Kutschera v The Queen

New South Wales
Court of Criminal Appeal

CITATION: KUTSCHERA v R [2010] NSWCCA 150

HEARING DATE(S): 18 December 2009

JUDGMENT DATE:
19 July 2010

JUDGMENT OF: McClellan CJatCL at 1; Hulme J at 2; Johnson J at 121

DECISION: Appeal dismissed

PARTIES: Michael Kutschera
Regina

FILE NUMBER(S): CCA 2007/5907003

COUNSEL: Mr S Odgers SC (Applicant)
Ms D Woodburne SC (Respondent)

SOLICITORS: Conroy Stewart Spagnolo (Applicant)
Solicitor for DPP (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2007/5907

LOWER COURT JUDICIAL OFFICER: Fullerton J

LOWER COURT DATE OF DECISION: 28/11/08

- 1 -

2007/5907003

McCLELLAN CJ AT CL
RS HULME J
JOHNSON J

Monday, 19 July 2010

Michael KUTSCHERA v REGINA

Judgment

1 McCLELLAN CJ AT CL: I agree with RS Hulme J.

2 RS HULME J: On 24 September 2008 the above named Appellant was convicted of murdering Lucas Gleeson on 21 July 2007. On 28 November 2008 Justice Fullerton sentenced the Appellant to imprisonment for a period of 26 years and 8 months including a non-parole period of 20 years both such periods commencing on 21 July 2007.

3 The Appellant appeals against only his conviction and upon one ground only, viz:-

The trial judge erred in respect of the directions given to the jury regarding Adam Newbold.

4 Reliance was placed on s165 of the Evidence Act which, so far as is presently relevant, provides:-

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence

(a) …

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(f) …

(2) If there is a jury and a party so requests, the judge is to:

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

5 The warning that her Honour gave to the jury in respect of Mr Newbold was in the following terms (as transcribed):-

“I need now to give you some directions as to how you should approach an assessment of Mr Newbold’s evidence in those circumstances. That is where he has agreed to give evidence against Mr Kutschera when the offending for which he was sentenced occurred on that same night that Mr Kutschera is charged with having murdered the deceased. It is a bit like the warning or caution that I gave you in the context of identification evidence. The direction that I am now going to give you is given in all cases where a person has, because they have agreed to give evidence, had that taken into account when sentenced. …

The warning that I give you is this. A person who gives evidence in Mr Newbold’s position may be giving unreliable evidence. May be giving unreliable evidence, not always, does a person in Mr Newbold’s position give unreliable evidence. Experience has shown that witnesses in Mr Newbold’s position may construct untruthful stories tending to downplay the involvement that they had in the events they are giving evidence about and to play up the role of others. People in Mr Newbold’s position or witnesses generally in that position may make false claims out of hostility or revenge. People in Mr Newbold’s position may feel locked into a version, inculpating, that is saying the other person is guilty, even if that version contains inaccuracies or even untruths. So you should approach his evidence with some caution. In taking that direction into account as you must, you are entitled to look at all the evidence to see whether the other evidence in the case resolves any concern you may have about Mr Newbold giving evidence in this case on his undertaking to give that evidence when that matter was to be taken into account on sentence. I need to tell you this. Mr Newbold was not in fact sentenced to any period of imprisonment. His sentence then was not reduced because he agreed to give evidence, because he was not sentenced as such.

He was however told that if he did not give truthful evidence, that he could be brought back before the judge who sentenced him as the law provides, that is the judge who made a decision about what sort of punishment he should be given for what he did that night and to have the question of his punishment revisited if he did not give truthful evidence.”

6 On behalf of the Appellant it is contended that this direction was inadequate in that:-

(a) It does not refer to the circumstance that, on the version of events given by Tony Matthews, Mr Newbold might well be regarded as having been criminally involved in the murder.

(b) It does not refer to the circumstance that the police, no doubt on the basis of what they had been told by Matthews, charged Mr Newbold with murder.

(c) It focuses exclusively on the circumstance that the appellant had agreed to give evidence against the Appellant when being sentenced for relatively minor matters which had nothing to do with possible involvement in the murder.

(d) The significance of the agreement to give evidence against the Appellant was effectively negated by telling the jury that he did not in fact have his sentence reduced and that he was told his sentence might be revisited “if he did not give truthful evidence”.

(e) No reference was made to the fact that Mr Newbold, having been present at the scene of the murder, had the opportunity to weave the details of what happened into his account to make it appear plausible.

7 It was further submitted that matters that might cause the evidence of Mr Newbold to be unreliable and about which her Honour did not inform the jury were:-

Jenkins v The Queen (2004) 79 ALJR 252

[2004] HCA 57

Kanaan v The Queen [2006] NSWCCA 109

8 Additional criticisms were:-

(h) The jury were not warned that the much more serious consequences of criminal involvement in a murder, compared with commission of the offences in respect of which Mr Newbold pleaded guilty required a correspondingly greater need for caution in respect of his evidence, and that need for caution was not removed by the fact that the murder charge against Mr Newbold had been dropped, since it could be prosecuted later.

(i) Although the jury were told that they were “entitled to look at all the evidence to see whether the other evidence in the case resolves any concern you may have about Mr Newbold giving evidence in this case…” no reference was made to the fact that Mr Newbold, having been present at the scene of the murder, had the opportunity to weave the details of what happened into his account to make it appear plausible.

(j) The jury were not told of the strongest possibility that potentially undermined Mr Newbold’s reliability, namely that he himself had been criminally involved in the murder.

(k) Her Honour, in deciding the ambit of the warning she should give, took into account evidence that was not before the jury.

9 In response, the Crown submitted that no further warning than that given was requested, that her Honour was entitled to take the view that Mr Newbold was not, in the words of s165, “a witness who might reasonably be supposed to have been criminally concerned in the events”, and that the trial judge had good reasons for not giving a warning more extensive than she did. The Crown also relied on r4 of the Criminal Appeal Rules and, in the last resort, on the proviso to s6 of the Criminal Appeal Act.

10 To appreciate the strength of these contentions and the extent of the possible involvement of Mr Newbold, it is necessary to refer to further details of the trial. Mr Gleeson’s death occurred as a result of being run over by a vehicle while on the footpath a short distance to the north-east of 68 Sydney Street, Muswellbrook. Two witnesses, Mr Newbold and a Mr Tony Matthews, gave direct evidence to the effect that the Appellant was driving the vehicle at the time and there was circumstantial evidence tending in the same direction. However, Mr Matthews also gave evidence that at the time the deceased was run over, Mr Newbold was in the vehicle with the Appellant and not long before had alighted from the vehicle, assaulted the deceased, and then re-entered it. It was common ground that not long afterwards the Appellant and Mr Newbold walked down to the vicinity of where the deceased had been run over, were spoken to by police and Mr Newbold was arrested and charged with murder. The Appellant was arrested early on the following day.

11 Before however dealing with the evidence of Mr Newbold and Mr Tony Matthews further, it is convenient to refer to other evidence in the trial.

12 Sydney Street runs in a south-west to north-east direction. Denman is to the south-west. Moving north-east, places or objects that are of relevance to events described in evidence include:-

(i) Firstly, Skellatar Street, that crosses Sydney Street at right angles;

(ii) Secondly, 98 Sydney Street, the second allotment north-east of Skelletar Street. This is where the Appellant lived;

(iii) 68 Sydney Street, on the south-east corner of Sydney Street and Jordan Street;

(iv) Sydney Street Tyre and Battery Centre, on the north-east corner of Sydney Street and Jordan Street.

(v) Maitland Road, which intersects with Sydney Street at right angles.

(vi) The Prince of Wales Hotel at 36 Sydney Street, being the corner of Sydney Street and Maitland Road.

(vii) A subway somewhat to the north of the north-eastern end of Sydney Street;

(viii) The Railway Hotel which is a little distance to the north-east of the north-eastern end of Sydney Street.

13 The Appellant was the owner of a silver 4-wheel drive Nissan Patrol vehicle registered number AD78NH. That vehicle had 3 tyres that were described as cross-over tyres – suitable for on and off-road travel but its left rear tyre was primarily an off-road tyre, commonly called a “mud-digger”. The vehicle that ran over the deceased had the same track, i.e. the distance between wheels on opposite sides, as that owned by the Appellant. According to unchallenged evidence from Constable Harman, a member of the Newcastle Crash Investigation Unit, that vehicle also had a rear left tyre that was of the mud-digger type and a rear right tyre that was of a cross-over type. Evidence from a Detective Buining of the Taree Crime Scene Section was that one tyre that went over the deceased was of a cross-over type and had a tread pattern that matched the front driver’s side tyre of the Appellant’s vehicle.

14 Both officers acknowledged, no doubt because many tyres have similar characteristics, that they could not say that the vehicle that had driven over the deceased was the Appellant’s.

15 Tyre marks on and near the deceased indicated that a vehicle had been driven over him twice. On one occasion the vehicle had been driving towards the north-east in Sydney Street for some time on its incorrect side of the road, had diverged onto the footpath on that side, driven over the deceased’s body with one or both driver’s side tyres, described a 180 degree turn returning to the same side of the road and driven off in a south-westerly direction on what was then on its correct side. On another occasion the (or a) vehicle had driven south-west, i.e in the opposite direction, along the footpath passing its passenger side tyres over the deceased’s head and then driven off the footpath at a slight angle, to be again on its correct side of Sydney Street as it drove south-west. On that occasion the vehicle had crossed onto the footpath as if angling from being driven south-west in Sydney Street but there was no physical evidence of its direction prior to crossing the gutter. There was no challenge to this evidence.

16 Included in the evidence was evidence of events earlier in the night at the Railway Hotel and of altercations near there and between there and where the deceased died. The evidence of a number of witnesses was suggestive of the Appellant being involved in these altercations, an involvement that he denied though admitting being at the hotel for a time. It is clear that a fair proportion of these witnesses had spent much of the night drinking. However, except so far as the identification of the Appellant is concerned, there was relatively little challenge to their evidence. Because some of the identification was by description of appearance and clothing it should be mentioned that at the time the Appellant had curly or wavy black hair down to his shoulder and a goatee. A neighbour Mrs Hickey said that the hair was pulled back in a pony tail, that the Appellant always wore dark clothes and that he had a tattoo on his neck. The Appellant gave evidence that the tattoo was on the left side of his neck and that it was not a spider or a star but Tibetan or Asian writing.

17 Mr Newbold’s evidence, supported by police photographs of the items, was that he was wearing a grey sloppy-joe, white corduroy pants and a white and red Holden baseball cap.

18 Tegan O’Brien gave evidence that the deceased had been at the hotel in the company of Tony Matthews and another friend Anthony. Ms O’Brien also saw there Adam Newbold with some of his friends including -

· one with black curly, shoulder-length hair, taller than Mr Newbold

· one wearing a red and black beanie, about Mr Newbold’s height, and

· one with a tattoo on his neck, who was short.

19 Natasha Matthews gave evidence similar to that of Ms O’Brien as to the presence there of the deceased, her brother Tony Matthews, and another friend. She saw there also Adam Newbold. She described an incident where a man spoke to another of her brothers, Michael, and of the man giving an angry look at the deceased. In her police statement she had described the man as having a tattoo, possibly a star or spider, on the right side of his neck, black curly hair, wearing a black hat, jeans and a long-sleeved shirt. At the police station, on a date that was not specified but may have been when she made a statement on 22 July, she identified someone in one of 20 photographs she was shown as the person who had given the angry look. The photograph (and a copy) became Exhibit K and, according to unchallenged evidence of a Detective Gregory who prepared the series of photographs shown to a number of witnesses for identification purposes, is a photograph of the Appellant. Ms Matthew’s identification of the photograph as of the person she saw was not challenged.

20 Michael Matthews gave evidence of his brother Tony being at the hotel with the deceased and of Adam Newbold being there with someone with black short curly hair and a black goatee. In a non-responsive answer he referred to that other person as “Michael”.

21 Mr Luke Polzin gave evidence of being at the Royal Hotel and seeing there the deceased, Adam Newbold with “Mick”, a person whom and whose Christian name he knew and who had long dark curly hair, a little goatee, a long-sleeved shirt and jeans, these last 2 items being dark or black. Mr Polzin said the he had a conversation with Mick but was not asked whether the person “Mick” was the Appellant. Mr Polzin also spoke to Nathan Hickey.

22 Mr Nathan Hickey, who will be referred to again below, gave evidence of seeing at the Hotel Mr Polzin having a conversation with the Appellant who was then wearing a black striped T-shirt. All seemed to be in a good mood. – T206

23 Jade Smith gave evidence of working at the Railway Hotel that night. She noticed there the deceased, someone else who was tall, with dark curly hair and wearing dark clothing and, near that person, another person wearing a white shirt, and a red Holden hat. The Hotel closed at 2.30am. After dropping some friends home and going to a service station, she and a friend Cassie drove south-west along Sydney Street and saw 2 ambulances and a blanket apparently covering a body. The car she was in then did a U-turn and drove north-east. At the subway she saw the persons, one with curly hair and one with a red hat, that she had noticed at the Hotel walking south-west in Sydney Street. About 5 or 10 minutes later, when the car in which she was, was again proceeding south-west in Sydney Street, she observed the 2 persons in that street still walking south-west and 2 blocks or so to the north-east of where the deceased died. In cross-examination she agreed that it was after 3.20am that she first saw the men in the street.

24 Cassie Munro gave similar evidence to that of Jade Smith though she referred to only seeing one person who she said had shoulder–length curly black hair. She did not think that person had any facial hair. She said that on the first passing along Sydney Street, she saw one ambulance and no police vehicles. Later she saw two ambulances. Near the sub-way she saw one person, the man with the shoulder-length curly black hair, and later saw him walking along to the south-west of the ambulances and talking on a phone.

25 Justin McGrady was also at the Royal Hotel. After he left at closing time and was waiting outside, a man bumped into him. The man was about the same height but a bit smaller in build than Mr McGrady, white skinned, with wavy black hair to or just below his shoulders and wearing a black shirt. Mr McGrady thinks he then pushed the man. Mr Tony Matthews then threw a punch at the man (that may or may not have connected). Mr McGrady told Mr Matthews to stay out of it and the latter walked away.

26 Mr Orre Davison, who agreed that he was very much affected by alcohol on the night, said that after he left the Royal Hotel at 2.30am he saw across the road a scuffle between Justin McGrady and a bloke with long black hair, a black buttoned-up shirt and jeans. Later as Mr Davison was walking along Sydney Street with 2 mates, Brogan Barnes and Corey Beshman, he observed ahead of them “a long haired bloke and another bloke” wearing a white jumper and red cap and baggy jeans. The deceased and Tony Matthews were walking behind but then caught up with Mr Davision’s group. At the Prince of Wales Tavern at about 36 Sydney Street, Mr Davison caught up with the persons with the long hair and red cap and asked the latter why he had been picking on the deceased at the pub (an allegation the deceased had made to Mr Davison). The man with the red cap then ran away. Mr Madison and Mr Barnes followed in pursuit but the man pursued ran out of sight. The deceased, Tony Matthews and the man with the long curly dark hair were still outside the Prince of Wales. Mr Davison saw the commencement of a scuffle between the man with the long curly dark hair and Mr Matthews, the latter being the aggressor.

27 Mr Barnes gave evidence that he saw the scuffle between Justin O’Grady and a man he could not describe, a second outside the Prince of Wales involving one of the Matthews and that he and Mr Davison chased a person who ran off.

28 Mr Phillip Allen lived in Skelletar Street some few blocks behind the Appellant. Mr Allen spent the night drinking first at the Prince of Wales Hotel and later at the Railway Hotel, having he said 6 or 7 schooners of full strength beer and 2 cans of bourbon. He left the Railway Hotel at 2.30 and commenced to walk south-west in Sydney Street towards his home. He noticed no-one else until he reached the Prince of Wales where about 5 people, in one group of 3 and another of 2 ran past him. The 2 had a scuffle a little further down Sydney Street and the other 3 kept on running towards a street further down on the northern side. One of the 2 was a big fellow who seemed to be getting the better of the other who finished up on the ground at some time. The second man was thinner with a beard and shoulder-length curly black hair. He was shorter than Mr Allen’s 6’2”. Mr Allen kept “plodding along” and then the man with the beard ran flat out past him at a time when Mr Allen was approaching 68 Sydney Street. Mr Allen said that the large man remained standing there.

29 As Mr Allen continued past about 78 Sydney Street, a silver Nissan came speeding towards him driving in the middle of the road and then Mr Allen heard a screeching noise as if the Nissan was doing a slide turn. Mr Allen turned around by which stage the Nissan was heading back towards him. It passed him and stopped in the driveway of number 98 Sydney Street. The driver, who was the person with the black curly hair and beard seen earlier alighted from the car, and went into the house. No one else alighted from the car. In the house there then seemed to be a loud argument involving male and female voices and the male then came out again and stood by the driver’s side of the vehicle. Mr Allen continued home where his wife greeted him with the remark, “It’s 3 o’clock. Where have you been?” The only significant challenge to Mr Allen’s account was whether the man who alighted from the Nissan was the same man as Mr Allen had seen earlier.

30 A 000 call was received by police at 2.57am. The incident log showed that the call came from Mr Tony Matthews and phone number 0422 065 330. In the call Mr Matthews reported that his 21 year old mate had been assaulted and was unconscious, that he himself was “running from ‘em” being 4 or 5 persons in a 4-wheel drive. Mr Matthews identified the location as Beaurepaires in Sydney Street, Muswellbrook. The ambulance service was contacted at about 3.01am, there was a police broadcast of the incident at 3.03 and another at 3.11 that was acknowledged by “Muswellbrook 15”.

31 Mr Dunn, who worked in the Northern Operations Centre of the Ambulance Service, gave evidence of the receipt of a 000 call from Mrs Sandra Burke at 3.05.44am on 21 July. The record produced by Mr Dunn, Exhibit P, showed that the call (I infer action pursuant to it) was cancelled prior to despatch because it was a duplicate call.

32 Mrs Burke of 68 Sydney Street gave evidence of the making of the call after being woken at about 3am by her dog barking and then being told by someone outside that his mate had been run over and he needed to ring someone. Mrs Burke went out and saw the body lying on the footpath outside the tyre service station. The person outside was very agitated or very upset. She later saw him directing the ambulance. There was no movement on the street between the time she first spoke to the man and the arrival of the ambulance. Mr Burke gave similar evidence.

33 An ambulance officer Mr Pollack gave evidence of receiving a call at about 3am of an incident at Beaurepaires in Sydney Street, that Beaurepaires was in fact in Maitland Street, of attending there, seeing nothing, driving out of Maitland Street into Sydney Street where he was flagged down by Mr Tony Matthews near another tyre place. Mr Pollack arrived there at 3.11am. By reference to some document that seems not to have found its way into evidence, Mr Pollack said that the co-ordination centre in Charlestown would have received a call notifying it of the incident at 3.01am.

34 Mr Callinan, a second ambulance officer, gave evidence of receiving a call at 3.04am, proceeding to a site described as Beaurepaires in Sydney Street, Muswellbrook, and then being redirected to the Sydney Street Tyres and Battery Store where he saw another ambulance driven by Mr Pollack and the deceased. There Mr Callinan spoke to Mr Tony Matthews who had no injuries but appeared distressed. At about 3.25, Mr Callinan also spoke to someone and stopped that person who was walking in the direction of the deceased’s body. The person then crossed Sydney Street and walked in a south-westerly direction down the street. Later, at about 4.10 pm, Mr Callinan saw the same person standing under an awning of a shop next to the Tyre and Battery Store. The person was Caucasian, about 6 feet high, thick build, dark wavy shoulder length hair and a dark beard. Mr Callinan later identified 2 photos from a collection of 20 that police showed him as those who looked most like the person he had seen. One of the photographs he identified was of the Appellant. Another was of someone onto the image of whose face an image of the Appellant’s hair had been transposed.

35 Constables Smith and Lea gave evidence that about or not long after 3am on the morning of 21 July 2007 they were in a police vehicle “Muswellbrook 15” conducting a regular patrol in the streets of Muswellbrook. In the course of that patrol they turned from Skellatar Street right into Sydney Street. Both constables said that during or immediately after the turn was occurring they saw a male person walking from the front gates of 98 Sydney Street towards the front door of those premises. Constable Smith said that there was sufficient street lighting to effect a clear recognition and she saw that the person was the Appellant. Constable Lea said that he also observed a silver 4-wheel drive vehicle just inside the closed gates of the premises, with its rear to the road, its tail lights on and smoke emanating from the exhaust. The male person was near the car. There was no challenge to any of this evidence.

36 The police then returned to the police station some 400 or 500 metres or more away, proceeding down Sydney Street. They saw no activity in the area where Sydney Street is intersected by Mill Street and Mitchell Streets, the area that contains premises at 68 Sydney Street and premises of Sydney Street Tyre Service, these properties being close to one another but separated by Jordan Street. Jordan Street intersects Sydney Street between the intersections of Mill Street and Mitchell Streets. After returning to the station, they then had a cup of coffee and were making notes of their patrol when they heard a police radio broadcast at 3.11am and to which they responded at 3.12, arriving at the scene at 3.27 or 3.30.

37 While there they had a conversation with Mr Matthews who appeared, according to one officer, very shaken up and, according to the other, very upset. Inspector Tracey arrived and not long afterwards Constables Smith and Lea spoke to the Appellant and Mr Adam Newbold who were side by side at the time they were seen. Constable Smith estimated that this conversation was within 10 minutes of their arrival. Constable Lea estimated 10 minutes but said it would not have been more than 15 minutes.

38 Evidence was also given by a number of neighbours of the Appellant who spoke of matters they had noticed at 98 Sydney Street and of sounds heard or observations made during the night of 20-21 July 2007. All spoke of the Appellant’s 4-wheel drive and that he was the only person they had seen drive it.

39 Mr Terence Hickey who lived at 96 Sydney Street said that on the afternoon of 20 July he had seen the Appellant washing down a white Commodore in his back yard. By reference to a photograph Mr Hickey fixed the position of where the Commodore was when he saw it being hosed down. That was at the rear of the allotment, close to the side fence furthest from Mr Hickey’s place, and opposite the front gates.

40 In addition to the Commodore and the 4-wheel drive, there was also an early model black Ford kept at 98 Sydney Street. At 3.39am next morning – a time he says was exact - Mr Hickey was woken by the sound of a noisy V8 next door starting up. Mr Hickey had heard the sound before.

41 Mr Hickey’s wife described seeing the Appellant at 98 Sydney Street and gave a description of him that was “tattoo on the neck, wavy black hair to the shoulder, pulled back in a pony tail, always used to wear dark clothes”. Mrs Hickey said that at about 10pm on the night of 20 July she saw someone walking down the side of the Appellant’s house and saw the Appellant address him by the name “Adam”. Mrs Hickey said she also was woken by a loud noise of the black car leaving the premises at 3.40am.

42 Mr Ronald Foot lived at 103 Sydney Street and said this was opposite number 98. He said that he was very familiar with the sound of the Appellant’s 4-wheel drive. He was woken at, or very close to, 3am by gates being opened directly across from his place. This was followed by the sound of a heavy vehicle motor that was the sound of the 4-wheel drive. The motor was revving “with a lot of despatch” and the vehicle drove off in a north-easterly direction. About 20 minutes later the sound returned and seemed from the sound to turn into a driveway.

43 Mr Matthew Wickes lived at 105 Sydney Street which was almost opposite the Appellant’s residence. He described the Appellant as having a thin build, long and curly dark hair and a goatee beard. Mr Wickes said that he had heard the sound of the Nissan starting and running and that it did not sound like a V8 super car. He was also familiar with the sounds of the gate at the Appellant’s residence opening. During the night of the deceased’s death he was woken by his dog barking, looked out and saw a Ford Fairlane starting up, move forward and then drive off towards Denman. During the course of these events Mr Wickes saw someone behind latticework on the front verandah of number 98, the gates were opened, the car came out, the gates were closed and the person ran back behind the lattice work. Mr Wickes was sure that the person was not the Appellant who was seen by Mr Wickes jumping in the car. The person behind the latticework seemed to have white pants on, and what looked like a pair of disposable overalls around their waist. Mr Wickes looked at his clock when he went back to bed. The clock showed 3.11 but was about 13 minutes fast.

44 Later in the early morning of 21 July Sergeant Williams of the Gosford Crime Scene section attended at the Appellant’s premises, made observations similar to those of Inspector Tracey and took photographs. At the rear of the premises there was the Nissan AD78NH and 3 wheelie bins. On top of one of the bins was a bottle of detergent. There were scattered grass patches around the vehicle with the surrounding soil being damp. Nearby the rear door of the premises was a tap with a hose attached. In his examination of the vehicle, Sergeant Williams saw no signs on the vehicle of any contact with a person or object.

45 There were a number of other police witnesses to whose evidence it is unnecessary to refer, either at all or at least in detail. Mr Lawrie, a vehicle examiner, inspected the Nissan. He said that the windscreen was clear glass but the other windows had an extremely dark tinting which, if there was no light inside the vehicle and if they were up would obscure the view looking into the vehicle considerably. There was noting to impede light outside from entering the vehicle through the windscreen. He found a screw-driver on the floor of the vehicle with which the steering could be unlocked and the car started.

46 Inspector Tracey attended the scene. He spoke to Mr Tony Matthews and from his own observations and what he had been told by ambulance officers formed the opinion that Mr Matthews was upset. After speaking to Constables Smith and Lea he went with Constables Rodgers and Hawes to 98 Sydney Street. There he saw the Nissan and saw that the grass in front of the vehicle was wet. The front driver’s side tyre was wet and there was a puddle near that wheel. There were droplets of water on the bonnet. There was a puddle of water on the ground beside the front passenger wheel. Located next to the back door of the house was a garden hose with a spray nozzle attached. On the opposite side of the door was a wheelie bin with a bottle of washing detergent on top. Inspector Tracey said that there had been no rain. The Nissan was parked behind and parallel to the rear of the house.

47 Police knocked on the front and back doors of the house but there was no answer. Constables Rodgers and Hawes were left at the premises to protect what Inspector Tracey regarded as a crime scene.

48 Constable Hawes gave similar evidence to that given by Inspector Tracey as to events at 98 Sydney Street, adding that it was at about 4.55am they attended.

49 Later in the early morning of 21 July Sergeant Williams of the Gosford Crime Scene section attended at the Appellant’s premises, made observations similar to those of Inspector Tracey and took photographs. Near the rear door was a tap with a hose attached. In his examination of the Nissan vehicle AD78NH that he saw there, Sergeant Williams saw no signs on the vehicle of any contact with a person or object.

50 The position Mr Hickey identified as that where the Commodore was washed down would seem to be some little distance away from where the Nissan was seen by Sergeant Williams. The appearance of the ground and location of the tap and vehicles in photograph 163 may have led the jury to the view that the washing of the Commodore was unlikely to have accounted for the puddles and damp patches referred to by the police officers.

51 Detective Sergeant Prentice gave evidence that about 9.10am on 21 July the Appellant was arrested at 98 Sydney Street. Later that day the Ford Fairlane was recovered from the premises of Mr Adam Newbold.

52 Detective Bulmer gave evidence of being present when the Nissan was moved from 98 Sydney Street. He said that it could not be moved without unlocking the steering and that he could not find a screwdriver on the floor. He located one in a toolbox in the back and unlocked the steering.

53 Detective Hardy gave evidence of being present when Mr Tony Matthews was shown photographs for possible identification. She said that she asked Mr Matthews if he had seen any of the persons under any circumstances. Her reply was, “Only that fellow” referring to photo 2. Then asked where and when, Mr Matthews replied “At the pub and when he ran Lucas over”. The photograph Mr Matthews selected was of the Appellant.

54 Against that background, I turn to the evidence of the principal witnesses, Mr Newbold and Mr Tony Matthews.

Adam Newbold

55 Prior to July 2007 he had known the Appellant for about 12 months and also knew the deceased. At about 8.30pm or so on 20 July, wearing white corduroy pants, a grey sloppy-joe and a white and red Holden baseball cap, he and a Mr Gibson were driven by the Appellant to the Prince of Wales Hotel. Later he and Mr Gibson walked to the Appellant’s home where the Appellant called to them through his bathroom window. They stayed there for some time and then the three walked to the Railway Hotel where Mr Newbold saw, inter alia, the deceased. There was some altercation between Mr Newbold and the deceased, Anthony Smith intervened and the two ended up shaking hands. Mr Newbold left the hotel when it closed and while out the front saw the Appellant pushing and shoving with someone Mr Newbold knew as Justin. Mr Newbold sought to intervene, Justin threatened him and Mr Newbold took off. Mr Tony Matthews also intervened, punching the Appellant and Justin told him also to go away.

56 On leaving, Mr Newbold went to the area of the subway and then to the north-eastern end of Sydney street where the Appellant caught up with him. While waiting at a corner near the Prince of Wales hotel, Mr Tony Matthews and others including the deceased caught up with Mr Newbold and the Appellant. Mr Tony Matthews started punching into the Appellant and one of the deceased’s friends accused Mr Newbold of picking on the deceased and then started hitting Mr Newbold. Mr Newbold ran off chased by three others. The chase stopped when Mr Newbold went to one of the houses in the street and knocked on the door. After some time Mr Newbold returned to Sydney Street and then saw the deceased near the tyre service place where the deceased took a swing at Mr Newbold. Mr Newbold grabbed the deceased and both went to the ground. At the time this scuffle commenced, the Appellant was nowhere to be seen. The scuffle continued for a little time when Mr Newbold heard the noise of a vehicle coming up the driveway of Sydney Street Tyres. Photos show that to be at the southern side of the property. Mr Newbold who worked at a muffler repair business could tell the vehicle was a diesel and said it was a 4-wheel drive. He heard a human voice say “get out of the road”. The vehicle came up the gutter, slowed down and accelerated and ran over the torso of the deceased. At about or shortly before this time Mr Newbold recognised the vehicle as a Nissan Patrol and the driver as the Appellant. According to Mr Newbold the vehicle then went off the gutter and spun completely around. The vehicle stopped. The Appellant said “get in”. Mr Newbold did so and the Appellant drove both of them to his house.

57 Both went inside. The Appellant then went outside. Mr Newbold asked him where he was going. The Appellant replied “to find the other guy”, and left in the vehicle driving in the direction of where the deceased had been run over. The Appellant returned after a time that Mr Newbold said was no longer than a minute and informed Mr Newbold that “he struck him again”.

58 Mr Newbold ran home and then went to the place of a neighbour, Anthony Smith. The Appellant arrived in a V8 black Ford Fairlane that Mr Newbold had seen that evening at the Appellant’s house. The Appellant suggested that they both return to the scene where the deceased was struck in order to be seen around the area. They walked to that area, they spoke to police, Mr Newbold and the Appellant separated, and then Mr Newbold was arrested.

59 Mr Newbold was charged with murder. When giving evidence in the Appellant’s trial, he agreed that he had “recently” pleaded guilty to offences of concealing a serious offence and of assault occasioning actual bodily harm and that before being sentenced for those offences he gave an undertaking to the prosecution or the police that he would give evidence against the Appellant. He added, “and tell the truth.”

60 In cross examination, Mr Newbold said that in the first confrontation between Mr Tony Matthews and the Appellant he saw the former throw only one punch and that appeared to connect with the Appellant’s head. In the second altercation between the BP service station and the Prince of Wales Hotel, Mr Matthews really started getting into it and his assault involved hitting the Appellant’s head into an electricity box. Mr Newbold did not see how the incident ended having taken off up the road following the deceased telling his mates to “get him too”.

61 Mr Newbold denied that following his arrest he decided to invent a story involving the Appellant. He denied knowing the Nissan was started with a screw driver. He said also that the Appellant had earlier in the evening washed the white Commodore leaving water on the ground around it.

62 Mr Newbold denied that he drove down the road in the 4-wheel drive, alighted from it and punched and kicked the deceased. He denied being in the car at any stage when it struck the deceased. He said that at about the time when, having returned to the Appellant’s house, the Appellant commenced to leave and Mr Newbold asked the Appellant where he was going, Mr Newbold hid in the lattice area at the front of the premises because he did not want the Matthews boys to see him.

63 He said he was pretty sure the 4-wheel drive windows were down when he entered the car. When he went to his house after leaving the Appellant’s he changed his clothes (or at least his pants) because the white ones had grass and marks over them. He said his phone was stolen that night while acknowledging that records showed that people were using it.

64 In re-examination Mr Newbold agreed he knew the Appellant was responsible for the injuries to Mr Gleeson and that he had told the police what he knew within about half an hour of the incident.

Mr Tony Matthews

65 Mr Matthews said that he had been drinking with the deceased at the Workers’ Club until 11.45 that night when they left and went to the Railway Hotel opposite. They stayed at the Railway Hotel until it closed about 2.30am. He saw Mr Newbold arguing with the deceased in the Railway Hotel and when he left saw the former again across the road.

66 Mr Matthews also said that while in the hotel, he saw his brother Michael give a lighter to some person with long, curly hair and wearing a black shirt. Mr Matthews was not sure if the person had facial hair. Later, outside the hotel, he saw that person bump into Justin McGrady. Mr Matthews then punched that person once before both left. At that time Mr Matthews did not see Adam Newbold. After talking for a while Mr Matthews, the deceased, and Anthony Smith walked off through a subway and were joined by someone called Elric. In the vicinity of the Prince of Wales Hotel in Sydney Street, he saw Mr Newbold with the long-haired person. Elric punched Mr Newbold who then walked across the road. Mr Matthew’s evidence is a little confusing as to who else crossed the road, but he said that at about this time he himself punched the long-haired person twice who then walked off with Mr Newbold, leaving Mr Matthews, the deceased and Anthony Smith together. Mr Matthews said that later he saw Mr Newbold and the long-haired person being chased by Elric. He could not remember how the scuffle in which he was involved ended.

67 Anthony Smith separated from the deceased and Mr Matthews, and the last mentioned two went up a driveway to relieve themselves. The deceased finished first, walked towards Sydney Street followed 5 metres behind by Mr Matthews. The deceased stopped when there was a Nissan Silver 4-wheel drive coming towards him up on the footpath. Mr Matthews said that he could see two people inside including Mr Newbold and someone with long hair.

68 Initially the vehicle was on its right side of the road and then came onto its wrong side. Although at one stage Mr Matthews said he was not too sure if the vehicle stopped, later he said it did and at a time when the deceased was still standing, Mr Newbold jumped out of the 4-wheel drive and punched and kicked the deceased who fell to the ground. Mr Newbold then re-entered the 4-wheel drive which drove to under the subway. Mr Matthews approached the deceased who was still breathing. Mr Matthews said he saw no injuries at that time. Mr Matthews then rang 000 and said his mate had been hurt.

69 Later Mr Matthews said that when he first saw the 4-wheel drive it was coming from the direction of Denman and at about that time he went and hid in the alley way where he had relieved himself. Although in his first account of this incident in evidence he had not said so, he added later that at this time the 4-wheel drive ran over the deceased before heading towards the subway.

70 Mr Matthews then heard the 4-wheel drive returning from under the subway, saw its lights on its correct side of the road, saw it mount the footpath and run over the deceased and then proceed up Sydney Street and into a driveway. Mr Matthews returned to the deceased who at that stage was not breathing. Mr Matthews did not see the 4-wheel drive again.

71 There was some interruption of Mr Matthew’s evidence. Later he was taken to part of his 000 call wherein he had said he started running. He said that on seeing the vehicle some distance away he panicked and ran to the back of the tyre service. From there he could not see anything but heard the 4-wheel drive vehicle screaming up the street. He then peeped around the corner, saw the 4-wheel drive on the footpath, the passenger side window was down and he saw Mr Newbold in the passenger seat and the long-haired guy driving. The 4-wheel drive then went up Sydney Street towards Denman. Mr Matthews returned to the deceased who had blood under his head.

72 Mr Matthews again rang 000 but his phone was going flat and went to the house on the corner asking an old person and his wife to ring an ambulance. Mr Matthews saw the ambulances arrive. Later he himself left in an ambulance, going to the Muswellbrook police station where he made a statement telling the police everything he knew. He apparently concluded making that statement at 7.40am.

73 He made a second statement on 23 July adding some information. He gave evidence that there was no reason he had not included this further material in the first statement.

74 In cross-examination he said he was upset on the night but had been trying to help the police at that time. He agreed he had responded honestly and accurately in his responses to questions during the first 000 call. Nevertheless he agreed he had told the questioner that his mate had just got belted up, that the mate was unconscious, and that he was “running from them”. When the questioner said “so your mate’s unconscious and you’ve left him there”, Mr Matthews responded: “well there’s fucking five of them in the 4-wheel drive”. Mr Matthews said this was because it looked like there were five in there. Asked, “do you know who they are?” Mr Matthews replied “no, they just belted into my mate”, and this notwithstanding Mr Matthews knew Mr Newbold.

75 Asked during the call, “No idea why?” Mr Matthews said “No”. Asked, “He hasn’t had any grief with anyone earlier?” Mr Matthews said “No we’ve just come from the pub”. He conceded in evidence this response was wrong. Mr Matthews agreed also that during the call he had said the vehicle was yellow but when it was heading towards the subway he realised it was not.

76 Later in evidence he agreed he couldn’t see through the heavily tinted windows in the rear of the 4-wheel drive. He also agreed it was an assumption he had made as to the long haired person driving at least in part because he saw Mr Newbold.

77 Mr Matthews said that he had had ten schooners through the night but denied being well affected by alcohol. He said however that his memory of the events of the night was hazy.

78 In his statement of 21 July he said that the 4-wheel drive had run over the deceased and, after that, Mr Newbold got out and kicked the man who had been run over. On 23 July he said that was not true. He agreed he had made up the first story he had told the police. Asked why he lied to the police he said because he was upset and in shock. Asked how he remembered things on 23rd July that he had not remembered on the 21st July, he said “it came back to me”. He agreed again that he had told lies on 21 July.

Appellant

79 The Appellant gave evidence. He said that he had washed all of his cars during the previous afternoon and also sprayed his girlfriend with the hose while she was near the back of the house (the approximate area where Inspector Tracey saw the Nissan on the following morning). The Appellant said that during the first part of the evening he had driven the Nissan to visit a friend in Aberdeen, leaving at about 6.30pm and finally returning from there about 11pm, at that time parking the Nissan at the back corner of the house. At about 11.20 or 11.30pm Mr Newbold and Joshua Gibson called at his house and he went with them to the Railway Hotel. His hair at that time was tied into a ponytail. He denied knowing or seeing the deceased at the hotel and of having any conversation with persons Mr Newbold was with.

80 The Appellant said he left the hotel after 2am and before closing time and via the front door. At the hotel he was in a relaxed and happy mood and there were no incidents there which affected mood. He gave no angry looks to anyone at the hotel. There was no gathering at the front door of the hotel at the time he left and the last time he saw Mr Newbold, the latter was out the back. The Appellant did not leave the hotel with Mr Newbold and neither saw nor was involved in any scuffles outside that hotel.

81 He spoke to no one between leaving the hotel and arriving at his house and the only people he saw on the way home were in the distance. He was not assaulted by anyone and had no interaction with Mr Tony Matthews or the deceased that night. He at no time ran along Sydney Street. He did not drive the Nissan in Sydney Street (it is to be inferred, to the north-east of his house) that night.

82 After arriving home he showered and changed then left in the Fairlane driving towards Denman to see his girlfriend who was house sitting. In cross-examination he said that he left on this journey between 2.30 and 2.45am. He extended the drive a little because he enjoyed driving the Fairlane and he arrived where his girlfriend was at a block of flats in Skellatar Street “just on three or just before 3 o’clock”. He was there for about 5 minutes and then walked up past the subway to a newsagent looking for cigarettes. Some of this walking was not along Sydney Street. While in the area of the subway he saw flashing ambulance lights and then, when on his return journey he was at or near the intersection of Sydney Street and Maitland Street, he saw 2 ambulances. From there he walked along Maitland Road and back to the flats where his girlfriend was, then to his car and then drove to Mr Newbold’s house which is in Wollombi Street further to the south. The Appellant said he went there to see if Mr Newbold was okay. Mr Newbold then arrived in his car.

83 The Appellant asked Mr Newbold if he wanted to drive to a service station out of town to obtain some cigarettes but Mr Newbold who was talking erratically wanted to see what was going on. The 2 then walked to Sydney Street and then along it to where the ambulances and the police vehicle Muswellbrook 15 was. The Appellant recounted some events there and, after Mr Newbold was arrested, that he walked home. He walked, rather than drove to the scene of events in the Fairlane because he understood the car was sought by police.

84 He did not speak to any ambulance officer and was not told by one of them that he should not go where the deceased’s body was.

85 When he finally arrived home at about 4 or 4.15am he noticed the gate was not shut properly and that the Nissan was parked with its nose pointing wards the fence, the opposite direction from the way the Appellant had parked it earlier. Mr Newbold knew that the Nissan had to be started with a screwdriver.

86 The Appellant also said that the person referred to by Natasha Williams as having a spider or star tattoo was a friend of his, Ashley, to whom the Appellant had spoken at the hotel. He said that it could be that when he was seen by Constable Smith or Lea he was moving the Nissan so that the Fairlane could be driven out of the yard. However, the Appellant agreed that the Nissan did not need to be moved to near the gate to enable the Fairlane to be driven out of the yard and that it had not in fact been driven by him to near the front fence.

Request for and Decision as to the Warning

87 The topic of what warning should be given to the jury in respect of Mr Newbold’s evidence was the subject of discussion on two occasions during the trial. On 12 September her Honour indicated she wished to hear from Counsel for the Appellant as to the direction he sought in respect of Mr Newbold’s evidence. Counsel indicated his preliminary view was to seek a co-offender’s warning. Without ruling on the matter her Honour indicated that it might be that she would give a muted direction to this effect.

88 Her Honour again raised the topic, including her reservations, on 19 September prior to Defence counsel’s address. The discussion that followed occupied some 7½ pages and involved significant input from her Honour. For reasons that will become apparent it is necessary to summarise and quote from that discussion at some length. The discussion occurred against the background of earlier events that clearly played a part in her Honour’s decision.

89 A joint trial of the Appellant and Mr Newbold on the charge of murder had been listed to commence on 25 August 2008. On the following day her Honour ordered separate trials upon the ground that an ERISP Mr Newbold had made would create a real risk of an unfair trial in the case of the Appellant. In referring to this ERISP her Honour made mention of “what appeared to be unfeigned emotion as (Mr Newbold) repeatedly asserted his innocence”. A trial of the Appellant then commenced. On 8 September 2008 the Crown resolved to accept, in full satisfaction of the indictment alleging murder by Mr Newbold, pleas of guilty to offences of assault occasioning actual bodily harm and of concealing a serious offence. Mr Newbold was sentenced by Fullerton J for the offences to which he had pleaded guilty on 10 September 2003. In the course of her Honour’s remarks when doing so, her Honour said that she had viewed Mr Newbold’s ERISP in its entirety and observed, inter alia:-

“6… even in advance of being called as a witness in Kutschera’s trial, in my assessment the various accounts Tony Matthews gave to police were less than compelling. Having heard him give evidence I regard his reliability generally as undermined by his level of intoxication and his evidence identifying Mr Newbold as the passenger undermined by the compromised circumstances in which the identification was made.

Prasad

16… in fact I accept, without reservation, that Mr Newbold was nothing other than an unwilling witness to the killing of the deceased by Kutschera and, moreover, that it was a matter of sheer happenstance that he was in the company of the deceased at that time at all.

27… Mr Newbold gave evidence before me that he told the truth to police in his record of interview, that he told the truth in an induced statement he gave to police a week ago and that he is willing to give evidence in accordance with what he has told police as a witness in Kutschera’s trial… I regard the significance and utility of his assistance as considerable, that his account is in fact truthful, complete and reliable…”

90 The arrangement between the Crown and Mr Newbold involved a significant departure from the way the Crown case had been presented to the jury in the Appellant’s trial and her Honour then discharged that jury and the trial which has led to these proceedings commenced on 10 September.

91 The lengthy discussion as to what warning should be given included the following:-

“HER HONOUR: The first question that is raised by the application of 165 is whether Mr Newbold is a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. Now that is language intended to be wide and plainly enough, intended to catch within its ambit those persons who are in a real sense, criminally concerned in the events giving rise to the proceedings. My analysis of this case in that context is this…

… Mr Newbold was charged with murder because of Mr Matthews’ evidence.

WINCH: Yes.

HER HONOUR: Mr Matthews identified him in two respects. First being in the car on approach; getting out the car and punching Mr Gleeson to the ground; getting back into the car and driving over the deceased. And then the second identification where he remains in the passenger seat, in effect, when effecting the second approach viewed by Mr Matthews from behind the tyre yard.

WINCH: Yes.

HER HONOUR: The evidence has not been led in this trial but I am aware that there is evidence that locates Mr Newbold elsewhere at any time proximate to Mr Kutschera, on the Crown case, getting the car and driving up the street, namely, he’s in the house with the blue fence having raised the alarm and seeking refuge in those premises. That evidence of course is not led here. I’m not sure why it wasn’t led and I pass no comment upon it but plainly enough, it’s not before the jury but I’m aware of it. Moreover there is no evidence at all, other than Mr Matthews’ evidence, putting Mr Newbold in the passenger seat of the car at any time when the vehicle was seen by police and by Mr Allen in and around number 98 Sydney Street. The police identify the accused and the accused only, in and around the car at that time and Mr Allen, describes a man who resembles him.

Insofar as the identification of Mr Newbold in the passenger seat on the second approach, that is, the approach from right to left across Mr Matthews very compromised field of view, the evidence plainly establishes, and indeed the evidence cross examined by you, that that was, on any view, a fleeting observation. The car was travelling at speed. There were compromised circumstances by which identification could have been made. All right, the events then giving rise to the proceedings, first of all, do not – I am not satisfied criminally concern Mr Newbold on the one hand, but on what basis do you say in all the circumstances that Mr Newbold’s evidence may be unreliable because of course, I am obliged if satisfied, as I am not at the moment, that Mr Newbold is criminally concerned in the events giving rise to the proceedings but let’s assume, contrary to my analysis for the moment, that that construction ought to be given its broadest possible ambit and because he was there…

WINCH: Yes.

HER HONOUR: … In the temporal sense and fighting, or being assaulted in a circumstantial sense that he may be criminally concerned and let’s just assume against my analysis that that is so. I am of course obliged to warn the jury that his evidence may, in those circumstances, be unreliable… unless there are good reasons for me not doing so.

WINCH: Now the reasons, the basis rather for my submission that your Honour would warn the jury that his evidence could be unreliable flows directly from a position of self interest arising out of the fact that he was charged by the police on that morning on, it is assumed, the basis of Mr Matthews’ version which, whether compromised or not, nonetheless was given again in evidence to some degree yesterday. So he comes from a position of self interest.

HER HONOUR: On the morning.

WINCH: Yes. I put it…

HER HONOUR: The problem with that is this Mr Winch isn’t it, again I have viewed the video of that interview.

WINCH: Yes.

HER HONOUR: I have, and the jury don’t know this, expressed my own very strong views as I was entitled to express them in Mr Newbold’s sentence proceedings about that interview and, indeed may I say, and I’ve said it publicly, about the investigation that resulted. I have myself expressed very strong views to the firm effect that that charge really should never have been made. Now, I don’t know that I went as high as to say that. That was resonating In - -

WINCH: Your Honour fell short of that I think.

HER HONOUR: - - my published reasons for sentence. In an objective sense, yes, there was self interest.

WINCH: Yes.

HER HONOUR: But there is – the countervailing consideration is that Mr Newbold spoke at length and gave an account…

WINCH: Yes but my submission your Honour is this, that in circumstances where a – I was going to say co-offender, but a person criminally involved in the enterprise gives a version which is accepted by the tribunal which is what your Honour is saying (sic). The self interest and the possibility that he is, in a sense, colouring the case against someone else, a different colour to the colour that he colours the case against himself, in my submission, has to exist as a possibility, the jury should be alerted to even in, and I understand what your Honour has said, even in the circumstances that confront us in this case.

HER HONOUR: It’s a very, very unusual circumstances, they’re very, very unusual circumstances.

WINCH: Indeed your Honour, there’s much about this case that’s unusual but submission at base is this that your Honour as the tribunal of fact come to a view in related but other proceedings. Nevertheless, this jury in my submission, are entitled, ought to be told that in circumstances where someone is criminally responsible in the broad sense or criminally involved I’m sorry - -

HER HONOUR: Why is he criminally concerned in the events giving rise to the proceedings. Let’s move from that.

WINCH: Only on the basis of Mr Matthews’ account. That’s where it comes from…

HER HONOUR: And again you see, the section operates in this way doesn’t it. It’s not where a person is criminally concerned but where a person might reasonably be supposed to be criminally concerned. That, as I read it, imports an objective assessment.

WINCH: Yes.

HER HONOUR: And the assessment is mine.

WINCH: Yes.

HER HONOUR: Because it is only where that precondition is satisfied that Section 61(2) comes into play because it is only in those circumstances that the obligation upon me to warn arises… unless I am satisfied that there are good reasons for not doing so. So - -

WINCH: Your Honour is moving as I sense it, to what the reasons might be why your Honour might not do so.

HER HONOUR: Well I think there’s two things that concern me. First of all, on the analysis of the case that I have shared with you this morning, I cannot presently see how Mr Newbold is criminally concerned in the events giving rise to the proceedings. The conceal serious offence is wholly irrelevant I would have thought - -

WINCH: Yes that’s - -

HER HONOUR: - - because it is conduct post the incident.

WINCH: The assault is not quite so. The assault - -

HER HONOUR: No.

WINCH: - - is a precursor to the man being prone.

HER HONOUR: The way I see it, that was entirely and regrettably serendipitous… and it wholly depends on Mr Matthews.

WINCH: Well yes, it does, but to say, I think, with respect, that depending on Matthews’ evidence, problematic though it may be, is still slightly different to saying that it is uncontradicted… The weight of it, of course, is something that I’ve had some input into diminishing - -

HER HONOUR: Yes.

WINCH: - - I appreciate that, but in all the circumstances, in the end, my submission is that there remains a need for your Honour to say something about 165.

92 Her Honour then asked the Crown for a response which was that no warning should be given. At that time her Honour remarked, “No, if Mr Matthews’ version is accepted, there is no question but that Mr Newbold is criminally concerned …”

93 Her Honour then returned to Mr Winch.

“HER HONOUR … I am sure that you are well familiar with what I describe as the standard - -

WINCH: Yes.

HER HONOUR: - - warning, we’re all well familiar with it. Do you contend that that warning in its full colour is warranted in this case?

WINCH: Your Honour I, my position, now we’re at that stage of the argument, is this, that I urge upon your Honour to give a warning of some kind to the jury, I urge that strongly. I do not, however, argue with your Honour giving what, a day or two or three or four ago, in submissions, your Honour described as a more muted - -

HER HONOUR: Yes.

WINCH: - - warning but it is a matter that I would wish your Honour to draw to the Jury’s attention - -

HER HONOUR: All right Mr Winch, I understand.

WINCH: - - and for it to have the imprimatur of your Honour in that way.

HER HONOUR: All right.

WINCH: Now just how your Honour does it, I don’t need to be heard about, but I don’t press - -

HER HONOUR: All right, what I’ll do Mr Winch, I understand the submission I think well, what I will do it, I’m not going to get to it today - -

……………

HER HONOUR: I will raise with them, or remind them, of something I think that you highlighted in the evidence, and that is that on the very morning of his arrest he gave an account which implicated Mr Kutschera, and I will, in that context, raise with them, in a muted way, those issues that the 165 direction in this context would ordinarily place at the forefront of a direction, but I will do it in a way I hope a balanced way, that accommodates the concerns of the Crown and, if I am say, my own concerns, but in fairness to Mr Kutschera places the matter in context as the defence case asks me so to do.

What I will do, as I say is, I’m not going to discuss it with counsel in advance. I think I have your assistance. What I will do, of course, though, Mr Winch, and you would know this to be the case, if the warning that I give is, in your professional assessment, not adequate and it needs, that there needs to be further directions, then we’ll discuss it then.

WINCH: Oh your Honour, I will rise.”

94 Counsel made no complaint or request for redirection after her Honour gave the warning that I have set out near the beginning of these Reasons.

Conclusion

95 The terms of s165(1)(d) require a judge, when the question arises, to determine whether a witness “might reasonably be supposed to be criminally concerned in the events giving rise to the proceedings” and, as a general proposition, if concluding that the test is not satisfied, to give reasons for that conclusion – R v Beattie (1996) 40 NSWLR 155 at 160; R v Taranto [1999] NSWCCA 396. In that last mentioned case, the Chief Justice joined in allowing the appeal because such reasons were not given – see at [8] – [10] although in R v Beattie, at p 160, it was recognised that in some cases reasons need not be given if they are obvious.

96 Similar considerations must apply to any decision not to comply with s165(2) in circumstances where the requirements of s165(1) exist.

97 In this case, her Honour gave no formal rulings on either topic and gave no formal reasons. Her omission to give a wider warning than she did is explicable upon the basis that she was not satisfied that Mr Newbold fell within the terms of s165(1)(d), or thought that there were good reasons for not giving a warning appropriate to that situation, or both. Furthermore, her omission to provide formal reasons means that the Court must seek to see what can be deduced from the somewhat lengthy interchange she had with counsel or, possibly, other circumstances.

98 I have set out or summarised what seem to me to be the relevant passages from that interchange. It is clear that her Honour was aware of the precise terms of s165(1)(d) and that there is a distinction between a test of “where a person is criminally concerned” and one “where a person might reasonably be supposed to be criminally concerned”. Clearly evidence that does not positively persuade a judge that someone was criminally concerned might well raise a sufficient possibility of such a concern as to enable one to say that the person “might reasonably be supposed to have been concerned in the events”. However, while saying on 2 occasions that she was not satisfied “that Mr Newbold is criminally concerned in the events giving rise to the proceedings”, her Honour made no express finding that he was not someone “who might reasonably be supposed to have been criminally concerned in the events”. Indeed her Honour recognised that if Mr Matthews’ evidence were accepted, there was no question but that Mr Newbold was criminally concerned.

99 It is also clear that in judging what if any warning should be given to the jury, her Honour had in mind evidence (not before this Court) “that locates Mr Newbold …in the house with the blue fence”, the video recording of Mr Newbold’s interview with police and her published reasons when sentencing Mr Newbold.

100 Beyond her remark to the effect that if Matthews’ version were accepted, there was no question but that Mr Newbold was criminally concerned, in the discussion concerning the appropriate warning, her Honour did not otherwise comment on the evidence of Mr Tony Matthews. However, it is crystal clear that in many respects it was unimpressive. In defence counsel’s address to the jury he described Mr Matthews as a terrible witness and the summary of Mr Matthews’ evidence that I have given demonstrates that there was much to criticise about it. Not least in that regard is Mr Matthews’ evidence as to where the 4-wheel drive vehicle went following its pass over the deceased from south-west to north-east. He said the vehicle went towards the subway. The unchallenged evidence of those who had observed the tyre tracks was that it described a 180 degree turn and went back in the direction of Denman. There are also the radical differences between what he said in the 000 call and his evidence as to his observations and what he said he knew and in his acknowledgment of lies in his statement to police on 21 July.

101 In light of the totality of this material, it seems to me inescapable that her Honour took the view that Mr Newbold was not someone who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. Providing her Honour was entitled to take into account the matters to which I have referred that were not in evidence in the Appellant’s trial, such a conclusion was clearly open to her.

102 The issue of whether her Honour was entitled to take account of evidence that was not before the jury was raised in the ground I have labelled (k). The ground is untenable. Counsel could refer to no authority in support of the ground. Not uncommonly judge’s rulings on evidence are made upon the basis of information, for example, evidence tendered on a voir dire, that is not before the jury and there is nothing in the terms of s165 that argue for a different approach having to be taken in the case of decisions under that section. Furthermore, the object of the section, viz. the giving of warnings where that is best calculated to ensure a jury’s consideration of subject evidence is as fair as possible argues against any arbitrary limits on the matters that can be taken into account. Of course, those matters must only be ones properly before the judge, either by formal proof or express or implicit agreement but in this case that requirement was clearly satisfied. All those relevantly involved knew what had happened before the Appellant’s final trial commenced and her Honour made clear during the course of discussion the matters which she had in mind.

103 Furthermore, no objection having been taken to her Honour having regard to that material, I would not grant leave under r4 to rely on the ground. Clearly if objection had been taken, the base material could have been tendered as on a voir dire and was admissible. It is an inevitable inference that objection would have been fruitless.

104 I turn to the other complaints concerning the warning. Some can be dealt with briefly.

(a) It (the warning) does not refer to the circumstance that, on the version of events given by Tony Matthews, Mr Newbold might well be regarded as having been criminally involved in the murder.

105 My conclusion that her Honour took the view that Mr Newbold was not someone who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings means that there was no occasion to refer to the matter the subject of this complaint.

(b) It (the warning) does not refer to the circumstance that the police, no doubt on the basis of what they had been told by Matthews, charged Mr Newbold with murder.

(c) It (the warning) focuses exclusively on the circumstance that the appellant had agreed to give evidence against the Appellant when being sentenced for relatively minor matters which had nothing to do with possible involvement in the murder.

106 There is no doubt that her Honour could well have properly included express reference to the police charging of Mr Newbold with murder. However, her Honour’s repeated reference in the warning she did give to “Mr Newbold’s position” could not have been understood by the jury as other than encompassing that charging.

107 “Reduced” would be a preferable word to “negated” but the point is otherwise valid. However, in light of her Honour’s views of the evidence of Mr Newbold and at least so much of Mr Tony Matthews’ evidence as tended to implicate Mr Newbold, I see no error in her Honour’s remarks the subject of this complaint.

108 Providing “the details” is understood as “some of the details” the proposition is correct. However, the details of which Mr Newbold was or could have been aware would not seem to have included much of the material relied on by the Crown including many of the observations of the Appellant’s neighbours and of Constables Smith and Lea prior to their receipt of the radio call.

109 Furthermore, it is important to recognise how few of the details of the murder about which Mr Newbold gave evidence, he was present to witness. They consisted of hearing and then seeing the 4-wheel drive, of seeing it run over the deceased, of seeing its course immediately thereafter, of being told by the Appellant to get into the car, doing so, and then going in the vehicle to the Appellant’s premises. He then gave evidence of actions and statements by the Appellant that would explain the second incident of running over. This is the sort of detail that any witness in similar circumstances but not involved in the deceased’s death might be able to give and once her Honour took the view that there was no reason to suppose Mr Newbold was criminally concerned in the murder, the occasion to refer to the matters the subject of this complaint did not arise.

Jenkins v The Queen (2004) 79 ALJR 252

[2004] HCA 57

110 My conclusion that her Honour took the view that Mr Newbold was not someone who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings answers so much of this complaint as is based on Mr Newbold possibly being an accomplice. Insofar as the complaint relates to Mr Newbold having a motive to give an unreliable account, that aspect was adequately addressed in what her Honour said.

Kanaan v The Queen [2006] NSWCCA 109

111 This aspect was adequately addressed in what her Honour said, in particular in her reference to “People in Mr Newbold’s position may feel locked into a version …”.

(h) The jury were not warned that the much more serious consequences of criminal involvement in a murder, compared with commission of the offences in respect of which Mr Newbold pleaded guilty required a correspondingly greater need for caution in respect of his evidence and that need for caution was not removed by the fact that the murder charge against Mr Newbold had been dropped, since it could be prosecuted later.

112 It is almost always possible to complain that more was not said. Having regard to what was said, I see her Honour’s omission to go the further distance contemplated in this complaint as insignificant.

113 My remarks concerning complaint (e) apply here.

(j) The jury were not told of the strongest possibility that potentially undermined Mr Newbold’s reliability, namely, that he himself had been criminally involved in the murder – AWS 15

114 My conclusion that her Honour took the view that Mr Newbold was not someone who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings means that there was no occasion to refer to the matter the subject of this complaint. In any event, her Honour’s numerous references to “Mr Newbold’s position” cannot but have reminded the jury of the evidence of Mr Newbold being arrested and charged and of Mr Matthews as to Mr Newbold’s involvement.

115 In summary, in the unusual circumstances of this case, I regard the complaints concerning the warning her Honour gave the jury as to Mr Newbold’s evidence as either unwarranted or not leading to the view that the warning was inadequate. Accordingly, the sole ground upon which the Appellant relied fails and the appeal must be dismissed.

116 It follows that I need not embark upon consideration of the Crown’s reliance on r4 and its submission that, when regard is had to the totality of what the Appellant’s counsel said on the topic, no further warning was sought, or of the proviso to s6 of the Criminal Appeal Act. However, given the seriousness of the matter, I have given consideration to the latter topic. I am satisfied that even if the full accomplice warning should have been given, there was no substantial miscarriage of justice.

117 In that regard it is appropriate to reflect on the inconsistencies between the Appellant’s evidence and that of Crown witnesses. On his version,

The evidence of identification by Natasha Matthews, Tony Matthews and, although it does not implicate the Appellant in the murder, Mr Callinan, must have been wrong.

The person matching the Appellant’s description seen by Mr Allen driving the Nissan and going into the Appellant’s house just before 3am and who Mr Allen had seen earlier was not the Appellant.

He was not at 98 Sydney Street when Constable Smith said he saw the Appellant there at about 3am on the morning of the deceased’s death, having left there at about 2.30 – 2.45am and arriving where his girlfriend was house sitting just on or just before 3am.

There was no explanation for Constable Smith seeing the Nissan near the front gates with the Appellant nearby at about 3am that morning.

Mr and Mrs Hickey were about an hour out in their timing when they said the Fairlane left the Appellant’s house at 3.39 or so on that morning.

(In judging the significance of some of the evidence of Mr and Mrs Hickey, other of the Crown evidence should be borne in mind. Mr Wickes said that he saw the Fairlane drive out at about 3am with the Appellant driving it and someone else behind the latticework. Mr Foot said that it was the Nissan that left at about 3am, returning about 20 minutes later. Mr Newbold said that he was behind the latticework when the Nissan left at a time that, if Mr Newbold was accurate, was not long after 3am.)

118 The Appellant also provides no explanation for why, when police attended at around 5am, there were droplets of water on the bonnet of the Nissan and the front driver’s side tyre was wet. It does not seem possible that these matters could have been the product of whatever washing or hosing had occurred during the previous afternoon, given the passage of some 11 or 12 hours and the Appellant’s evidence that during the evening he had driven the Nissan to Aberdeen and back. (The Court may take judicial notice of the fact that this would involve a round trip of something like 23 kilometres.)

119 Undoubtedly the evidence of Mr Newbold tended to support the evidence of some of the witnesses to whom I have just referred, thus making it more likely that their evidence would be accepted. However the unlikelihood of one or more persons, deceptively similar to the Appellant in appearance, being involved in the incidents outside the Railway Hotel and in Sydney Street, and then borrowing his car and going into his house and having an argument there at about 3am in the morning, and then leaving the car wet in parts is so unlikely that I am satisfied that, even if there should have been a much stronger warning concerning the evidence of Mr Newbold, there has been no miscarriage of justice.

120 The appeal should be dismissed.

121 JOHNSON J: I agree with RS Hulme J.

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CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	KUTSCHERA v R [2010] NSWCCA 150
HEARING DATE(S):	18 December 2009
JUDGMENT DATE:	19 July 2010
JUDGMENT OF:	McClellan CJatCL at 1; Hulme J at 2; Johnson J at 121
DECISION:	Appeal dismissed
PARTIES:	Michael Kutschera Regina
FILE NUMBER(S):	CCA 2007/5907003
COUNSEL:	Mr S Odgers SC (Applicant) Ms D Woodburne SC (Respondent)
SOLICITORS:	Conroy Stewart Spagnolo (Applicant) Solicitor for DPP (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2007/5907
LOWER COURT JUDICIAL OFFICER:	Fullerton J
LOWER COURT DATE OF DECISION:	28/11/08