Jones v R

[2005] NSWCCA 443

CITATION:	JONES v R [2005] NSWCCA 443
HEARING DATE(S):	27 October 2005
JUDGMENT DATE:	16 December 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 108; Hoeben J at 109
DECISION:	Appeal dismissed

CATCHWORDS:	CRIMINAL LAW - appeal against conviction - malicious wounding with intent to do grievous bodily harm - whether the trial miscarried as a consequence of the Crown's cross-examination and address to the jury - whether the trial miscarried as a consequence on the trial judge's directions to the jury in respect of the evidence of one witness - silence of a witness - s 89 of the Evidence Act 1995 - right to silence
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995 Criminal Appeal Act 1912
CASES CITED:	Azzopardi v The Queen (2001) 205 CLR 50 Driscoll v The Queen (1977) 137 CLR 517 Gallagher v The Queen (1986) 160 CLR 392 Mraz v The Queen (1955) 93 CLR 493 Petty v The Queen (1991) 173 CLR 95 R v Glennon (1994) 179 CLR 1 R v Storey (1978) 140 CLR 364 R v Foster (1955) NZLR 1194 RPS (2000) 199 CLR 620 Wilde v The Queen (1988) 164 CLR 365
PARTIES:	Wayne Edward Jones (appl) The Crown
FILE NUMBER(S):	CCA 2005/774
COUNSEL:	A Francis (Appl) P G Ingram (Crown)
SOLICITORS:	Ryan & Bosscher Lawyers (Appl) Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0162
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ

2005/774

McCLELLAN CJ at CL
SIMPSON J
HOEBEN J

FRIDAY 16 DECEMBER 2005

JONES, Wayne Edward v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted after a jury trial of maliciously wounding Sharon Bavistock with intent to do her grievous bodily harm contrary to s 33 of the Crimes Act 1900. He was sentenced to a term of imprisonment for eight years with a non-parole period of four years and six months.

2 The issues at the trial were the identity of the person who inflicted the injuries on the victim and, if that person was the appellant, whether he intended to inflict grievous bodily harm.

3 Ms Bavistock gave evidence at the trial. She said that she had returned to her car which was parked in Erina Street, Gosford after dropping her mother at the local medical centre. When she looked to the right from her car across the roadway she saw a red Ford motor car facing up the road. She said that the man in the driver’s seat appeared to be familiar – she thought that she may have been at Wyong High School with him. She said that the man smiled at her and she waved a “hello” before getting into her car.

4 Ms Bavistock remarked to her son, who was a passenger in her car, that she thought she recognised the man as someone she had been to high school with more than twenty years ago.

5 Ms Bavistock then drove to the underground car park of the Imperial Centre at Erina. After she had retrieved her ticket from the dispenser she recognised the car behind her as the same Ford she had seen in Erina Street. She parked her car and the Ford motorcar parked in the space next to her. Ms Bavistock said that her son who was sitting in the front passenger seat had his window down. She looked over past him and said to the driver of the red Ford, who also had his window down, “Oh hi, is your name John. Didn’t I go to Wyong High School with you?” The complainant said that the man replied, “Isn’t your name Sharon?” to which she said “Yes”. The complainant then said “Oh is it John?” and he went sort of “Yeah”. While both parties were still seated in their cars, Ms Bavistock continued the conversation, “Oh right, I’m pretty sure I went to school with you down at Wyong High School. Oh, this is my son Shane.”

6 Ms Bavistock noticed that there was a woman in the passenger seat of the red Ford along with some children in the back seat. She said that she did not recognise the woman and had never seen her before. That woman was Ms Marie Innes.

7 Ms Bavistock got out of her car and stood between it and the car door. She noticed Ms Innes get out of the red Ford. Ms Bavistock introduced herself, “Hi, I’m Sharon, everyone calls me Shaz. I went to school with your husband. This is my son Shane”. She then put her head back into the car and told her son that they should be going.

8 Ms Bavistock said that she had assumed that the woman in the passenger seat of the red Ford motor car was going to attend to her children in the back seat. However, as she was about to lock her car she said that “the girl’s just come out of nowhere and just king hit me right on the crown, right on the temple.”

9 Ms Bavistock’s next memory was of being held and comforted by an elderly lady, having blood everywhere and her son grabbing a towel for her to hold her head.

10 Ms Bavistock confirmed in cross examination that she did not see the man who was the driver of the red Ford get out of his car. She denied that she knew Ms Innes as “Marie” or that Marie spoke to her and said, “You should remember me, you raped me, didn’t you? I’m going to have you charged, bitch”. She denied responding with the words “Yeah that’s right, cunt, I’ll do it again”.

11 It was suggested to Ms Bavistock in cross-examination that there was a fight in the car park between her and Marie after Marie had said, “I’m pregnant”. She denied that Marie spoke to her or that there was a fight. Ms Bavistock also denied commencing any fight. When asked if her son called out, “Get her Mum” Ms Bavistock said that he did not. During cross-examination Ms Bavistock said she realised later that she was mistaken in thinking that she recognised the driver of the red Ford.

12 There were a number of witnesses to the incident. The complainant’s son, Shane Martinez, said that while he was still seated in the car and after his mother had closed her door the woman from the red Ford went around and hit Ms Bavistock. He saw a punch then his mother fall onto the car next to them. He said the woman from the red Ford kicked his mother while she was on the ground. He gave evidence that he never saw anything in the woman’s hand at any stage.

13 Mr Martinez said that the appellant then got out of the driver’s side of the red Ford and walked around the back of the car and starting hitting his mother with a car security lock, called a “club lock.” He said that he first saw the club lock when the appellant started swinging the lock above his head and bringing it down to the ground. He said that the appellant hit his mother about six times or possibly more.

14 When Mr Martinez challenged the appellant he raised the club lock and said “stay out of it.”

15 Although Mr Martinez tried to intervene, before he could do so security guards or possibly police officers arrived.

16 Geoffrey Moher gave evidence. He was in the car park with a friend, Mr Russell Hammond, intending to go shopping when he saw the scuffle between the two women. This was followed by his observations of a man, who Mr Moher thought may have come to the aid of his wife, who “all of a sudden he picked up the club lock and he drove it, he’s standing over her and he drove it in a downward motion and he knocked, whacked into her face, yeah. He drove the club lock down into her face.”

17 He demonstrated the man holding the club lock in both hands, pushing downwards. He said there was one powerful hit and then the appellant made a couple of other jabs, but was not sure if they connected as well as the first one. Mr Moher said that Mr Hammond said, “What are you doing?” or words to that effect, when the man told them “She rapes woman … she rapes girls, she arranges for girls to be raped.”

18 When cross examined Mr Moher’s recollection was challenged and it was suggested he may have mistakenly thought the appellant used the lock instead of Ms Innes. Mr Moher was emphatic in rejecting this suggestion stating that Ms Innes had moved away when he saw the appellant strike the victim.

19 Evidence was also given by Mr Hammond. He said he saw two women in an altercation and then observed a person who “had a piece of blue metal, looked like a crook lock, and he brought it down where the woman was lying on the ground.”

20 Asked what he observed he said:

“Him raise the crook lock and bring it down on the lady that was on the ground.”

21 He indicated that he did not actually see the car lock connect with the woman his vision being obscured by a pillar and the parked cars.

22 Each of Mr Martinez and Mr Moher gave evidence that they did not see the appellant remove the steering lock from the hands of either Ms Innes or the victim. All three of them, Mr Martinez, Mr Moher and Mr Hammond said that the steering lock was not in the hands of Ms Innes.

23 Ms Gail Ransley gave evidence that while she was looking for a car parking space she observed a woman bending over and hitting something on the ground. She also saw a man standing behind the woman watching what she was doing. She observed that when the woman stopped hitting the person on the ground the man continued to do so. She could not see anything in his hands - all she could see were his arms; although she could not say that he was not holding anything.

24 Snr Constable Gautier attended the car park on a bicycle. He observed the complainant and others in the car park screaming “it’s him, it’s him.” He said that he approached the appellant and told him “Just be cool man” and the appellant replied “It was me.” He also gave evidence that the appellant had responded to the complainant’s son by saying “Your Mum’s a rapist, your mum rapes blokes, she’s a rapist.”

25 Const Gautier also gave evidence that the appellant said “I promise I won’t run away, I can’t, my back’s fucked” and the appellant also told him:

“Mate this slut she rapes blokes, she gets blokes to rape other blokes, she makes them smell stuff that knocks them out and then she gets another bloke to rape them, it’s potassium something or other.”

26 Snr Const Gautier says that when he questioned the appellant about what happened the appellant replied in the following way:

“I smacked her mate, she gets blokes raped, she got this blond friend from up north, Cessnock or something and she’s good looking and they get blokes to come around because they’re nice looking and she will get the blokes and say something like ‘smell this’ and when he does it makes him pass out. Once this bloke’s, with the rush, he went through a bloke who is not into this, you know, and then he got the rush too. It is not right you know when the bloke is not into this kind of stuff.”

27 Evidence was also given by Const Hancock who took over custody of the appellant from Snr Const Gautier. He gave evidence that he had a conversation with the appellant during which the appellant said “I should have fucking killed her, I should have fucking killed her.” He gave evidence that the appellant said similar things to Ms Innes.

28 Ms Innes was taken from the scene, cautioned and conveyed to the Gosford police station. She declined to provide a witness statement or be interviewed. Det Snr Const Driscoll said that Ms Innes was not formally charged, as there was insufficient evidence to substantiate charging her with anything other than common assault, which did not reflect the magnitude of the assault which occurred. I have some concerns as to whether this view was appropriate but the issue is not of present relevance.

29 Ms Bavistock suffered severe injuries. Her lips were split and her teeth damaged. She bled profusely from the mouth. Although she remained conscious she was very upset. She had fractures to her cheek bone and severe bruising. The complainant described her injuries as being that the whole left side of her face was “totally smashed in.”

The evidence of the appellant

30 The appellant gave evidence. His version of the events was that when the cars pulled up beside each other he engaged in light hearted conversation with Ms Bavistock. He noticed that Ms Innes had got out of their car and had moved towards Ms Bavistock who had left her vehicle. He said “Sharon (Ms Bavistock) had stood up outside her vehicle. She then looked at Marie (Ms Innes) and “sort of smiled” and said that she, “Oh, I know him from school.” Marie said “Do you remember me?” and Sharon said “Why?” Marie said “You should fucking remember me, cunt, you raped me” and Sharon answered with “Yes, that’s right and I’m going to do it again” and Marie said at that stage that she is going to have her charged and Sharon immediately struck Marie in the head.”

31 The appellant indicated that the blow was made with a closed fist but he “had noticed at this stage that Marie was holding the blue club lock which has been entered in evidence.”

32 The appellant said that he ordered Mr Martinez to tell his mother to stop because Ms Innes was pregnant. He then says he approached the two women and as he was pulling Ms Bavistock away by the hair “I proceeded to pull her back and at this time she started to fall and I stepped back, like I stepped back to clear myself sort of from her. At this time I heard a considerably large whack noise, a loud thumping noise.”

33 He was asked whether he saw anything that caused the whack noise to which he replied “Not when I heard the noise but when Sharon has fallen back the club lock was situated in her mouth.”

34 Although the appellant said Ms Bavistock struck the first blow Ms Innes suffered only a superficial injury. The evidence of the appellant was that “there was a small like a scratch or something.” It was not bleeding.

35 On the appellant’s version Ms Innes must have exited from her vehicle with the lock in her hand and moved towards the victim. Inherent in his account is the assumption that Ms Innes did not intend violence towards the victim and it was the victim who threw the first punch.

36 The appellant’s version of the events is that he did not see Ms Innes actually deliver the blow with the lock all he heard was the thud. He said all this occurred at a time when he was pulling Ms Bavistock away from Ms Innes by the hair. He heard a whack and she ended up on the floor. Although the victim was approximately two metres tall the appellant said he jumped back out of the way and let her fall to the ground.

37 The appellant was cross examined about his admissions to Const Gautier. He said of each of them that the policeman had lied and he did not say the words attributed to him.

38 After his arrest the appellant was passed to the custody of Const Hancock and the evidence was that the appellant said to him “I should have fucking killed her. I should have fucking killed her.”

39 The appellant denied saying this and says he said to his wife “I could have killed her” but “I’d said how they’re fucking idiots because she come up to say that like you know, that she done it and it wasn’t me and I told her to shut up. I said they’re fucking – like they’re fucking idiots I could have killed her. Like I could have killed her if I’d done it and I turned to her and I said that. I never said it – to – anything of the sort to him.”

40 The appellant repeated his assertion that the constable had misheard him.

41 The jury may well have found the appellant’s denial of the use of the word “should” in the circumstances difficult to accept. If, as he said his only intervention in proceedings was to remove Ms Bavistock from the altercation with Ms Innes it is difficult to understand why he should be speaking of killing Ms Bavistock at all. Furthermore, unless it was he who had delivered the blow with the lock it is difficult to understand the assertion that he could have killed her. To my mind, the account which the appellant gives of the conversation which he had with Const Hancock and his wife cannot be accepted.

42 When cross examined the appellant agreed that all of the people around him were pointing to him and yelling out “It’s him, it’s him”. He denied that he told the police “it was me.” The appellant asserted in cross-examination that the police officers had lied, were corrupt and had tampered with the witnesses’ evidence.

The evidence of Ms Innes

43 Ms Innes was also called to give evidence in the appellant’s case. It is her evidence which gives rise to this appeal. She said that when they pulled up next to Ms Bavistock’s car in the car park she recognised her as a woman she had previously met around October 2001. Ms Innes described meeting Ms Bavistock after reading an advertisement that had been placed in the newspaper. Ms Innes called her to see if she could get some escort work. Ms Innes said that Ms Bavistock said she could, and to come over and meet her, which Ms Innes did.

44 Ms Innes gave evidence that after the appellant turned around to speak to Ms Bavistock in the underground car park, she got out of the car with the blue club lock, which had between the seat and the console in the car, walked around the back of both parked cars and by the time she got to Ms Bavistock’s side of the car, she had got out of her car. Ms Innes said that she took the club lock out of the car because she wanted to confront Ms Bavistock about raping her, that she was scared of her and she knew Ms Bavistock carried a gun. Ms Innes agreed in cross examination that she had not seen the complainant for 14 months and that she had not gone to the police during that time.

45 Ms Innes said that in the car park she had the following conversation with Ms Bavistock:

“Ms Innes: Do you remember me, you should, admit that you raped me.
Complainant: Yeah, what are going to do about it?
Ms Innes: Nothing, I’m pregnant, I just wanted you to admit that you done it in front of someone. Look I am going to have you charged.
Complainant: Yeah, I’ll do it again.”

46 Ms Innes said that Ms Bavistock then hit her on the side of the head with her fist. In cross examination Ms Innes said that the complainant called her by name, saying “Here Marie and I will do it again.”

47 Ms Innes gave evidence that Ms Bavistock tried to take the club lock off her and they wrestled over it for a few seconds. Ms Innes then pushed Ms Bavistock, who fell over and grabbed hold of Ms Innes’ shirt and was trying to knee and kick Ms Innes in the stomach. Ms Innes said that as Ms Bavistock let go of the club lock, she hit her with it.

48 Ms Innes said that she understood by giving this evidence she was leaving herself liable to be prosecuted. She described how she hit Ms Bavistock by bending over her, holding the club lock with both hands and then swung the club lock back about waist high towards her right hand side, behind her, slowly lifting it around to shoulder height, and then swung it forward and down towards the complainant’s face. Ms Innes then gave evidence that she looked up and saw the appellant standing there and that he took the club lock off the complainant’s face. The club lock had come out of her hands when she hit Ms Bavistock and one of the hooks of the club lock was hooked in the complainant’s mouth.

49 After the car lock had been freed from Ms Bavistock’s face the appellant and Ms Innes returned to their car and attempted to leave the car park. They said they were going to the police station to report the incident. They took this course notwithstanding the fact that the victim had been seriously wounded. The appellant said that he sought to leave the scene because they were concerned for their safety and feared that the victim or her son may have a gun. Given the injuries suffered by Ms Bavistock the jury may well have found this explanation for their behaviour difficult to accept.

50 Ms Innes also gave evidence as to why she did not tell the police officer what had happened. She said that the appellant told her not to say anything “he doesn’t want me getting into trouble while I’m pregnant.” She said that the appellant said to her as a police officer approached her “they think I did it, don’t tell them anything, if I done it I could have killed her and just be quiet I don’t want you getting into trouble while your pregnant.”

51 Ms Innes denied that the appellant had used the club lock or had hit Ms Bavistock.

The appeal

52 There are two grounds of appeal.

Ground One – the trial miscarried as a consequence of the Crown Prosecutor’s cross-examination and address to the jury.

Ground Two – the trial miscarried as a consequence of his Honour’s directions to the jury in respect of the evidence of Ms Innes.

The cross examination

53 Ms Innes was cross-examined by the Crown Prosecutor, inter alia, as to why she had not reported her version of the incident to the police earlier. In respect of the period when Ms Innes was first detained by the police the Crown Prosecutor asked:

“Q: Why didn’t you tell the police officer what had happened then?
A: Because Wayne told me not to say anything.
…
Q: Didn’t you think this time would be pretty important when you are seeing your husband handcuffed for something according to you he didn’t do?
A: Well. I yeah, I believe that at the end of the day it would be sorted out.
Q: That’s February, this is November?
A: Yeah, I didn’t think it would take long.
Q: You never from February to November went to the police station and told them this account did you?
A; No I never.
Q: You have never rung the police up and said ‘Listen you have charged my man, he didn’t do it, I did it’?
A: On the day they were getting told, she rapes people and drugs them, she does and no attention at all was getting paid to it. “

54 Later she was asked:

“Q. From February 2003 to 13 November 2003 have you at any time gone to the police and told them this version of events?
A: No.
Q: In fact on 17 February 2003 you were asked by Det Driscoll if you were prepared and wanted to make a statement, weren’t you?
A: Yes I was.
Q: You said ‘No’
A: That’s right. At that point they had already blown off what had been said about her drugging people and raping them.
Q: You told Det Driscoll that you did not wish to give your account of what occurred on that day.
A: That’s right.
Q: You have never … .”

55 At this point objection was taken but questioning continued:

“Q: On this day you were arrested Ms Innes, on 17 February?
A: Yes.
Q: You were subsequently on the same day released?
A: Yes.
Q: You never had your clothes taken?
A: No.
Q: You knew when you walked out of the Gosford Police Station that you were not arrested?
A: Yes.
Q: You were not charged?
A: Yes.
Q: At no time between then and now have you returned to that police station or called a police officer and said ‘Wayne didn’t do it, I did.’
A: No I haven’t.
Q: Now from February, February to November of this year you have lived with the accused, Wayne?
A: Yes.”

56 This line of cross-examination continued and the following exchange occurred:

“Q: You’ve never practised what you’re (sic) are going to say in the witness box in a court of law?
A: I have gone through the statement that I made to the solicitor.
Q: So you made a statement to the solicitor?
A: Yes.
Q: But you didn’t make a statement to the police?
A: No.

57 It is submitted by the appellant that this cross-examination by the Crown Prosecutor was not permissible being contrary to the decisions of the High Court in Petty v The Queen (1991) 173 CLR 95 and R v Glennon (1994) 179 CLR 1. It is submitted that the witness’s silence assumed considerable forensic importance in the case. In this respect the appellant points to the address of the Crown Prosecutor in which the following was said:

“The police arrive. Again no reporting to a police officer by her and she let her husband get handcuffed, arrested, taken to Gosford Police Station, charged, brief of evidence being bought against him and ten months go by. Not a word on the day, not a word in between 17 February 2003 and yesterday. Not a word. Not a statement to police. In fact declined a statement to police. Not one time did she go to the police and ring and tell them: you’ve got it wrong man, I’m the one that did it. Please let my husband go.”

58 The Crown Prosecutor also emphasised the fact that Ms Innes declined an invitation during the course of official questioning to take part in an ERISP. It is submitted that the purpose or effect of the questions and submissions was to invite the jury to draw an inference against Ms Innes’ credibility on the basis that she failed to inform the police about her involvement in the assault, either at the time she and the appellant were arrested, or, at a later time.

The trial judge’s directions

59 It is submitted by the appellant that the sting of the prohibited inference was made worse by the trial judge’s summing up to the jury concerning Ms Innes’ evidence in which his Honour said:

“And the Crown points to the inconsistencies between the evidence of Marie Innes and the accused. She set that out in detail for you and I do not propose to elaborate upon that. Importantly, she says that the version given to you by the witness Ms Innes was only given for the first time yesterday. She had never reported the detail of her alleged actions to the police before yesterday. She had been given the opportunity to make a statement to the police before but she declined.
Now of course, I should remind you as with the accused, if this woman believed that she was involved in the offence which she clearly said she did yesterday, the police had already warned her that she need not say anything about that matter to them. That is a factor which you would want to bear in mind.”

60 The appellant submits that although his Honour invited the jury to weigh in the balance the warning against self incrimination which Ms Innes had been given by the arresting police the trial judge did not direct the jury, in accordance with established principle, that no adverse inference could be drawn against the witness from her silence and, furthermore, no inference adverse to the case for the accused could be drawn, as a consequence of the witness exercising her protection against self incrimination.

61 It is submitted that the jury ought not to have been left with any understanding that it could draw an unfavourable inference against the appellant from the exercise of Ms Innes’ right to silence on the night of her arrest and afterwards.

Section 89 of the Evidence Act

62 Apart from the problems which the appellant submits arise from the application of common law principles it is further submitted that both the cross-examination and the Crown address offended s 89 of the Evidence Act 1995. That section provides:

“(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a) to answer one or more questions, or
(b) to respond to a representation,
put or made to the party or other person in the course of official questioning.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section:

inference includes:

(a) an inference of consciousness of guilt, or
(b) an inference relevant to a party’s credibility.”

63 It is submitted that the effect of the section was that in this case the trial judge ought to have directed the jury that they were not to use Ms Innes’ exercise of her right to silence in any manner adverse to the appellant. Allowing the submission to be made to the jury that Ms Innes’ silence impugned her credit adversely affected the veracity of the appellant’s defence that the striking with the lock was not done by the appellant but by Ms Innes, and accordingly, was contrary to s 89. It is submitted that the effect of the misdirection in this case was that the jury was invited to reject the evidence of Ms Innes, and the sworn denial of the appellant that he had assaulted the victim with the club lock, on an impermissible basis, namely, that the details of the applicant’s defence had not been revealed to the investigating police.

Rule 4 and the proviso – submission of the appellant

64 It is submitted by the appellant that there were material inconsistencies in the evidence of the eye witnesses which cast doubt on whether the appellant had committed the crime. These inconsistencies were pointed out by the trial judge when he said:

“Now I should also point out to you that the reliability of the identification of the accused as the person who hit the victim is in issue. A number of witnesses have identified the person who hit the victim as being a male. However, there are inconsistencies in their versions. Whilst it might be said that there is a general consistency between the versions given by the three men, that is Shane Martinez, Mr Moher and Mr Hammond, that is that it was a man who hit the victim with a blue implement, that evidence is not confirmed by the other independent witness, Ms Ransley.
All she could say was that the man was present and he may have had something in his hand.
Even between Mr Moher and Mr Hammond, there are inconsistencies, Mr Hammond indicated that he did not have clear view of the incident whereas Mr Moher said he did. Possibly that is explained by the fact that they were positioned differently. There was also a difference in the manner in which the three men said that the implement was used to strike the victim. There is also a difference between Mr Moher and the other witnesses as to where the actual incident took place. I will have some more to say about this when I come to outline the addresses of counsel. But because this is a crucial issue in the case, I warn you that the eyewitness accounts of seeing the accused hit the victim, with the blue implement might be unreliable and you should exercise care or caution before relying on those versions.”

65 Accordingly, it is submitted that having regard to the unreliability of the identifying accounts when taken together, the critical issue for the defence case was whether Ms Innes was to be believed. In these circumstances a direction which wrongly detracted from her credibility deprived the appellant of a chance of acquittal that was fairly open.

66 Accordingly, for these reasons, it is submitted that the trial miscarried and although leave pursuant to r 4 of the Criminal Appeal rules is required and s 6(1) of the Criminal Appeal Act 1912 “the proviso” must be considered, it is submitted that a significant miscarriage has arisen and leave should be granted and a new trial ordered.

The position having regard to the common law

67 Because of the conclusion I have reached with respect to s 89 it is not necessary to resolve the common law position. However, some consideration of the relevant principles may be useful.

68 At common law a person who believes on reasonable grounds that he or she is suspected of being a party to an offence is entitled to remain silent: Petty v The Queen (1991) 173 CLR 95 at 99. Described by the High Court in Petty as a “fundamental right” the courts have been alert to confine forensic activity which might intrude upon or diminish the right. For this reason, in a criminal trial, it cannot be suggested that an accused’s exercise of the right to silence provides a basis for inferring a consciousness of guilt. Furthermore, it cannot be suggested that previous silence about a defence raised at the trial “provides a basis for inferring that the defence is a new invention or is rendered suspect or is unacceptable” Petty p 99.

69 In RPS (2000) 199 CLR 620 at 630 Kirby and Hayne JJ said of the “right to silence”:

“That expression is a useful shorthand description of a number of different rules that apply to the criminal law. (their Honours refer to the observation by Lord Mustill in R v Director of Serious Fraud Office: Ex parte Smith [1993] AC 1 at 30-31). But referring without more, to the ‘right to silence’ is not always a safe basis for reasoning in a particular case; the use of the expression ‘right to silence’ may obscure the particular rule or principle that is being applied.”

70 Lord Mustill described the “right to silence” as a group of disparate immunities. He identified six immunities although he did not suggest his list was exhaustive. The list is:

“(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers and others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.” (emphasis added)

71 In Azzopardi v The Queen (2001) 205 CLR 50 McHugh J discussed the history of the various immunities. Rather than a principle developed by the common law from early times McHugh J identified that “the notion of a right to silence, in the modern sense, was the invention of lawyers in the nineteenth and twentieth centuries” [147].

72 His Honour expressed regret in joining with other members of the Court in Petty having, on reflection, come to the view that “we took the right to silence in the face of police questioning as a given and without citing authority.” However his Honour believed that it was too late to turn the clock back [169].

73 It cannot be doubted following Petty and Azzopardi that a person who reasonably believes that he or she is a suspect may remain silent in the face of official questioning. It will be obvious that consistent with that immunity a person is under no obligation to confess to having committed a crime. The question is whether, should they confess to the crime at a later time and, more particularly, give evidence confessing to the crime, the veracity of that confession may be attacked because they availed themselves of the available immunity.

74 One issue which caused difficulty for many years was whether an accused person’s silence may be used to attack the credibility of a late explanation which he or she makes of the relevant events as opposed to inferring consciousness of guilt of the offence. Although the distinction was ridiculed by Professor Cross (The Evidence Report: Sense and Nonsense [1973] Criminal Law Review 329 at 332-334) it nevertheless gained judicial recognition until it was finally and firmly rejected by the majority in Petty.

75 Of course, if the accused chooses to break his or her silence and give an explanation before trial which is inconsistent with an account given in evidence, the inconsistency may be used by the prosecution, both to attack the accused’s credit, and as consciousness of guilt.

76 There are many cases which illustrate the operation of the common law. In Glennon v The Queen (1993-1994) 179 CLR 1 the Court was concerned with the question of whether a particular misdirection given by the trial judge meant that a new trial should be ordered. The direction held to be wrong was that, in circumstances where, in his defence, the accused had called evidence which was inconsistent with the Crown case, the trial judge had said “in testing the veracity of that defence brought before you in this Court you are entitled to have regard to the fact that it was not revealed to the police and you are entitled to ask yourselves, if this explanation is true, surely the sensible thing was to tell the police about it as soon as possible.” The direction was held to impugne the accused’s right to remain silent.

77 The position of a witness at a trial has, so far as I am aware, not previously been considered. Perhaps this is not surprising. It would be a rare case indeed where a person would, as did Ms Innes in the present matter, confess to a serious crime when giving evidence at the trial of another person who has been accused of committing that very crime.

78 The attack made by the prosecutor on Ms Innes was directed to and confined to her credit. It was no part of the Crown case that the jury should find that Ms Innes had committed the crime. The Crown case was entirely inconsistent with that proposition. Accordingly, the suggestion that Ms Innes had remained silent when she should have spoken was not made for the purpose of providing a basis for inferring a consciousness that she was guilty of any offence.

79 There can be no doubt that Ms Innes had a right to remain silent. The evidence suggested that, at the least, she may have committed an assault and in the witness box she confessed to a more serious crime. She was under no obligation at any stage to provide an account of the events to anyone in authority. Accordingly, the question raised in the appeal is whether the prosecutor could raise her silence when the purpose was not to suggest that she may have committed a crime but merely to attack her credit. The Crown submits that because the attack was confined to matters of credit the common law right was not infringed.

80 There are echoes in the Crown argument in this case of the distinction between “reliance on silence as evidence against the accused, and reliance on it by way of answer to or comment upon a defence raised for the first time … at the trial” (Reg v Foster (1955) NZLR 1194 at 1200) which was the problem addressed in Petty. Although the majority in Petty acknowledged the theoretical distinction they were not prepared to allow it to operate in the criminal law. The task of separating the two concepts was too difficult.

81 Their Honours said at 100-101:

“In the present case, Priestley JA expressed the view that there is a ‘significant distinction’ between inferring a consciousness of guilt from silence and denying credibility to a later defence or explanation by reason of earlier silence. His Honour suggested that in the first case there can be inferred an admission by reason of the consciousness of guilt whereas in the second case rejection of the defence or explanation has no evidentiary value in itself, though its effect may be to leave the prosecution case unanswered, or at least not answered by that defence or explanation. We acknowledge that there is a theoretical distinction between the two modes of making use of the accused's earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound.”

82 The relevance of Ms Innes’ evidence in the appellant’s trial was, of course, that it provided the appellant with a defence. The criticism of Ms Innes’ evidence on the basis that she only provided her account at the trial carried with it a submission that the appellant’s defence should not be accepted because he had not previously advanced it. However, his right to remain silent meant that he was under no obligation to provide his account of the events or to bring forward anyone, including Ms Innes, who might explain his innocence.

83 The Crown was asking the jury to accept that the defence case, founded upon Ms Innes’ evidence, was a recent invention and for this reason should not be accepted. Because the appellant was under no obligation to inform the authorities of the evidence Ms Innes would give or otherwise disclose his defence, it may be that the course taken by the prosecutor and the direction given by the trial judge were not appropriate. The attack upon her account as a recent invention could be understood as an attack upon the “fundamental right” which the common law afforded to the appellant.

84 Whether it was otherwise open to the Crown to criticise Ms Innes’ evidence as not being creditable because she had not previously disclosed it, raises different considerations. However, because disclosure would have meant confessing to the commission of an offence, when the law provides immunity from self incrimination, the better view may be that for this reason also the cross examination and, later, directions, should not have been allowed.

The position having regard to section 89

85 Beyond the common law the appellant submits that the course taken by the trial judge and the prosecutor was contrary to s 89 of the Evidence Act 1995 (NSW).

86 Section 89 has been carefully drafted to confine its operation. It only applies to a failure to answer or respond if in the course of “official questioning.” Official questioning means “questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.”

87 In the present case the police officer who investigated the incident was an investigating official. Accordingly, with respect to the essential thrust of the cross examination and direction by the judge - “why did Ms Innes not tell the truth to the police?” –s 89 is engaged.

88 The section only operates in relation to criminal proceedings. To my mind, this has significance for its proper construction. Subsection 1 provides that an “inference unfavourable to a party must not be drawn” in the relevant circumstances. There are only two types of parties in criminal proceedings, the Crown or, in some instances, a private prosecutor, or the accused of which of course, there may be more than one. A failure by a witness to speak out at an early stage may be used to attack his or her credit, giving rise to an allegation of “recent invention” and an inference that the witness is lying. Obviously, this is an inference unfavourable to that witness. However, it was submitted that this does not raise an inference unfavourable to a party. In the present case the evidence of Ms Innes may not be believed but it is submitted this raises no inference with respect to the appellant, the only consequence is that her evidence may be disregarded.

89 To my mind, the section cannot bear such a confined construction. The evidence of a witness other than the accused will only be relevant because it adds to the available evidence from which the accused’s guilt or otherwise can be determined. If a witness gives evidence consistent with an accused’s innocence an attack upon the witness’ credit may lead to an inference unfavourable to the accused. In the present case the attack upon Ms Innes’ credit was intended to cause the jury to disbelieve her. As she was called by the accused in his case and gave evidence consistent with his version of the relevant events, if she was not believed, this would more readily lead to an inference that his account could not be accepted. Being an inference unfavourable to the appellant’s case it was an inference unfavourable to a party and was prohibited by the section.

90 This conclusion is reinforced by the fact that the section expressly relates to the evidence of a “party or another person” who failed or refused to answer or respond. The reference to another person can only be given meaning if the section is referring to a witness from whose silence an inference adverse to the accused might otherwise be drawn. The only purpose in questioning Ms Innes as to her failure to tell the police of the true position was to attack the credibility of her account and press the inevitable inference adverse to the appellant upon the jury. Accordingly, s 89(2) was contravened.

Rule 4 and “the proviso”

91 The appellant concedes that his counsel did not seek a redirection at the trial. Accordingly, leave is required: Rule 4 Criminal Appeal Rules 1912.

92 The Crown submits that leave should be refused. It is submitted that a deliberate choice was made by the appellant’s counsel which can be explained by the fact that the appropriate direction would have precluded a process of reasoning by the jury that Ms Innes might have been guilty because she had not earlier given her account and exculpated the appellant. Accordingly, it is suggested that the direction would have precluded a means by which a reasonable doubt might have been created as to the guilt of the appellant. The Crown points to the fact that at the time when evidence was given by a detective the trial judge directed the jury that the appellant had exercised his right of silence but that no adverse inference for this reason could be drawn against him. However, a similar direction was not sought in relation to the evidence of Ms Innes. It is submitted that, accordingly, the jury were able to reason that her earlier silence made it more likely that Ms Innes was guilty, as she indicated.

93 I do not accept this submission. To my mind, the attack upon Ms Innes’ credit, reinforced by the directions which his Honour gave, was likely to have significantly undermined her evidence. Although his Honour told the jury that Ms Innes had been told of her right not to say anything to the police, that part of the direction which reinforced the Crown’s submission of “recent invention” would have had a significant impact. His Honour’s use of the word “importantly” must also have had significant impact.

94 I do not accept that counsel’s failure to object or seek a redirection was for any considered forensic purpose. To my mind, it was more likely that the jury would reason that Ms Innes was lying when, although she confesses in the witness box, she had not previously suggested that she had struck Ms Bavistock.

95 With respect to the application of the proviso to s 6(1) of the Criminal Appeal Act the Crown submits that the impugned direction did not constitute a fundamental irregularity giving rise to a significant miscarriage of justice. It was limited to the evidence of Ms Innes and was not, at least directly, referable to the evidence of the appellant. The Crown also points to the evidence of the other witnesses which would support a conviction. It is submitted that that evidence was overwhelming and it could be concluded without doubt that it was the appellant and not Ms Innes, who struck the victim in the face with the steering lock.

96 The circumstances in which the proviso to s 6(1) of the Criminal Appeal Act can be applied have been the subject of consideration by this Court and the High Court on many occasions. The relevant principles were discussed in Wilde v The Queen (1988) 164 CLR 365. In summary they are:

· where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost "a chance which was fairly open to him of being acquitted" (Mrazv The Queen (1955) 93 CLR 493 at 514) or "a real chance of acquittal" (R v Storey (1978) 140 CLR 364 at 376);

· unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen (1977) 137 CLR 517 at 524; R v Storey 376; Gallagher v The Queen (1986) 160 CLR 392;

· the question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. That question must be answered according to its assessment of the facts of the case;

· the proviso is not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being "plunged into outworn technicality" (see Driscoll v The Queen 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted;

· the proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings;

· although there is no rigid formula to determine what constitutes such a radical or fundamental error “it is clear that [the proviso] may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.

97 In Glennon, the accused was charged with a number of sexual offences involving young people. When interviewed in relation to three of the counts he declined to answer questions. At his trial a misdirection occurred and the question before the High Court was whether the proviso should be applied.

98 Following the approach adopted in Wilde Mason CJ, Brennan, Toohey JJ, in their joint judgment, considered the two relevant questions. Firstly, was there a fundamental error and secondly, was a conviction inevitable.

99 The majority answered the first question in the negative. On that question their Honours said at 8:

“According to the approach of the majority in Wilde (1988) 164 CLR at 373, the proviso cannot be applied "where proceedings have so far miscarried as hardly to be a trial at all". But that is a particular situation arising only "where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings". In such a case the accused "has not had a proper trial and ... there has been a substantial miscarriage of justice" (ibid.). But the majority stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances (ibid.) and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error (ibid. at 374.).

In the circumstances of this case, it cannot be said that the trial judge's misdirection on the applicant's right to silence was "so fundamental" that the trial was "hardly a trial at all". Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso.”

100 In my opinion, the same approach can be taken to the question of whether or not a fundamental error has occurred in the present case. Although it cannot be doubted that Ms Innes was an important witness in the defence case, her evidence fell to be assessed in light of the evidence of the Crown witnesses. The problems with her cross examination and the manner in which her evidence was treated were in part alleviated by his Honour’s directions. His Honour reminded the jury that Ms Innes, in the same way as the accused, was entitled to remain silent. His Honour stressed that “that is a factor which you would want to bear in mind.”

101 In these circumstances I am not satisfied that the errors which occurred at the trial are such that it can be concluded that there has been “such a departure from the essential requirements of the law that it goes to the root of the proceedings.”

102 With respect to the second question the joint judgment in Glennon said at 8-9:

“In order to apply the proviso where there has been a misdirection by the trial judge that is not fundamental in the sense discussed above, the Court of Criminal Appeal must be satisfied that, in the absence of the misdirection the jury would inevitably have reached the same verdict. This is so even if the case against the accused is otherwise a strong one.”

103 To my mind, the conviction of the appellant was inevitable. The eye witness accounts from Messrs Mohr and Hammond who were strangers to any of the parties, provide convincing evidence. There is nothing to suggest that they were mistaken in their observation that the appellant was wielding the car lock rather than the appellant.

104 The evidence of the victim’s son Mr Martinez was also convincing. He observed the events at close quarters. There is no reason why he should lie as to the sequence of events. His account remained consistent throughout his evidence.

105 The central element in the defence case was the denial by the appellant that he struck Ms Bavistock . This was rejected by the jury. Although the trial judge referred to inconsistencies in the account of some of the Crown witnesses they were to my mind minor and readily explicable when the viewing point of each witness is considered. There were no contradictions which would cause me any concern with respect to the jury’s conclusion.

106 Accepting that the credibility of Ms Innes was affected, even seriously, by her cross examination and the directions given by the trial judge with respect to her earlier silence, the Crown case was overwhelming. I do not believe that the difficulties which occurred in relation to the evidence of Ms Innes caused the appellant to lose a chance of acquittal which was fairly open to him.

107 In my opinion, the appeal should be dismissed.

108 SIMPSON J: I agree with McClellan CJ at CL.

109 HOEBEN J: I agree with McClellan CJ at CL.

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