JB v The Queen [No 2]

[2016] NSWCCA 67

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	JB v R (No 2) [2016] NSWCCA 67
Hearing dates:	16 September 2015
Date of orders:	29 April 2016
Decision date:	29 April 2016
Before:	Hoeben CJ at CL at [1] Adams J at [129] McCallum J at [137]
Decision:	(1)   The appeal against conviction is allowed. (2)   The conviction for the murder of Edward Spowart is quashed. (3)   That a verdict of acquittal be entered in favour of JB.
Catchwords:	CRIMINAL LAW – murder which occurred on 21 April 2008 – referral to Court of Criminal Appeal under s 79 Crimes (Appeal and Review) Act 2001 – concession by Crown that appeal must succeed and conviction be quashed – whether verdict of acquittal or retrial should be ordered – undertaking by Crown not to call a compromised witness on retrial – evidence of that witness very important in original trial – whether remaining evidence capable of proving applicant guilty of murder – detailed analysis of evidence likely to be called at retrial – evidence unlikely to establish guilt of applicant – verdict of acquittal entered.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) – s 15A Crimes (Appeal and Review) Act 2001 (NSW) - s 78, s 79 Criminal Appeal Act 1912 (NSW) - s 6(1), s 8(1) , s 79(1)(b)
Cases Cited:	Conway v R [2002] HCA 2; 209 CLR 203; 186 ALR 328; 76 ALJR 358 Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317 Gilham v R [2012] NSWCCA 131; 224 A Crim R 22 Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 JB – Application for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (Supreme Court of NSW), R A Hulme J, 20 November 2014, unreported JB v R [2012] NSWCCA 12; 83 NSWLR 153 JB v The Queen [2013] HCA Trans 28 JB v R [2015] NSWCCA 182 JB v The Queen [2013] HCA Trans 28 Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 Justins v Regina [2010] NSWCCA 242; 204 A Crim R 315 King v The Queen [1986] HCA 59; 161 CLR 423 Mallard v The Queen [2005] HCA 68; 224 CLR 125 Parker v The Queen [1997] HCA 15; 186 CLR 494 R v RWB [2002] NSWCCA 504 R v Thomas (No 3) [2006] VSCA 300; 14 VR 512 R v Wilkes [1948] HCA 22; 77 CLR 511 R v Wilton (1981) 28 SASR 362; A Crim R 5 Spies v The Queen [2000] HCA; 201 CLR 603 The Queen v Taufahema [2007] HCA 11; 228 CLR 232 The Queen v Carroll [2002] HCA 55; 213 CLR 635
Category:	Principal judgment
Parties:	JB – Applicant Regina – Respondent Crown
Representation:	Counsel: Mr T Game SC/Ms G Bashir SC – Applicant Mr J Pickering SC – Respondent Crown   Solicitors: Giddy & Crittenden - Applicant Solicitor for Public Prosecutions - Respondent Crown
File Number(s):	2009/0802
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: [2010] NSWSC 543 Date of Decision: 21 May 2010 Before: Latham J File Number(s): 2009/0802

Judgment

1. HOEBEN CJ at CL:

Procedural background

JB cannot be named because he was a child at the relevant time (s 15A Children (Criminal Proceedings) Act 1987 (NSW)). He was found guilty by a jury on 10 September 2009 of the murder of Edward Spowart in the early hours of 21 April 2008. JB was unsuccessful in appealing against his conviction to the Court of Criminal Appeal (JB v R [2012] NSWCCA 12; 83 NSWLR 153). He was unsuccessful in seeking special leave to appeal to the High Court of Australia (JB v The Queen [2013] HCA Trans 28).

2. Application was then made on behalf of JB pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction for murder. JB sought referral of the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) pursuant to s 79(1)(b).

3. The application pursuant to s 78 was based upon material discovered subsequent to the exhaustion of the avenues of appeal. It related to the evidence of an important prosecution witness in JB’s trial. The matter was referred to R A Hulme J for consideration on 13 November 2014. His Honour decided that there should be a referral and gave his reasons on 20 November 2014.

4. The reasons for his Honour’s decision were relevantly as follows:

“7   There is no need to review in any detail the evidence in the trial or the manner in which the Crown and defence cases were put. It is sufficient to say that a significant aspect of the Crown case was the contention that the applicant made admissions at a police station following his arrest. The admissions were said to have been made to a support person, A107, who was present because the applicant was a vulnerable person because of his age (he was 15). The Crown relied upon other aspects arising from the evidence but its case was put to the jury on the basis that a verdict of guilty could be returned on the evidence of the alleged admission alone.

8   The Attorney General concedes that there should be a referral. The written submissions succinctly set out three broad issues revealed by the material:

“First, there was non-disclosure of material by the Crown Prosecutor and instructing solicitor from the Office of the Director of Public Prosecutions (ODPP) at the trial to the defence. It was not known to the applicant nor disclosed to his defence counsel during the trial that a prosecution witness at the applicant’s trial, A107, whose evidence as to admissions made to him by the applicant formed a central plank of the prosecution case, was at the time of the alleged admissions a registered police informer. This non-disclosure was in circumstances where the Crown case at trial was that A107 was acting as a support person for the then 15 year old applicant at the time the alleged admissions were made.

Although typed notes of the conference attended by A107, the Crown prosecutor and the ODPP instructing solicitor on 27 July 2009 were served on the applicant’s legal representatives and became Exhibit C on the voir dire concerning the admissibility of the admissions, these typed notes appear to have been edited as they did not include any reference to A107 stating that he was a police informer. (It is noted that this information was not known to prosecution counsel in the applicant’s appeal to the CCA, nor in his special leave application to the High Court, at the time of either of those proceedings.)

Secondly, there was non-disclosure of material by police. It was not known to the applicant nor his defence counsel, nor the ODPP, that was given an affidavit of assistance by a Chief Inspector of Police prior to the trial, which was tendered before Parramatta Local Court at A107’s sentence hearing for two offences against s 178BB(1) of the Crimes Act 1900. That affidavit of assistance included a reference to the assistance provided in relation to the applicant’s matter. Furthermore, police officers gave evidence of their conversation with A107 during the trial without disclosing his true status as an informer.

Thirdly, the applicant’s solicitor had an undisclosed conflict of interest. It was not known to the applicant nor his defence counsel (including on appeal) that the applicant’s solicitor at the applicant’s trial, Robert Kaufmann, who had commenced to act for the applicant from the time that the applicant was charged, was already acting at that time for A107 in respect of the fraud offences. Mr Kaufmann continued to act for A107 until finalisation of A107’s sentence proceedings for the fraud offences at which the affidavit of assistance was tendered, even though he was acting for the applicant during the same period. He continued to act for the applicant for the duration of the applicant’s trial and the applicant’s appeal to the CCA.””

5. The matter came before this Court for hearing on 24 March 2015. On that occasion, the Court quashed the conviction of JB and continued bail on the same conditions except that conditions 4 and 17 were deleted and condition 1 was varied to require him to report to the OIC at Mount Druitt each week on Mondays and Fridays between 6am and 8pm. On 16 September 2015 bail was made unconditional.

6. Although the Court expressed a preliminary view that the real issue before it was whether a verdict of acquittal should be entered, or a retrial ordered, that issue was not dealt with except in general terms. The issues argued before the Court were whether the Commissioner of Police should produce to the parties certain material relating to A107 and whether the claim for legal professional privilege by the Crown in respect of redactions in documents produced by it could be maintained. Judgment and rulings on those issues were handed down on 10 July 2015 (JB v R [2015] NSWCCA 182).

7. It should be noted that on 24 March and 10 July 2015 the Crown reiterated its position that it sought a retrial but that in any retrial no evidence would be adduced as to any admissions made by JB to A107.

8. On 10 July 2015 the Court again expressed its preliminary view that the real issue before it was whether in those circumstances there was sufficient evidence available to the Crown which was capable of establishing beyond reasonable doubt that JB had murdered Edward Spowart. In accordance with that approach, the Court directed that the Crown provide a case statement which set out with particularity the evidence on which it would rely to establish its case against JB.

9. The Crown complied with that direction and a document dated 30 July 2015 was filed and served. In fairness to the Crown, it should be noted that the Crown did not do so with any enthusiasm and qualified the contents of the document as follows:

“3 This Court stated that on the next occasion the matter was before the Court the actual grounds of appeal (and the disputes that exist within them) would not be considered by the Court nor would the fresh evidence or the examination of witnesses but rather the question of s 8(1) would be considered.

…

5 There may still be some difficulties with the approach directed by this Court to consider s 8(1) prior to the grounds of appeal, as it is likely that the appellant would have liked to rely on the fresh evidence to seek to undermine the evidence in the future trial and the respondent also would have liked to have led additional evidence to dispute such claims through the affidavits it seeks to read and to establish that it has not impacted on the cogency of the evidence in any future trial.”

10. This Court heard submissions from the parties as to whether there was sufficient evidence to justify an order for a retrial pursuant to s 8(1) of the Criminal Appeal Act 1912 on 16 September 2015. This judgment relates to that issue.

11. The murder of Mr Spowart occurred on 21 April 2008. JB was then aged 15 having been born in September 1992. JB was convicted of the murder of Mr Spowart on 10 September 2009 after a trial lasting approximately one month. Included on the indictment at trial was the charge that JB had attempted to murder Firoz Mohammed. The jury entered a verdict of acquittal in relation to the attempted murder charge. On 21 May 2010 JB was sentenced to imprisonment with a non-parole period of 16 years, commencing 22 April 2008 and expiring 21 April 2024, with a balance of term of 7 years expiring 21 April 2031. On 19 December 2013 JB was granted bail having been in custody for 6 years and 8 months.

12. The position initially adopted by JB (written submissions of 20 February 2015) was that the concessions of the Crown did not relieve this Court “of its statutory duty to deal with the whole case” (Mallard v The Queen [2005] HCA 68; 224 CLR 125 at 131 [10]). He submitted that it was necessary for this Court to look at the whole case, including the fresh and new evidence, in order to discharge its obligation in that respect. He submitted that the issues raised by the case went beyond the concessions by the Crown and that the appeal raised important matters of principle regarding disclosure, the prosecutorial duty of fairness, the position of support persons for young people, the position of informers, the obligations of solicitors to their clients and the duty of legal practitioners to the court and to their clients where a potential conflict of interest arises (written submissions [15]).

13. By 16 September 2015 the position of JB had changed, at least to the extent that he was prepared to argue and did argue the appeal on the more limited basis that there was insufficient evidence to justify an order for a retrial, pursuant to s 8(1) of the Criminal Appeal Act 1912.

14. While I accept that had I reached a different conclusion in relation to s 8(1) the further matters raised by JB in the appeal may well have been relevant to that issue, I have concluded that such an analysis is not required. This is because I have concluded that the evidence of the Crown, absent that of A107, is not capable of establishing beyond reasonable doubt that JB murdered Edward Spowart.

Crown case and factual background

15. The following summary is based on the evidence at trial (absent the evidence of A107 upon which the Crown no longer relies), the Crown case statement of 30 July 2015 and the oral submissions of the Crown of 16 September 2015. Unavoidably it has been necessary to set out some of this material in considerable detail.

16. The Crown case is that JB stabbed the deceased in the early hours of the morning of Monday, 21 April 2008, on a grassed verge on the northern side of Memorial Drive, Granville during an altercation between members of JB’s group and members of the deceased’s group. As occurred at the trial, to establish that case it would be necessary for the Crown to call evidence from members of both groups as eye witnesses to the affray.

17. The Crown case against JB is that he became involved in an earlier incident with the deceased’s group in which there was a verbal and physical confrontation. This initial dispute resulted in JB and his friends fleeing from the deceased’s friends. It also resulted in JB becoming very upset, angry and wishing to exact some level of revenge on the deceased’s group. As at trial, the Crown would rely upon this as evidence of JB’s motive to arm himself and become involved in the later affray which led to the murder of the deceased.

18. It is the Crown case that on this later occasion there was a violent confrontation between JB’s group (some of whom had by then armed themselves) and the deceased’s group. The Crown case which it submits is supported by CCTV material is that the deceased played no role in this latter confrontation. The deceased was on the opposite side of the road holding a plastic shopping bag when he was confronted by JB. It is the Crown case that the deceased tried to defend himself with the shopping bag but was stabbed by JB which caused his death. It is the Crown case that JB then fled with his friends and was later seen on CCTV cameras recreating the stabbing motion. It is the Crown case that JB admitted his involvement in the offence to one of his group, Ringo Madut (Ringo).

19. The Crown submitted that a central issue at trial would not be whether JB was part of the group involved in the affray but whether he was the person who did the stabbing. The Crown case is not based on any aspect of joint criminal enterprise but relies solely on establishing that JB was the person responsible for the stabbing. The Crown accepted that if it could not establish that it was JB who did the stabbing, then it is unable to establish its case.

20. It is for that reason that the Crown directed its submissions in this Court to the available evidence that JB was the person who did the stabbing, rather than other parts of the Crown case about his involvement in the earlier incident. Except for the issue of whether JB possessed a knife when the earlier incident occurred, the Crown submitted that there was little dispute about JB’s involvement in the earlier incident or his presence at the later affray. The Crown accepted that JB’s specific involvement in the later affray was very much in dispute.

21. There was no issue that in the early hours of 21 April 2008 a series of altercations took place between two groups of young men and youths on and in the vicinity of the Granville train station in western Sydney. Firoz Mohammed (Firoz), Stanley Marle (Marle), Emori Vunisa (Vunisa), Robert Bali (Bali) and the deceased comprised one group described as of “Islander appearance”. Deng Duang, Dut, JW, EC, Ringo and JB comprised the other group, described as of “Sudanese appearance”.

22. Both groups had been drinking alcohol of varying amounts in the hours before the altercations. The altercations progressed from the train platform at the Granville station to the street. At the train station, JB asked Firoz for a cigarette and was refused. Ringo, JW and EC were present when this occurred. JB punched Firoz. Vunisa said that he (Vunisa) then hit the “little guy” to the ground. The Crown case is that the “little guy” was JB. It is the Crown case that JB was punched in the mouth by Vunisa during this exchange and suffered a split lip. JW also pushed someone and Ringo tried to punch someone. Ringo was also knocked to the ground during the scuffle.

23. Members of the deceased’s group chased JB’s group. It was the Crown case that JB produced a knife and threatened Firoz with it during this chase. JB and EC were chased from the platform by Marle, Vunisa and Firoz. This constituted the initial confrontation/altercation. Much of the initial altercation was captured on CCTV, although importantly not the alleged occasion when JB was said to have produced a knife.

24. At trial the evidence of Firoz was that two African men approached him, one was wearing a sort of black and gold jumper and the other was wearing a white football jumper. Both men were shorter than him and their build was slight or skinny. The one wearing the black and gold jumper came up to him and asked for a cigarette. When Firoz replied that he did not have a cigarette, this man punched him in the mouth. (Subsequently, as a result of questions from Latham J, Firoz said that it was the man wearing the white jumper who had hit him (T.129, 173).)

25. Firoz said that Vunisa punched that man and that he and Vunisa chased those men from the railway station towards the street. Firoz said that about 20 metres away from the station the man who punched him, came around the corner towards him and took a knife from his pocket. The man held the knife out and came towards Firoz with a forward movement three or four times saying “I’m going to kill you”. When Firoz armed himself with an iron bar, this man then ran away towards Memorial Drive. He described the knife as 5 – 6 cms in length.

26. Not long afterwards Firoz said that he, together with Vunisa, Marle, Bali and the deceased were walking down Memorial Drive in the direction of the Granville RSL when they were confronted by a big crowd of 15 – 20 people. It was necessary for them to walk down Memorial Drive in order to get to Firoz’s home. Firoz said that he recognised the man who had the knife as one of this group. He said that the group was armed with bricks, iron bars and sticks. A fight started and Firoz was moving backwards trying to defend himself. The other group ran away after about 10 minutes and it was then that he saw the deceased lying across Memorial Drive bleeding from the leg.

27. Bali was part of the Islander group and had been with them all day. He gave evidence that two “African guys” asked Vunisa for a cigarette. One was wearing a red t-shirt and the other was wearing white basketball clothes. One was about 20 years old, skinny and a bit taller than Bali who was five foot ten inches tall. The other was about 16 or 17 and shorter.

28. When Vunisa refused to give the shorter person a cigarette, he swore at Vunisa who pushed him. That person then took a knife from his pocket and held it outstretched. The knife had a black handle. It was about 20cm long. That person said “Fuck you, I’m going to kill you”. Bali said that he pushed that person away and went downstairs.

15. Sometime later, he was part of the Islander group who decided to walk home past the RSL. When the group was behind the RSL, he saw about 20 black African looking guys coming towards them. They had a lot of iron bars and sticks. He recognised two or three of those persons from earlier in the night. They were saying “We’re going to kill you”. Bali and his friends walked backwards towards the station trying to defend themselves. The deceased had been the last of their group to leave the station before they went towards the RSL. At one point Bali recalled that Vunisa pointed out to him that the deceased had fallen down. By that time the African guys had run off. Bali saw that the deceased was bleeding from the leg and was also injured around the stomach or groin.

16. It is reasonably clear from the evidence of Marle at trial that he was not involved in the initial confrontation. The evidence which he gave appears to be directed to the second altercation or affray.

17. Marle said that he and some friends walked away from the station intending to walk home. When they were about 10 to 15 metres from the station he saw “Sudanese guys” with bricks, stones, a knife and iron poles about a metre away from him (T.109 – 110). He described the “guy with the knife” as a shorter bloke, who was skinny with short hair and was wearing a white or spotted white and black t-shirt (T.110). He described the knife as a “man-made knife, it wasn’t from the shop” and he thought the handle was black. He gave evidence that the man with the knife was screaming and swung the knife at him, very close. Marle believed there were more than 15 persons in the other group. After the confrontation when his group were walking away they noticed the deceased lying on the other side of the road. The last time Marle had seen the deceased was on the train platform. Marle identified the deceased on the CCTV footage available from the Granville railway station, as the person wearing a dark jacket and holding a bag (T.119).

18. Vunisa gave evidence at the trial. He was present when the first altercation took place. He said that a “little guy”, who was about 17 years old and skinny, approached Firoz for a cigarette. He was wearing black short trousers, white sports shoes and a black jacket. An argument occurred between this person and Firoz when Firoz refused to give him a cigarette. Vunisa said that this person moved back but then came towards him and pulled out a knife from his pocket. Vunisa hit him in the shoulder area with his right hand but not with a full punch and the person fell to the ground. This person’s phone also fell out. Vunisa observed this person pick up the knife and the phone and run away. Vunisa chased him down the platform towards the Royal Hotel. Vunisa said that there was another person with him, who was aged about 18, with a red top. (T.179 – 180).

19. Vunisa said that not long afterwards, about a five minutes’ walk from the station, the person with the knife and another person approached Firoz. Vunisa said each of these persons had a knife and they were jumping close to Firoz and himself. He said that a fight started and he and Bali defended themselves with a rubbish bin and a sign post. Vunisa said that fight lasted about five or six minutes before the two persons ran off (T.181 – 183).

20. Vunisa gave evidence that later when he and his group were walking along Memorial Drive he saw about 10 or 15 “all black African Somalian” persons coming towards them with sticks, big bars and bricks and one of them said “we’re going to kill you”. He recognised the two little guys who had been at the train station. Vunisa and his friends were moving backwards as a group to defend themselves. He saw the deceased on the left side of the road holding his plastic bag with his Calvin Klein shoes inside. That was the last time he saw the deceased. He said that the deceased was trying to stop people hitting him by using a stick (T.186 – 187).. Later Vunisa saw that the deceased was crawling and trying to walk. His leg had been sliced and he was bleeding.

21. It is the Crown case that JB and EC ran from the platform after the initial confrontation, down the street to the Granville RSL. They sought help from a security guard saying “help us, these men want to hurt us” (T.464). The security guard described the young person who came up to him as looking scared. It is the Crown case that JB and EC continued to run away from the islander group to the car-park where they were observed by independent witnesses who described “the smallest” as sounding “so upset” and angry, crying and screaming and trying to explain something to his friends. It is the Crown case that this was JB.

22. It was the evidence of JW, EC and Ringo that JB was crying and complaining of a “busted lip” and that EC and Dut were trying to comfort him. It was the evidence of Dut that they were all scared at this stage. They armed themselves with sticks and bricks before attempting to return to Granville station.

23. It is the Crown case that JB’s group then returned to the station armed for a confrontation. It was in this context that Marle said that he observed a knife and fought with the person holding the knife. It was the Crown case that there were only about five in the deceased’s group and that the fight restarted on top of a little bridge. JB at the time was on the other side of the road, closest to the railway line about five metres away from JW.

24. It is the Crown case that JB was fighting with a person wearing a black leather jacket who was also carrying a plastic bag. It is the Crown case that it was JB who was fighting with the deceased. Evidence to this effect came from one of JB’s group, JW.

25. At trial JW described JB as arguing with an older person which caused a fight. This resulted in JW, Ringo and others being chased by the persons with whom they had had the altercation. He said that they were pursued to the RSL car-park. JW said that JB was with that group and was crying and was arguing with Dut. JB was saying that he got a busted lip because Dut did not help him. JW said that he and Dut picked up long pieces of wood and armed themselves before returning to the Granville railway station.

26. JW gave evidence that his group approached five of the other group, who did not appear to have anything in their hands, and a fight started again on the top of a little bridge. JW saw JB on the other side of the road closest to the railway line about five metres away. JW saw that JB was fighting a person in a black leather jacket who was carrying a plastic bag (T.413). He saw JB swinging his fists and that he hit the other bloke three or four times with hard blows. JW said that the other bloke was trying to fight back and was trying to hit JB with the plastic bag. JW observed Dut on that side of the road behind JB. JW thought that Dut was standing there and that Dut did not do anything. JW’s group then ran to the park because Dut yelled out to everyone to “run”.

27. EC gave evidence at trial. He observed about five islanders at the railway station, one of whom was smoking and one of whom was on the phone. When JB asked one of them for a cigarette, an argument took place resulting in JB hitting the islander in the mouth. EC saw that man then get up and hit JB. Although a fight started, EC did not get involved. He confirmed that two of the islanders chased his group away from the railway station.

28. EC said that one of his group said “let’s go back” which resulted in his group arming themselves and going back towards the railway station. EC’s group approached the islanders near a small bridge and a fight resulted which lasted about 20 minutes. EC said that during the fight he saw JB in the middle of the road, but he did not see JB doing anything. He heard Ringo say “run” and they ran back towards the RSL (T.468).

29. EC gave evidence that he did not see anyone from the islander group hurt. He later observed Ringo “chuck a knife over the fence”. Ringo said “I’ve got to get rid of it”. The knife was silver, it had a 10 cm blade and the handle was black (T.469 – 470, 487).

30. Ringo’s evidence was that he had been charged with murder in this matter but pleaded guilty to affray and was sentenced to a non-parole period of imprisonment of 1 year and 4 months, with an additional term of 1 year, having agreed to give evidence for the Crown.

31. He gave evidence that when JB requested a cigarette at the railway station, an argument ensued resulting in JB punching one of the other group in the face. Ringo said that he (Ringo) was hit and fell. He said that as he tried to get up his camera and phone dropped to the ground. He subsequently went cautiously back and was able to retrieve his camera. At that time some of the other group were chasing JB and EC.

32. Ringo said that when his group stopped running, JB said “what are we running for” and “we’re going straight back”. Deng and JW were armed with sticks. In the ensuing fight he observed that JB and Dut went across the road, but he could not see what they were doing. After a time the fight stopped and their group ran away.

33. Ringo then gave the following evidence:

“Q. At some stage did you stop running and start walking?

A. Yes.

Q. When you were walking was there any talk about what had happened?

A. Yes [JB] said that he actually stabbed someone in the leg.

Q. Can you remember the words that he used?

A. Yes he said “I stabbed someone in the leg” but --

HER HONOUR: “I stabbed someone in the leg”.

CROWN PROSECUTOR: Q. Did you ask him anything about that or did he say anything more about?

A. No, I wasn’t interested of what everyone had said because I didn’t see him holding anything in his hand so I didn’t actually believe what he did.

Q. Did you then go to Auburn station?

A. Yes we did.

Q. When you were at Auburn station was there any talk about what happened?

A. He said again to the other guys that he stabbed someone in the leg.” (T.514.20)

The only person who gave evidence to this effect at trial was Ringo.

48. In evidence Ringo identified on the CCTV footage from Auburn train station a part where he said that JB told the group that he had stabbed somebody in the leg. It is the Crown case that this CCTV footage clearly depicts JB making a stabbing motion with his hand while apparently talking to his friends.

49. Ringo in a second police interview (21 May 2008) told the police of this admission by JB but said that he did not believe it to be true at the time. He made no admissions as to possessing or throwing away a knife in that interview, and no allegation to that effect was put to him by the police. It was accepted by the Crown that this issue would be explored and tested at a retrial.

50. The Crown accepted that there were a number of bases on which the evidence of Ringo was likely to be challenged. There is an issue as to whether and if so, to what extent discussions occurred between A107 and Ringo before his arrest. A107 in evidence said that he did speak to Ringo and persuaded him to attend the Mt Druitt Police Station whereas at trial Ringo denied any such conversation.

51. On 21 May 2008 Ringo was taken to the charge room at Parramatta Police Station and was interviewed by Detectives Fulham and Macdonald. While the contents of that statement are not available, it is tolerably clear from the trial transcript and the second interview between Ringo and police that during the first interview he denied involvement in the fight and otherwise declined to answer questions. He said nothing about any admission by JB. After the first interview had concluded, Detective Macdonald had a conversation with Ringo (not recorded) in which he told him that he was going to be charged with murder. At that point, Ringo asked to be re-interviewed.

52. In the course of that second interview, the following question was asked by Detective Macdonald:

“Q.329 I’ve been told that after this incident that whilst you were on your way home that [JB] told the whole group that he actually stabbed one of the people, do you know anything about that?” (T.539)

Ringo replied “yes” and after a further exchange, Ringo said:

“A. He told everyone that he stabbed but I didn’t, I didn’t believe anything like that.”

At first Ringo told the police that JB did not say “where he stabbed him” but then he said “in the leg or something”. Subsequent to the interview Detective Macdonald told Ringo that he was not going to be charged with murder. Whether that admission was made by JB was a contested issue at trial and would be a contested issue in any re-trial.

53. In a conference that Ringo had with the Crown prosecutor during the trial, Ringo was told “someone says you did [have a knife] and threw it over the fence”. Ringo told the Crown prosecutor “not true”. These conference notes were served on JB and were used in cross-examination. Nowhere in the conference notes is it recorded that Ringo was told the source of this evidence. (The Crown submitted that the conference notes would be tendered in a retrial to establish this issue.)

54. At the trial the evidence came out differently in that Ringo said that the prosecutor told him that EC had claimed that he disposed of a knife. That is contrary to what is recorded in the conference notes.

55. After EC made a statement on 3 August 2009, in which he said that Ringo had disposed of the knife, the Crown prosecutor asked NSW Police to obtain a statement from Ringo about this. When approached by NSW Police on this issue, Ringo refused to make a statement because he said that he did not know anything about the knife. It is the Crown case that from 5 August 2009 Ringo knew that there was an allegation that he disposed of a knife and that he was not given that information at the conference with the Crown during the trial. The Crown noted that evidence of this would be available in a retrial if JB sought to maintain that the Crown prosecutor inappropriately behaved with that witness.

56. Dut gave evidence about the second confrontation when the fight occurred. He said that Ringo took two sticks from a real estate sign and gave one to him. Because Dut did not want to fight, Ringo gave the stick to Deng. Dut said that he then went away from the Clyde railway station to Auburn railway station. This occurred when the fighting was taking place.

57. In his statement to NSW Police of 22 April 2008, Dut said that JB told him after the fight that he had stabbed someone in the leg. In its submissions to this Court, the Crown properly conceded that Dut did not give this evidence at trial and that it was unlikely that he would give such evidence in a retrial. The Crown accepted that if he did give such evidence in a retrial, its force would be significantly undermined by the fact that he made no reference to such an important issue in the trial.

58. At trial the medical evidence was uncontroversial. Dr Langlois, who conducted the post mortem examination, gave evidence that the deceased died from loss of blood from wounds to the trunk and right thigh. There was a 3.5cm long wound to the abdomen likely to be from a single edged blade. There was a 4cm long wound to the back of the chest, likely to be from a single sided cutting implement such as a knife. There was a wound to the right thigh (which because of surgical intervention could not be measured). Most of the blood loss was from the thigh wound. While it was not possible for Dr Langlois to give definite evidence as to the length of the blade that caused each wound, he thought that the dimensions of the wounds suggested a blade of approximately 3.5 - 4 cm in width.

59. JB did not give evidence at trial. In cross-examination of Crown witnesses on behalf of JB, the following evidence was elicited.

60. Marle agreed that it was raining quite heavily on the night of 20-21 April 2008 and that the area around Memorial Drive was pretty poorly lit.

61. Firoz conceded that he had been drinking all afternoon and evening and that by the time of the incident involving the knife near the railway station he was “really drunk” (T.157). He agreed that it was “very dark” in the area where the group of 15 people were and that once the fight started there, he did not see a knife.

62. JW agreed that he could see JB’s fists while he was fighting and that he did not see any knife in his hand. He said that there were only six people in their group and that there were never 15 or 20 people.

63. EC agreed that when JB was shown on the CCTV footage as indicating something with his hands, he was talking about the first confrontation which occurred at Granville Railway Station (not on Memorial Drive) and that JB was talking about how he punched the guy (i.e. at Granville Railway Station).

64. By reference to the above material the Crown summarised its case against JB in a re-trial as follows:

1. The stabbing of the deceased must have been done by one of JB’s group. Ringo, Dut, EC and JW would all deny under oath being responsible for the stabbing. By a process of elimination this would leave JB as the remaining member of his group and against whom there exists a substantial body of evidence.

2. There was ample motive in that JB had been punched in the mouth in the initial altercation. After he ran away he was very upset and crying, he was the smallest and youngest of his group and had been drinking. JB wanted revenge and encouraged the others to return and confront the “Islander group”.

3. There was evidence of JB being in possession of a knife in the original altercation (Firoz, Vunisa and Bali). This evidence is capable of showing a very proximate temporal connection between the possession of a knife by JB, his willingness to use it, and his continuing state of mind and aggression towards the deceased’s group.

4. JW saw JB fighting with the deceased and although he did not see a knife, a jury would be entitled in all the circumstances to find that what JW in fact observed was JB stabbing the deceased. The credibility of JW on this issue would be a matter for a future jury. The evidence of JW as to the location of JB was in part confirmed by Ringo.

5. Ringo received two admissions from JB, although they were not overheard by anyone else. The second of those admissions receives support from the CCTV which shows JB making a stabbing motion in the manner described by Ringo. A future jury would be entitled to regard the CCTV evidence as providing strong support for the evidence of Ringo Madut.

6. The credibility of Ringo is a matter for a future jury. No-one gave any evidence of seeing Ringo using a knife at any time nor that he was on the same side of the road as the deceased. A future jury would be entitled to accept Ringo’s evidence of the two admissions and if either of the admissions were accepted by a future jury as having been made by JB, that jury would be entitled to find the offence proved.

7. Although EC saw Ringo dispose of a knife after the incidents, at no time did EC or anyone else see Ringo Madut using a knife nor did EC see Ringo Madut on the side of the road where the deceased was.

8. The Crown submitted that there is nothing in the fresh evidence which significantly undermines the evidence of Ringo. In that regard, the Crown submitted that it might be necessary to make a decision as to the actions and credibility of the two police officers who dealt with Ringo (and therefore hear their evidence) before a decision on this issue could be made.

65. In oral submissions in this Court, the Crown qualified what is set out in [64(3)] hereof. The Crown accepted that the evidence of Vunisa and Bali as to the production of a knife by JB in the first altercation could simply not be correct. The Crown noted that the incident involving JB either punching or pushing Firoz and what followed thereafter was fully recorded by CCTV. That CCTV film is quite inconsistent with anyone producing a knife at that time. The Crown accepted that this concession was made at trial.

66. The Crown did not abandon the submission that JB had produced a knife during the course of the first altercation. It submitted that this was supported by the evidence of Firoz. It submitted that the CCTV footage showed that in the course of the first altercation it was JB and EC who became separated from their companions and that they alone ran down a particular ramp. That is consistent with the evidence of Firoz that he chased JB down a ramp.

65. The Crown submitted that the only persons he could have been chasing were JB and EC because they were the only ones who went down that particular ramp. The Crown submitted that this is clear from the trial transcript (T.130 – 131). The Crown submitted that the transcripts made it clear that Firoz had pursued two persons down a ramp and into the street when one of them (being the person who had punched him) pulled out a knife and threatened to kill him. The Crown accepted that this incident was not shown on CCTV because it occurred away from the station, down a ramp and some distance along a street. The Crown submitted that this was the basis for its submission at [64(3)] hereof.

Consideration

68. The issue before the Court is whether a new trial should be ordered. The relevant provision is s 8(1) of the Criminal Appeal Act 1912 (NSW). That section provides:

“8(1)   On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.”

69. The application of the section has been considered on a number of occasions as a result of which the following propositions are uncontroversial. A new trial should only be ordered where it would more adequately remedy the miscarriage of justice than any other order the Court could make. It is not the inevitable result of a successful appeal, and the Crown has the onus of showing the Court that a new trial is the most appropriate remedy (King v The Queen [1986] HCA 59; 161 CLR 423 at 426 and 433). The correct approach is that each case has to be considered on its own facts and all relevant considerations that apply to it. The accused should be accorded neither more nor less personal consideration than the overall justice of the case requires. This is in recognition of the public interest in the fair and impartial administration of criminal justice (The Queen v Taufahema [2007] HCA 11; 228 CLR 232 at [49]).

70. The Court has a wide discretion as to whether to order or refuse a new trial but where there is insufficient evidence at the original trial to warrant a conviction, or if the evidence available at any new trial would be insufficient, then there should be no order for a re-trial and the appellant is entitled to an acquittal as of right (Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317 at 321; R v Taufahema at [52]).

71. The relevant principles were comprehensively set out by McClellan CJ at CL in Gilham v R [2012] NSWCCA 131; 224 A Crim R 22 where his Honour said:

“648 Whether there should be an order for a new trial under s 8(1) is a discretionary consideration. However, the discretion is only to be exercised if the court determines that the evidence presented at trial was sufficiently cogent to justify a conviction, for if it was not, an acquittal must follow as a matter of course: Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 at 630; Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317 at 322 (Gibbs CJ), 331 (Deane J). For the reasons discussed under the unreasonable verdict ground of appeal, the evidence before the jury was sufficiently cogent to justify the applicant's conviction. It is therefore necessary, in view of the other successful grounds of appeal, to consider whether the applicant ought to be acquitted or retried.

649   The relevant principles were discussed in Reid v The Queen [1980] 1 AC 343 and Fowler: R v Anderson (1991) 53 A Crim R 421 at 453 (Gleeson CJ). The overriding consideration is whether the interests of justice require a new trial: Fowler at 630. Unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v The Queen [2000] HCA 43; 201 CLR 603 at [104]. The court determines where the interests of justice lie by considering various factors, including:

the public interest in the due prosecution and conviction of offenders (R v Taufahema [2007] HCA 11; 228 CLR 232 at [49]; Anderson at 453; Reid at 349);

the seriousness of the alleged crimes (Anderson at 453; Reid at 350; Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 at [164] (Johnson J));

the strength of the Crown case (Anderson at 453);

the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision (Taufahema at [51]; Anderson at 453; Reid at 350);

the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused (Taufahema at [55]; Parker v The Queen [1997] HCA 15; 186 CLR 494 at 520 (Dawson, Toohey and McHugh JJ); Anderson at 453);

whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or "patch up" a defective case or to present a case significantly different to that presented to the jury in the previous trial (R v Wilkes [1948] HCA 22; 77 CLR 511 at 518; King v The Queen [1986] HCA 59; 161 CLR 423 at 433 (Dawson J); Parker at 520 (Dawson, Toohey and McHugh JJ); Reid at 350; Fowler at 630; Anderson at 453; Taufahema at [59]);

the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial (Spies at [103]; Reid at 350);

whether a significant part of the sentence imposed upon conviction has already been served (Jiminez v The Queen [1992] HCA 14; 173 CLR 572 at 590 (McHugh J));

the expense and length of a further trial (Reid at 350);

whether a successful appellant to the Court of Criminal Appeal has been released from custody (Taufahema at [55]; Everett v The Queen [1994] HCA 49; 181 CLR 295 at 302 (Brennan, Deane, Dawson and Gaudron JJ); R v Wilton (1981) 28 SASR 362; A Crim R 5 at 367-68 (King CJ)); and

whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions (R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 at [27]).”

72. In relation to those matters, it needs to be kept in mind that the charge of murder is the most serious crime known to the law. The Court must give appropriate weight to the public interest in the due prosecution and conviction of persons accused of murder. As Spigelman CJ said in Justins v Regina [2010] NSWCCA 242; 204 A Crim R 315 at [12]: “the criminal involvement of one person in the death of another raises a serious issue of moral culpability that ought be determined”.

73. There are, however, considerations which point in the other direction. The strength of the Crown case has undoubtedly been greatly diminished by the absence of the evidence of A107, which was pivotal to the conviction of JB at trial. The focus of the Crown case in any retrial would be quite different and would depend upon the evidence of Ringo and whether it was open to a jury to find that at any time on the night in question, JB was in possession of a knife. The exercise which the Court is required to carry out on that issue is in reality something of a predictive one. This was appreciated by Garling J in Gilham v R when his Honour said:

“686   An assessment must be made of the strength of the Crown case to be presented at any retrial. Such an assessment is made on the basis of all of the evidence which is now available, and not just the evidence which was before either of the two previous juries. …”

74. It is also the case that eight years have passed since the events of 21 April 2008. This is of significance, given the age of the witnesses and the fact that all of them had been affected to varying degrees by the consumption of alcohol.

Evidence that JB was in possession of a knife

75. By reference to the CCTV film taken at the Granville train station, it is possible to identify by their clothing each member of the “islander group” and each member of the “Sudanese group”. The islander group comprised five persons and the Sudanese group, six persons. The clothing worn by each member of the Sudanese group is quite distinctive. JB was wearing a dark top with light coloured shorts which extended below his knees. There appears to be a lighter patch or pocket on the left side of JB’s top. As was accepted by the Crown both at trial and before this Court, there was no evidence of anyone, in particular JB, producing a knife at the time of the initial altercation on the platform at the Granville station. This is despite JB being punched in the mouth by Vunisa. One might think that if he had a knife that was the occasion when he would be likely to produce it.

76. The CCTV footage provides clear and independent evidence of what happened on the platform. Apart from his confrontation with Firoz and Vunisa at the beginning of the altercation, JB played no further part. On the contrary, he can be seen standing to the rear of his group while others, in particular Ringo and JW, are more actively involved. This can also be seen in a still colour photograph (ex E) taken from the CCTV footage. That footage and the still photograph show Bali in the process of striking Ringo, with Vunisa in support. JB’s actions at that stage appear to be inconsistent with the aggressive stance attributed to him in the Crown case theory.

77. If one rejects the production of a knife during the first altercation covered by the CCTV cameras, the only evidence of a knife being produced by JB comes from Vunisa and Firoz. Vunisa says that he and Firoz pursued the person who had produced a knife on the platform and another person wearing a red top. Vunisa said that when he, Firoz and Bali were about five minutes away from the station, the “guy with the knife” and “the other guy” approached them. Vunisa said that each of them had a knife and that they were jumping close to him and Firoz. He and Firoz defended themselves with a rubbish bin and a signpost. Vunisa said that the fight continued for about six or seven minutes before the men ran off (T.181-183).

78. Although Vunisa started by describing JB, his subsequent description of what occurred is more consistent with the altercation between he and Bali on one side, and Ringo and JW on the other, with Bali apparently preparing to throw a punch at Ringo (ex E). If that is the correct way to interpret Vunisa’s evidence, the two persons whom he says attacked Firoz and then himself with knives, one of whom had a red top, were Ringo and JW not JB and EC. There is also the rather enigmatic response by Vunisa at T.186.15 that “only last time I see the knife on the platform”. Finally, there is the evidence in cross-examination at T.231-232 where it is not clear whether the effect of Vunisa’s evidence is that there were three incidents where a knife was produced by someone from the Sudanese group or only two.

79. There are a number of problems with Vunisa’s evidence. It is predicated on one of the persons who produced a knife being the same person whom he said produced a knife during the earlier altercation on the train platform. It is now accepted by the Crown that there was no knife produced on the platform. This places considerable doubt on his evidence of a second production of a knife. No other witness gave that evidence, i.e. that two of the Sudanese group produced knives causing Vunisa, Bali and Firoz to defend themselves. The only member of the Sudanese group to wear a red top was JW, whereas the CCTV footage makes it clear that it was JB and EC (who was wearing a blue and white top) who descended the same ramp and were pursued by Firoz. This evidence of Vunisa is contradicted by that of Firoz and EC and is inconsistent with that of Bali, although it has to be conceded that Bali’s evidence is quite confusing. Bali’s evidence is inconsistent with what Firoz said and is not supported by any other witness. Finally, Vunisa’s evidence under cross-examination at T.222 – 224 to the effect that the persons who produced knives to him and Firoz were wearing a white top and a red top is inconsistent with either person being JB. It is consistent with those persons being Ringo and JW.

80. Vunisa’s evidence on this issue is most unlikely to be accepted in any retrial. If it is accepted, properly read, it does not implicate JB. It does implicate JW and Ringo.

81. The only other direct evidence on this issue is that of Firoz Mohammed. His evidence was that he was approached by two African men, one of whom was wearing a “sort of black and gold jumper” and the other was wearing “a white football jumper” (T.126-127). The one wearing the black and gold jumper asked him for a cigarette and when he refused, that man punched him in the mouth. Subsequently, Firoz changed his evidence and identified the person who hit him as the man wearing the white jumper (T.147). He then chased both of those men. Firoz said that about 20 metres from the station, one of the men came around the corner towards him, took a knife from his pocket, made a forward movement towards him three or four times saying “I’m going to kill you”. He identified that person as the one who had punched him earlier. Firoz said that the other man was there as well but that he did not have a knife (T.130 – 132).

82. There are a number of difficulties with that evidence. The only one of the “Sudanese” group to have a white top was Dut, whereas JB had a dark top and it could not be described as a “black and gold jumper”, nor as a white jumper. At most it had a light patch or pocket on the left side. EC who was with JB, was wearing a blue and white top which could not in any way be mistaken for a “white football jumper” or a “black and gold jumper”.

83. Firoz was mistaken in his evidence as to the clothing worn by the person who struck him which is clearly shown on the CCTV footage. The importance of that error is that it carries over to the identification of the person whom he said produced a knife, i.e. the same person as the one who struck him. We know from the CCTV footage that JB in fact struck Firoz and that he and EC were pursued by him. There still, however, remains confusion in his evidence as to which of them produced a knife.

84. The evidence of EC is inconsistent with that of Firoz. He agreed that he and JB were pursued by Firoz, but said nothing about any confrontation with Firoz or anyone else between the commencement of the pursuit and the time when he and JB joined the rest of their group. JW and Ringo say nothing of such a confrontation.

85. There are other problems with the evidence of Firoz. In cross-examination he agreed that he had been drinking all afternoon and evening and that by the time of the incident on the platform of the railway station, he was “really drunk”. He and Vunisa gave evidence that on the occasion of the second altercation during which the deceased was stabbed, there were 15 – 20 in the “Sudanese” group when in fact there were only six (T.172-173).

86. There is evidence from a security guard at the Granville RSL that when JB and EC sought his assistance, they looked “scared” and said “help us, these men want to hurt us”. This is inconsistent with an aggressive attack on Firoz accompanied by the production of a knife and threats to kill him.

87. Because he was a member of the group who had lost one of their number, there was an obvious incentive on the part of Firoz to give evidence which would damage a member of the Sudanese group.

88. These matters must place considerable doubt on the likely acceptance of this evidence by the jury in a retrial.

89. There is a legal difficulty confronting the Crown’s reliance upon this evidence of Firoz in a retrial. It arises from the verdict of acquittal entered in respect of the attempted murder charge. In a retrial, JB would undoubtedly raise autrefois acquit in relation to the evidence of Firoz as to the production of a knife, the movement of the knife towards him and the verbal threat. The basic principle underlying autrefois acquit is that the prosecution should be precluded from re-asserting the guilt of an accused when that question has previously been determined against it. The principle extends to factual issues essential to the offence in respect of which an accused has been acquitted (The Queen v Carroll [2002] HCA 55; 213 CLR 635 at [35], [37], [40], [48], [86], [91] – [93]).

90. It may be that in a retrial JB would be entirely successful in preventing any evidence of him producing a knife to Firoz and threatening him, both by action and words, coming before the jury. Because the issue under consideration by the Court is the application of s 8(1) with its predictive element, it is preferable to adopt a conservative approach and allow for the possibility that such evidence, at least in part, could be adduced before the jury.

91. Given the incontrovertible nature of the verdict of acquittal on the attempted murder charge, I do not see how the Crown could adduce on a retrial evidence of the oral threats said to have been made by JB or of his alleged attempts to stab Firoz. They would appear to be essential aspects of the attempted murder charge. The mere production of a knife, without more, may not be picked up by the prohibition. Accordingly, I am prepared to accept that in a retrial Firoz would be able to give evidence that JB (or someone in the “Sudanese” group) produced a knife.

92. Nevertheless, there are so many problems with the evidence of Firoz that I am unable to conclude that it would be open to a jury in a retrial to accept his evidence that one of the Sudanese group produced a knife and that this was the person who had punched him at the beginning of the first altercation.

93. The only other direct evidence of anyone in the Sudanese group having a knife, comes from EC whose evidence is that he saw Ringo disposing of a knife following the second altercation. The words which EC said accompanied that action are consistent with Ringo having some connection with the stabbing of the deceased, i.e. “He said I’ve got to get rid of it” (T.469.47). There was no evidence adduced at the trial to indicate that EC had any motivation or reason for telling an untruth about Ringo. Although EC was a friend of JB’s, he had only known him for a few weeks. It is not known how long he had known Ringo.

94. In response to that evidence, the Crown submitted that Ringo denied having a knife and disposing of it in the way described by EC. The Crown also submitted that there was no evidence of anyone seeing Ringo with a knife during either altercation (in that regard the same can be said of JB with the exception of the evidence of Firoz and Vunisa). It should also be noted that Ringo’s apparent possession of a knife was more proximate to the actual stabbing incident than was that asserted against JB. Ringo had a motive to retaliate against the Islander group in that in the first altercation he had been knocked to the ground, had lost his phone and camera and was only able to retrieve his camera. It was also EC’s evidence that it was Ringo in the second altercation who told the “Sudanese” group to “run” bringing it to an end (T.468). That is consistent with something having occurred which Ringo considered provided a good reason for the Sudanese group to rapidly leave the scene of the second altercation.

95. It is true that JW identified Dut as the person who yelled out that the group should “run” (T.414, 446). Significantly, however, it was not suggested by any witness that JB said anything to that effect during, or at the conclusion of, the second altercation. Ringo denied that he had told the group to “run” and denied that anyone else had done so. He did, however, agree that the “Sudanese” group had run away from the site of the second altercation.

75. Once the evidence of A107 is taken out of the picture, there is evidence that at least two, if not more of the Sudanese group, had knives. This places considerable doubt on the line of reasoning that a knife was used in the murder, JB was the only person with a knife and therefore there is a strong likelihood that he used it.

The admission to Ringo

97. The high point of the Crown case against JB is the two admissions which he is said to have made to Ringo. The first of those is said to have occurred as the group was walking to Auburn railway station following the second altercation and the second at Auburn station in the presence of the whole group. Ringo sought to corroborate that evidence by reference to the CCTV footage which he said showed JB re-enacting what had happened between him and the deceased by making a stabbing motion with his right arm.

98. When the whole of Ringo’s evidence on the subject is looked at, it provides some assistance for JB in that Ringo said that he did not believe JB because he did not see him holding anything in his hand. Although it is not entirely without doubt, this would seem to be a reference to the occasion of the second altercation and not when JB was said to have made the admission. This interpretation is confirmed by what Ringo said later in his evidence:

“Q. The first thing you saw was JB run across the road, you didn’t see anything in his hands, did you?

A. No.” (T.538.12)

99. Despite the evidence of Ringo in chief (T.514) (see also [47] hereof) where he referred to two occasions when JB made an admission to him, i.e. when they were walking towards Auburn station and after they had arrived there, it is not clear whether he has always asserted that the admission was made on two occasions. In his police statement (T.539) Ringo referred to only one occasion. This appears to have been confirmed in cross-examination at T.544.49 where he said:

“Q. Mr Madut, JB never said anything to you about stabbing anyone, did he?

A. Yes, I heard him while I was talking.”

100. The evidence of Ringo of the admission or admissions is weakened in a number of respects. There is evidence, which is capable of directly implicating him in the murder. This is the evidence of EC as to the disposal of the knife. There is the evidence of Vunisa and Bali which in its totality is more consistent with Ringo possessing a knife than JB. Ringo agreed to give evidence for the Crown and as a result, received a discount from his sentence. As a result, he had a direct interest in not only exculpating himself from any involvement in the killing but in implicating JB.

101. The way in which Ringo came to give evidence concerning the admission/admissions is of importance. The “admission” first emerged in an interview with Detectives Fulham and MacDonald in response to a leading question from Detective MacDonald (second ERISP, Q.329). The second ERISP only took place after a halt in the first interview and a conversation with Detective MacDonald which took place during that break which was not recorded. The unrecorded conversation apparently involved a threat to charge Ringo with murder. That threat appears to have contributed to the second interview taking place. The record of interview refers to only one occasion when the admission was made by JB.

102. The same issue arises from the way in which Ringo was asked to respond to the statement of EC that he disposed of a knife. In his evidence at trial (T.541) Ringo said that the Crown in conference identified EC as the source of that information and told him what EC had said. The notes of the Crown relating to that conference, which took place during the trial, do not refer to EC being identified as the source of that information. When Ringo gave evidence he was clearly aware that EC was the source of the allegation against him. It is difficult to see where this information could have come from unless from the Crown. This discrepancy was not resolved at the trial.

103. There are two other complications in relation to the evidence of Ringo. The first is that JB’s solicitor at the trial, Mr Kaufmann was also Ringo’s solicitor and acted for him in relation to other (unrelated) charges which he was facing. There was also an issue as to what, if any, was the contact between A107 and Ringo before Ringo attended the police station. Ringo denied any contact whereas A107 gave evidence to the contrary.

104. The Crown relied upon CCTV film from the Auburn railway station to corroborate Ringo’s evidence that when the Sudanese group arrived there, JB told them that he had stabbed someone in the leg and demonstrated to the group a stabbing motion with his arms. Ringo identified those gestures on the CCTV footage at trial.

105. I have viewed that CCTV footage on numerous occasions at normal and slow speeds. My observations do not accord with Ringo’s description. What I have observed is JB pushing his right fist into his open left palm. I have no doubt as to the accuracy of my observation. The gesture is nothing like a stabbing motion. The gesture is fully consistent with the evidence of EC at trial, i.e. that JB was demonstrating how he had punched someone.

106. In the trial EC was recalled for cross-examination and having been shown the relevant part of the CCTV footage, gave the following evidence:

“Q. Are you just watching that now?

A. Yes.

Q. Do you remember being here at Auburn?

A. Yes.

Q. When I say here, I mean there, what’s depicted there in that. It’s Ringo with JW, is that right?

A. Yes.

Q. You see J and Deng and yourself?

A. Yes.

Q. So six there altogether, isn’t there?

A. Yes.

Q. Have you been shown this before?

A. Yeah, once at Kariong.

Q. Who showed it to you?

A. Detective MacDonald.

Q. Did he ask you about it?

A. Yes.

Q. What did he ask you about it?

A. He said what J was talking about here.

Q. He asked you what J was talking about?

A. Yeah.

Q. Do you recall what you said?

A. He was talking about the thing.

Q. About?

A. He was talking about the fight that happened.

Q. Which fight?

A. The one that happened on the top of the station.

Q. At the top of the station?

A. Yes.

Q. Which station?

A. Granville.” (T.618.19 – 619.30)

107. Under re-examination by the Crown prosecutor, EC gave the following evidence:

“Q. My learned friend asked you some questions about what happened in that tape. You said J told you, said something about what had happened. What did he say?

A. About how he punched the guy.

Q. Sorry?

A. About how he punched the guy.

Q. What else did he say?

A. That’s it.

Q. You saw on the tape that he was indicating something with his hands? What was he saying when he was doing that?

A. How he punched the guy.

Q. How he punched the guy?

A. Yes.

Q. Is that all he said?

A. Yeah.” (T.621.39 – 622.8)

108. To my observation, JB’s actions at the Auburn railway station, as recorded by the CCTV film, are consistent with him demonstrating a punch and quite inconsistent with a stabbing motion, such as is relied upon by the Crown. To my observation, the CCTV footage provides no corroboration for the evidence of Ringo to the effect that JB was telling the Sudanese group that he had stabbed someone in the leg during the recent altercation and was demonstrating how he did so by hand gestures. Finally, no-one in the Sudanese group gave evidence which corroborated Ringo on this issue.

109. I have concluded that far from providing corroboration for the evidence of Ringo as to JB admitting that he had stabbed someone, the CCTV footage identified by Ringo raises a substantial doubt as to the reliability of his evidence. That, taken with the other aspects of Ringo’s evidence to which reference has been made, leads me to conclude that Ringo’s evidence of the admission or admissions is unlikely to be accepted by a jury in a retrial.

The interaction of JB and the deceased

110. The last important part of the Crown case is that JB was the only person seen to be fighting with the deceased. The evidence on this issue comes from JW. He said that in the second altercation when the deceased was stabbed, he saw JB and Dut on the other side of the road, which was closest to the railway:

“Q. About how far away from you was he?

A. Probably five metres or something.

Q. What was he doing?

A. Was fighting.

Q. Who was he fighting with did you see?

A. Some guy with a black jacket.

Q. Some guy with a black jacket?

A. Yeah, a black leather jacket.

Q. Did you notice anything else about the guy with the black leather jacket?

A. Yes he had a plastic bag on him.

Q. And you say that you saw J with fighting with him. What did you see him doing?

A. He was swinging.

Q. Swinging what?

A. His fists.

Q. Did you see him hit the bloke?

A. Yeah.

Q. Whereabouts did you see him hit him?

A. I can’t remember but I seen him swinging, he’s hitting the bloke.

Q. Are you able to say how many times?

A. Probably three or four times.

Q. These swings that you saw, were they soft or hard?

A. They were hard.

Q. And the man with the black leather jacket and the plastic bag what was he doing?

A. He was trying to fight back too.

Q. When you say he was trying to fight back, what did you see him do?

A. He was trying to hit J with the plastic bag.

Q. Can you say how many times you saw him do that?

A. No, I don’t remember how many times.

Q. You say that there was J and the man with the plastic bag?

A. Yeah.

Q. Was anybody else over on that side of the road?

A. Yeah.

Q. Who else?

A. Dut.

Q. What was Dut doing?

A. Dut was behind J.

…

Q. What was he doing, was he just standing there, what was he doing?

A. I think he was standing there. I don’t think he did anything.

Q. What happened next?

A. We ran.

Q. Where did you go to?

A. We ran to the park.

Q. Do you know why it was that you went?

A. Yeah because Dut, Dut yelled out to everyone and goes “run”.

Q. He yelled out what?

A. He say “run”.

Q. Did everybody run?

A. Yeah.” (T.412.10 – 414.18)

111. In cross-examination the evidence of JW was:

“Q. How did you come to be looking at the other side of the road, do you remember?

A. Because J was on this side.

Q. He was on the same side as you?

A. Yeah.

Q. You mean on the side where the RSL is?

A. Yeah and he kind of changed his place and went to the other side.

Q. He kind of changed place?

A. Yes.

Q. Did Dut go with him?

A. Yeah.

Q. He and Dut went to the other side of the road at the same time?

A. Yeah.

Q. And you say you saw J swing his fist 3 or 4 times and you said you are able to say that he hit him those times, you said that didn’t you?

A. Yeah.

Q. So the light was certainly good enough to see that?

A. Yeah.

Q. You could see J, in fact you could see his fists couldn’t you?

A. I could see him fighting someone.

Q. You say you could see J throwing punches, swinging punches, that’s right isn’t it?

A. Yeah.

Q. And you were able to see that he was using both fists?

A. Yeah.

Q. So he was using both fists to punch him, that’s right isn’t it?

A. Yeah.

Q. And you could see that his hands were closed into fists, that’s right isn’t it?

A. Yeah.

Q. That’s right isn’t it?

A. Yeah.

Q. You could see his hands were closed into fists?

A. Yeah.

Q. And you saw no knife in his hand, did you?

A. No.

Q. Then you say it was Dut that yelled out “run” was it?

A. Yes.

Q. Are you quite sure it wasn’t Ringo?

A. It was Dut.” (T.445.30 – 446.35)

112. The only other evidence on this issue was that of EC:

“Q. What about Dut what was he doing?

A. Dut was in the middle of the road.

Q. Was he involved in the fighting?

A. Yes.

Q. What did you see him do?

A. He was swinging a stick too.

Q. Did you see where he got that stick from?

A. No.

Q. What about J where was he?

A. He was in the middle of the road.

Q. Did you see him do anything?

A. No.

Q. What was he doing, just standing there?

A. Yeah.

Q. Then what happened?

A. Then Ringo said run and then we ran.

Q. Who said run?

A. Ringo.

Q. When he said run what happened?

A. Then we all run.” (T.468.12)

113. It was the Crown case that JW was mistaken and that JB was holding a knife and that when he appeared to be punching the deceased, he was in fact stabbing him. There is an obvious problem with that scenario. The evidence of JW is contrary to that proposition. In particular, the evidence of JW that JB was using his fists is inconsistent with the Crown’s scenario. Finally, the evidence of JW that JB was using both hands when attempting to strike the deceased is inconsistent with a person using a knife. One does not need to be particularly familiar with the stance adopted by a person using his fists and that of a person using a knife to understand that the position of the body and of the arms is very different.

114. The evidence of EC and JW is of assistance on another issue. What it indicates (and this is confirmed by the evidence of the other witnesses from both groups) is that the evidence as to timing during these altercations is unreliable. What the evidence provides are brief windows of particular activities without any comprehensive sequential description of what occurred. This is particularly so in relation to the second altercation where observations cannot be checked by reference to CCTV footage. JW has JB fighting with the deceased before Dut said to “run”. EC has him in the middle of the road doing nothing when Ringo says to “run”. Both pieces of evidence may well be correct but be referring to different times during the second altercation. No-one saw the deceased fall.

115. What is clear is that this evidence provides no support for the Crown case. The Crown case pre-supposes that JB had a knife, was using it and that this presumption can be used to interpret the evidence of JW. In fact, the evidence of JW goes no further than to place JB next to the deceased at some point during the second altercation. It is not capable either on its own, nor when taken with other evidence, of establishing beyond reasonable doubt that JB stabbed the deceased.

116. It is also not without significance that Dut gave evidence that he did not go with the others when they went to again confront the Islander group. He said that he stayed where he was and that he made observations from some distance away. That, of course, is contrary to the evidence of JW, EC and Ringo who place him near to JB and in the case of JW and Ringo, on the other side of the road, i.e. on the same side as the deceased. While there is no evidence of Dut fighting with the deceased, on JW’s evidence he was close to the deceased and was the person who told the Sudanese group to “run”. There are a number of innocent explanations for why Dut may have told lies on this issue. Nevertheless, it adds another complication for the Crown case against JB.

Conclusion

117. It is with that background that the principles relating to the application of s 8(1) of the Criminal Appeal Act 1912 need to be considered (see [68] – [74] hereof). The question of whether a new trial should be ordered is a discretionary one. In deciding whether to exercise the discretion, the Court must decide whether the interests of justice require that a new trial be had.

118. As a start point it needs to be kept in mind that the trial of JB miscarried because of failures on the part of the prosecuting authority. These consisted of an inadequate investigation of the position of A107 and an inadequate disclosure of that position to the defence. There was no conduct on the part of JB which contributed to the mistrial.

119. The considerations which support an order for a new trial under s 8(1) primarily relate to the public interest in the due prosecution and conviction of offenders and the seriousness of the offence with which JB was charged, i.e. murder. It is also desirable that the guilt or innocence of JB be finally determined by a jury. Other lesser but still important considerations are that a re-trial would not be particularly lengthy (probably about three weeks) and would not involve significant expense. Finally, there is the consideration of whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities which are entrusted with the responsibility to act in the public interest in the initiation of criminal prosecution.

120. The considerations militating against a re-trial are also important. One of those considerations is the strength of the Crown case. For the reasons set out above, I have concluded that the Crown case on a re-trial is not strong and is likely to result in an acquittal. The evidence that JB was in possession of a knife at any time is at best equivocal, and at worst unconvincing and contradictory. The alleged admission to Ringo depends upon the evidence of an interested person and to the extent that there is any objective evidence, it does not support such an admission being made. Finally, the interaction between JB and the deceased requires the rejection of clear evidence to the contrary and a degree of speculation before it could be of significant probative value in the Crown case.

121. Almost eight years have passed since the offence occurred. The memories of the witnesses, many of whom were young, were adversely affected by liquor. Those memories were not particularly good at the time of trial and would have further deteriorated. JB was aged 15 at the time of the offence, has served 6 years and 8 months of a sentence with 16 year non-parole period and has been on bail since December 2013. In the circumstances, the anxiety and hardship associated with a re-trial would be substantial.

122. While it cannot be said that a new trial would be run differently, the focus of the prosecution would be different. Without the evidence of A107, matters which were not stressed in the first trial would take on a new importance. It is in relation to those issues that the passage of time and memory problems become important. It is notorious that memories fade with the passage of time while the recollections of others may become entrenched. Although this presents a problem in many trials, it does not for that reason cease to be relevant as a discretionary consideration when considering whether an order for a retrial should be made in the interests of justice at this time.

123. Of the matters enumerated above, the most important is the relative weakness of the Crown case without the evidence of A107. By reason of the combination of factors to which I have referred above but in particular my conclusion that the new Crown case would not be a strong one, I have concluded that in accordance with the broad discretion conferred by s 8(1), the interests of justice require that a verdict of acquittal be entered.

124. After preparing the above reasons, I have had the opportunity of reading the judgments of Adams and McCallum JJ. While I appreciate her Honour’s reasoning, I am unable to agree with it. I do, however, agree with and respectfully adopt the additional reasons of Adams J.

125. Although the “fresh and new” evidence was not placed before the Court by the Crown, its purport was clear. The applicant’s written submissions challenged not only what was left of the Crown case after the removal of the evidence of A107, but asserted that the two police officers in charge of the investigations were at all times aware that A107 was a registered police informer and that this had, in effect, infected most of what they had done in the preparation of the trial. The “fresh and new” evidence comprised statements/affidavits from those two police officers to contrary effect.

126. I do not see how in those circumstances the “fresh and new” evidence could add to the Crown case likely to be presented on a re-trial. The “fresh and new” evidence was essentially defensive in nature and sought to deflect submissions by the applicant that the process whereby he had been convicted of murder was so flawed that not only could the conviction not stand, but that the Crown should not be given an opportunity to patch up its case. The approach which I adopted favoured the Crown because it had no regard to any challenge to the integrity of the investigating police officers and the part which they might have played in A107 giving the evidence which he did. It assumed that the evidence led by the Crown (except that of A107) had been appropriately collected and legitimately adduced at trial and further assumed that such evidence would be capable of being led by the Crown in any re-trial.

117. In those circumstances, I adhere to the view which I expressed in the course of an exchange with counsel in the appeal, that when deciding whether pursuant to s 8(1), there should be a re-trial, there was no need to engage in an inquiry of the sort initially foreshadowed by the parties, i.e. the applicant adducing what evidence he had as to the conduct of the investigating police officers and the Crown responding with the evidence of those police officers and their attendance for cross-examination. I remain firmly of the view that such an exercise in the particular circumstances of this case, was otiose. At no time was it foreshadowed, either in the oral or written submissions, that any issue other than those to which I have referred, would be the subject of “fresh and new” evidence.

118. The orders which I propose are:

(1)   The appeal against conviction is allowed.

(2)   The conviction for the murder of Edward Spowart is quashed.

(3)   That a verdict of acquittal be entered in favour of JB.

129. ADAMS J: I have had the considerable advantage of reading in draft the judgments of Hoeben CJ at CL and McCallum J. I have concluded that, for the reasons he has given, the orders should be as proposed by his Honour. I wish briefly to explain why, with respect, I do not agree with McCallum J.

130. The starting point is the referral by R A Hulme J, following his Honour’s consideration of the appellant’s application under s 79 of the Crimes (Appeal and Review) Act 1912 (NSW) (the Act) for an inquiry into his conviction, of “the whole case” to this Court under s 79(1)(b) “to be dealt with as an appeal under the Criminal Appeal Act 1912”. The conviction depended to a significant degree upon evidence given by witness A107 of certain admissions allegedly made to him by the appellant. The evidence disclosed to the Inquiry necessarily led to the conclusion that the evidence of those alleged admissions was inadmissible. It followed that there was a miscarriage of justice and the conviction could not stand. As s 5(2) provides, if an appeal is allowed against conviction, it must be quashed and a verdict of acquittal entered unless, in effect, it is appropriate to make an order for a new trial under s 8(1) of the Act. The relevant considerations have been set out by Hoeben CJ at CL and, as I understand it, his Honour’s summary of the position is not controversial. His Honour cited King v R [1986] HC 59; 161 CLR 423 at 426 per Murphy J as authority for the proposition that the onus is on the Crown to establish that a new trial is appropriate. Although it is true, as McCallum J points out, that his Honour dissented, this was as to the outcome. In R v RWB [2002] NSWCCA 504 at [10] R S Hulme J said (Hodgson JA and Hidden J agreeing) that the Crown bore the onus of showing that a new trial is the most appropriate remedy, also citing King (and see R v Taufahema [2007] 228 CLR 232 per Kirby J at [155]). So far as I am aware, this has been the approach consistently adopted by this Court.

131. It cannot be doubted that, if the appellant had established that the verdict was unsafe or unreasonable having regard to the evidence, the appropriate order would be an acquittal and no order would be made for a new trial (though there might be exceptional cases in which this would not be the outcome). This approach is entirely consistent with that taken by this Court in conventional appeals under the Criminal Appeal Act 1912. From the outset the appellant submitted (amongst other things) that the evidence remaining in the case (absent the impugned admissions) would render any guilty verdict unreasonable. The Crown accepted that, if in that situation it would have been unreasonable for the jury to convict, no order for a new trial should be made. It sought, by reference to the evidence helpfully and comprehensively analysed by the Chief Judge, to demonstrate that a verdict of guilty on that remaining evidence would not be unreasonable.

132. McCallum J has referred to the “fresh and new evidence” relied on by the appellant to support his grounds of appeal. This evidence was mostly directed to establishing that there was such prosecutorial misconduct as to make it inappropriate to order a new trial even if the strength of the Crown case justified such a course. The Crown also tendered material dealing with this issue and aimed at deflecting, qualifying or refuting the allegations of prosecutorial misconduct. Since the evidence left in the case is insufficient to warrant a new trial, this issue is moot and it is unnecessary to consider the evidence on the point one way or the other. Some of the new material relied on by the appellant in respect of Madut was directed to undermining the cogency of his evidence. Whatever the possible significance of this evidence (which might be the subject of qualifying or contradicting evidence by the Crown as mentioned by Hoeben CJ at CL), it is clear that it does and could not strengthen Madut’s credibility, whilst the involvement of Mr Kaufman – as to which the evidence is not in dispute – adds a troubling feature. The Crown submitted that Madut’s evidence could be accepted by the jury. For the reasons given by Hoeben CJ at CL, I would also conclude that this is unlikely.

133. Having regard to the determinative significance of the weakness of the Crown case, I am unable to agree that declining to consider the new evidence – whose import was made clear enough from the submissions of the parties – either denied the parties procedural fairness or inappropriately curtailed the Court’s duty to consider “the whole case” within the meaning of s 79(1)(b) of the Act. Nor, in my respectful view, does anything said in Mallard v The Queen [2005] HCA 68; 224 CLR 125 suggest otherwise: the passage to which McCallum J refers concerns the approach (adopted by the court below) of treating any fresh or new evidence as if the appeal had been a conventional one and makes the point that the appellate court in cases such as the present is not inhibited by the considerations which apply when an appeal is brought on this ground. Declining to deal with issues which, in the particular circumstances, do not need to be dealt with because the ultimate question can be disposed of by resolving other issues is not disallowed. Thus, to take the appellant’s submission quoted by McCallum J, its purport was not to argue the general relevance of the additional evidence as to disclosure, the prosecutor’s duty, solicitor’s obligations and the like but only to the degree they are or might be relevant to the orders that ought to be ultimately made, having regard to the due administration of justice. Indeed, this was the only basis upon which the Court could consider them and, if the appeal can be resolved by taking another route, the Court is entitled to take it. For its part, the Crown made it abundantly clear that it wished to rely on evidence that would answer the indicated attack on police and prosecutorial conduct. If the considerable task of resolving the issues raised by this conflict can be avoided, because the question whether a new trial should be ordered is determinable by other considerations (here, principally the insufficient strength of the Crown case), then it does not inappropriately limit the issues raised by s 79(2) to take this course. The reference by Mr Game SC for the appellant to the “discretionary matters” to which McCallum J adverts, was, plainly enough, against the risk that the Court might not ultimately accept the argument that the Crown case was so weak that a new trial should not be ordered and the other matters militating against such an order needed to be placed in the scales. Counsel for the Crown, though continuing to press the admission of its additional material, did not argue that it could strengthen the Crown case but, as I have mentioned, was concerned to defend the foreshadowed attack.

134. The alleged admissions made by A107 were, because of the evidence adduced in the Inquiry, inadmissible and their admission in the trial unarguably amounted to a miscarriage, necessarily entailing the quashing of the verdict.

135. The question then became (the proviso not applying) whether, under s 8(1), an order for a new trial should be made. I agree that the terminology of this provision is somewhat odd in that it provides for the Court to make the order of its own notion or on the application of the appellant and gives the Crown no standing to make it. My limited researches have not explained why this should be so but I should think that the explanation is buried somewhere deep in the entrails of the complicated history of the jurisdiction to order new trials. A helpful or, at least, interesting discussion of the history is contained in the judgment of the plurality in Conway v R [2002] HCA 2; 209 CLR 203; 186 ALR 328; 76 ALJR 358. This is not the case in which to attempt resolution of the question. The issue was not raised and the parties made no submissions about it. So far as I am aware, as a matter of course the Court has consistently permitted the Crown to seek an order for a new trial where the conviction has been quashed. So far as the passage in Spies v The Queen [2000] HCA; (2001) 201 CLR 603 at [104] is concerned, certainly a new trial would not be ordered if the evidence did not demonstrate a prima facie case, but it is difficult to see how the interests of justice could justify a new trial (certainly, in the absence of cogent new evidence or in exceptional circumstances such as that which occurred in Taufahema) where the evidence proposed to be led by the prosecution is not capable of establishing the guilt of the appellant beyond reasonable doubt. It is essentially for this reason that, where a verdict quashed because it is unsafe or unreasonable having regard to the evidence (under s 6(1) of the Act), an order for a new trial will not be made and acquittal will be entered. I do not read Spies as suggesting a different rule. Put otherwise, where a verdict of guilt is unsafe or unreasonable having regard to the evidence, it follows that the jury ought to have had a reasonable doubt, hence that the verdict ought to have been not guilty. In the absence of exceptional circumstances, the prosecution will not be given a second bite at the cherry. As Hoeben CJ at CL points out (at [73]) the Court’s task is to some extent a predictive one, akin to considering whether a verdict would be (as distinct from was) unsafe or unreasonable. But the requirement of prediction is no bar to concluding that it would not be open to the jury to convict if a new trial were permitted. One of the matters that may be confidently predicted here is, as his Honour points out, the fact that memories (at the time of trial far from perfect) will not have been improved by the passage of eight years.

136. Finally, I wish to take up the point made by McCallum J as to the significance of the decision of this Court which determined the appellant’s first appeal. The essential ground for holding that the alleged admissions to A107 were inadmissible depends on matters of fact unknown both at the trial and on the appeal. I am, with respect, unable to see how giving effect to the new evidence to quash the conviction undermines the reasoning of the previous Court in any relevant sense. Indeed, this very possibility is envisaged by the inquiry process. Furthermore, the consideration mentioned by McCallum J must apply as much to the quashing of the conviction, perhaps more so, as to the order for a new trial. Since quashing the conviction is, on all accounts, inevitable, I do not see how the question raised by her Honour militates against making that order.

137. McCALLUM J: I have had the benefit of reading the judgment of Hoeben CJ at CL in draft. I would respectfully take a different approach to the determination of this case. In particular, I am not persuaded that the Court can enter a verdict of acquittal by the process proposed.

138. As the Chief Judge has explained, the case falls to be determined in the context of two important and proper concessions made by the Director of Public Prosecutions on behalf of the Crown. First, it was conceded that, in the circumstances described in the judgment given by R A Hulme J when his Honour referred the whole case to this Court, there had been a miscarriage of justice and the conviction accordingly had to be quashed. That order was made on the first day of hearing of the appeal, without opposition from the Crown and unanimously. In that circumstance, the Crown characterised the contest presented for this Court’s determination as being “whether there should be an order for a retrial, as the Crown will certainly submit, or whether there should be a verdict of acquittal, as the applicant may submit”.

139. Secondly, for the purpose of that determination, the Crown conceded that the so-called support person, who was in fact a registered police informer (referred to in this appeal as A107) would not be called at any retrial.

140. Notwithstanding those concessions, neither party invited the Court to take the present course of moving directly to consider the cogency of what remained of the evidence adduced at trial without proceeding to consider the fresh and new evidence relied upon by the applicant to support his grounds of appeal. Indeed, I think it is fair to say that each party resisted that course. The appellant had in his written submissions contended that the concession as to the conviction did not relieve this Court of its statutory duty to deal with the whole case, citing the decision of the High Court in Mallard v The Queen [2005] HCA 68; 224 CLR 125 at [10] per Gummow, Hayne, Callinan and Heydon JJ.

141. Specifically, the appellant submitted:

“It is particularly important in this case that the Court look earnestly to the whole case, including the fresh and new evidence, in order to discharge its obligation in this respect. The appellant’s submissions address matters that go beyond the concessions of the Attorney General. The application raises important matters of principle regarding disclosure, the prosecutorial duty of fairness, support persons for young people, informers, obligations of solicitors to their clients, conflict of interest and the duty of legal practitioners to the Court. These principles and the proper administration of justice are in turn relevant to the orders this Court may see fit to enter following review of the whole case.”

142. For his part, the Deputy Director of Public Prosecutions, who appeared in person for the Crown, also submitted that the fresh and new evidence should be considered before the Court could determine what further order should be made following upon the inevitable quashing of the conviction.

143. The Court nonetheless proceeded to list the appeal for a further day of hearing for the limited purpose of pursuing the course it had directed. The fresh and new evidence relied upon to support the grounds of appeal has not been read and those grounds have not been considered. Instead, the Court determined to confine its consideration in the first instance to the record of the trial (as qualified by the concession that A107 would not be called at any new trial) and the “Crown Case Statement for the Future Trial” prepared at the Court’s direction.

144. At the further hearing Mr Game SC, who appears with Ms Bashir SC for the applicant, presented a careful analysis of the issue raised by the Court and submitted that the Court could conclude at this point, before launching into an examination of the fresh and new evidence, that the case has “such transparent fragility that you would say this is far too weak a vessel to allow the Crown to put [the applicant] back on trial”. In so submitting, however, Mr Game also invoked “all the discretionary factors about the circumstances and the delay which this has incurred”. Those matters necessarily stray beyond a bare analysis of the cogency of the remaining evidence from the first trial.

145. As the Chief Judge has noted, the Director of Public Prosecutions remained concerned, at the further hearing, as to the difficulties with the approach directed by the Court. Specifically, he noted that the Crown would have liked to lead additional evidence to dispute the applicant’s claims and to establish that those matters did not undermine the cogency of the evidence that would be available at any future trial.

146. In those circumstances, with great respect to the Chief Judge, the course his Honour has proposed, while expedient, is not one I am persuaded I can adopt. Mr Game’s submissions as to the cogency of the remaining evidence from the first trial and the different analysis that can be put on that evidence when A107 is taken out of the picture were compelling, for the reasons carefully stated by the Chief Judge. Indeed, it may well be that the order his Honour has proposed (to enter a verdict of acquittal) reflects the just outcome in this case. My determination not to join in that order at this stage should not be taken as any endorsement of the cogency of the Crown case but rather as a reflection of doubt as to the authority of this Court to determine the case on the limited basis proposed, or at least the appropriateness of doing so in the face of the matters put by the parties in resisting that course.

147. There may be a real question (which has not been explored) as to whether s 6(2) of the Criminal Appeal Act 1912 (NSW) confers authority on this Court, without determining the whole of the case referred, to direct a verdict of acquittal to be entered (other than with the Crown’s consent) so as to constrain the Director of Public Prosecutions from presenting a further indictment.

148. Ordinarily, the occasion for the entry of a verdict of acquittal or the exercise of the discretion to order a new trial arises after the determination of an appeal. The occurrence of such patent miscarriage of justice as to prompt the quashing of a conviction without opposition from the Crown is (fortunately) rare; no authority was drawn to our attention in which the question as to what should follow from that event has arisen in quite the way in which it arises in this case.

149. The principles to be applied in determining whether to order a new trial were considered by this Court in Gilham v R [2012] NSWCCA 131 at [648]-[649] per McClellan CJ at CL; Fullerton and Garling JJ agreeing with the principles stated at [662] and [679] respectively. McClellan CJ at CL said (at [649]):

The overriding consideration is whether the interests of justice require a new trial: Fowler at 630. Unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v The Queen [2000] HCA 43; (2001) 201 CLR 603 at [104].

150. There may be a degree of tension between the passage in Spies there cited by McClellan CJ at CL and the principles stated in King cited by the Chief Judge in the present case at [69] above. McClellan CJ at CL suggests that a new trial should ordinarily be ordered unless the interests of justice require otherwise; the principles cited by the Chief Judge suggest rather that a verdict of acquittal should be entered unless the Crown establishes otherwise. It should be acknowledged that the statement in King at 426 that the Crown has the onus of showing the Court that a new trial is the most appropriate remedy was made by Murphy J, who was in the minority in that case. The proposition stated by Murphy J may, however, be more consonant with the terms of the Act than the proposition stated in Spies. Section 6(2) appears to assume that a verdict of acquittal will ordinarily follow from the quashing of a conviction unless one of the “special provisions” of the Act is invoked.

151. McClellan CJ at CL went on in Gilham to state a non-exhaustive list of the factors that may be considered in determining whether the interests of justice require a new trial, as follows:

the public interest in the due prosecution and conviction of offenders (R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [49]; Anderson at 453; Reid at 349);

the seriousness of the alleged crimes (Anderson at 453; Reid at 350; Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [164] (Johnson J));

the strength of the Crown case (Anderson at 453);

the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision (Taufahema at [51]; Anderson at 453; Reid at 350);

the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused (Taufahema at [55]; Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 520 (Dawson, Toohey and McHugh JJ); Anderson at 453);

whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or "patch up" a defective case or to present a case significantly different to that presented to the jury in the previous trial (R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 518; King v The Queen [1986] HCA 59; (1986) 161 CLR 423 at 433 (Dawson J); Parker at 520 (Dawson, Toohey and McHugh JJ); Reid at 350; Fowler at 630; Anderson at 453; Taufahema at [59]);

the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial (Spies at [103]; Reid at 350);

whether a significant part of the sentence imposed upon conviction has already been served (Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590 (McHugh J));

the expense and length of a further trial (Reid at 350);

whether a successful appellant to the Court of Criminal Appeal has been released from custody (Taufahema at [55]; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 302 (Brennan, Deane, Dawson and Gaudron JJ); R v Wilton (1981) 28 SASR 362; (1981) A Crim R 5 at 367-68 (King CJ)); and

whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions (R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 at [27]).

152. However, Gilham was a case in which the Court had considered (and rejected) a ground of appeal that the verdict could not be supported by the evidence. Had the Court upheld that ground, an acquittal would have followed as a matter of course. Having unanimously rejected that ground (determining that the evidence presented at trial was sufficiently cogent to justify a conviction), the Court was divided as to whether to order a new trial. That was a determination which turned primarily on the consideration of new and fresh evidence relied upon in respect of the other grounds of appeal.

153. The process adopted in the present case poses difficulties that did not exist in Gilham. Here, the task of assessing the cogency of the evidence is being undertaken not by reference to the record of a trial that has occurred but by reference to a prospective analysis of what a new trial would look like carving out part of that evidence. That is a difficult task for a court; it resembles (but cannot replicate) the Director’s function of determining whether to find a bill. The task is complicated by the fact that the “Crown Case Statement for the Future Trial” identifies issues not addressed at the first trial that would be additional evidence at any new trial. Of principal importance in that context is the question of Madut’s knowledge that there was an allegation against him that he had disposed of a knife. The assessment of that issue is inextricably linked with the issues sought to be raised by the appellant in the fresh and new evidence, which this Court has not considered. Accordingly, while there are obvious weaknesses in the evidence, I am not comfortable with a process that confines the Court’s attention primarily to an assessment of the strength of the Crown case in circumstances where other factors relevant to the determination whether to order a new trial have not been considered.

154. The difficulty of the process this Court has adopted is further enhanced by the limited consideration that can be given to other discretionary factors relevant to the determination whether to order a new trial in circumstances where the Court has not embarked upon a hearing of the appeal proper. Section 8(1) requires the Court to consider whether, having regard to “all the circumstances”, the miscarriage of justice established “can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make”.

155. There are interesting features of the power under s 8(1) the occasion for the consideration of which has not arisen in the way in which the hearing of this appeal has proceeded. Two aspects of the section in particular are intriguing. One is that the Court’s authority under the section is invoked “either of its own motion, or on the application of the appellant”. The section does not expressly contemplate a contest on that issue on the application of the prosecutor. Secondly, the section is not, in terms, concerned with the dichotomy posed by the Crown in this appeal (new trial or acquittal). The authority conferred by the section is to “order a new trial in such manner as [the Court] thinks fit”. One possible analysis of the section is that it is directed not to the question of the adequacy or cogency of the evidence relied upon to sustain a further conviction but to the manner of any future trial (such as the persons or counts that can be included on any future indictment). Parliament may have contemplated that, such issues aside (and assuming the existence of evidence capable of supporting a verdict), the determination whether to call a successful appellant for trial again should rather be one for the Director of Public Prosecutions.

156. None of those issues has been explored in the present appeal. It is accordingly not appropriate to expand upon them or to consider the authorities cited in Mr Game’s original submissions any further.

157. A further concern I have about the course this appeal has taken is that, as noted on behalf of the applicant, the new and fresh evidence undermines the factual premise of this Court’s judgment in JB v The Queen [2012] NSWCCA 12; 83 NSWLR 153. That decision presently stands as authority on the strength of which it would be sound advice to a young person in custody not to accept the assistance of an adult “support person” to assist the young person in his or her dealings with police. I do not think justice is served by having such an important issue governed by a decision the reasoning in support of which has transpired to be purely hypothetical.

158. For those reasons, while I would respectfully accept that there is much force in the careful analysis set out in the judgment of the Chief Judge, I am not persuaded that the question whether this Court should make an order for a new trial can properly be determined against the Crown at this stage. I wish to record that I have reached this conclusion with a measure of reluctance because, as already indicated, I apprehend the orders proposed by the Chief Judge may well reflect the outcome that is ultimately just in this case.

159. Since preparing these reasons I have had the opportunity to read the judgment of Adams J and the additional remarks of the Chief Judge. I remain unpersuaded that a conclusion can be reached as to whether the interests of justice require the entry of a verdict of acquittal by reference only to a prospective analysis of the proposed future Crown case and without regard to the evidence directed to other discretionary factors relevant to that determination.

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Decision last updated: 29 April 2016