the jury; and to say some words the robber was said to have used.
The appellant submitted that "the trial miscarried as a result of the admission of evidence of eyewitnesses" to the robbery concerning the items of clothing. The items were described in the notice of appeal as having "been randomly seized from the [appellant's] home twenty two months after the offence".
At the trial, two witnesses were asked, without objection, whether the items shown to them were similar to those they had seen that day and in general terms each agreed they were. It is as well, however, to say a little more about the evidence of the first of these witnesses. Immediately before the robbery she had seen a man walking towards the place where it occurred. She said the man was wearing overalls, a bright red beanie, and sunglasses. The beanie had excess material sitting above the man's head. The witness described the man, when slightly hunched over, as about her height (which she gave as 5 feet 6½ inches), of normal build, and having smooth, well‑tanned skin. She was not asked, and did not profess to be able, to identify the appellant as the man she had seen. She did say that the balaclava she was shown "could be the same beanie" and that the overalls she was shown "look a lot dirtier than what the man had worn and probably a little faded as well but they look exactly the same style ... the man was wearing".
When the prosecution sought to show the balaclava and the overalls to a third witness, trial counsel for the appellant objected on the basis that the witness had given a description of the items that differed in some respects from the items that were to be shown. The objection was overruled but the subject was revisited later in the trial. Trial counsel for the appellant submitted that evidence should not be received of the police finding at the appellant's house the balaclava and overalls that had been shown to the witnesses or of their finding a box of similar balaclavas. It was submitted that the evidence lacked probative value and that its reception would be prejudicial.
In this Court the appellant submitted that the items that had been produced at the trial were not then said or shown to have been worn by the robber. They were mass produced items. (The statement in the grounds of appeal that the items had "been randomly seized" is to be understood as implying that the balaclava tendered in evidence was not different in any relevant way from the others found at the house.) The appellant submitted that the Court of Criminal Appeal should have held that "the procedure adopted [in showing the items to witnesses and asking for their comments] was unfairly prejudicial".
The short answer to the point is that the procedure followed at trial was not unfair. It may be accepted that the witnesses did not assert that what they were shown was what the robber had worn. The highest point this aspect of the evidence reached was that the items were similar to those the robber had worn. But there was no unfairness to the appellant in proving, as the prosecution did, that he had access to items of clothing like those worn by the robber. There were two steps in that proof. First, it was necessary to show that the items in question had been found at the appellant's house. Secondly, it was necessary to demonstrate how similar the items discovered were to those that had been worn by the robber. That second step required the eye witnesses to examine what had been seized and say whether and how the items were like those the robber had worn. Further, in the forensic setting of this trial, where the DNA evidence relating to the cap that had been found at the scene loomed so large, it may be thought that the finding of not just one balaclava but a whole box of them at the appellant's house, and the finding there of an otherwise unremarkable pair of mass produced overalls was not very damaging to the appellant. This ground of appeal fails.
Dressing the appellant in the balaclava and overalls
Other aspects of the use made at trial of the balaclava and overalls present more fundamental questions. In his notice of appeal, the appellant alleged that the Court of Criminal Appeal should have held that "the prosecutor should not have been permitted to require the [appellant]" to put on these items, walk up and down in front of the jury and say words which it was alleged that the robber had used. The grounds gave no particulars of why the prosecutor should not have been permitted to make these requirements but the respondent, correctly, understood the ground as challenging both the relevance and the admissibility of what was done. The respondent's written submissions sought to demonstrate that the relevance of what was done "lay in the comparison of what the jury saw and heard with the descriptions of the witnesses" and the respondent amplified that proposition in those submissions in a number of ways. The appellant, in his written submissions in reply, joined issue with the respondent's analysis.
The chief weight of oral argument in the appeal to this Court was directed at whether asking the appellant to put on these items, and show himself to the jury, constituted a "demonstration, experiment or inspection"[8] and whether, and how, Pt 2.3 of the Evidence Act 1995 (NSW) ("the Act") was engaged. Argument was also directed to whether any common law rules of evidence applied. But counsel for the appellant, in oral submissions, returned to the issues of relevance that had been debated in the written submissions and submitted that "none of these exercises [with the balaclava and overalls] were relevant"[9]. The particular reason then advanced by counsel for the appellant was that "no ... adequate foundation existed in the evidence for [these] exercise[s] to be conducted"[10] but the whole question of relevance was plainly in issue between the parties as one of the several bases for the appellant's argument that the prosecutor should not have been permitted to require the appellant to put on these items.
[8]Evidence Act 1995 (NSW) ("the Act"), s 53.
[9][2007] HCA Trans 368 at 1507.
[10][2007] HCA Trans 368 at 1507‑1509.
These reasons will demonstrate that the logically anterior question raised by the appellant – whether what was done was relevant – is determinative. It is as well, however, to begin by noticing a variety of steps sometimes taken in the course of a witness giving evidence that may be thought to provide (but on examination do not provide) the basis for sound analogical reasoning supporting what happened at the appellant's trial.
Items of real evidence are often tendered and received in evidence. The balaclava and overalls found at the appellant's house are but one example of the tendering of such evidence. The photographs taken by the security cameras, and the cap found at the scene of the robbery, are other examples. As Wigmore explained[11], there are many circumstances in which a tribunal of fact is asked to act upon what the tribunal itself perceives, rather than upon acceptance of testimonial evidence or inference from either testimonial or circumstantial evidence. Wigmore classified this as autoptic proference. (A party proffers something which the tribunal perceives for itself; Wigmore refers to the tribunal's self‑perception of the thing as its autopsy of that thing.)
[11]Wigmore, Evidence in Trials at Common Law, (Chadbourn Rev) (1972), vol 4, § 1150.
Tender and reception of real evidence is one example of what Wigmore described as autoptic proference. But it is not the only example. Thus the tribunal of fact, asked to consider evidence about what kind of bladed weapon inflicted wounds, may look at a weapon found at the scene and tendered in evidence when considering evidence given that wounds were inflicted by a weapon with two sharp edges. In such a case the tribunal of fact may act, in part, upon what it observes for itself about the knife. Likewise, the tribunal of fact may act upon its own observation when a physically injured plaintiff is asked to show the tribunal of fact the injured part of the body.
Why then not dress the appellant in this case in the same way as the robber? Why then not let the jurors observe for themselves how the appellant looks, and compare that with not only what the witnesses have said about the robber's appearance, but also what the jurors can see for themselves in the security photographs?
The answer to the questions just posed is provided by proper application of the test of relevance. As this Court's decision in Smith v The Queen[12] demonstrates, questions of relevance require careful analysis. In particular, they require careful identification of the process of reasoning that is invited. Only then can it be seen whether the evidence in question could "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue"[13] (emphasis added). In Smith, the disputed evidence was a witness's assertion that the person standing trial was the man depicted in security photographs. The majority of this Court held[14] that, because the witness's assertion of identity was no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant was not relevant. The fact that someone else reached the conclusion provided no logical basis for affecting the jury's decision when the conclusion was based on material not different in any substantial way from what was available to the jury. Knowing that another person had drawn the connection neither assisted nor hindered the process of reasoning that had to be undertaken.
[12](2001) 206 CLR 650.
[13]The Act, s 55(1).
[14](2001) 206 CLR 650 at 655 [11].
Showing the jury what the appellant looked like when wearing the balaclava and overalls that were in evidence (with or without the addition of sunglasses that had not been received in evidence) could not "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding"[15]. The central issue at the appellant's trial was whether he was the robber. There was no dispute that there had been a robbery. There was no dispute that the robber had been wearing a balaclava, overalls and sunglasses.
[15]The Act, s 55(1).
No one asserted, however, that the person wearing the disguise of balaclava, overalls and sunglasses could be identified by looking at that person during the robbery or could be identified by looking at the security photographs. None of the witnesses, not even the witness who had seen the robber without the balaclava pulled down over his face, said that they could recognise the man who was thus attired. None of the witnesses, and neither trial counsel, asserted that the person depicted in the security photographs could be identified.
Looking at the appellant wearing the balaclava and overalls (with or without sunglasses) enabled a comparison between no more than the items he put on and what was depicted in the security photographs. But that comparison could be drawn without the appellant being asked to put them on. Dressing the appellant in the items provided no information to the jury that could rationally affect, directly or indirectly, the determination of any fact in issue because it revealed nothing about the wearer and nothing about the appellant that was not already apparent to the jury observing him in the dock.

Requiring the appellant to put on the balaclava, overalls and sunglasses may be contrasted with requiring him to walk in front of the jury and requiring him to speak certain words. Observing how the appellant walked and how he spoke certain words might bear upon the jury's decision whether he was the man the witnesses had described. The jury could observe for itself these matters concerning the appellant; the jury could compare its observations with what the witnesses had said about the robber. This stands in sharp contrast with the balaclava, overalls and sunglasses, where the focus necessarily fell only upon the disguise and said nothing about who had worn it. Deciding who had worn the disguise was not assisted by having the appellant put on the items he was asked to put on.
It follows that dressing the appellant in the balaclava and overalls (and producing a pair of sunglasses for him to wear) proffered no relevant evidence for consideration of the jury. It should not have been done. It is, then, not necessary to consider how Pt 2.3 of the Act would apply to this use of these items.
Not only was what was done not relevant, doing it cannot be assumed to have had no effect on the jury. Dressing the appellant like the robber may have depreciated his credibility as a witness.
For the reasons given by Heydon J, neither the appellant being asked to walk in front of the jury nor his being asked to say certain words was a "demonstration, experiment or inspection" to which s 53 of the Act applied. As the reasons of Heydon J demonstrate, that section is engaged in respect of demonstrations, experiments or inspections which are conducted outside the courtroom and which are to constitute a part of the evidence adduced at trial. Again, as Heydon J demonstrates, such matters as experiments undertaken out of court by an expert witness for the purposes of forming an opinion which is proffered in evidence do not come within the section. (Experiments of that kind are not undertaken by order; they are undertaken to enable formation of an opinion which will be tendered in evidence.)
Trial counsel for the appellant objected to the prosecution requiring the appellant to put on the balaclava and overalls and objected to the prosecution producing a pair of sunglasses for the appellant to wear. The trial judge overruled these objections. That was the wrong decision of a question of law[16]. The appellant's appeal against conviction was, then, to be allowed unless the Court of Criminal Appeal "considers that no substantial miscarriage of justice has actually occurred"[17].
[16]Criminal Appeal Act 1912 (NSW), s 6(1).
[17]Criminal Appeal Act, s 6(1).
It follows that the Court of Criminal Appeal considered the application of the proviso on an incorrect footing. The appellant should not have been required to put on the balaclava, overalls or sunglasses. Moreover, the application of the proviso in this matter must be considered not only with regard to these errors, but also the further error identified by the Court of Criminal Appeal: the wrongful rejection of evidence intended to bolster the appellant's denial of his presence at the scene of the robbery. The appellant further submitted, however, that the proviso could not or should not be engaged because the trial departed from the fundamental assumptions underpinning a fair trial.
Some unsatisfactory features of the trial
More than once during the trial the trial judge was required not only to decide disputed questions about the admissibility of evidence but also to rule upon applications that the jury be discharged without verdict. On some of these occasions the trial judge was asked to give reasons for decision, said that she would do so later, but did not. The Court of Criminal Appeal concluded[18] that the trial judge "was remiss in not stating, even if quite succinctly, her reasons for a number of her rulings". But the Court went on to conclude[19] that the failure did not amount "to such a fundamental procedural irregularity as to warrant setting aside the appellant's convictions". The Court said[20]:
"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]n 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."
[18](2006) 164 A Crim R 489 at 522 [272].
[19](2006) 164 A Crim R 489 at 522 [272].
[20](2006) 164 A Crim R 489 at 522 [272].
Not every ruling given at trial must be accompanied by reasons. Many issues about the admissibility of evidence are best resolved by simply allowing or disallowing a question to which objection is taken. But there are some evidentiary issues that arise in a trial where it is desirable to give reasons. It is not possible to formulate a single criterion of universal application that distinguishes between issues whose resolution should be accompanied by a statement of reasons and those where reasons need not be given. It suffices to say that cases in which a discretion must be exercised or the resolution of the issue depends upon some intermediate conclusion of fact or law will more likely warrant the giving of reasons than will an issue about the relevance of a question or the form in which it is posed. But what is of particular importance in the present matter is that the trial judge considered that she should give reasons for particular evidentiary rulings but did not.
Apart from evidentiary issues, there were two applications to discharge the jury without verdict which the trial judge refused, indicating, in respect of one of the applications, that she would give reasons later. It may be doubted that an application for discharge of the jury could properly be determined without the judge stating reasons for the decision either when announcing the decision or at some later time. The reasons need not, indeed usually will not, be long. But the circumstances in which it would not be necessary to give reasons for the decision are not readily identified. And the trial judge in this case did not consider that the applications by trial counsel for the appellant were of that kind. Yet the trial judge did not give reasons for rejecting the first application that was made.
There is a further aspect of the conduct of the appellant's trial that must be noticed. In the course of the trial, the trial judge made a number of incorrect statements of what had happened in the course of evidence to or in the presence of the jury. The chief error made, in the course of the trial judge's charge to the jury, was to tell the jury that the appellant had "also called evidence, that is his father and his brother in support of his case, to the effect to support his denial of his being present and committing the offence which is alleged against him". The trial judge had ruled that neither the father nor the brother of the appellant could give evidence of the kind described. Her Honour had concluded (wrongly as the Court of Criminal Appeal held) that the evidence was "not relevant to any issue before the court and before the jury, and secondly that if it was led it would be a breach of section 150 of the Criminal Procedure Act".
Applying the proviso
The application of the proviso must then be considered in the light of several different aspects of the way in which the appellant's trial proceeded. First, there was the wrong decision of the question of law about the relevance of having the appellant put on the balaclava and overalls found at his house and the sunglasses produced by the prosecutor. Secondly, there was the wrong decision of the question of law or the miscarriage of justice (it matters not which) constituted by the refusal to permit the appellant's father and brother to give evidence about his practice of working on vehicles far away from the scene of the robbery at the time and on the day when the robbery occurred. Thirdly, there is the combination of the trial judge's failure to give reasons for rulings which she considered required reasons and the misstatement to the jury of the effect of what had happened at the trial which together may suggest that the trial judge did not have sufficient mastery of the conduct of the trial to ensure a fair trial and that there was, therefore, "on any other ground whatsoever ... a miscarriage of justice"[21].
[21]Criminal Appeal Act, s 6(1).
The appellant submitted that the combination of errors made at trial was such a "serious breach of the presuppositions of the trial"[22] as to deny the application of the proviso.
[22]Weiss v The Queen (2005) 224 CLR 300 at 317 [46].
Since at least Quartermaine v The Queen[23], reference has been made in decisions of this Court to the possibility that the proviso may not be engaged if a trial was so irregular that no proper trial had taken place. In Wilde v The Queen[24], three members of the Court spoke of "a proceeding which is fundamentally flawed" and said that "[t]he proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings". Neither Quartermaine nor Wilde was identified as such a case and this Court has not since authoritatively decided what kind of departures from essential requirements may be said to go to "the root of the proceedings". In Weiss[25], it was not necessary to consider the question. In Libke v The Queen[26], those members of the Court who decided that the conduct of the prosecutor at trial was such that an appellate court could not be satisfied that no substantial miscarriage of justice had actually occurred dissented from the Court's orders.
[23](1980) 143 CLR 595 at 600‑601 per Gibbs J.
[24](1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ.
[25](2005) 224 CLR 300 at 317 [46].
[26](2007) 81 ALJR 1309; 235 ALR 517.
As the joint reasons in Weiss show[27], the proviso did away with the old Exchequer rule by which there was a "miscarriage of justice" whenever there was any departure from trial according to law, regardless of the nature or importance of the departure. But it is necessary to recognise that the common form criminal appeal provision presents what, on its face, is a conundrum. The provision requires an appeal to be allowed if any of three kinds of error is shown (verdict against the evidence or weight of the evidence, wrong decision of any question of law, or "on any other ground whatsoever there was a miscarriage of justice"). Yet on the hypothesis that such an error has occurred (including that there has been on any other ground whatsoever a "miscarriage of justice") the appeal may be dismissed if the proviso is satisfied.
[27](2005) 224 CLR 300 at 308 [18].
Weiss directed[28] appellate courts to make an independent assessment of the evidence at trial and to "determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record[29], the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty". And as was said in Weiss[30], it is "neither right nor useful to attempt to lay down absolute rules or singular tests" that govern that task. But as was pointed out in Weiss[31]:
"[O]ne negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty." (emphasis added)
[28](2005) 224 CLR 300 at 316 [41].
[29]Fox v Percy (2003) 214 CLR 118 at 125‑126 [23] per Gleeson CJ, Gummow and Kirby JJ.
[30](2005) 224 CLR 300 at 316 [42].
[31](2005) 224 CLR 300 at 317 [44].
Applying this negative proposition will very often resolve any question of applying the proviso where it is said that there has been a radical departure from the requirements of a fair trial. The graver the departure from the requirements of a fair trial, the harder it is for an appellate court to conclude that guilt is established beyond reasonable doubt. It is harder because the relevant premise for the debate about the proviso's application is that the processes designed to allow a fair assessment of the issues have not been followed at trial.
The present case illustrates the point. Here the appellant was denied the opportunity to call alibi evidence. That denial might be characterised as refusing the appellant the opportunity to put his defence. So characterised, the refusal to admit the evidence could be described as a grave departure from the requirements of a fair trial. But applying that description to what happened may, in the end, serve only to distract attention from the closer analysis of the matter that the consideration and application of the proviso requires.
On its face the DNA evidence appears overwhelming and the appellant's explanations for how a cap with his DNA came to be found at the scene of the robbery were thin. (He asserted that the robber must have planted the cap there and he offered some suggestions of who might have procured that.) But the apparent thinness of this explanation for the incriminating evidence of the cap may, we do not say must, have taken on a different appearance if his alibi witnesses had given evidence and were believed.
It may readily be accepted that the evidence called at the appellant's trial demonstrated, beyond reasonable doubt, that the cap found at the robbery scene was his cap. But a further question had to be decided. Was it the appellant who had taken the cap to and dropped it at the robbery scene? No one said the robber had worn the cap. Had someone else taken the cap there, whether in the overalls the robber wore or the bag the robber carried, and dropped the cap? That was what the appellant sought to put in issue with the alibi evidence, not whether the cap found was his. How should the Court of Criminal Appeal have approached that issue in deciding whether the proviso applied?
First, the appellant's denial of committing the robbery may very well have been undermined by having him dress as the robber had dressed and show himself to the jury. It is not possible to say what effect this had on the jury's assessment of him as a witness. The verdicts returned by the jury at the appellant's trial thus provide little if any assistance in assessing the record of trial[32]. Secondly, in the Court of Criminal Appeal, the appellant relied on affidavits sworn by his brother and father deposing to the evidence that each would have given at trial. Those affidavits spoke of the appellant's practice rather than of any specific recollection about what happened on the day of the robbery. The brother swore that he did not recall the appellant "having any breaks from this job or ever not turning up for work"; the father swore that he could not recall the appellant ever missing a day of work.
[32]Weiss (2005) 224 CLR 300 at 317 [43].
The evidence of both the brother and father invited challenge. Each deponent spoke only of what he could remember. How certain was that memory? May there not have been an occasion, now forgotten, when the practice was not followed? May not the memory be mistaken? But none of these challenges was made or answered at trial and the Court of Criminal Appeal could act only upon the basis that the deponents would have given evidence at trial in accordance with their affidavit and that that evidence could have been accepted by the jury. Did that evidence, taken at its highest, raise a reasonable doubt about who had taken the cap to the scene of the robbery and dropped it there?
Because the alibi evidence was not called and was not tested at trial, the Court of Criminal Appeal could not decide from the record of the trial and the additional material received on the hearing of the appeal that the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdicts of guilty. It could not do that because the material upon which it had to act was incomplete. An important element of the material had been excluded at trial and was necessarily presented to the Court of Criminal Appeal untested. Because it was untested the Court of Criminal Appeal could not say whether it could be taken at less than its face value. And at face value it left an issue about who took the cap to the scene and dropped it there not capable of resolution beyond reasonable doubt.
The Court of Criminal Appeal could not determine beyond reasonable doubt that the appellant was the robber. The errors at trial both undermined his defence and in an important respect prevented him putting it fully. The sworn evidence the appellant had given may well have been undermined by having him dress as the robber. The alibi evidence it had to consider was necessarily incomplete.
It is not then necessary to go on to decide what significance should be attached to the several features of the trial that suggest that the trial judge did not have sufficient mastery of the proceedings to ensure a fair trial. That is, it is not necessary to explore what kinds of failure in the trial process preclude the application of the proviso, beyond noting that in Weiss the Court said[33] that "no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt".
[33](2005) 224 CLR 300 at 317 [45].
These issues need not be resolved in this matter. They need not be resolved because the errors made at trial undermined the appellant's defence and prevented him putting it fully. The Court of Criminal Appeal ought not to have decided that the appellant had been proved beyond reasonable doubt guilty of the offences charged. The Court of Criminal Appeal ought not to have decided that there had been no substantial miscarriage of justice.
Orders
The appeal should be allowed. The orders of the Court of Criminal Appeal should be set aside, and in their place there should be orders that (a) the appeal to that Court is allowed, (b) the appellant's convictions are set aside, and (c) a new trial be had.
KIRBY J. This appeal challenges orders made by the Court of Criminal Appeal of New South Wales[34]. By those orders, that Court, whilst finding that error of law or a miscarriage of justice had been established by Mr Graham Evans ("the appellant"), dismissed his appeal. It did so by the application of the "proviso" to s 6(1) of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act"). It follows that the Court concluded that "notwithstanding … that the … points raised by the appeal might be decided in favour of the appellant … no substantial miscarriage of justice has actually occurred".
[34]Evans v The Queen (2006) 164 A Crim R 489.
I agree with the conclusion expressed by Gummow and Hayne JJ ("the joint reasons") that the application of the "proviso" was erroneous[35]. The Court of Criminal Appeal ought to have ordered a retrial. That is the order that this Court should now make.
[35]Joint reasons at [45]-[51].
In most respects, I agree in the joint reasons. However, I disagree with the analysis in the joint reasons where they strike out, for the first time, upon a line of reasoning that was not previously argued or considered[36]. On this aspect of the case, I agree in what Heydon J has written in his reasons, although I differ from the ultimate conclusion reached by his Honour[37]. Save for this difference, which reflects an earlier divergence in this Court on a like question[38] (and which, as there, does not ultimately produce a different outcome) my own analysis and conclusion result in my agreement in the orders proposed in the joint reasons. The appeal must be allowed.
[36]Namely, that the evidence proffered by having the appellant, at the prosecutor's request, wear a balaclava and overalls before the jury in court, was not relevant to any issue in the appellant's trial. See joint reasons at [23]-[24].
[37]Reasons of Heydon J at [262]-[264].
[38]Smith v The Queen (2001) 206 CLR 650 at 653-654 [6], 656 [12], 657-659 [20]-[23].
The facts and legislation

The facts relevant to the appeal are stated compendiously in other reasons[39]. It would be superfluous for me to restate them.
[39]Joint reasons at [11]-[14]; reasons of Heydon J at [129], [133]-[135], [137]-[150].
Similarly, the other reasons explain comprehensively the course followed in the appellant's trial including in the questions addressed to witnesses about the appearance of the clothing (overalls and a balaclava) worn by the offender when committing the offences and aspects of the trial judge's conduct of the proceedings about which complaint is made. I will repeat none of this material.
The applicable provisions of the Criminal Appeal Act[40] and of the Evidence Act 1995 (NSW)[41] ("the Evidence Act") are also stated elsewhere. I incorporate all of those provisions by reference. Adopting this course allows me to proceed directly to the points of agreement with, and difference from, the views expressed by my colleagues.
[40]See reasons of Heydon J at [130].
[41]Reasons of Heydon J at [148]. See also at [186].
The issues
The other reasons clarify the issues that now fall to be decided. Those issues are the ones expressed in the appellant's several grounds of appeal to this Court which are helpfully set out in the reasons of Heydon J[42]. So presented, the controversies that this Court is asked to resolve may be summarised as follows:
(1)The relevance of clothing issue: Whether the Court of Criminal Appeal erred in failing to hold that the trial had miscarried as a result of the admission of the evidence of witnesses concerning items of clothing taken from the appellant's home some 22 months after the offences, suggested to be similar to clothing worn by the offender at the time of the offences and, on that ground, relevant to questions for decision by the jury[43];
(2)The demonstration issue: Whether the Court of Criminal Appeal erred in concluding that s 53 of the Evidence Act did not apply to an in-court demonstration in which the prosecutor required the appellant to perform by dressing up in a balaclava and overalls, walking in front of the jury and saying words attributed to the offender by one witness[44] ("the demonstration"). If s 53 of that Act did not apply to the demonstration, did any residual rules of the common law apply to render such questioning and conduct impermissible? Whether, otherwise, such evidence was inadmissible as prejudicial and unfair, or as involving the splitting of the prosecution case, or as condoning improper conduct on the part of the prosecutor, in respect of which the Court of Criminal Appeal should have provided redress to the appellant?
(3)The judicial warnings issue: Whether the Court of Criminal Appeal ought to have held that a miscarriage of justice had occurred by reason of the failure of the trial judge to direct the jury concerning the specific dangers occasioned by the demonstration, questioning and procedures referred to in issues (1) and (2)[45]. In particular, whether, in the circumstances, the attempted warning given by the trial judge to the jury about the dangers inherent in the use of in-court evidence for a suggested similarity between descriptions and appearances of items of clothing, the appearance of the accused when dressed up, walking and speaking[46], and the imperfect evidence of surveillance videotapes, taken at the time of the offences, were defective for the lack of specific warnings to the jury about the dangers of convicting the appellant on the basis of any such perceived resemblance or similarities;
(4)The sufficiency of reasons issue: Whether the Court of Criminal Appeal erred in failing to uphold the appellant's complaints about the omission of the trial judge to give adequate reasons for critical rulings made in the course of the trial (including in respect of some issues for which reasons were reserved but never subsequently stated)[47]; and
(5)The proviso issue: Whether, in light of the resolution of the foregoing issues and the appellant's complaints of consequential or other errors of law and miscarriage of justice (including the wrongful exclusion of alibi evidence) or for reasons of a departure of the appellant's trial from the fundamental assumptions of a fair trial[48], the Court of Criminal Appeal erred in dismissing the appeal on the basis of the "proviso" to s 6(1) of the Criminal Appeal Act.
[42]Reasons of Heydon J: ground 1 at [136], ground 2 at [168]; ground 3 at [228]; ground 4 at [237] and ground 5 at [249].
[43]cf reasons of Heydon J at [136].
[44]Reasons of Heydon J at [168]. The prosecutor also invited the appellant to wear her own sunglasses, evidently to mimic still further the appearance of the offender. Those sunglasses were not in evidence. Their introduction into the case by counsel was rightly criticised by the Court of Criminal Appeal. That error compounded the errors and prejudice of the demonstration upon which the prosecutor had embarked.
[45]Reasons of Heydon J at [228].
[46]Reasons of Heydon J at [231]-[232].
[47]Reasons of Heydon J at [237].
[48]cf Weiss v The Queen (2005) 224 CLR 300 at 317-318 [46]; cf joint reasons at [10].
Narrowing the issues
Reducing the differences: In the approach that I take, by reference to the foregoing, it is possible to confine the issues that I must decide still further. I can do this either because I am in substantial agreement with what my colleagues have written on some of the issues or because a decision on some of the issues is ultimately superfluous to the disposition of this appeal.
The relevance of clothing questions: Alike with Heydon J[49], I would reject the appellant's argument that the prosecution's questions, addressed to the description of the balaclava and overalls (including by comparison with items of the same type found much later in the appellant's residence), were not relevant to the issues in the trial. I agree with Heydon J's reasons in this respect.
[49]Reasons of Heydon J at [154]-[161], [167].
I also agree with the conclusion stated in the joint reasons[50] that the procedures adopted, in showing the items recovered from the appellant's home to witnesses and asking for their comments, were not unfairly prejudicial to the appellant. They did not attract the application of s 137 of the Evidence Act so as to render the evidence inadmissible. Nor did they demonstrate that the trial judge had erred in declining to exercise her discretion under s 135 to exclude the evidence[51]. The first ground of appeal, and every element of the challenge on the first issue, therefore fails.
[50]Joint reasons at [16]. See also reasons of Heydon J at [165]-[166].
[51]Reasons of Heydon J at [167].
In-court demonstrations: So far as the submissions on the second issue are concerned, it is convenient to isolate three subordinate submissions regarding which I do not demur from the conclusion reached in other reasons. Thus, alike with the joint reasons[52], I accept the conclusion reached by Heydon J[53] that s 53 of the Evidence Act does not apply to an in-court "demonstration, experiment or inspection". The section is not therefore applicable to the demonstration conducted in court pursuant to the prosecutor's request that the appellant dress up in overalls and a balaclava; wear them whilst seated in the dock; walk in the courtroom in front of the jury; and say words in their presence which had earlier been attributed to the offender.
[52]Joint reasons at [30].
[53]Reasons of Heydon J at [186]-[218].
Although there are arguments both ways (and the resulting gap in the application of the Evidence Act in respect of in-court demonstrations is awkward and arguably unintended), the powerful examination by Heydon J[54] of the statutory text, the preceding common law and the reports of the Australian Law Reform Commission, bring me with a certain reluctance to the same conclusion as his Honour has reached. This is that s 53 of the Evidence Act is confined to demonstrations out of court. The section did not apply to such activities undertaken in court, necessarily in the presence of the judge and jury[55].
[54]Reasons of Heydon J at [216].
[55]Thereby rendering the requirements of ss 53(2) and 53(3)(a) otiose or inappropriate.
If this outcome is not what was intended as the operation of the Uniform Evidence Acts, that needs to be addressed by the legislators. Any resulting problem cannot be solved judicially, by the application of the canons of statutory interpretation. A reluctance to conclude that such a lacuna exists in the Evidence Act is assuaged somewhat because, as Heydon J points out, the common law rules governing the conduct of such demonstrations remain applicable to the subject trial, save so far as the provisions of that Act otherwise provide expressly or by necessary intendment[56]. Certainly, at common law a demonstration required careful attention to conditions of "equivalence", "substantial similarity" or "faithful reproduction" of the evidence being demonstrated[57].
[56]Reasons of Heydon J at [224] setting out ss 9(1) and 11(1) of the Evidence Act. See eg Van Vliet v Griffiths (1978) 19 SASR 195 at 210.
[57]Scott v Numurkah Corporation (1954) 91 CLR 300 at 312, 316; R v Alexander [1979] VR 615 at 622-623; Grosser v South Australian Police (1994) 63 SASR 243 at 248.
No splitting of the prosecution case: I place to one side for the moment the application of the common law rules. Two further subordinate submissions, arising under the second issue, can be rejected immediately. Thus, the appellant's specific argument that the prosecutor, by requesting the demonstration during the cross-examination of the appellant, split the prosecution case, should be dismissed for the reasons given by Heydon J[58]. The objections at common law to the course adopted remain to be evaluated. However, the only point in the trial at which a prosecutor could have conducted any demonstration (assuming that to be legally permissible and otherwise proper) was during the cross-examination of the appellant, once he had elected to give evidence in his own case. Any suggestion that some other person of similar build, appearance or characteristics could have been used in a demonstration conducted during the prosecution's case is fanciful. There was no substance in this point.
[58]Reasons of Heydon J at [227]; cf Shaw v The Queen (1952) 85 CLR 365 at 379-380.
No prosecutorial misconduct: Nor, in this case, has the appellant made good his submission that, by her request to him to undertake the demonstration, the prosecutor misused her functions, requiring judicial correction.
In a number of recent cases, this Court[59], the Court of Criminal Appeal itself[60], as well as other courts of high authority[61] have found it necessary to remind prosecutors in criminal proceedings about the legal and professional rules governing their conduct in representing a special public litigant bearing, on behalf of the community, a "greater personal responsibility" to contribute to "the seriousness and the justness of judicial proceedings" of this kind[62]. Australian courts should not accept any decline in those standards. In proper cases, evidence of serious lapses in standards by prosecutors, if uncorrected at trial, should result in appellate orders requiring a new trial that will conform to the fundamental standards of fairness postulated for the administration of criminal justice in Australia[63].
[59]See Stanoevski v The Queen (2001) 202 CLR 115 at 129 [54]; Subramaniam v The Queen (2004) 79 ALJR 116 at 127-128 [52]-[54]; 211 ALR 1 at 16; Libke v The Queen (2007) 81 ALJR 1309 at 1320 [41], 1327 [83], 1333-1334 [121]-[126]; 235 ALR 517 at 530-531, 539-540, 547-549. See also Whitehorn v The Queen (1983) 152 CLR 657 at 663.
[60]Kennedy (2000) 118 A Crim R 34 at 41 [37]-[38]; R v Livermore (2006) 67 NSWLR 659 at 667-669 [35]-[44].
[61]See eg Boucher v The Queen (1954) 110 CCC 263 (Supreme Court of Canada).
[62](1954) 110 CCC 263 at 270 per Rand J.
[63]Weiss (2005) 224 CLR 300 at 318 [47]; Libke (2007) 81 ALJR 1309 at 1320 [38], 1336 [133]; 235 ALR 517 at 530, 552.
This said, the conduct of the prosecutor on this occasion falls far short of the type of lapse that would invite such a sanction. What occurred involved (as I hold) an error of judgment on the part of the prosecutor. It may require correction because of the unfairness to the appellant occasioned in what then ensued. However, it was not misconduct on the part of the prosecutor as, for example, the introduction of insulting or demeaning comments and personal opinions can be[64]. The appellant is entitled to relief, as I shall show. But this is not a case where any relief should be given for prosecutorial misconduct. Where relief is sought on such a ground it should, in my opinion, be specifically pleaded as a ground of appeal. This was not done in the present appeal. Here the issue (such as it was) was only raised in the appellant's written submissions. The submission does not succeed.
[64]cf Evans (2006) 164 A Crim R 489 at 522 [275].
Inadequate judicial warnings: I can deal more peremptorily with the third and fourth issues[65]. So far as the third issue is concerned (the suggested omission of judicial warnings on the dangers of miscarriages of justice occasioned by identification or resemblance evidence), I respectfully differ from the conclusion of Heydon J that the inadequate (and in some respects inaccurate and confusing) directions given by the trial judge are to be discounted or passed by because of the failure of the appellant's trial counsel to seek further directions at the closing of the judge's summing up[66].
[65]See above these reasons at [59].
[66]Reasons of Heydon J at [236].
The concern evident in the statutes providing for appeals against conviction of criminal offences is fundamentally addressed to the substance of the outcome of such trials and whether they have miscarried for proved legal error or miscarriage of justice. It is not, at least solely, concerned with whether technical rules for making and recording objections at trial were observed by trial counsel[67].
[67]Gately v The Queen [2007] HCA 55 at [48].
In the present case, in the way the trial unfolded, defence counsel had many points to pursue. He appears to have fulfilled his duties with vigilance and diligence. On the other hand, as this Court and other appellate courts have repeatedly pointed out[68], the history of miscarriages of justice is littered with cases where serious wrongs have occurred on the basis of imperfect evidence of identification of the accused or imperfect evidence of resemblance. It is for that reason that courts in this country have insisted, even in cases where the prosecution case is otherwise strong, upon clear and detailed, accurate and properly cautionary instructions to the jury about the special dangers of convicting an accused person on the basis of identification or resemblance evidence. The need for warnings or cautions about the dangers of evidence of "resemblance" or "similarity" should not be diluted simply because they arise in new and different circumstances.
[68]Alexander v The Queen (1981) 145 CLR 395 at 399; Domican v The Queen (1992) 173 CLR 555 at 561. See also Domican (No 3) (1990) 46 A Crim R 428 at 445; R v Clout (1995) 41 NSWLR 312 at 321; R v Stewart (2001) 52 NSWLR 301 at 333 [139]-[140].
Especially is this so because, as Heydon J has shown[69], the prosecutor at the trial, very properly, discerned the imperfections of the trial judge's directions to the jury on this issue. The prosecutor sought to explain to the trial judge the need for more explicit warnings to the jury as to the special caution they should observe in drawing conclusions adverse to the appellant by reference, for example, to the evidence of witnesses concerning the apparent similarity of items of clothing found much later at the appellant's home and the overalls and balaclava worn by the offender, remembered from the time the crimes were committed.
[69]Reasons of Heydon J at [234].
Despite the prudent interventions by the prosecutor in this respect, the trial judge did not subsequently provide the jury with supplementary directions of the kind the prosecutor correctly perceived to be necessary, so as to conform to the stringent standard stated in Domican v The Queen[70] and other cases. Given that such a reminder had been given by the prosecutor, explicitly, it was unnecessary (or at least inessential) that the same point should also have been made by the appellant's trial counsel.
[70](1992) 173 CLR 555 at 565-566.
I can put this issue aside because of the conclusion that I reach, on other grounds, that the appeal must be allowed. In any retrial of the appellant, it may be expected that, if like evidence of similarity between the items of clothing or personal appearance were adduced, the judge would give strong and clear warnings to the jury about the dangers inherent in the use of the identity and resemblance evidence.
However, because of the view that I take about the demonstration that took place in the appellant's trial (and also the conclusion reached in the joint reasons on those issues), the need for a strong warning about the use of demonstrations is unlikely to arise in a second trial.
Inadequate interlocutory reasons: Finally, I reach a similar conclusion in respect of the appellant's complaint concerning the suggested inadequacy of the trial judge's reasons for several of her rulings adverse to him[71]. On this issue, alike with the Court of Criminal Appeal[72] and with the joint reasons in this Court[73], I agree that the failure of the trial judge to give even brief and succinct rulings (if necessary later) on important questions, made during the hearing, amounted to "unsatisfactory features of the trial"[74].
[71]Joint reasons at [33]-[36].
[72](2006) 164 A Crim R 489 at 522 [272].
[73]Joint reasons at [33]-[36].
[74]Joint reasons at [33]; cf Mraz v The Queen (1955) 93 CLR 493 at 514; Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259-262; Dinsdale v The Queen (2000) 202 CLR 321 at 329 [21].
It is not necessary for me to elaborate these points. In the conclusion that I reach, there must be a retrial. In that retrial it can be expected that, if something more than the recorded exchanges between the judge and counsel is necessary and appropriate, the judicial obligation to give reasons for important rulings will be observed in the normal way.
The remaining issues: The foregoing reasoning brings me to the two remaining issues that I need to address. The first is the application to the demonstration of the common law rules that remain applicable because s 53 of the Evidence Act does not govern this case. The second is the resulting application of the "proviso" in s 6(1) of the Criminal Appeal Act, including to the erroneous exclusion at trial of the alibi evidence, pursuant to the Criminal Procedure Act 1986 (NSW), s 150. I turn to address these issues.
In-court demonstration: relevant but unfairly prejudicial
A new "relevance" issue: I now arrive at the point where I depart from the joint reasons. Those reasons[75] conclude that no issue about the lawfulness of a "demonstration" arises (whether under the Evidence Act or the common law). For the joint reasons, an anterior legal question is presented. This is whether what was done at the prosecutor's request was "relevant". The joint reasons conclude that this is the "determinative" question. Those reasons answer the question adversely to the prosecution. That answer is fatal to the reception of such evidence. The evidence should not have been received not because it was unfairly prejudicial to the appellant but because it was legally irrelevant to the issues arising in the appellant's trial.
[75]Joint reasons at [18]-[19].

I disagree with this analysis. Its only merit, as I see it, is that it obviates consideration of questions otherwise arising as to how Pt 2.3 of the Evidence Act (or the residual common law) would apply to the use of any "demonstration" actually carried out[76].
[76]Joint reasons at [32].
Rejection of irrelevance: There are several reasons why, in my view, this Court should not adopt the analysis embraced in the joint reasons.
First, it is not an argument that is raised in any of the appellant's grounds of appeal before this Court. To the contrary, as the relevant ground (ground 2.2), set out in the reasons of Heydon J, demonstrates[77], the appellant's objection to the demonstration before this Court was not made on the footing that such conduct proffered no relevant evidence for the consideration of the jury. His ground of appeal impliedly accepts that what the appellant was asked to do could be judged by the jury to be relevant to the critical issue for decision, namely the identification of the appellant as the offender. Instead, the attack in this Court, according to the applicable ground of appeal, was on the permissibility of the demonstration, measured on the footing that it was designed to elicit evidence that was relevant but unfairly prejudicial to the appellant.
[77]Reasons of Heydon J at [168].
This Court is a court of error. Under the Constitution, appeals to this Court are limited to correcting errors of the courts below[78]. The purpose of a constitutional "appeal" is to quell a controversy between the parties, brought to this Court for resolution[79]. Ultimately, unless an issue is raised on the record, as for example by a ground of appeal (or cross-appeal or notice of contention) or where the parties and the court agree to a relaxation of the rules so as to allow an issue to be raised more informally, there is no relevant controversy for the Court to quell. This Court does not enjoy a roving commission to create new grounds of appeal so that it might decide an appeal upon some basis about which no party is complaining.
[78]Mickelberg v The Queen (1989) 167 CLR 259 at 267; Eastman v The Queen (2000) 203 CLR 1 at 13 [18], 51 [158], 58 [178]; cf 76 [232].
[79]Singh v The Commonwealth (2004) 222 CLR 322 at 383 [152] per Gummow, Hayne and Heydon JJ. See also Batistatos v RTA (NSW) (2006) 226 CLR 256 at 280 [63] per Gleeson CJ, Gummow, Hayne and Crennan JJ.
This approach of this Court to its functions under the Constitution has been repeatedly stated by Justices of the Court, from early times to the present[80]. In effect, the judicial function that is enlivened in an appeal derives from the constitutional character of "matters" which can only be decided by federal courts. This does not prevent (although it may limit) judicial observations by way of obiter dicta on matters not strictly in issue but regarded as pertinent (and perhaps overlooked). It does not prevent this Court from permitting a party to amend and enlarge the grounds that it wishes to advance, although doing so in criminal appeals has been said to be exceptional[81]. Where obedience to the Constitution, as the fundamental law, is raised, from which the Justices derive their own authority, different questions may sometimes arise[82].
[80]Since at least In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-266.
[81]Gipp v The Queen (1998) 194 CLR 106 at 116 [24], 154-155 [136]-[138], 161 [164]; contrast 125-126 [55]-[56]; Crampton v The Queen (2000) 206 CLR 161 at 172 [14], 184 [51], 204-205 [116]-[117], 216-217 [156].
[82]Roberts v Bass (2002) 212 CLR 1 at 54 [143].
However, this is not a case where the question of the relevance of the demonstration evidence is considered in the joint reasons by way of obiter dicta. The appellant made no application to amend or enlarge his grounds of appeal to rely on what is now described as the "anterior question" of relevance. Nor are any constitutional questions presented that could possibly warrant treating the issue of relevance as one of fundamental obedience to law. Respectfully, therefore, I consider that the relevance argument does not fall to be decided. It is not a controversy before the Court that we are asked to quell.
Secondly, a question of procedural fairness is presented by the course taken in the joint reasons. Because the issue of relevance was not raised in the grounds of appeal, it was not addressed in the written submissions of the parties. In the respondent's submissions, the mention that is made of relevance is directed not to relevance, as such, but to whether the demonstration was identification evidence or not[83]. To the extent that it was mentioned at all in the appellant's oral submissions, this occurred but fleetingly and then in response to a question from the Court[84]. No application was made after the question to expand the grounds of appeal. It was not mentioned in oral argument by the respondent. In reply, the appellant returned to his invocation of s 53[85]. He made no reference to s 55 of the Evidence Act.
[83]cf joint reasons at [17].
[84][2007] HCATrans 368 at 1485-1510. See also at 1055.
[85]See [2007] HCATrans 368 at 2528.
It follows that no extensive treatment of the argument of relevance was ever placed before this Court. Nor do we have the considered opinion upon it of the Court of Criminal Appeal or of the trial judge, since it was not in issue, raised or argued there.
If this appeal were to be decided on the "anterior question"[86], an issue would arise as to whether the grounds of appeal require amendment. That issue would, in turn, raise questions as to whether any such amendment should be allowed at such a late stage in this litigation.
[86]See the joint reasons at [19].
I do not say that an amendment would necessarily be denied. However, bringing the record into a correct relationship with an issue belatedly perceived to be determinative is an obligation, ultimately, of the Court itself. Moreover, it is an obligation to be fulfilled with due respect to the requirements of procedural fairness to the opposing party which loses on a new point never earlier properly addressed. Leave to raise a new interpretation of the application of the Evidence Act might be granted, having regard to the broad view that this Court has taken of its powers in that respect[87]. But the correct procedural steps would have to be taken for otherwise there is no identified "controversy" that this Court can justly "quell". There is also a real risk of procedural unfairness to the losing party.
[87]Crampton (2000) 206 CLR 161 at 172 [14], 184 [51], 204-205 [116]-[117].
Thirdly, the fact that, despite the many experienced minds that have been brought to bear on the controversies of this case, no one previously has seen fit to raise an objection to the demonstration evidence on the grounds of relevance, is (or should be) reason enough for this Court to pause before embracing such a new approach for itself.
No one advanced such an argument at trial. It was not expressed in the grounds of appeal before the Court of Criminal Appeal. None of the judges of that Court (all of whom had substantial trial experience) raised the issue. This was so, although other arguments over the relevance of the clothing evidence were certainly addressed, as the reasons of Heydon J in this Court make plain[88].
[88]Reasons of Heydon J at [151]-[153]; cf Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1980) 144 CLR 300 at 303-304 (PC).
Because there is no further appeal from the decision of this Court in which a party disaffected may challenge novel legal or factual analysis, it is especially important to observe care and procedural niceties before embarking for the first time upon completely new analyses that may seem attractive.
Fourthly, the postulate of the "logically anterior question" embraced in the joint reasons[89] does not appear convincing when it is remembered that the test of "relevance", expressed in the Evidence Act, is an extremely broad one. Thus, s 56 of that Act states:
"(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible."
[89]Joint reasons at [19].
The foregoing tests are stated in all their generality for application to millions of questions asked every year in the great variety of cases to which the Uniform Evidence Acts apply. According to s 55(1) of the Evidence Act, the test for relevance requires no more than that the evidence "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". That test must necessarily be given an extremely broad ambit.
Other provisions of the Evidence Act reinforce the impression that the test of relevance is not a narrow or stringent one (see eg ss 57, 58). A broad interpretation alone is the one compatible with the purpose of the Act which is to aid the court process (effectively of quelling controversies brought to the court for that purpose, taking into account all evidence which has a bearing upon the questions in issue) rather than to delay or needlessly complicate the resolution of that process[90].
[90]See eg Clark (2001) 123 A Crim R 506 at 566-567 [111]-[112] per Heydon JA.
What is, or is not, relevant to an issue in proceedings is much more likely to be perceived by advocates and judges of trial than by an appellate court. Still more so than by the ultimate national appellate court, concluding for the first time for itself that an issue, which everyone else has considered to be relevant, is irrelevant.
I cannot say that this course could not properly happen. Indeed, in the experience of this Court it has already happened, at least once, in Smith v The Queen[91]. I disagreed with the approach on that occasion[92]. In this appeal, I have considered whether the circumstances of the case are sufficiently analogous to require me to suppress my objection to the course favoured in the joint reasons and to conform to it. However, questions of relevance are always highly fact-specific. No general rule could be laid down that was not anchored in the proof of the facts in issue in the particular proceeding.
[91](2001) 206 CLR 650. The approach in Smith "to read down the concept of relevance contained in s 55" has been criticised: Ligertwood, Australian Evidence, 4th ed (2004) at 56-57 [2.22]-[2.23].
[92](2001) 206 CLR 650 at 658-659 [21]-[24].
Many of the reservations that I expressed in Smith can therefore be repeated in this appeal[93]:
"[There are] reasons for caution in permitting a case to take on a completely new complexion, especially where the new point concerns the relevance of evidence. Questions of relevance raise the logical connection between proof of a propounded fact and a conclusion about a matter having persuasive significance for an issue for trial. Notions about the relevance of particular facts to ultimate conclusions in a trial can vary as between the parties, who may see the issues differently. Perspectives of relevance may also develop during the course of a trial as the issues become clearer, as immaterial issues fall away and as understandings of the applicable law become more certain. This is why appellate courts ordinarily defer to the rulings of trial judges about the issue of relevance. Such deference also rests upon a recognition of the fact that practical considerations usually require such rulings to be made on the run … Rulings as to relevance therefore depend substantially upon judicial impression. In the face of the fact that relevance is, in part at least, determined by impression, it is significant that neither the trial judge, nor the appellate judges nor counsel earlier perceived the evidence in question to be irrelevant. In now expressing an opinion about relevance, this Court has neither the advantages of an express ruling on the point by the trial judge nor analysis and opinion of the Court of Criminal Appeal."
[93](2001) 206 CLR 650 at 658-659 [23].
Every word in this extract applies to this appeal. Even more so because here the question of relevance did not arise (as in Smith) in a preliminary ruling, made before the trial evidence was adduced. Here, the question fell to be decided at an advanced stage in the conduct of the trial when the prosecution case had closed, when the appellant had given his evidence-in-chief and when the issues for the jury's verdict had been sharpened and clarified. It would be a bold decision for this Court to come to its own conclusion that the evidence proffered by the prosecution in the contested demonstration was irrelevant to the proof of a fact in issue (as distinct from unfairly prejudicial to the appellant or inadmissible on some other ground).
Fifthly, when one reflects on whether the evidence that the prosecutor was seeking to adduce could "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding", one such fact was clearly whether the appellant was the offender who had committed the crimes alleged. Relevant to that question was (to put it broadly) whether, when dressed in overalls and a balaclava; when walking in front of the jury; and when saying words ascribed to the offender at the scene, there were apparent similarities, in the jury's view, between the appearance and conduct of the appellant and the earlier evidence and descriptions given (or viewed on videotape) concerning the offender.
Of course, there were differences. Thus, there was no relevant sound of the offender on the videotape; the words he was asked to utter were not exactly those said by the witness Mrs Gleeson to have been mis-stated by the offender. The video and photographic stills lacked sharpness and clarity. The circumstances of the appellant sitting (on one estimate) for 10 minutes in the witness box were seriously unfair. But depending on what evidence the jury accepted, it cannot be said that the evidence was irrelevant to the obvious purposes for which it was proffered by the prosecutor. It was open to the jury to consider that all or some of the evidence was relevant to their decision. Dangerous, unfair, humiliating and prejudicial, yes. But irrelevant, no. Some of the most prejudicial evidence in a trial is that which is potentially most relevant in the opinion of lay jurors.
As in Smith, it is, in my view, a mistake to attempt to get the relevance test to do the work of excluding evidence such as that of the demonstration that took place in the appellant's trial. Such an approach would shift the debate of exclusion to unduly subtle preliminary argument. It would divert the decision-maker's mind from the real grounds provided by the law for exclusion of evidence which, although relevant, is unfairly prejudicial and to be excluded on that ground.
Addressing unfair prejudice: The foregoing are the reasons why I am unable to avoid the balancing test of probative value and prejudice presented by the demonstration. Attractive as such avoidance might seem, it is neither presented by the grounds of appeal as framed nor sound in principle or in law.
When I address the issues presented in the way that I regard to be correct (and as they were addressed below, and in the parties' real arguments before this Court) I nonetheless reach the same conclusion as that stated in the joint reasons. The Evidence Act did not apply to govern the demonstration. Instead, the common law principles applied. The conduct of demonstrations in court before a jury is subject to rules protecting the accused from unfair prejudice or from being engaged in conduct that is misleading, confusing, demeaning, prejudicial or unjust. In the context of a jury trial, such rules must be upheld by the trial judge.
It can be expected that, in Australia, in the future, the common law rules in this respect will develop in ways generally harmonious with the provisions of the Uniform Evidence Acts[94]. Those provisions acknowledge the broad powers enjoyed by trial judges to ensure the fairness, applicability and utility of demonstrations[95]. They direct attention to whether the demonstration will "assist the court in resolving issues of fact or understanding the evidence". They demand vigilance against "the danger that the demonstration … might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time" and the need to "properly reproduce the conduct or event to be demonstrated"[96]. All of these are considerations that are reflected in the common law principles that fall to be applied in this case.
[94]R v Swaffield (1998) 192 CLR 159 at 208 [121]; cf 193-194 [67]-[68].
[95]See eg Evidence Act, s 53(3): "Without limiting the matters that the judge may take into account in deciding whether to make an order …".
[96]Evidence Act, s 53(3)(b),(c) and (d).
With due respect to Heydon J, who has reached the opposite conclusion[97], it is my opinion that what the prosecutor required the appellant to do was a "demonstration" so far as the common law rules applying to in-court demonstrations are concerned. The prosecutor obliged him to dress up; to walk before the jury; and to say particular words. She did so for the manifest purpose of allowing the jury to draw their own comparisons between what they saw and heard for themselves and other available evidence relevant to the identity of the offender.
[97]Reasons of Heydon J at [223].
It is not correct to dismiss the prejudice to the appellant as insubstantial because of the fact that he was obliged to sit in the witness box for a relatively short time, measured against the duration of the entire trial, during part of which the jury's attention would have been distracted and focused on the objections being voiced by the appellant's trial counsel[98]. Counsel protested that what was happening was "totally improper" and "patently unfair". The duration of the demonstration is not the essence of the appellant's complaint. The complaint is that the prosecutor's questions made him sit, in the jury's presence, in a garb often associated with armed robberies; inescapably similar to the appearance of the offender shown on the video film and photographic stills; and necessarily looking sinister and criminal-like. Even if glanced at for a moment, such an image (like images of hijackers, terrorists and murderers in well-remembered films, documentaries and news broadcasts) would etch an eidetic imprint on the jury's collective mind. It is an image unfairly prejudicial to the appellant.
[98]Reasons of Heydon J at [185].
There have been cases where witnesses have been requested to engage in in-court demonstrations by revealing a particular part of the body, otherwise clothed[99]; providing a sample of handwriting; wearing a hat[100] or where they have otherwise been tested on some idiosyncratic spoken or written reproduction of particular words[101]. However, never in my experience has conduct in which the accused person has been asked to engage come close to the serious prejudice to which the appellant was subjected by the questioning by the prosecutor and the demonstration that she led him to perform in his trial.
[99]cf Sorby v The Commonwealth (1983) 152 CLR 281 at 292; Bulejcik v The Queen (1996) 185 CLR 375 at 380-381.
[100]R v Kirby [2000] NSWCCA 330.
[101]R v Voisin [1918] 1 KB 531; Bulejcik (1996) 185 CLR 375 at 381.
When cases come before this Court, we must look beyond the instant case. We must examine what has happened recently against the standard of what will occur if, condoned, it becomes a general rule. In Livermore v The Queen[102], the Court of Criminal Appeal in New South Wales addressed what it saw as repeated instances of Crown Prosecutors making extravagant and improper submissions in closing which, the Court said, caused it to "[think] that [its] repeated condemnation … appears to have fallen on deaf ears". In Livermore, the conduct of concern was the content of the prosecutor's closing address to the jury. Here, there is no complaint of such a kind. Indeed (as I have shown) the prosecutor in her closing observations attempted to assist the trial judge to provide directions to the jury on identification and resemblance evidence that were legally accurate and protective of the appellant.
[102](2006) 67 NSWLR 659 at 669 [44].

These directions were correctly criticised by the Court of Criminal Appeal on grounds which it is unnecessary to repeat[216]. The criticisms were not criticisms made by defence counsel when the judge was hearing submissions about further directions after the close of the summing up. In this Court counsel for the accused made a broad ranging attack on these directions. The first criticism was that the trial judge's statement that she was giving the directions because she was required to and not because of any view of the facts she had formed weakened her directions[217]. The second was that the conventional identification warning had not been given. Neither of these are points of criticism identified by ground 2.3. A third criticism was that strong warnings are needed where claims of similarity are made in relation to voices[218], clothing[219] or objects[220]. None of these three criticisms grounded any request by defence counsel for a further direction at the close of the summing up; indeed he made no request for a further direction of any kind. Prosecution counsel, however, did draw attention to the trial judge's failure to give a "resemblance warning" about what the eyewitnesses said about the balaclava and the overalls – the matter she had suggested as desirable in the debate before the summing up. The transcript records the following after the jury were asked to retire:
[216]Evans v The Queen (2006) 164 A Crim R 489 at 515 [211], 516 [218] and [220] per James J (Hidden and Hoeben JJ concurring).
[217]Citing R v Stewart (2001) 52 NSWLR 301 at 333 [139]-[140].
[218]Citing Bulejcik v The Queen (1996) 185 CLR 375.
[219]Citing R v Lowe (1997) 98 A Crim R 300 at 317; R v Kirby [2000] NSWCCA 330 at [52]-[69].
[220]Citing R v Clout (1995) 41 NSWLR 312 at 320-322; R v Whalen (2003) 56 NSWLR 454 at 467-468 [46]-[51].
"CROWN PROSECUTOR: One further direction.
HER HONOUR: About the editing, that one?
CROWN PROSECUTOR: No, about the resemblance evidence of the civilian witnesses concerning Exhibits M and O, your Honour hasn't given the direction concerning special caution in respect of that evidence."
The jury then left the court, and the debate continued thus:
"CROWN PROSECUTOR: Your Honour has referred to it generally in terms of the witnesses' descriptions of what the offender was wearing and carrying, in context of the special caution direction, but your Honour did not specifically include a reference to their evidence about Exhibits M and O. When they were shown them.
HER HONOUR: You mean the sort of – where I think Mr Marszalek – are you thinking of his sort of answer?
CROWN PROSECUTOR: All of their answers in –
HER HONOUR: All of the evidence in relation to?
CROWN PROSECUTOR: They all generally said, if I can use the expression, resembled.
HER HONOUR: It resembled.
CROWN PROSECUTOR: With what the offender was wearing. They each said varying things about the items, and we agreed that was to be referred to as resemblance evidence, and my suggestion is that your Honour needs to say that that special caution that you have given applies to that evidence as well.
HER HONOUR: Applies especially to the evidence that each of them gave about – Did you want to say something?
[DEFENCE COUNSEL]: My understanding of the caution your Honour did give was applied to the descriptions of the person, and apparel, that is as I heard the caution your Honour gave, it was applicable to both the description of the person and the apparel.
HER HONOUR: Even if I didn't specify, I certainly had in mind. Well I think I would have had in mind both. Put it that way.
[DEFENCE COUNSEL]: Your Honour did say apparel.
HER HONOUR: You don't have any difficulty, do you, if I have them back in and I will just tell them that the – particularly the caution that related to the balaclava and the overalls."
In fact there is nothing to suggest that the trial judge did thereafter give any "caution that related to the balaclava and the overalls".
Contrary to a submission made by counsel for the accused in this Court, the Court of Criminal Appeal was correct to say that in that passage counsel for the accused "did not support and actually opposed" prosecution counsel's submission[221].
[221]Evans v The Queen (2006) 164 A Crim R 489 at 514 [207] per James J (Hidden and Hoeben JJ concurring).
The relevant course of events before the summing up, then, was that prosecution counsel suggested a "resemblance warning" akin to an "identification warning", and raised the question of a s 165 warning; defence counsel asked for "the usual warnings" without saying what they were, and did not make any request for a s 165 warning. After the summing up, prosecution counsel reminded the trial judge of the need for a "resemblance warning" about what the eyewitnesses said about Exs M and O, but defence counsel twice indicated it was not necessary. Even though the trial judge said she would give it and did not, the failure of defence counsel to press for it after prosecution counsel raised the point, and thereafter to remind the trial judge of her failure to fulfil her promise that she would comply with prosecution counsel's request, disables counsel for the accused now from saying that the failure to give the two warnings which it is now said should have been given amounted to a miscarriage of justice. To examine witnesses by reference to the balaclava and overalls in the manner employed in this case, though permissible, is not a particularly common event. To ask the accused to don the items, walk before the jury and speak as requested is less common. On the other hand, the difficulties of drawing inferences from mass produced items are fairly obvious, and were stressed by counsel for the accused in address. The jury must have appreciated the diverse reactions of the eyewitnesses to the offender's clothing. Further, the events to which the two warnings which it is said should have been given related took up very small amounts of time – a miniscule fraction of the whole trial. Rather than asking for unspecified "usual warnings", it was incumbent on the defence, if it was thought the unusual nature of the events called for specific directions, to formulate the precise words of any direction sought and either read them to the judge at dictation speed or hand up a document containing them. What McHugh JA said of civil jury trial is true for criminal cases as well[222]:
"If a party is to rely as a ground of appeal on a misdirection in a summing-up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give."
The conduct of defence counsel, who at all times showed a vigilant determination to protect his client's interests as energetically as possible, suggests that he did not see his client's position as being damaged by the summing up, that he considered that the prosecution counsel's request might not advance it, and that he did not think his client's position would be improved by the very subtle and detailed warnings which it was submitted to this Court should have been given.
[222]Singleton v Ffrench (1986) 5 NSWLR 425 at 440.
Ground 2.4: failure to give reasons
This ground was:
"The Court of Criminal Appeal erred in:
(a)Inferring reasons for judgments of the trial judge in circumstances where on applications of substance, there were no such reasons given;
(b)Failing (as a matter of procedural fairness) to uphold the appeal in circumstances where on applications of substance there were no reasons given by the trial judge;
(c)Holding that there was no error in the reasons of the trial judge where no reasons were ever given by the trial judge and those reasons were rather, the reasons that the Court of Criminal Appeal had itself inferred."
Counsel for the accused submitted that the trial judge failed to give reasons or gave only incomplete reasons for:
(a)overruling the defence objection to the questioning of Mrs Thompson about the balaclava and the overalls;
(b)deciding not to rule inadmissible all the evidence given about the balaclava and the overalls, the items themselves, and their finding at the accused's residence;
(c)deciding to grant leave to the prosecution to amend the indictment;
(d)deciding to refuse to waive the notice requirements relating to alibi evidence and to refuse to allow evidence of alibi;
(e)deciding to overrule objections to the accused being made to wear the balaclava, the sunglasses and the overalls, to walk up and down and to say "serious";
(f)refusing to give an identification direction either under s 116 of the Act; or s 165 and
(g)refusing an application to discharge the jury.
Counsel for the accused submitted of these failures: "The rulings ... were central to the trial and the failure to give reasons, despite repeated request[s], pervaded the entire trial." In assessing the meaning and validity of this submission, the following matters are relevant.
First, counsel for the accused does not now complain, and did not complain in the Court of Criminal Appeal, about the grant of leave to amend and the refusal to discharge the jury. The failure to give any reasons for the grant of leave or to give full reasons about the discharge application may thus be left out of consideration.
Secondly, the Court of Criminal Appeal found that the trial judge had erred in relation to the alibi question and the sunglasses. The failure to give reasons for these rulings could scarcely improve the accused's position on these issues in this Court.
Thirdly, of the remaining rulings, reasons were not sought by defence counsel in relation to the ruling about Mrs Thompson, the rulings about the accused wearing, doing and saying various things, or the identification directions. The only remaining ruling for which reasons were sought and promised was the decision not to hold inadmissible all the evidence given by eyewitnesses about Exs M and O, the exhibits themselves, and the circumstances of their finding.
Fourthly, it is very unusual for trial judges to give reasons, beyond what they say in dealing with argument, about why they propose to give some directions to the jury but not others. It is not generally desirable to require them to go further.
There are innumerable rulings given in trials in response to objections for which reasons should normally neither be requested nor given – those relating to the form of questions, those relating to their capacity to elicit inadmissible evidence, those relating to their tendency to infringe privilege. Sometimes reasons for rulings on relevance and privilege should be given, because they offer a guide to counsel in their future conduct, and the time lost in giving the ruling is outweighed by the time saved in ensuring future compliance with it. But if reasons were to be given for every ruling, trials would become interminable. Although no trial is perfect, if the present trial had any significant fault, it was the lengthy periods which the trial judge permitted counsel to take up in debating questions of admissibility.
The Court of Criminal Appeal criticised the failure of the trial judge to give reasons for some of her rulings. That criticism was correct, at least in cases where defence counsel requested reasons and they were promised. However, the Court of Criminal Appeal held that the failure to give reasons was not "such a fundamental procedural irregularity as to warrant setting aside the [accused's] convictions"[223]. This was because, as the Court of Criminal Appeal correctly said, the relevant applications were usually argued at length, so that the evolving views of the trial judge were apparent from what she said in argument[224].
[223]Evans v The Queen (2006) 164 A Crim R 489 at 522 [272] per James J (Hidden and Hoeben JJ concurring).
[224]Evans v The Queen (2006) 164 A Crim R 489 at 522 [272] per James J (Hidden and Hoeben JJ concurring).
In criticising this reasoning, counsel for the accused cited several authorities. But, leaving aside cases concerning trials by judge alone, where statute may compel the giving of reasons[225], the cases cited all turn on the need for reasons in relation to final orders, like a sentence[226], an increased sentence[227], an order denying an entitlement to workers' compensation[228] and an order awarding damages[229]. It is in that type of case where the primary purposes for giving reasons have operation – to enable the parties to see whether their arguments have been understood and what the decision is based on, to further judicial accountability, and to ascertain how cases will be decided in future[230]. Counsel for the accused did cite cases indicating that reasons must be given where "that is necessary to enable the matter to be properly considered on appeal"[231]. Although many rulings on evidence or other interlocutory rulings in criminal jury trials are unlikely to form the basis of an even faintly arguable appeal, in relation to significant rulings, where a request for reasons is made, at least brief reasons should be given. But where the purpose of the reasons is to enable appellate courts to consider the appeal properly, if that purpose can be achieved in other ways, as where the course of argument makes the reasons plain, the failure to give reasons, though erroneous, will not constitute a miscarriage of justice. That was the case here. It cannot be said that the objections or applications made by defence counsel were peremptorily dismissed without being admitted to her Honour's mind. She gave full opportunity for the arguments to be developed.
[225]Fleming v The Queen (1998) 197 CLR 250; R v Murphy [2000] NSWCCA 297.
[226]R v Thomson (2000) 49 NSWLR 383 at 394 [42] per Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ concurring); Harris v The Queen (2005) 158 A Crim R 454 at 459 [22] per Studdert J (Grove and Whealy JJ concurring).
[227]Dinsdale v The Queen (2000) 202 CLR 321 at 329 [21] per Gaudron and Gummow JJ.
[228]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA.
[229]Carlson v King (1947) 64 WN (NSW) 65 at 66 per Jordan CJ, Davidson and Street JJ (failure to comply with counsel's request to note points of law); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
[230]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 per McHugh JA.
[231]Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666 per Gibbs CJ (Wilson, Brennan and Dawson JJ concurring); see also Carlson v King (1947) 64 WN (NSW) 65 at 66 per Jordan CJ, Davidson and Street JJ; Pettitt v Dunkley [1971] 1 NSWLR 376.
It was contended for the accused that the Court of Criminal Appeal erred in failing to uphold the appeal on grounds of procedural fairness and erred in inferring the reasons for the rulings from what was said in argument. One thing that matters is whether the rulings were correct: they were. Another thing that matters is that miscarriages of justice be avoided, as distinct from procedural errors which are regrettable but do not cause any miscarriage of justice. The failure to give reasons can be procedurally unfair, but procedural unfairness is not to be looked for in the air: counsel for the accused in this Court failed to demonstrate how either his predecessor or their client was in any way worse off because of the failure to give reasons in this case.
Counsel for the accused submitted:
"The approach adopted of 'inferring reasons' puts intolerable burdens on courts of appeal and leaves litigants unable to properly present their cases on appeal. The procedure adopted at trial and on appeal denied procedural fairness to the [accused]. A miscarriage of justice was thereby occasioned."
The first sentence is correct in some circumstances, but was not shown to be correct in the circumstances of this trial. For that reason the conclusions in the second and third sentences do not follow.
Ground 2.5: the proviso
This ground was:
"The Court of Criminal Appeal erred in applying the proviso notwithstanding that it upheld the [accused's] complaint in relation to:
(a)The prosecutor requiring the [accused] to put on the prosecutor's 'old skiing glasses' which had not been admitted into evidence, had not been shown to any witness and which were produced for the first time when the prosecutor asked the [accused] to put them on ...
(b)The error identified ... in refusing to waive the notice requirements relating to alibi evidence and the refusal to allow alibi evidence in the trial."
The arguments of the accused in this Court concentrated on the alibi evidence[232], and practically nothing was said about the sunglasses. It is necessary to approach the question of the proviso to s 6(1) of the Criminal Appeal Act on a slightly wider basis than the Court of Criminal Appeal did because it was concluded above that, apart from the two respects in which the Court of Criminal Appeal favoured the accused, an irregularity possibly amounting to a miscarriage of justice took place when the accused responded to prosecution counsel's request to put on the balaclava and sat with it on for some minutes in the presence of the jury while an objection was being debated[233].
[232]For the Court of Criminal Appeal's reasoning, see Evans v The Queen (2006) 164 A Crim R 489 at 516-519 [222]-[242], 523-524 [284]-[288] per James J (Hidden and Hoeben JJ concurring).
[233]See above [185].
The accused's alibi evidence. The accused said during examination in chief that he could not remember where he was on the afternoon of 28 February 2002, save that he was not at Strathfield. He said it was his practice on Thursdays to prepare limousines for display from 5pm in his brother's car hire business at Campbelltown. This took him from 2 or 3pm to 5pm. After an adjournment, prosecution counsel submitted that the accused's alibi evidence had been given without complying with s 150 of the Criminal Procedure Act 1986 (NSW), which requires the leave of the court where notice has not been given. Counsel said she would cross-examine him about the evidence he had given, but would object to alibi evidence from other witnesses. The cross-examination in question was not directed to establishing that the practice about which the accused had testified did not exist. Instead it was directed, successfully, to establishing that there were no records to confirm that the accused had worked in accordance with his practice on that particular afternoon, and no evidence available from anyone working in nearby businesses to that effect.
The alibi ruling. The trial judge refused to grant leave "retrospectively" to rely on alibi evidence, and refused leave to call evidence about alibi from the accused's father and brother. But she did not strike out the accused's evidence. Contrary to a submission advanced on behalf of the accused the Court of Criminal Appeal was right to say that the evidence which the accused gave in support of the alibi "was not withdrawn from the jury"[234]. Indeed, although neither counsel addressed the jury about the accused's evidence of practice, both referred to his evidence that he was not at Strathfield.
[234]Evans v The Queen (2006) 164 A Crim R 489 at 523 [287] per James J (Hidden and Hoeben JJ concurring).
The evidence of the accused's brother and father. The accused's brother gave evidence on various topics. But, conformably with the trial judge's refusal of leave to call alibi evidence, defence counsel elicited none. The same approach was taken with the father.
The summing up. In her summing up the trial judge said:
"The accused ... has given evidence himself and he's also called evidence, that is his father and his brother in support of his case, to the effect to support his denial of his being present and committing the offence ..."
It was not correct to say that the father and brother had given evidence to support the accused's denial of being present. They had testified, but the trial judge had ruled that they could not give evidence on that particular point.

The uncalled evidence of the father and the brother. In an affidavit read to the Court of Criminal Appeal, the father said that the accused had the task of preparing five cars for display outside the brother's shop on Thursdays, usually starting just after lunch and finishing between 4 and 5pm. He did not recall the accused ever missing a day's work. An affidavit by the brother was to similar effect, save that he said the work took the accused five hours, and that he did not recall the accused having any breaks or not turning up for work.
The accused's submission. Counsel for the accused submitted that the "defence case" was that the accused's practice on Thursdays was to work in his brother's business at Campbelltown at times inconsistent with being at Strathfield at 4.10pm. While the accused gave evidence supporting that case, he was prevented from putting it fully because he could not call his father and brother to support that practice. For that reason, it was submitted, the appeal fell within the following words in Weiss v The Queen[235]:
"[T]here may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind."
It was also submitted that the errors amounted to "such a serious breach of the presuppositions of the trial as to deny the application" of the proviso[236]. Thus, it was submitted, it did not matter how strong the other evidence against the accused was: the proviso could not be applied. If that argument were to fail, the question would be whether the evidence which the trial judge did not permit the accused to call could have raised a reasonable doubt about the prosecution case.
[235](2005) 224 CLR 300 at 317 [45] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
[236](2005) 224 CLR 300 at 317 [46] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Conclusion. There was extremely strong evidence against the accused, even assuming that no connection between the offender's balaclava and overalls and the accused was proved. The evidence was that before the robberies the floor of the chambers was clean. The surveillance video, and the sequence of photographs derived from it, showed that there were no items on the floor in front of the counter as the offender was standing there at 16.09:35, and that by 16.09:45 two items appeared in that area. One is clearly a tissue. Although there plainly is a second item, it is more difficult to discern. The inescapable inference is that the items were dropped by the offender. The area was cordoned off so that the items were not disturbed. They were photographed in situ and those photographs, taken close up and in colour, clearly depict a green baseball cap. In his final address to the jury, counsel for the accused said that the photographs appeared to show two items on the floor, and said: "One is probably the tissue and the other is probably the cap." In addition, after the robberies, three witnesses saw a green baseball cap on the floor. That cap – the cap photographed in the cordoned-off area – had the accused's DNA on it. Finally, when the cap was shown to the accused in the witness box, he said it was "vaguely familiar" and that his father may have had a hat like that. His father said that he had won similar caps, he had left them in the garage of the house where the accused resided, and that anyone could wear them.
In this Court it was submitted for the accused that "there was no evidence at the trial that the robber dropped more than one item or specifically a cap". That submission is true if it means that there was no direct testimonial evidence to that effect. In every other sense it is untrue, because the video, the photographs, and the testimonial evidence established beyond doubt that the offender left the cap behind him.
In those circumstances, what explanation for the presence of the cap with its incriminating DNA could be offered to suggest a reasonable doubt about the accused's guilt? In his final address to the jury counsel for the accused submitted that the cap was deliberately placed on the floor by the offender with DNA other than his own on it – that is, that false evidence was planted. This implies that the offender deliberately obtained a cap with the accused's DNA on it. If the evidence had not been planted, the only explanation capable of raising a reasonable doubt is that the cap left by the offender had, by accident, the accused's DNA on it. There is no evidentiary basis for treating either of these suggestions as possibilities, let alone reasonable possibilities. They are utterly implausible. The theory that the accused's DNA found on the cap could have been deposited there by transference of blood, semen or saliva, rather than from contact with the accused's skin faces the difficulties that there was no evidence of staining on the cap, that the DNA was found on the inside brim area, where one would expect to find it if it were worn facing forward, and that, in the words of the relevant defence expert, there "was a bucket of DNA present".
In short, the defence's "explanation" for the presence of the accused's DNA on the cap has no evidentiary support. It goes no distance towards raising a reasonable doubt.
The parties advanced, in written submissions filed by leave after the oral hearing, complex and detailed analyses of the law relating to the proviso. In the circumstances it is not necessary to set out and evaluate these submissions.
The "procedural fairness" which counsel for the accused contends he was denied was an opportunity to call vague evidence of practice in relation to a specific day more than two years before the trial, by way of confirmation of his own evidence to that effect. His own evidence to that effect had not been challenged in cross-examination: all that the cross-examiner did was establish a lack of business records and a lack of useful information from inquiries. Not only was the alibi defence, as put both by the accused in his evidence and by his father and brother in their affidavits, vague: it was also weak – going only to practice more than two years earlier, not to a specific recollection of being present at a place other than Strathfield. The trial judge's failure to permit a full deployment of the defence is not the "significant" procedural unfairness spoken of in Weiss v The Queen. Nor is it "a serious breach of the presuppositions of the trial"[237].
[237]Compare the passages quoted above at [256] from Weiss v The Queen (2005) 224 CLR 300 at 317 [45]-[46].
As for the sunglasses, the trial judge's error was trivial, since the jury knew they were prosecution counsel's old ski glasses and had nothing to do with the accused.
The Court of Criminal Appeal was right to apply the proviso in relation to the two respects in which it accepted defence arguments. The conclusion that there was one further irregularity does not alter the correctness of that conclusion in view of the fact that that irregularity was not serious[238]. Indeed, whether it is to be characterised as a miscarriage of justice within the meaning of the main part of s 6(1) of the Criminal Appeal Act at all need not be considered; for even if it were, it was certainly not "substantial", and the proviso applies.
[238]See above at [185].
Order
The appeal should be dismissed.
CRENNAN J. I agree with Heydon J that the appeal should be dismissed and I agree with his Honour's reasons.
The evidence of the accused referred to as evidence of an alibi was not evidence of an actual recollection of being elsewhere than at Strathfield on the afternoon of 28 February 2002. Rather, it was evidence of a practice of the accused to attend his brother's business at Campbelltown on a Thursday for a period of time inconsistent with being at Strathfield at 4.10 pm. The evidence of the accused's father and brother which was not called supported the accused's evidence of the practice. The accused was not challenged in cross‑examination about the practice. Neither prosecution counsel nor defence counsel addressed the jury about the accused's evidence of his practice which went to the jury.
When those matters are considered together with other evidence described by Heydon J as "extremely strong evidence against the accused"[239], the errors complained of did not amount to "such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso"[240].
[239]See above at [257].
[240]Weiss v The Queen (2005) 224 CLR 300 at 317 [46] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ. (footnote omitted)