Martin v State of Tasmania - [2008] TASSC 66

[2008] TASSC 66

CITATION: Martin v State of Tasmania [2008] TASSC 66

PARTIES:  MARTIN, Ian Anthony
  v
  TASMANIA (STATE OF)

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  195/2008
DELIVERED ON:  10 November 2008
DELIVERED AT:  Hobart
HEARING DATE:  14 August 2008
JUDGMENT OF:  Crawford CJ, Slicer and Blow JJ

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Summing up – Need for warning pursuant to Evidence Act 2001, s165 – Whether witness may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding – Whether request for warning made – Effect of failure to give a warning.

Evidence Act 2001 (Tas), s165.
Kanaan v R [2006] NSWCCA 109, considered.
Aust Dig Criminal Law [802]

Criminal Law – Jurisdiction, practice and procedure – Summing up – Need for direction as to how particular evidence may be used – Whether warning required against propensity or tendency reasoning.

BRS v R (1997) 191 CLR 275; Lee v Tasmania (2006) 16 Tas R 67, considered.
Aust Dig Criminal Law [802]

REPRESENTATION:

Counsel:
             Appellant:  G A Richardson and A J Hall
             Respondent:  J P Ransom
Solicitors:
             Appellant:  C N Dockray
             Respondent:  Director of Public Prosecutions

Judgment Number: [2008] TASSC 66
Number of paragraphs: 120

Serial No 66/2008
File No 195/2008

IAN ANTHONY MARTIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ

SLICER J (DISSENTING)
BLOW J

10 November 2008

Order of the Court

Appeal dismissed.

Serial No 66/2008
File No 195/2008

IAN ANTHONY MARTIN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  10 November 2008

The appellant was found guilty of attempting to interfere with a witness. Because of that verdict, the jury was not required to consider an alternative charge of perverting justice.

He was a psychiatrist. Early in 1998, a female patient ("the patient") complained that he had a sexual relationship with her. Under the Medical Practitioners Registration Act 1996, the Medical Complaints Tribunal ("the Tribunal") was scheduled to conduct a hearing into the complaint.

The State's case was that in about September 1998, the appellant, with a promise to pay $1,000, engaged another patient, Gregory Kirkland, to use violence to the patient and her family as an inducement to her not to attend or give evidence at the hearing before the Tribunal.

Kirkland gave evidence that he went to the patient's home to carry out his side of the bargain, but no one answered the door. He then damaged two cars that were parked outside and made a threatening telephone call to the patient's home. He reported to the appellant, who paid him only $500 because he had not used personal violence against the patient as he had undertaken to do.

The appellant has appealed against the convictions on grounds that may be summarised as follows:

1Evidence was wrongly admitted that the appellant altered medical records; destroyed by fire a briefcase, medical records, a wallet and other documents; and falsely reported to police that a car had been burgled and a briefcase containing medical records stolen from it. Ground (e).
2Evidence was wrongly admitted of the finding of metal that may have come from the burnt briefcase. Grounds (b) and (c).
3The learned trial judge erred by failing to give the jury any directions as to what use could be made of the evidence in 1 above. Ground (f).
4The learned trial judge erred by failing to give a warning to the jury, as required by the Evidence Act 2001, s165, that the evidence of Kirkland and the evidence of Raymond Wells may be unreliable because they might reasonably be supposed to be criminally concerned in the events giving rise to the proceeding. Ground (d).

Was evidence wrongly received?

Wells had also been a patient of the appellant. He gave evidence that in about September or October 1998, the appellant told him that a woman had complained to the Medical Council about him having a sexual relationship with her. Wells said that he saw the appellant change his patient records concerning the woman "so that things happened on different times". Wells also gave evidence of a later occasion at the appellant's farm when he assisted the appellant, at the appellant's request and in his presence, to destroy a briefcase containing medical files that included records relating to the patient, the appellant's wallet, credit cards and other documents. The fire was lit next to a creek and afterwards pieces of metal and locks were kicked by them into the creek. No objection to any of that evidence was made at the trial.

In 2005, Wells took police to the place where he claimed the fire was lit. Police recovered metal from the creek at that point. Evidence of the metal was admitted over an objection from the appellant's counsel.

A police officer gave evidence that in 1998 the appellant had reported a car burglary and the theft from it of a briefcase. In his video recorded interview with the police, the appellant confirmed that such a burglary occurred to a car belonging to the woman with whom he lived. She had reported the burglary to the police. He said that the car had been parked outside their home, that his briefcase was stolen from it and that the patient's records were in it at the time. That evidence was received without objection from the appellant. It was the State's case that the report of the burglary was a false one to explain why the patient's records could not be produced. It was also the State's case that prior to the report, the appellant had altered the records, but fearing that the alteration would be detected, he arranged for the records to be destroyed and a false report of the burglary to be made.

It is the State's case that Wells' evidence about the alteration and destruction of the files and other items, and the evidence that suggested the appellant made a false report to police about a car burglary and a theft of files from the car, was relevant because it tended to show that the appellant had an overall plan to defeat the patient's complaint, which also included the recruitment of Kirkland. It was submitted that the evidence was relevant because it could rationally affect the assessment by the jury of the probability that the appellant engaged Kirkland to assault and threaten the patient. There was evidence that Wells had been made aware by the appellant that he had engaged a man to go around and see the patient and that he wanted Wells' assistance to arrange an alibi for the night when that was to happen. Counsel for the State submitted that such evidence, combined with the evidence of the alteration and destruction of the files, tended to prove that the appellant was so concerned about the truth of the patient's complaint and an adverse determination by the Tribunal that he was more likely to be motivated to recruit Kirkland to assault the patient and her family. It tended to show that the appellant was desperate in wanting to defeat the complaint. It was submitted that for all of those reasons the evidence, if accepted, could rationally affect, directly or indirectly, the assessment by the jury of the probability of the existence of a fact in issue of the proceedings. Evidence Act, s55; Smith v R (2001) 206 CLR 650 at par7.

Counsel for the State did not seek to rely on the evidence in question because it was tendency evidence under the tendency rule of the Evidence Act, s97. However, consistent with the use the State wished to make of it, the evidence was tendency evidence and it had substantial probative value and was admissible for that reason. It amounted to evidence of conduct of the appellant that was capable of proving that he had a tendency to do whatever he could, no matter whether it was criminal or dishonest, to avoid an adverse finding by the Tribunal at the hearing concerning the patient's complaint. That he was prepared to alter and destroy the patient's records and make a false report to the police about the theft of those records, supported Kirkland's direct evidence that the appellant committed the crime with which he was charged and showed that it was more likely to be true. The evidence has significant probative value which substantially outweighed any prejudicial effect it might have had on the appellant by way of misuse by the jury. See Evidence Act, s101(2).

The State did not give a formal notice to the appellant of its intention to adduce the evidence as required by ss97 and 99 and the Evidence Regulations 2002, reg5, but that is of no consequence having regard to what happened at the trial. There is no suggestion that the appellant did not have notice of the evidence in the statements and proofs of evidence provided by the State before the trial. No objection was made to the admission of the evidence at the trial. No miscarriage of justice could have occurred by its admission without satisfaction of formal requirements for notice.

I make no determination concerning what the formal requirements for notice meant for a case such as this. It may be inferred that delivery of the State's papers to the appellant prior to the trial gave him adequate and actual notice of an intention to adduce all of the evidence in question. It is arguable that no other notice was required in the circumstances.

The evidence of the metal found by the police in the creek probably did not advance the State's case. The appearance of most of the metal in photographs admitted into evidence did not seem to be consistent with what Wells said was kicked into the creek as having come from the burnt briefcase and files. It was submitted for the appellant that it was prejudicial evidence, but I do not see that it was. Arguably it hurt the State's case by not supporting Wells. Because the evidence of the fire and of kicking metal into the creek was admissible, the evidence of what was found in the creek later was also relevant and admissible.

No miscarriage of justice could have arisen by the admission of that evidence. The learned judge suggested to the jury that it had no probative value because the metal did not look like anything to do with a briefcase and did not seem to corroborate Wells' evidence, nor denigrate from it. His Honour summed it up as "just neutral". There was no conceivable way in which the jury could have misused the evidence.

All of the grounds relating to admissibility of evidence fail.

Was there a failure to direct the jury about how evidence was to be used?

It was submitted for the appellant that the learned judge should have directed the jury, but failed to do so, about the use they could make of the evidence that the appellant had altered medical records; destroyed by fire the briefcase, medical records, wallet and other documents; and falsely reported to police that a car had been burgled and a briefcase containing medical records stolen from it. It was submitted that the learned judge should have directed the jury not to reason from that evidence that the appellant had a tendency to commit crimes of the kind with which he was charged, or a tendency to commit crimes in general, and that he was more likely to have committed the crimes with which he was charged. No such direction was sought at the trial.

Because the evidence in question was admissible as tendency evidence in the sense I have explained, no direction was required that it could not support a finding that he was more likely to have committed the crimes with which he was charged. The evidence had substantial probative value for that reason. If Wells' evidence was accepted, it was highly probative.

A direction that the jury should not reason from the evidence in question that the appellant had a tendency to commit crime in general was not required either. There was no suggestion at the trial, and the evidence raised no suggestion, that he had a tendency to commit crime in general. The evidence at the trial only concerned his response to having to face the Tribunal and answer the patient's complaint about a sexual relationship they may have had. The fact that he was a practising psychiatrist would have strongly suggested to the jury that he was not the kind of person who would commit crime in the general sense. There was no risk that the jury would misuse the evidence in that prejudicial way. No miscarriage of justice resulted.

Because the direction was not sought at the trial, I would refuse leave to appeal in relation to ground (f), but for the reasons I have given, the ground fails in any event.

Was there a breach of the requirements of the Evidence Act, s165, to give an unreliable evidence warning?

It was submitted for the appellant that the learned judge failed to give a warning, or an adequate warning, to the jury in relation to the evidence of the witnesses Kirkland and Wells, as required by the Evidence Act, s165.

Subsection (1) explains that the section applies to evidence of a kind that may be unreliable, including seven kinds of evidence that are listed. It is noteworthy that the kinds of evidence to which the section applies is not limited to the seven specified kinds. However, by listing them, the legislature has declared that those kinds of evidence are of a kind that may be unreliable.

In s165(1)(d), the fourth of the listed kinds of evidence is specified and it is with it that the ground of appeal is concerned. It is "evidence given in a criminal proceeding by a witness who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding". The similar kind of evidence with respect to which the common law required a warning to be given to a jury, prior to the Act, was often referred to as evidence of an accomplice and the warning required by the common law was known as an accomplice warning.

The requirements for the warning are in s165(2), (3) and (4):
"(2) If there is a jury and a party so requests, the judge is to —
(a)warn the jury that the evidence may be unreliable; and
(b)inform the jury of matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information."
Before the section may operate in a jury trial, one of the parties must request the trial judge to give the warning. It is a requirement of subs(2). If a request is not made, the judge is not required to give the warning.

At the conclusion of the evidence at the trial, and in the usual way of criminal trials, there was a discussion between the learned judge and counsel in the absence of the jury. Its purpose was to settle the form of a memorandum the learned judge intended to give to the jury and any directions or warnings that the case might require to be given. It was his Honour who raised the question of a warning concerning the evidence of Kirkland and Wells. He raised it by saying "he'll get a section 192 direction about the witness Wells and the witness Kirkland". Counsel for the State corrected his Honour by asking whether he was referring to s165, and his Honour confirmed that simply by saying "unreliable witness direction". Counsel for the Crown commented that it would be "highly appropriate". Counsel for the appellant merely said that "the only directions I was going to seek were the ones that your Honour has enunciated". Nothing else was said about the matter.

It can be seen that although the learned judge and counsel were of one mind that an unreliable evidence warning should be given concerning the evidence of Kirkland and Wells, none of them identified what there was about the evidence of those witnesses that put it in the category of possible unreliability. It was conceded before this Court that both counsel had in mind that it was that the two witnesses might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding.

However the learned judge did not understand what counsel had in mind. His Honour gave detailed warnings concerning Kirkland's evidence, but it is clear from them that his Honour thought that the evidence may have been unreliable for two other reasons. The first arose out of the fact that Kirkland had been to prison, and as his Honour expressed the matter to the jury, "generally speaking people who commit crimes have a poor reputation for being honest and reliable". The second was that Kirkland had a motive to falsely accuse the appellant because he was angry with the appellant for writing a report to Child and Family Services concerning his son, thereby causing him to lose his son for a year. Having appropriately warned the jury about those two matters, and explained why he had done so, the learned judge reminded them of the submission made by the appellant's counsel in his closing address that an additional reason for regarding Kirkland as an unreliable witness was "discrepancies" between his evidence and the patient's evidence concerning the events of the night upon which Kirkland went to her home, damaged property and threatened her.

The learned judge appropriately warned the jury that Wells' evidence may have been unreliable because he also had animosity for the appellant, arising out of the fact that he had been sacked by the appellant. The jury were asked to consider whether Wells may have lied about the appellant to get his own back.

In the course of giving the warnings concerning Kirkland's evidence, the learned judge mentioned to the jury that he was doing so because the Evidence Act, s165, required it and explained that every judge in the country was required to do so when evidence was given by people in the situation that Kirkland was in. He explained how the subject was based on good common sense.

At the conclusion of the summing up, the learned judge asked counsel whether they wished to submit that some correction or addition should be made to it. Counsel for the State raised three matters that are irrelevant to the grounds of appeal and the learned judge gave further directions to the jury as a result. Counsel for the appellant had no submissions to make. Upon the jury retiring to consider their verdict, the learned judge again asked counsel whether there were any submissions they wished to make concerning the summing up. Both said they had none.

In their closing addresses, nothing was said by counsel to bring to the mind of the learned judge that a warning was required because Kirkland and Wells might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. In particular, counsel for the appellant raised no such argument in his address to the jury. It is my experience as a trial judge that it is not uncommon for counsel for an accused person to foreshadow to the jury that the trial judge will warn them of the dangers of accepting the evidence of such a witness.

Concerning the evidence of Kirkland, counsel for the appellant suggested to the jury that they should reject his evidence for the three reasons to which the learned judge later referred in the summing up. They were that on his own admission he had been to gaol before, that he had "a very clear motive to get back at Dr Martin" and that there were many discrepancies between his evidence and other evidence. Concerning the evidence of Wells, counsel for the accused also suggested that his evidence should be rejected and that one of the reasons for doing so was the reason later mentioned by the learned judge in the summing up, that he was upset with the appellant over the loss of his employment.

It is made clear by s165(2) that there is no obligation on a trial judge to give a warning unless it is requested by a party. The only conclusion open from what occurred at the trial is that no request was made of the learned judge that a warning be given to the jury that the evidence of Kirkland and Wells might be unreliable because they might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. Such a basis for a warning was not articulated by counsel before the summing up, nor after it, when counsel was aware of the nature and basis for the warnings that had been given in the summing up. As nothing more was requested, the only conclusion reasonably open is that the appellant did not request the learned judge to give it and was content that the request for warnings had been satisfied by what the learned judge had said to the jury.

It was observed by the Court of Criminal Appeal in Kanaan v R [2006] NSWCCA 109 at par182 that a trial judge is required to do no more than put the respective cases for the State and the accused accurately and fairly to the jury; the conduct of the case necessarily bearing on the extent to which the judge is bound to comment on and discuss the evidence. Domican v R (1992) 173 CLR 555 at 561. That observation applies here in circumstances where the appellant's counsel made no suggestion to the jury or the judge that the evidence of either witness may have been unreliable because of criminal involvement in the events leading to the proceeding.

Although it is clear that Kirkland was a person who was criminally involved in the events giving rise to the proceeding, and accordingly, a warning could have been requested under s165 for that reason, it is open to doubt whether Wells fell within that category. He was not criminally involved in the events that gave rise to the charges against the appellant. Although he may have been criminally involved by participating in the destruction by fire of the patient's records and other items, the evidence suggested that event may have occurred after the alleged commission by the appellant of the crimes that were charged. In R v Clark (2001) 123 A Crim R 506 at par70, Heydon JA doubted that an accessory after the fact fell within the expression, because the criminal conduct of the accessory did not involve events that gave rise to the proceeding for the principal offence. It is unnecessary to decide the point in this case.

For the reasons I have given, the ground concerning s165 fails.

Conclusion

I would dismiss the appeal.
File No 195/2008

IAN ANTHONY MARTIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
10 November 2008

The appellant was convicted of the crime of attempting to interfere with a witness, contrary to the Criminal Code, ss100 and 299. The indictment comprised, as an alternative, a count alleging perverting justice, contrary to the Code, s105, upon which no verdict was required. The essence of this appeal concerns the admission and use of evidence of conduct committed by the appellant after the commission of the crime.

The particulars of each count stated the commission of identical acts and course of conduct, namely:

"ian anthony martin at Launceston in Tasmania, in or about September 1998, wilfully, and with intent to pervert or obstruct the due course of justice instigated Gregory Shane Kirkland to dissuade [B] from attending as a witness or giving evidence at a judicial proceeding namely the hearing of complaint number 004 of 1998 before the Medical Complaints Tribunal constituted under the Medical Practitioners Registration Act 1996 on the 9^th and 10^th of November 1998, as a result of which Gregory Shane Kirkland attempted on or about the 9^th of September 1998 to dissuade [B] from attending as a witness or giving evidence at a judicial proceeding before the Medical Complaints Tribunal.
ian anthony martin at Launceston in Tasmania, in or about September 1998, with intent to obstruct, prevent, pervert or defeat the due course of justice or administration of the law engaged Gregory Shane Kirkland to place pressure on and/or instil fear in [B] in order that [B] withdraw her complaint made with respect to Ian Anthony Martin to the Medical Council of Tasmania."

The appellant was a medical practitioner specialising in psychiatry. In early 1998, B, who had been his patient during the period 1988 – 1998, made a complaint, alleging sexual and doctor/patient impropriety to the Medical Council, which referred the matter to the Medical Complaints Tribunal ("the Tribunal"). After preliminary meetings and preparatory hearings, the Tribunal initially listed the matter for hearing on 17 July 1998 but subsequently deferred the allocated date to 9 - 10 November. On 9 September, Gregory Shane Kirkland ("Kirkland"), also a former patient of the appellant, went to the home of B and her family and damaged two vehicles parked in the yard. He then made a threatening phone call demanding that B drop the complaint or he would cause further harm. Kirkland pleaded guilty on 18 April 2005 to the crime of perverting justice committed by his course of conduct.

It was the prosecution case, consistent with the particulars of the indictment, that the appellant had instigated the attack and threats by Kirkland. Specifically, it was alleged that the appellant had:

· Offered Kirkland $1,000 to "hurt" B and her family in order that she would withdraw her complaint; an offer accepted by Kirkland.

· Had shown Kirkland where B lived and where her husband worked.

· Paid Kirkland the lesser sum of $500 because no actual physical assault had been effected.

There was corroborative evidence provided by Raymond Wells, also a patient, and casual employee of the appellant. The appellant had suggested to Wells that he should provide an alibi for the night of the intended attack "because he had a man going around to see the woman in the case". However, Wells, at trial, was unable to provide an exact date of that conversation, but was able to link the conversation with B as a former patient. The case was primarily the word of Kirkland and Wells against the appellant.

Wells was able to provide other direct evidence of the link between B and the pending disciplinary proceedings. He gave the following answers in response to questions put to him during evidence-in-chief:

"Did Dr Martin at any stage talk to you about any problems that he had in his practice?…..Yes. A woman.
Told you that he had problems with a woman?…..Yes.
Did he say what the nature of the problem was?…..The woman was taking him to the Medical Council for sexual relationship.
Okay where did that conversation occur?…..In his office.
And whereabouts was his office in Launceston?…..77 George Street.
And what part of his office did it occur in?…..In his consulting room.
…
mr ransom: (Resuming) You mentioned the words changed files?…..Yes.
Did you see something being done or was that something that was said to you?…..No, I seen it being done and he passed them to me look at after he done it, said 'does that look all right'.
Do you remember the name on the file?…..I didn't at the time but I know the name now.
Was it a male or a female?…..Female.
…
Did he tell you why he was changing the file?…..He'd been – had words put to him by a member of the Medical Council and he'd more or less admitted the wrong doing so he had to alter the files to make everything different, so that things happened on different times.
And I assume that that is the general nature or theme of the conversation not just specific talk?…..Yeah.
Okay. And you were given those files to look at?.....Yeah.
What did they look like?.....Just ordinary medical files. They was in brown paper covers."

His recollection of the time of that exchange was vague. He thought that it had occurred at the appellant's farm some time in September/October 1998, whereas the "alibi" conversation had occurred some time earlier at the appellant's medical rooms.

The prosecution relied on three other pieces of evidence. In referring to the above account, the prosecutor told the jury in his opening statement:

(1)That B's files had been removed from the medical rooms and taken to the farm and burnt, beside a river bank.
(2)The files were removed and transported in a briefcase containing his wallet, credit cards, and licences and all burnt with the medical records, with the remains being "kicked into the creek". He described the briefcase as a "normal black doctor's briefcase" and that it was stiff-framed and "There was pieces of metal and the locks" which were "kicked into the creek."
(3)He had taken police to the site by the river in February 2005 and shown them where the remains of the briefcase were deposited. Separate evidence was led from a police sergeant of the recovery of some wire from that site and photographs taken of the recovered items. That latter evidence was said to be corroborative of his primary testimony.

The evidence of the destruction of the briefcase was linked by the prosecution to a report to police that a vehicle containing the briefcase had been stolen. Detective Constable Hyland, the investigating and interviewing officer, gave evidence about the claimed theft which was also canvassed during his recorded interview with the appellant conducted in February 2005, in the following exchange with counsel:

"… firstly I want to take you back to where the burglary is said to have occurred in the motor vehicle in 1998?.....Yes.
You understand what I'm referring to?.....Yes.
And Dr Martin made a complaint that certain items were stolen?.....Yes that's correct.
Do you recall that he said that a briefcase was stolen from the motor vehicle?.....Yes he did.
And do you recall what colour he said it was?.....It was a red leather briefcase."

The corresponding account, provided to interviewing police and recorded, stated:
"mw Tell me um have you ever had a burglary of your motor vehicle?
imYes.
mwWhat, what did you lose from your motor vehicle?
imI don't know. When was this?
mwWell I'm just asking??? You've had a number of break ins to your vehicle have you?
imNo actually I haven't had any no I don't um remember any well I can't remember any not in the last.
mwDid you and Sabina share a residence in Launceston?
imYes
mwWhereabouts?
imIn Canning Street.
mwRight whose residence was that?
imIt was mine at the time.
mwWhat was the address there?
imPardon?
mwWhat was the address there? The actual number of the street that you lived?
im9A
mwOk.
imYes there was a break in but was not my car it was her car.
mwIt was her car?
imYes
mwRight what sort of car was that?
imUh Mazda Astina.
mwCan you remember the colour?
imMmm white I think it was.
…
mwAnd what was stolen on that occasion?
imMy brief case and some stereo and some trimmings of the car.
mwWhat, what was contained in the brief case?
imI can't remember.
mwCan you remember when this break in was?
imWhen?
mwYes.
imNo, oh.
mwPut a rough date on it.
imI can't comment, I don't know.
mwCan you remember whether that was reported to police?
imYes.
mwIt was?
imYes.
mwWho reported it Sabine or yourself?
imShe did. They came, they came to see the damage.
…
mwWas there any patient files in that brief case?
imYes.
mwCan you recall which files?
imUm I think [B's] was in it. I'm not sure.
mwJust hers?
imNo there was a few files but I can't remember but I think her, her file was in it.
mwAnd why would her file be in your brief case at this time?
imUh I had some meeting with a lawyer the next day or.
mwSo in relation to her complaint against you?
imYes.
mwSo why would you risk leaving documents like that in a car?
imOh its never happened before people and it was seven o'clock in the evening or something because, because it, it was still daylight if I remember correctly.
mwWhere was the brief case in the car?
imIn between the seats.
…
mwYes it's a very large coincidence Sabina's car gets broken into and your brief case is stolen with [B's] file in it at the time. Especially the time when she's made a complaint and it's about to go on to hearing.
imMmm.
mwJust coincident?
imI can't possibly comment."

The inference was that the report was false and used to cover up the disposal of the missing records and thereby reinforce the accuracy of the account given by Wells. Whilst no date was provided for the making of the report, it was accepted that it occurred after the attack on B and her family.

No objection was made by counsel to the prosecution's opening statement or to the reception of the above evidence, except the evidence of the items recovered and photographs taken in the search of the river in February 2005. In relation to that evidence, the learned trial judge ruled:

"In my view the evidence is sufficiently probative to be admitted having regard to the evidence just given by the Sergeant. In particular his evidence with respect to the specificity of the area of search and the prejudicial value of it is low. No doubt Mr Hall will tell the jury quite properly that they might think it's material from anywhere but the fact that makes it probative is that it's sufficiently linked to the evidence of Mr Wells about what happened."

The prosecutor had opened his case by referring to the impugned evidence, telling the jury:

"You will hear from another patient by the name of Ray Wells. Now, I've already referred to Mr Wells in the context of having been involved in the sale of a car that he repaired and then sold to the [B's] for their daughter, [R]. Mr Wells will give evidence that he was a patient of Dr Martin as of 1998 and for some years before, but he was also an employee of Dr Martin's, being employed to look after the farm at Karoola, owned by Dr Martin, and also another farm at Bangor. And it's the State's case that Dr Martin makes significant submissions [sic] to Mr Wells, and in fact tells Mr Wells that he should have an alibi for an upcoming evening when Mr Kirkland has been engaged to assault the [B's]. The reason being that Mr Wells is potentially traceable back to Dr Martin because of the connection re the sale of the car. So it's an example at the end of the day of Dr Martin being very careful that these events are not traced back to him.
You can expect to hear from Mr Wells tomorrow. Mr Wells will also tell you about his role in the burning of some significant documents and a rouse that the State say that Dr Martin then undertook to report a false burglary and stealing of these files from a car which had been broken into outside the premises of Canning Street. I'll just spend a little more time on that but in essence, there was a report of a burglary by Dr Martin in relation to a motor vehicle. That motor vehicle was known by him and was owned by another lady.
The State's case is there was never a burglary on the motor vehicle. There was never anything taken from the motor vehicle. This was a rouse by Dr Martin trying to cover his tracks and the briefcase that he says was in the motor vehicle to police, in fact contained files of [B] or relevant to the complaint against him and they had initially been altered by Dr Martin and Mr Wells will give evidence about that, but fearing that that alteration would be detected, Dr Martin needed to get rid of those files, so he reported a burglary in respect of this car saying his briefcase, some personal items and these files had been taken. What in fact happened was that those documents were burnt by him with the assistance of Mr Wells at a farm at Bangor."

The events and misconduct occurring after Kirkland's attack, above described, are said to be relevant to the issue of the appellant's instigation of, and involvement in, the attempted suborning of a witness and perverting justice by the engagement of Kirkland "to place pressure on and/or instil fear in [B] in order that [B] withdrew her complaint … to the Medical Council." The acts of destruction of the medical records and the making of a false report to police would have constituted further acts of perverting justice or its attempt. No attempt was made to amend the indictment or add a fresh count. The Code, s105, requires the commission of an act or omission (R v Collins B55/1993). At best, the impugned evidence was either of surrounding circumstances illuminated by the commission of uncharged criminal acts, or propensity on the part of the offender.

Admissibility and discretion

Ground 1(e) of the notice of appeal claims:

"1 (e) That the learned Trial Judge erred in admitting evidence:-
(i)That the appellant had altered medical records;
(ii)That the appellant had destroyed medical files;
(iii)That the appellant had destroyed a brief case, wallet and personal documents;
(iv)That the appellant had falsely alleged to Police that the motor vehicle of an associate had been burgled and a brief case containing medical records stolen from it."

The evidence was relevant generally (Evidence Act 2001 ("the Act"), s55) in that if accepted, it "could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding". It is first necessary to determine relevance to a fact in issue, an event which predated at least categories (ii), (iii), and (iv) of the above. (See Comparative Evidence: Admission of Evidence of Recent Complaint in Sexual Offence Prosecutions — Part II, Justice T H Smith and O P Holdenson QC (2001) 75 ALJ 694; Attorney-General v Maynard [2003] TASSC 20.) Evidence of the commission of crimes or misconduct after the act charged may be admitted on the same basis as prior misconduct (R v Heidt (1976) 14 SASR 574; Griffith v The King (1937) 58 CLR 185; Hutt v The Queen (1959-1995) 14 Tas R 182). But ordinarily relevance is limited to issues of design or accident or to rebut a defence which would be open to an accused (Makin v Attorney-General for (NSW) [1894] AC 57), or similarity (Sutton v R (1984) 152 CLR 528) and is one of degree (Markby v R (1978) 140 CLR 108; Hutt (supra)). It is admissible "only if it is relevant in some other way than as showing that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged" (Sutton (supra), Gibbs CJ at 533).

Here the prosecution claims that the evidence was admissible as showing context and directly supports an inference that the appellant was guilty of the crime charged and the conduct open to no other innocent explanation (Phillips v R (2006) 225 CLR 303; Pfennig v R (1995) 182 CLR 461; HML v R (2008) 82 ALJR 723). But reception, rather than admissibility, required consideration of probative value and prejudicial effect, with unfairness resulting from both form and content. (Pfennig (supra), HML (supra), Gleeson CJ at 23 – 27). Here the evidence was prejudicial and its probative value mixed. The evidence was used so as to permit the evidence of Wells on the alibi conversation and discussion at the surgery of the patient's records, to corroborate the evidence of Kirkland. The evidence of the "false report failed the highly probative" test. The motor vehicle said to have been stolen belonged to another. There was no evidence that the report was false. It was used as general corroboration of the evidence of Wells as to attempts to interfere with the disciplinary proceedings. Evidence of the burning of the records was directly relevant to an attempt to defeat the disciplinary proceedings generally, not necessarily to the issue of whether the appellant had attempted to interfere with, or suborn, a witness in those proceedings. All antedated the claimed commission of a completed crime. Nevertheless there was no objection to the evidence, and no appeal made to any exercise of discretion.

Evidence of the alteration and destruction of the medical records and the disposal of the briefcase was relevant and admissible on the trial. Evidence of the claimed theft of the motor vehicle was more problematic, not because of relevance, but because of the ordinary canons of proof. It was in part hearsay and indirect. But no objection was taken to its reception or appeal made for any exercise of discretion in relation to the evidence of tampering or destruction of records. The evidence was not improperly received and no general unfairness claimed at trial (Birks (1990) 48 A Crim R 385; Chai [2002] NSWCCA 512; L v Tasmania [2006] TASSC 59). Ground 1(e) ought be dismissed.

Evidence of retrieved material

In February 2005 police officers went with Wells to the location where he claimed the briefcase to have been burnt and its remnants dumped into the adjoining rivulet. They recovered some pieces of metal, the existence of which was said to render the account of Wells more consistent, and corroborated in general terms the prosecution case. The evidence was but tertiary and tenuous. It was used to strengthen the claim of destruction of patient records which, in turn, was used to corroborate that the appellant had previously attempted to interfere with a witness or, in the alternative, to pervert justice. The evidence adduced had little probative value and raised little prejudice. The absence of any remnants was relevant but might have been used by the defence as an effective vehicle for an attack on the credibility of Wells. The existence of an unrecognisable piece of metal could be said to be relevant, or at least the search and the objects discovered, and used, in turn, to ridicule the prosecution case. The prosecution put its reliance on the recovered object:

"… as high as I will put that evidence is this, that is, the precision with which Mr Wells is able to point out this area is consistent with him telling the truth. I don't suggest you necessarily make a lot out of those pieces of metal but it's certainly not inconsistent with what he says …".

The learned trial judge categorised the evidence as neutral. He ruled that:

"In my view the evidence is sufficiently probative to be admitted having regard to the evidence just given by the Sergeant. In particular his evidence with respect to the specificity of the area of search and the prejudicial value of it is low. No doubt Mr Hall will tell the jury quite properly that they might think it's material from anywhere but the fact that makes it probative is that it's sufficiently linked to the evidence of Mr Wells about what happened."

I would not uphold grounds 1(b) and 1(c) of the notice of appeal.

Direction on unreliability

Ground 1(d) of the notice of appeal claims error in that:

"(d)that the learned Trial Judge erred in failing to give any or any adequate warning pursuant to s165(d) of the Evidence Act 2001 in relation to the evidence of the witness Wells and/or the witness Kirkland who were criminally concerned in the events giving rise to the proceedings."

The Act, s165, relevantly provides:

"165 — (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
…
(d)evidence given in a criminal proceeding by a witness who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding;

…
(2) If there is a jury and a party so requests, the judge is to –
(a)warn the jury that the evidence may be unreliable; and
(b)inform the jury of matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information."

Kirkland, at least, was such a witness. For the purpose of this appeal I would regard Wells as having the same status. If evidence of criminal conduct was admissible against the appellant as corroborative of the act of perverting justice as charged, then the witness to that course of criminal conduct should be treated with caution. I would prefer to give a wider meaning to the term "criminally concerned in the events" in a manner similar to that in the traditional accomplice warning. The learned trial judge adequately directed the jury to carefully scrutinise the evidence of Kirkland, including his prior history, background and circumstances, and his longstanding hostility towards the appellant. In relation to Wells, the learned trial judge directed the jury that:

"I want to give you the same warning to carefully scrutinise the evidence of Mr Wells, who is an admitted friend of the accused, and according to him but of course denied by the accused completely, that he was asked to provide the accused with an alibi and help the accused to destroy some files. And I give you the warning about his evidence because he too had a grievance over the way he was treated by the accused when he was sacked by him. So again, do you think it's reasonably possible, ladies and gentlemen, that Wells lied about the accused to get his own back, again?
So it's a warning to carefully examine the evidence of Kirkland and Wells for all those reasons that I've mentioned. But I do repeat again, ladies and gentlemen, this does not mean you cannot act on their evidence. It does not mean that I have any view about their evidence. All it means is check it carefully and where you can, check it against other evidence.
…
Now I just want to say to you, in my view, but you may not agree with this, there's no probative value to speak of in the evidence of the wire dug out of the creek, it's very tenuous, there's no evidence – it doesn't look like anything to do with a briefcase and I must say, as I see it, it doesn't really corroborate Mr Wells' evidence. It doesn't denigrate from it - it's just neutral, as I see it."

The directions in relation to Wells and Kirkland were, in general terms, sufficient to meet the requirements of the Act, s165 (Kanaan v R [2006] NSWCCA 109 and Jovanovic v R [2007] TASSC 56). However the directions did not strictly address the matters which might cause the evidence of Wells and Kirkland to be unreliable. Here the Act required the warning that a person likewise involved in a course of criminal conduct might have reason to fabricate or exaggerate evidence enhancing the role of another, whilst minimising his or her own culpability. That form of warning distinguishes between common and judicial experience in that the jury is advised that judicial experience over time has found such to be the case. To that limited extent the ground is made out but I would nevertheless dismiss this ground through the application of the proviso.

Directions and use of evidence

The indictment comprised two counts, the alternative, that of perverting justice being of wider import. Nevertheless the crime of perverting justice requires proof of an act or omission (R v Collins (supra); R v Crane (supra)). The learned trial judge directed the jury in relation to the difference between the counts in the following terms:

"Now in this case the first element is that the accused, second as to this state of mind, knowing that [B] had made a complaint about him to the Medical Council, or in the belief that such a complaint had been or might be made, the accused engaged Gregory Kirkland to do what, to place pressure on and/or instil fear into [B] to withdraw her complaint to the Medical Council. And next you must be satisfied beyond reasonable doubt that him doing that, that's Mr Martin doing that, those acts did, in your view, have the tendency to pervert the due course of justice or the administration of law and the accused intended his acts to do just that.
So you'll see it's different when you look at the first one, the actor, the principal actor is Greg Kirkland, he was the one that did the job, if you accept his evidence, of course, and the accused is charged as instigating Kirkland to do something. But the alternative charge is laid against him as the principal actor and the Crown assert that you should be satisfied beyond reasonable doubt that his acts were engaging Kirkland to put pressure etcetera on her to withdraw her complaint, and you should also be satisfied that those acts had the tendency to pervert the due course of justice or the administration of the law, and lastly that the accused intended just that to happen. So he's not charged as what we call 'a secondary offender' here he's charged as a principal. In the first one as I say Mr Kirkland was the actor at the scene, as it were, and the accused is charged as instigating those acts. In the alternative, the accused is the actor and his acts are engaging Kirkland to place the pressure on her etcetera. So do I make that clear too? And as I say, last time I'll say it, you don't need to trouble with that if you find him guilty of the first one. It only arises if you're satisfied – not satisfied of guilt on the first one."

The jury was not entitled to use the received evidence of interference with, or destruction of, the medical records, acts of deceit or concealment, and the commission of uncharged acts without constraint. The jury was not entitled to engage in propensity reasoning and the learned trial judge was required to warn the jury against impermissible reasoning. No notice had been provided by the defence of its intention to adduce "tendency evidence" (the Act, s97(1)(a)), nor did the prosecution seek to rely on that evidence as supportive of tendency. The Act, s95, inhibits the use of evidence relevant for another purpose to prove a particular matter (see Adam v R (2001) 207 CLR 96; c/f Palmer v R (1998) 193 CLR 1). Here the acts of criminal misconduct committed subsequent to the attempted interference with a witness were ones which demonstrated persistence in conduct and tendency to pervert justice generally. Even if the evidence established a relationship between the appellant, the family threatened, Wells and Kirkland, it remained capable of a non-permitted use. Here there was a real risk that the jury might engage in impermissible tendency reasoning (R v Giovannone [2002] NSWCCA 323) which required specific and careful directions (Qualtieri v R [2006] NSWCCA 95). In the latter case, McLellan CJ stated at 80:

"… the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence."

That requirement has been restated by the High Court in HML v R (supra).

No such, or equivalent, direction or warning was given by the learned trial judge. (See Donnini v R (1972) 128 CLR 114; BRS v R (1997) 191 CLR 275.) The appellant conceded that no additional or supplemental direction was sought and the matter generally not raised at trial (Lee v Tasmania (2006) 16 Tas R 67). This was not a case where counsel had attempted to persuade the trial judge not to draw the attention of the jury to the aspect of propensity (T v R (1996) 86 A Crim R 293). In BRS (supra), McHugh J summarised the responsibility of a trial judge at 305 in the following terms:

"If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence."

Nothing said by any members of the High Court in Tully v R (2006) 230 CLR 234 altered that requirement. As Callinan J, one of the majority, observed at par146:

"It is important, in my opinion, that both parties and trial judges pay close attention to any attempt to tender evidence of uncharged acts. If it truly is, as I think it was in Gipp and may have been, if anything, here, propensity evidence, and it is tendered without adverting to its true character as such, the prosecution may obtain the benefit of its prejudicial effect without the disadvantage of the strictures that apply to evidence of that kind."

In HML v R (supra), the High Court dealt with three distinct appeals. In one (OAE v R), leave to appeal was granted but dismissed on the basis that the trial judge had directed the jury in clear terms:

"… not to use the evidence to reason to the guilt of the accused by reference to what it disclosed about the accused." (Kiefel J at 825.)

Nothing said in those appeals impacts on the requirement on a trial judge, once evidence is admitted, to warn against propensity or tendency reasoning.

The appellant did not seek a redirection. But that failure did not obviate the need for careful direction. This was not a case whereby the defence sought a tactical advantage through the use of otherwise prejudicial evidence. The prosecution was entitled to have such evidence admitted but not for any purpose or use. In such a case an accused was entitled to a judicial direction constraining permitted use. In my opinion ground 1(f) ought be upheld.

Proviso

It was open to the prosecution to separately indict the appellant for the acts of alteration or destruction of patient records and later attempts of concealment. It was open for the prosecution to indict for perverting justice and identifying through particular acts supportive of a course of conduct. It elected in the presentation of the indictment to identify the act of instigation of Kirkland to attempt, by dissuasion or fear, to cause a complainant to either fail to attend a lawfully constituted tribunal or withdraw her complaint. It was permitted to lead evidence of the other related, but uncharged, acts of criminal conduct in support of its case. The case involved the central question of whether the testimony of Kirkland was accepted by the jury. Without the supportive evidence of Wells which, in turn, was supported at a tertiary level by the "stolen vehicle", material and the recovery of the metal pieces from the rivulet, the evidence of Kirkland became that of his word against the version advanced by the appellant in his record of interview. In some respects the case was circumstantial, with the sum of the parts establishing the whole. Propensity evidence is itself a form of circumstantial evidence and care with its use is subject to the same strictures. In Pfennig, Mason CJ, Deane and Dawson JJ approached the manner in which propensity evidence should be dealt with in the terms stated at 482 - 483:

"Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. (Hoch (1988), 165 CLR, at p 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984), 152 CLR, at p 564). See also Harriman (1989), 167 CLR, at p 602.) Here 'rational' must be taken to mean 'reasonable' (see Peacock v The King (1911), 13 CLR 619, at p 634; Plomp v The Queen (1963), 110 CLR 234, at p 252) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle."

Hayne J adopted the same approach in HML, stating at pars169 – 170:
"In the end, however, the admissibility of the evidence of sexual conduct other than that charged turns on the fact that the evidence shows conduct other than the charges being tried, that is illegal, or at least discreditable to the accused. It is because the evidence reveals illegal or discreditable conduct of the accused on occasions other than those giving rise to the charges, and is tendered, at least in part, as proof of a step in reasoning towards guilt, that the question of its admissibility is to be resolved by applying the test stated in Pfennig (1995) 182 CLR 461.
As was noted in the reasons of the plurality in that case (at 488 per Mason CJ, Deane and Dawson JJ)
'Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect in the sense explained.'

That is, evidence of criminal or discreditable conduct other than that charged may have an undue impact, adverse to the accused, on the minds of the jury over and above the impact that it may be expected to have if consideration were confined to its probative force ((1995) 182 CLR 461 at 487-488). And thus the plurality said ((1995) 182 CLR 461 at 485) that a trial judge, considering the admissibility of such evidence,
'must recognise that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence.' (footnote omitted)

But as pointed out in Phillips v The Queen(2006) 225 CLR 303 at 323-324 [63], due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case, and the test of admissibility of that evidence must be applied by the trial judge on certain assumptions. In particular, when considering admissibility, it must be assumed that the similar fact evidence would be accepted as true, and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury."

Accepting the above as principle, it follows that a jury ought be directed on those terms.

Consistent with the test stated by the High Court in Fleming v R (1998) 197 CLR 250 and Weiss v R (2005) 224 CLR 300, I am not persuaded on examination of the case as a whole that the jury did not engage in propensity reasoning. However, that conclusion does not dispose of the matter. The Code, s402(2), permits this Court to "dismiss the appeal if it considers that no substantial injustice has actually occurred". In Weiss (supra), the Court stated at pars41 – 42:

"That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence, Driscoll v The Queen (1977) 137 CLR 517 at 524-525 per Barwick CJ; Storey (1978) 140 CLR 364 at 376 per Barwick CJ; Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; Festa (2001) 208 CLR 593 at 631-633 [121]-[123] per McHugh J and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, Fox v Percy (2003) 214 CLR 118 at 125-126 [23] per Gleeson CJ, Gummow and Kirby JJ, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration."

In AK v The State of Western Australia [2008] HCA 8, a case involving trial by judge alone, Heydon J, one of the majority, found it unnecessary to consider the application of the proviso because of his conclusion of a fundamental error in the reasoning of the trial judge. Gummow and Hayne JJ, the other two majority members of the court who upheld the appeal, commented on the statement of principle contained in Weiss as set out above, in the following terms at par53:

"In Weiss, the Court identified one circumstance in which the proviso to the common form criminal appeal statute cannot be engaged. The Court said ([2005] HCA 81; (2005) 224 CLR 300 at 317 [44]) that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty'. This negative proposition (about when the proviso cannot be engaged) must not be treated as if it states what suffices to show that no substantial miscarriage has occurred. To treat the negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking judicial statements about aspects of the operation of statutory provisions as substitutes for the statutory language."

adding, at par59:
"When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury's verdict might have been different if the identified error had not occurred. That is why, if the appellate court is not persuaded beyond reasonable doubt of the appellant's guilt it cannot be said that there was no substantial miscarriage of justice. But just as persuasion of the appellate court of the accused's guilt does not in every case conclude the enquiry about the proviso's application in appellate review of a jury trial, enquiring about the weight of the evidence led at a trial by judge alone does not determine whether there was a substantial miscarriage of justice. In a case, like the present, where the Criminal Procedure Act required that the trial yield a reasoned decision, but no reasons were given for the determination of the central issue tried, it cannot be said that there was no substantial miscarriage of justice."

Whilst this may not be a case where, consistent with Weiss, the proviso cannot be engaged, it "invites attention to whether the jury's verdict might have been different if the identified error had not occurred" (Weiss) or in the terms used in this jurisdiction, "deprive the accused of a chance of acquittal" (Jones v R 46/1996; W v R (2006) 16 Tas R 1; Chatters v R [2005] TASSC 42; Neal v R [2005] TASSC 70).

I would not be prepared to apply the proviso in relation to this ground although I would have done so in relation to ground 1(d). I would uphold the appeal and order a new trial.
File No 195/2008

IAN ANTHONY MARTIN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
10 November 2008

The appellant is appealing against his conviction on a charge of attempting to interfere with a witness. For many years he practised as a psychiatrist. In 1998, one of his female patients made a formal complaint against him, alleging that he had had a sexual relationship with her. Disciplinary proceedings were commenced against him before the Medical Complaints Tribunal. Some years after the conclusion of those proceedings, another of his patients, a Mr Kirkland, told the police that the appellant had engaged him to use violence to try to persuade the female patient not to give evidence in those proceedings; that, as a result, he had gone to her home, damaged two cars there, and made a threatening phone call to her home; and that the appellant had paid him $500 for doing those things. As a result, the appellant was charged, tried, and convicted. Mr Kirkland was the principal Crown witness. In this appeal, the appellant is contending that the learned trial judge admitted inadmissible evidence at his trial, and that his Honour's summing up to the jury was defective. He is seeking orders for a new trial.

Five grounds of appeal were pursued. They are numbered 1(b) to 1(f) inclusive. The contentions raised by those grounds can be summarised as follows:

·That evidence was wrongly admitted as to the appellant altering medical records relating to the female complainant, destroying medical files, burning a briefcase and other items, and falsely reporting to the police that a car had been burgled and a briefcase containing medical records stolen from it: ground 1(e).
·That evidence was wrongly admitted of the finding of metal alleged to have come from the burnt briefcase: grounds 1(b) and 1(c).
·That the learned trial judge erred in failing to give the jury any directions as to how they were and were not permitted to use the evidence as to the altering and destruction of medical records, destruction of a briefcase and other items, and false reporting of a car burglary and theft: ground 1(f).
·That the learned trial judge failed to give a warning as to the possible unreliability of the evidence of two witnesses who might reasonably be supposed to have been criminally concerned in events giving rise to the proceedings, namely Mr Kirkland and a Mr Wells: ground 1(d).

Leave to appeal

This appeal cannot succeed on ground 1(f) unless leave to appeal is granted in respect of that ground. However leave to appeal is not necessary in respect of the other grounds. Under the Criminal Code, s401(1)(a), a convicted person has the right to appeal against his conviction "on any ground which involves a question of law". No grant of leave is required in that situation. The grounds asserting to the wrongful admission of evidence involve questions of law. The ground relating to the need for a warning as to the possible unreliability of witnesses involves a question of law as to whether the Evidence Act 2001, s165, was complied with. However ground 1(f) raises a question as to whether a particular direction to the jury was necessary in order to avoid a miscarriage of justice. Such a question is not a question of law: Kelleher v R (1974) 131 CLR 534 at 559 – 560; Bromley v R (1986) 161 CLR 315 at 325.

Admissibility of evidence — Grounds 1(e), 1(b) and 1(c)

Mr Wells was a witness called by the Crown. Like Mr Kirkland, he was one of the appellant's patients. The appellant owned a farm, and had employed Mr Wells to work on that farm. Mr Wells gave evidence to the effect that, in about September or October 1998, he had a conversation with the appellant in his consulting room when the appellant told him that a woman was "taking him to the Medical Council for sexual relationship". He said he saw the appellant changing some files, and that the appellant then passed the files to him and asked, "Does that look all right?" He said the appellant told him that he had been spoken to by a member of the Medical Council, and that he "had to alter the files to make everything different, so that things happened on different times".

Mr Wells gave evidence that some days later, at the appellant's farm, the appellant told him that the altered files had to be destroyed. He said they subsequently took the files to the farm and burnt them. He said that the appellant also burnt the contents of his wallet, saying that it would "make it sound better" if he lost everything. He said the appellant also burnt a very well made black briefcase, that there were steel pieces left after the fire had finished burning, and that those pieces were kicked into a creek by him and the appellant. There was evidence at the trial that Mr Wells led police officers to a place beside a creek in 2005, and that pieces of metal were recovered from the creek and photographed. Photographs of the metal items were tendered as exhibits at the trial. From the size and shape of the metal items, it was obvious that some of them had never formed part of a briefcase, but it was also open to the jury to infer that some of them once formed part of a briefcase.

The appellant was interviewed by police officers in 2005. A recording of the interview formed part of the evidence at the trial. During the interview, one of the officers asked him questions about a theft from a car at his home. He said that a car parked in front of the house had been broken into, and that his briefcase and other items were stolen. He said he did not know when that was; that the theft was reported to the police; that there were patient files in the briefcase; that he thought the file of the female complainant was in it, but was not sure; and that he was pretty sure that his wallet was not in the briefcase. On the basis of those answers and Mr Wells' evidence, the Crown contended at the trial that the appellant had made a false report of burglary and stealing to the police.

Mr Wells gave evidence of another conversation with the appellant about the female patient's complaint. He said the appellant often told him that he would lose everything if he "got lumbered with it". That was apparently a reference to the disciplinary proceedings. Mr Wells also said that the appellant suggested that he get an alibi for a certain night because the appellant had a man "going around to see the woman in the case".

The evidence of that conversation was admissible. There is no argument about that. However, the appellant contends that the jury should not have been allowed to hear Mr Wells' evidence as to the altering of files, the burning of files and other items, and the recovery of metal items from the creek. His counsel submitted to us that that evidence was all irrelevant or, alternatively, that its probative value was outweighed by a danger of unfair prejudice.

The question of relevance has to be decided by reference to the Evidence Act, s55(1), which reads as follows:

"55 (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."

During the hearing of the appeal, counsel for the appellant accepted that evidence of the relationship between his client and Mr Wells was relevant because it enabled the jury to assess the likelihood or otherwise of the appellant admitting to Mr Wells that he had arranged for a man to go around to see the female complainant. In my view all the evidence relating to the relationship between the appellant and Mr Wells was relevant on that basis. It was evidence that could rationally affect, indirectly, the assessment of the probability of the appellant having engaged Mr Kirkland to try to stop the female complainant from giving evidence in the disciplinary proceedings.

In my view there is another more significant basis upon which the evidence in question should be regarded as relevant. It applies to all the evidence as to the altering and destruction of medical files, the burning of the briefcase and other items, the recovery of metal from the creek, and the appellant's answers to the police about the alleged burglary. All of that evidence, if accepted, was relevant because it tended to show the appellant's state of mind and strength of purpose in relation to the disciplinary proceedings. The evidence suggested that he intended to try to avoid an adverse result in those proceedings, and that he was so determined to avoid an adverse result that he was prepared to falsify and destroy medical records, make a false report to the police, and destroy the contents of his wallet in order to make that false report seem true. All of those things suggest that he might have had a strong enough motivation for him to have engaged a man to interfere violently with the most important witness in the disciplinary proceedings. On that basis, all of that evidence, if accepted, could rationally affect the assessment of the probability of him committing the crimes he was charged with.

On those bases, I think the evidence in question was all relevant. However, in a criminal proceeding, relevant evidence adduced by the prosecutor is not admissible "if its probative value is outweighed by the danger of unfair prejudice to the defendant": Evidence Act, s137. Counsel for the appellant submitted that the evidence in question, even if relevant, was not admissible because of that provision.

The probative value of the evidence in question, if accepted, was significant. Without it, the Crown case as to the appellant's instigation of Mr Kirkland's acts consisted only of Mr Kirkland's evidence and Mr Wells' evidence of an admission, without any evidence as to the context of that admission. It was open to the jury to infer that some of the metal items recovered from the creek had come from the burnt briefcase, and to treat the metal items as independent evidence providing some corroboration of the evidence of Mr Wells. However one factor reducing the probative value of the evidence in question was that the jury were entitled to take into account Mr Wells' participation in the unlawful destruction of evidence when assessing his credibility.

Counsel for the appellant submitted that there was a danger of unfair prejudice as a result of the jury hearing the evidence in question. If the appellant tampered with medical records, and later destroyed them, his only possible motive must have been the perverting of the course of justice in the disciplinary proceedings. Making a false report to the police is an offence: Police Offences Act 1935, s44A. Fabricating evidence to make the false report seem true is no doubt also a crime. All of the conduct in question, if it occurred, was dishonest conduct, engaged in so that the disciplinary proceedings would take a different course.

The sort of danger of unfair prejudice that s137 is directed to was discussed by the Australian Law Reform Commission in its Interim Report No 26, Evidence, vol 1, par644, which includes the following:

"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."

Mr Wells' evidence as to the conduct of the appellant was not as damning as the evidence of Mr Kirkland. In my view his evidence as to the destruction of evidence and so forth was hardly likely to arouse a sense of horror, provoke an instinct to punish, or otherwise cause jurors to put feelings of revulsion ahead of their duty of impartiality. There was nothing about that evidence that was likely to cause the jury to give it a false importance. In my view there was no significant danger of unfair prejudice resulting from the admission of that evidence.

So far as the evidence as to the finding of metal items in the creek is concerned, there was no reason to think that that evidence was likely to excite the jury's emotions to the extent of diverting them from their duty of impartiality, and no reason to think that that evidence would be given a false importance either. That was particularly unlikely after a comment made by the learned trial judge during his summing up about the metal items recovered from the creek. His Honour said the following:

"Now I just want to say to you, in my view, but you may not agree with this, there's no probative value to speak of in the evidence of the wire dug out of the creek, it's very tenuous, there's no evidence – it doesn't look like anything to do with a briefcase and I must say, as I see it, it doesn't really corroborate Mr Wells' evidence. It doesn't denigrate from it – it's just neutral, as I see it. So I – but then you might disagree with me. But I just offer you that."

The grounds relating to admissibility must all fail.

Directions to jury as to uncharged criminal acts – Ground 1(f)

Counsel for the appellant submitted to us that a miscarriage of justice occurred because, when summing up to the jury, the learned trial judge gave no directions as to how the jury were, and were not, permitted to use the evidence as to the appellant altering and destroying medical records, destroying his briefcase and the contents of his wallet, and reporting to the police the alleged burglary and theft from the car. He submitted that the jury should have been directed not to use tendency reasoning in relation to that evidence, ie not to reason that the evidence established that the appellant had a tendency to commit crimes, or a tendency to pervert the course of justice, and that he was therefore more likely to have committed the crimes he was charged with.

The Crown prosecutor outlined the evidence in relation to those matters, and the Crown's contentions in relation to that evidence, in his opening speech to the jury. In his closing speech, he reminded the jury of almost every aspect of that evidence. Defence counsel also referred to the evidence of Mr Wells in his closing speech. He spoke to the jury about its lack of detail, the unlikelihood of the appellant being able to remove all evidence of his consultations with the female patient because of records kept by Medicare and in other places, and the inconclusiveness of the evidence about the metal items recovered from the creek. He suggested that Mr Wells' evidence was nonsense. Nothing was said by either counsel to the jury as to the bases upon which the evidence in question was relevant, nor as to the impermissibility of any type of reasoning in relation to that evidence.

The Crown did not rely on Mr Wells' evidence as to the appellant's conduct as "tendency evidence" to which the Evidence Act, s97, applied. That is to say, the Crown did not contend that that evidence tended to prove that the appellant had a tendency to act in a particular way or a tendency to have a particular state of mind. The ways in which the evidence in question was relevant were not articulated by the prosecutor at the trial. As I understand it, the Crown regarded that evidence as relevant, not because that evidence tended to show any tendency on the part of the appellant, but because it suggested that the appellant was so determined to avoid the consequences of the disciplinary proceedings that Mr Kirkland's evidence was likely to be true.

The learned trial judge said very little in his summing up about Mr Wells' evidence. However he did warn the jury to scrutinise the evidence of Mr Wells carefully. In the course of that warning, he referred to the evidence that Mr Wells was asked to provide the appellant with an alibi and help to destroy some files.

However no direction was given to the jury as to what reasoning was permissible and impermissible as to the evidence of the appellant doing unlawful and dishonest acts that were not the subject of charges.

There are a number of situations in which a trial judge must direct a jury that evidence admitted for one purpose may not be used for another purpose, or that some types of reasoning are permissible and others not in relation to a particular body of evidence. For example, when evidence of an accused person's prior convictions is admitted for the limited purpose of rebutting evidence of that person's good character, the jury must be directed that it may use the evidence in that way, but not as evidence of a general criminal propensity or a tendency to commit crimes: Donnini v R (1972) 128 CLR 114. The High Court decision in BRS v R (1997) 191 CLR 275 provides another good example. That was an appeal by a schoolteacher against convictions for sexual crimes against a student. The High Court held that evidence from a second student of the teacher keeping a lubricant and a towel in his room for the purposes of masturbation was relevant only as corroboration of the complainant's evidence, and not as evidence as to what sort of person the teacher was, and that the jury should therefore have been given directions as to permissible and impermissible reasoning. Gaudron J said at 301 that "a direction of that kind must be given whenever necessary to avoid a perceptible risk of injustice". McHugh J said at 310 that there had been a miscarriage of justice because there was "a real danger that the jury may have used the forbidden chain of reasoning".

In that case, at 330, Kirby J said the following as to the test that must be applied by an appellate court considering a submission like the present one:

"… in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice. The risk must be a real, and not a fanciful one to attract the intervention of an appellate court. It is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice. If directions on the jury's legal duties are incorrect or seriously inadequate a new trial will ordinarily be ordered …". (Footnotes omitted.)

The learned trial judge did not direct the jury that they were not to treat the evidence of Mr Wells and the evidence as to the report of a car burglary as evidence that the appellant had a tendency to commit crimes, or a tendency to pervert the course of justice, and reason that he was therefore more likely to be guilty of the crimes he was charged with. However I do not think that the absence of such a direction resulted in a real risk of a miscarriage of justice. The evidence related not to the appellant's general character but to his conduct in a unique situation. The evidence suggested that he was willing to resort to dishonesty or impropriety to avoid the consequences of the disciplinary proceedings. The evidence did not suggest that he had a general tendency to commit crimes, or even a general tendency to interfere with the administration of justice.

In my view it is fanciful to think that the jury would have treated the evidence in question as evidence of some sort of tendency, rather than as evidence of the appellant's state of mind in a particular situation. It probably would have been prudent for the learned trial judge to have given the jury precise directions as to how they were and were not entitled to use the evidence in question. But I do not think it has been shown that such a direction was necessary in order to avoid the risk of a miscarriage of justice.

When a question arises as to whether a summing up has been so defective that a miscarriage of justice has resulted, one relevant consideration is the reaction of defence counsel to the hearing of the portion of the summing up that has been criticised: La Fontaine v R (1976) 136 CLR 62 per Barwick CJ at 72; Lee v Tasmania (2006) 16 Tas R 67 at 80. It is therefore significant that defence counsel did not seek a supplementary direction from the learned trial judge in relation to the impermissibility of tendency reasoning. Because no supplementary direction was sought, I would refuse leave to appeal in relation to ground 1(f). In any event, I think that the ground must fail.

The direction to the jury as to unreliable evidence – Ground 1(d)

The Evidence Act, s165, requires a judge, in certain situations, to warn a jury that certain evidence may be unreliable. One such situation is where evidence is given in a criminal proceeding by a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding": s165(1)(d). Before counsel commenced their closing speeches to the jury, the learned trial judge briefly discussed with them the need for a s165 direction. He said he proposed giving one, and both counsel agreed that he should. There was no discussion as to what he would say in that direction. His Honour subsequently gave the jury directions about the evidence of Mr Kirkland and Mr Wells, but the appellant now contends that those directions were inadequate.

The relevant provisions in s165 read as follows:

"165     (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
…
(d)    evidence given in a criminal proceeding by a witness who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding;
…
(2)       If there is a jury and a party so requests, the judge is to –
(a)     warn the jury that the evidence may be unreliable; and
(b)    inform the jury of matters that may cause it to be unreliable; and
(c)     warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3)       The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)       It is not necessary that a particular form of words be used in giving the warning or information."

I do not think it is necessary for me to decide whether anything said by counsel at the trial did or did not amount to the making of a request for the learned trial judge to proceed in accordance with s165(2). For the reasons which appear below, I have concluded that his Honour did not give a s165 warning, but that no substantial miscarriage of justice occurred as a result.

In my view Mr Wells was not, within the meaning of s165(1)(d), "a witness who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding". The events that gave rise to the proceeding were the engagement of Mr Kirkland by the appellant (if that occurred), the damaging of two cars, and the making of a threatening phone call. There was no suggestion that Mr Wells had any involvement in any of those events. If his evidence was true, he was criminally concerned in other events, but not in the events giving rise to the trial of the appellant. No doubt it was open to the jury to treat him as a witness of bad character, and to take his conduct into account when assessing his credibility. However he was not a witness to whom s165 applied. It is clear however that Mr Kirkland was such a witness. It is therefore appropriate to consider how the directions of the learned trial judge as to him measure up against the requirements of s165(2).

There was evidence that Mr Kirkland had been to prison prior to the events in question, and that he had been sent to prison again for damaging property at the female complainant's home. The only basis for a s165 warning was that, if what he said was true, he was a person criminally concerned in the events giving rise to the proceedings against the appellant.

In his summing up, the learned trial judge warned the jury to scrutinise Mr Kirkland's evidence carefully, but he did not tell them that his involvement in the events giving rise to the proceeding meant that his evidence might be unreliable. His Honour explained to the jury that the central question in the case was whether they were satisfied beyond reasonable doubt that Mr Kirkland was a substantially reliable and accurate witness. He continued as follows:

"So that's why I say that's the bottom line in this case. Are you satisfied beyond reasonable doubt that Kirkland was an accurate and reliable witness? And so before accepting his evidence it is essential that you scrutinise it carefully, and in doing so you bear in mind that he's a person who's previously been to prison, and generally speaking people who commit crimes have a poor reputation for being honest and reliable. I think you'd probably agree with that in general terms, and so you'll bear that in mind."

His Honour went on to remind the jury of evidence that the appellant had written a report for a government department which led to Mr Kirkland's son being taken away from him for about a year; that Mr Kirkland became very angry with the appellant as a result; and that that was what had led Mr Kirkland to make a complaint about the appellant engaging him to interfere with a witness. He told the jury that he was not expressing a personal view, and that s165 always required such a warning "when evidence is given by people in the situation that Mr Kirkland was in". He said that that was common sense. He explained that Mr Kirkland's evidence was not to be considered in isolation, but was to be considered together with the other evidence. He reminded the jury of evidence that Mr Kirkland had a prison record, and that he had originally gone to see the appellant in the hope that he would "keep him on the straight and narrow". He reminded the jury of discrepancies between Mr Kirkland's evidence and evidence given by the female complainant and members of her family. He then said:

"So what I’m doing at the moment is just giving you the warning about him generally because of his background and his circumstances …".

Section 165(2)(b) requires a judge who gives a s165 warning to inform the jury of the matters that may cause the evidence of the witness to be unreliable. The reasons why such evidence might be unreliable have been discussed in many common law cases. At common law, when an accomplice gave evidence for the Crown during a criminal trial, it was the duty of the trial judge to warn the jury that, although they were entitled to convict upon the evidence of the accomplice, it was dangerous to do so unless that evidence was corroborated: Davies v DPP [1954] AC 378 at 399. The reason for that rule was explained by the High Court in Jenkins v R (2004) 79 ALJR 252 at 257 – 258, as follows:

"The rule exists for a reason. That reason is related to the potential unreliability of accomplices, an unreliability thought to be so well known in the experience of courts that judges are required, not merely to point it out to jurors, but to tell them that it would be dangerous to convict upon the evidence of an accomplice unless it is corroborated. The principal source of unreliability, although it may be compounded by the circumstances of a particular case, is what is regarded as the natural tendency of an accomplice to minimise the accomplice's role in a criminal episode, and to exaggerate the role of others, including the accused. Accomplices are regarded by the law as a notoriously unreliable class of witness, having a special lack of objectivity. The warning to the jury is for the protection of the accused. The theory is that fairness of the trial process requires it."

It could be added that, in some cases, accomplices do not merely exaggerate the involvement of co-offenders, but attempt to shift blame onto individuals who are entirely innocent.

Since the commencement of the Evidence Act, a trial judge giving a warning under s165 is not obliged to tell the jury that it is dangerous to convict on the evidence of an accomplice unless it is corroborated: R v Stewart (2001) 52 NSWLR 301; Kanaan v R [2006] NSWCCA 109 at pars216 – 217. What s165(2) requires is a warning that the evidence of a particular witness or witnesses may be unreliable; information as to why that is so; and a warning of the need for caution in determining whether to accept the evidence and what weight to give to it.

Counsel for the appellant submitted to us that the learned trial judge should have warned the jury that individuals involved in criminal activity often try to understate their own involvement, and to shift blame by exaggerating the involvement of others or attributing involvement to innocent persons.

This was an unusual case. In my view there was no real chance that Mr Kirkland had invented evidence against the appellant in order to shift blame away from himself. There was uncontradicted evidence that two cars were damaged at the female patient's home in 1998; that a threatening phone call from a man who did not identify himself was received at her home shortly thereafter; that Mr Kirkland had come forward years later and confessed to doing those things; and that, before the trial, he had been sent to prison for what he did. There was uncontradicted evidence that he had had nothing to do with the female patient or her family on any other occasion. There was no suggestion of any possible motive, unconnected with the appellant, for him to have done what he did. I think it must follow that there was no realistic possibility that, when Mr Kirkland came forward and denounced the appellant years after the events in question, he was trying to shift blame away from himself. He had not been in any trouble as a result of what he did. On the evidence before the jury, the only realistically possible motive for Mr Kirkland to have given false evidence against the appellant was a desire for revenge after the appellant's report had caused the authorities to take Mr Kirkland's son away.

What s165(2)(a) requires is a warning. There is a distinction between a warning based on the collective experience of the courts over many years in relation to particular types of unreliable evidence, and a comment reminding the jury of matters within common experience. See Longman v R (1989) 168 CLR 79 per Kirby J at 126. Proceeding in accordance with s165(2) in the circumstances of this case would have involved the learned trial judge explaining to the jury that the experience of the courts over many years revealed that a person involved in criminal conduct in the events that give rise to a charge will often fabricate or exaggerate evidence. A warning in such general terms could have been given, even though it would have been inappropriate to suggest that Mr Kirkland might have given false evidence in order to shift blame away from himself. However his Honour did not warn, or even direct, the jury, as to Mr Kirkland, that the evidence of a witness who had been criminally involved in the events that gave rise to the charges before them might be unreliable. That is to say, no s165 warning was given at all.

Counsel for the Crown relied on the Criminal Code, s402(2), which provides as follows:

"(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

The Crown contends that, if any or all of the grounds of appeal succeed in this case, the appeal should still be dismissed because "no substantial miscarriage of justice has actually occurred". The approach to be taken by an appellate court evaluating such a submission was explained by the High Court in Weiss v R (2005) 224 CLR 300. At 317, the High Court made it clear that the appellate court must examine the whole of the record of the trial; that it must not ignore the fact that the jury returned a guilty verdict; and that it cannot be concluded "that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt".

The case against the appellant was a very strong one. There was very compelling evidence that someone had damaged the two cars and made the threatening phone call; that it was Mr Kirkland that had done those things; that his reason for doing those things was connected with the female patient's role in the disciplinary proceedings against the appellant; and that he would otherwise have had no reason to have anything to do with her. The evidence of Mr Wells as to an admission by the appellant and as to the appellant's state of mind and strength of purpose strengthened the Crown case. The only suggested motive for Mr Kirkland to lie was that he wanted to get revenge against the appellant after the appellant's report led to Mr Kirkland's son being taken away from him, but the evidence was that that report was written in 2003. The fact that Mr Kirkland's hostile acts in 1998 were directed towards a woman who was a stranger to him very strongly suggested that there was no explanation for his conduct consistent with the appellant's innocence.

The central question in the trial was whether Mr Kirkland was telling the truth or not about the appellant having instigated his hostile acts. It was made crystal clear to the jury that their verdict depended on their assessment of Mr Kirkland's credibility. It was made clear to them that they needed to scrutinise his evidence with great care, if only because he had been to prison in the past, and had a motive for revenge against the appellant. In my view it is fanciful to think that the jury might have approached Mr Kirkland's evidence with greater caution if they had been warned that, in the experience of courts, people who get involved in criminal acts sometimes fabricate or exaggerate evidence. I think it follows that, in determining whether this was a case in which no substantial miscarriage of justice occurred, full weight should be given to the jury's verdicts of guilty. Having regard to the whole of the record, and taking those verdicts into account, I think that the evidence admitted at trial proved beyond reasonable doubt the appellant's guilt of the two crimes charged. In my view no substantial miscarriage of justice occurred. Ground 1(d) must fail on that basis.

Conclusion

I would refuse leave to appeal and dismiss the appeal.