Peacock v R

[2008] NSWCCA 264

New South Wales
Court of Criminal Appeal

CITATION:	Adam PEACOCK v R & Brendan PEACOCK v R [2008] NSWCCA 264
HEARING DATE(S):	24 October 2008
JUDGMENT DATE:	14 November 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Nettle AJA at 2; Simpson J at 24
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - wound with intent to murder - detain for advantage - whether miscarriage of justice - failure by Crown to call witness - admissibility of evidence - fact in issue - credibility of witness - collateral evidence rule - appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	Whitehorn v The Queen (1983) 152 CLR 657 R v Apostilides (1984) 154 CLR 563 R v Kneebone (1999) 47 NSWLR 450 AG v Hitchcock (1847) 1 Ex 91 R v Harrington [1998] 3 VR 531 Nicholls v The Queen (2005) 219 CLR 196 Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; 63 CLR 533 Nudd v The Queen (2006) 225 ALR 161 AK v Western Australia (2008) 232 CLR 438 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 R v Basha (1989) 39 A Crim R 337 R v Nicoletti & Tolone [2006] VSCA 175 Palmer v The Queen [1998] HCA 2; 193 CLR 1 R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482 Adam v The Queen [2001] HCA 57; 207 CLR 96 R v Chen [2002] NSWCCA 174
TEXTS CITED:	Cross on Evidence at [19045]
PARTIES:	Adam PEACOCK (Applicant) Brendan PEACOCK (Applicant) REGINA (Respondent)
FILE NUMBER(S):	CCA 2006/5138; 2006/5140
COUNSEL:	P Doyle (Applicants) J Girdham (Respondent)
SOLICITORS:	Matthew Hammond (Applicants) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/1118
LOWER COURT JUDICIAL OFFICER:	Morgan DCJ
LOWER COURT DATE OF DECISION:	06/10/2006

2006/5138
2006/5140

McCLELLAN CJ at CL
NETTLE AJA
SIMPSON J

Friday 14 November 2008

Adam PEACOCK v R

Brendan PEACOCK v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 NETTLE AJA: After a trial before her Honour Judge Morgan and a jury of twelve, on 28 April 2006 the applicants, Adam Peacock and Brendan Peacock, were found guilty and convicted of one count of wounding Shane Baker with intent to murder (s 27 Crimes Act 1900); one count of detaining Shane Baker without his consent with intent to obtain an advantage and occasioning him actual bodily harm (s 86 (3) Crimes Act 1900); and one count of detaining James Isgro without his consent with intent to obtain an advantage (s 86 (2) (a) Crimes Act 1900).

3 On 6 October 2006, each applicant was sentenced in respect of those offences to a total term of imprisonment of 12 years to date from 11 April 2006 with a total non-parole period of 8 years to expire on 28 April 2014.

4 This is an application for leave to appeal against conviction out of time. The sole proposed ground of appeal is that a miscarriage of justice was caused by the failure of the Crown to call one Dale Biddle to give evidence at trial.

5 The Crown case at trial was that on Saturday 9 April 2005, each complainant went with the Peacocks to the Royal National Park after Brendan Peacock suggested that they take a crop of cannabis that was known to be growing there. When they stopped for a rest, Brendan Peacock punched Baker to the head, which caused him to fall to the ground and then pinned him to the ground and tied his hands with duct tape while he screamed at him to “confess”, “who robbed our house?” Simultaneously, Adam Peacock knocked James Isgro to the ground and bound his hands and feet with duct tape. When Baker denied that he had been involved in burgling the Peacock house, Brendan Peacock produced a knife and stabbed Baker in the hand and continued for some time to accuse him of having been the burglar. Baker, however, continued to deny it until Brendan Peacock said words to Baker to the effect of, “How do you want to die, I have a gun too?” At that point, Baker turned his head and saw that Brendan Peacock was holding what appeared to be a gold coloured pen gun, and a moment later he heard a loud bang and felt something warm enter the back of his head. He pretended to be dead. Adam Peacock then said, “He’s still breathing” and, in response to that, Brendan Peacock pulled back Baker’s head and using the knife slashed Baker’s throat a couple of times. After that, Brendan and Adam Peacock covered Baker with foliage and then left the area with James Isgro.

6 James Isgro believed that Baker had been shot and killed. He pleaded for his life and was told by Adam Peacock that, if he told anyone about what he happened, he would be blamed. Isgro thus accompanied the Peackocks back through the bush to the cars and then drove with them towards Beverly Hills. Shortly before they arrived in Edgbaston Street, Beverly Hills, they told him to get out and walk home, which he did, and they drove on the rest of the way to their home close by.

7 As Isgro walked towards his mother’s home, he threw the duct tape which had bound his hands into the back yard of a house he was passing, from which it was later recovered by police. After pausing to speak to a neighbour and accepting a drink, he returned to his home and made immediate complaint to his mother that Baker had been murdered by Brendan Peacock. Fearing what the applicants might do to him if he reported the matter to the police, Isgro and his mother travelled by train to Sutherland where they used a public telephone to make an anonymous complaint to the police. On Monday 11 April 2005, police visited Isgro’s home and at that point he made a statement.

8 Meanwhile, after waiting for some 15 minutes for the Peacocks and Isgro to leave the area, Baker extricated himself from where he had been left covered and walked out of the bush on to a fire trail. He there came across two bushwalkers who assisted him back to the Waterfall Station. He told the two bushwalkers and the station-master that he had been shot, although he did not tell them or, to begin with, the police the name of his attackers. His initial account to police was that he had accompanied two unidentified men into the bush to obtain some cannabis which they knew to be growing there. It was only later, after undergoing an operation to remove a .22 calibre bullet embedded in the back of his head, that he disclosed to police that the applicants were his assailants. But at that point he did not say anything of having been involved in the burglary of their home.

9 On the following Monday morning, the applicants were arrested and interviewed, but both denied any involvement and both raised alibis. Thus the matter proceeded to trial.

10 During a conference less than a week before the trial, Baker admitted to the Crown prosecutor for the first time that he had broken into the Peacock home. That fact was then disclosed to the defence and the matter was examined in the course of a Basha inquiry on 16 March 2006. During the inquiry, Baker said that he had burgled the Peacock’s home in company with a boy named “Dale” and, when the judge asked Dale’s surname, Baker said that it was “Biddle”. Thereafter, the facts of the burglary (there was no dispute that it had taken place on 28 December 2004) and the whereabouts of Biddle were the subject of some cross-examination on the inquiry. Baker said that Dale Biddle had been but was no longer a friend and that he believed but was not sure that he lived “somewhere around Campbelltown now”. He was also asked to spell “Biddle” and said that he assumed that it was spelt “B I T A L” but there was no further inquiry as to the identity or whereabouts of Biddle and the defence did not request the Crown to call Biddle or to make him available for cross-examination.

11 The Crown case at trial relied on the direct testimony of each of the complainants and their identification of the Peacocks; the motive of the Peacocks to visit vengeance for the burglary of their home on the man they believed to be the culprit; the evidence of the bushwalkers and station-master; evidence of the fact that Brendan Peacock had had a knife, bullets and gold and brass pen gun which he placed in a sports bag and handed to his girlfriend on 10 April 2005 to hold for him for safe keeping; and forensic and other circumstantial evidence which was consistent with motive and opportunity. Baker gave evidence at trial that the Peacocks had demanded to know, “Who robbed me?” and “confess, confess”. He said that, although he had in fact committed the burglary, he was terrified as to what the Peacocks would do if he admitted it and thus he had denied his involvement. Isgro stated that as the Peacocks had said, “You know who done it. We know you robbed our house… Just tell us now. Just admit to it”.

Ground of appeal

12 This application for leave to appeal out of time is premised on the fact that Biddle has recently made a statement in which he claims that he was not involved in the burglary. It also appears that, at the time of the trial, Biddle was released on bail in connection with another offence and thus reporting daily to police in accordance with the conditions of his bail. In that sense, his whereabouts were known to the Crown. In those circumstances, the applicants contend that a miscarriage of justice was caused by the failure of the Crown to call Biddle to give evidence at the trial and that leave to appeal out of time should be granted because the facts about Biddle have only recently come to light.

13 Counsel for the applicants argues in support of the application that the law places a high degree of responsibility on the Crown to ensure that the prosecution case is presented with fairness to the accused, and so to call all relevant witnesses, and, as part of that obligation, to refrain from electing not to call a material witness merely for tactical reasons. He refers in particular to the High Court’s statements of principle to that effect in Whitehorn v The Queen (1983) 152 CLR 657, in R v Apostilides (1984) 154 CLR 563 and to the statements of this court in R v Kneebone (1999) 47 NSWLR 450. In counsel’s submission, Biddle was a material witness because his testimony would have dented the weight to be attached to the evidence of the complainant and, therefore, the Crown was under an obligation to call Biddle or at least to conference with Biddle before concluding that he should not be called. It follows, in counsel’s submission, that inasmuch as the Crown did not have a good reason for failing to call Biddle, or at least, due to the absence of conference, is unable to identify a sufficiently good reason for failing to call him, it is apparent that there has been a miscarriage of justice which necessitates that a new trial be had.

14 The Crown resists the application. Counsel for the respondent argues that there was no obligation on the Crown to call Biddle in the circumstances of this case. He relies upon the circumstance that Baker’s involvement in the burglary was not known to the Crown until shortly before the trial and that, upon learning about his involvement in the burglary, the Crown immediately disclosed it to the defence. Reliance is also placed on the fact that Biddle’s involvement was not known to the Crown until it was disclosed in the course of the Basha inquiry, and hence that even then Biddle had not been interviewed or made a statement to police; and upon the fact that defence counsel did not ask that the Crown call Biddle or make him available for cross-examination or even to make any further inquiries as to his whereabouts. In counsel’s submission, this is not a case in which the Crown knew of the evidence which Biddle would or would be likely to give and made a tactical decision not to call him. Nor is it otherwise a case to which the principles in Whitehorn and Apostilides or Kneebone apply.

15 Assuming for the moment that Biddle were a material witness, I do not consider that the mere fact that he had not made a statement to police or that his involvement was not learned of until after the start of the trial would have been sufficient to excuse the Crown from its obligation to call Biddle or make him available for cross-examination. To state what should be obvious after Kneebone, the Crown cannot avoid its obligations to call material witnesses by the expedient of electing not to take statements from persons whom it considers may be material witnesses. Further, given that Biddle was readily available to the police, I have some difficulty in understanding why the Crown did not attempt to take a statement from him once his significance was understood and, if that were not successful, to inform the defence that, although Biddle refused to make a statement, his whereabouts were known. It may be that those charged with the prosecution of the applicants did not know of Biddle’s bail status or make the connection between “BITAL” and Biddle. Other possibilities are open. But it is troubling that there is no explanation offered of why that process was not followed.

16 Counsel for the respondent advanced a further argument, however, which I think to be more persuasive. He submitted that, even if Biddle were prepared to give evidence to the effect that he was not involved in the burglary, Biddle’s evidence would have gone only to a collateral issue calculated to impeach the credit of the complainant and thus would not have been admissible (Evidence Act 1995, s 102).

17 I accept that submission. When Baker was cross-examined about the burglary he maintained that he had committed it in company with Biddle. If Biddle had been called and sworn that he was not involved in the burglary, his evidence may have damaged Baker’s credit. But it would not have established that Baker was not involved in the burglary. Logically, it would have gone only to the collateral issue of who Baker was with at the time of the burglary, as opposed to the fact in issue of where Baker was at the time of the burglary. And since there was no suggestion of bias (see AG v Hitchcock (1847) 1 Ex 91 at p 106; R v Harrington [1998] 3 VR 531; Cross on Evidence at [19045] or corruption (see Nicholls v The Queen (2005) 219 CLR 196 at p 263 at [175] per Gummow and Callinan JJ, and at p 292 at [269] per Hayne and Heydon JJ) or any other exception to the collateral evidence rule, (Evidence Act 1995, s 106) and no proper foundation was laid for the application for any exception, Biddle’s evidence as to not having participated in the burglary would in my view not have been admissible.

18 The point may be demonstrated by comparison with the High Court’s decision in Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; cf Nicholls v The Queen (2005) 219 CLR 196. In that case, a witness to a motor accident was asked why he had been at the scene at the time and he said that he was there because he had been attending to some banking business close by. It was sought to call the bank manager to say that there was no record of the witness having attended at the bank that day and it was held the bank manager’s evidence was inadmissible. The question of why the witness had been at the scene, as opposed to whether he had been at the scene, was a collateral issue which reflected only upon his credit and thus, under the common law finality rule which then applied to collateral issues, the witness’s evidence on the point had to be taken as final.

19 The collateral issue finality rule has been criticised. Those who disparage it point out that, as a matter of logic, collateral issues are frequently just as relevant as material issues and that the distinction between a fact in issue and a collateral issue is frequently arbitrary. But despite such criticisms, and some judicial attempts to relegate the principle to a rule of practice or case management, it remains as part of the Australian common law of evidence and, in this State, its effect is preserved under ss 102 and 106 of the Evidence Act 1995.

20 In the result, as it seems to me, Baker’s evidence that Biddle was with him at the burglary could no more have been contradicted by Biddle’s evidence that Biddle was not present at the burglary than the witness’s evidence in Piddington v Bennett & Wood that the witness was present because he had been banking could be contradicted by the evidence of the bank manager that the witness had not done any banking.

21 Counsel for the Crown advanced a further argument that, if the evidence of Biddle had been admissible, the force of the Crown’s direct and circumstantial case was such that Biddle’s evidence could not conceivably have made a difference to the jury’s verdict; and, therefore, that the Crown’s failure to call Biddle could not have caused a miscarriage of justice; or, at least, that any miscarriage which may have been caused was so insubstantial as to warrant application of the proviso.

22 In the view which I take of the inadmissibility of Biddle’s evidence, it is unnecessary for me to determine that point. But in case it matters, I should say that there appears to me to be considerable force in it. Baker’s evidence as to having been involved in the burglary of the Peacock house went to the question of motive. Biddle’s evidence, if believed, would have reflected adversely on Baker’s credit and thus detracted from the probability of his involvement, and so in turn from the applicant’s alleged motive to attack him. To that extent, Biddle’s evidence might have detracted from the overall strength of the Crown case. But there would have been nothing in the doubt so cast on the creditability of Baker’s evidence rationally to cause the jury to doubt Isgro’s evidence or the large body of circumstantial evidence which pointed strongly towards the applicants. In those circumstances, I think it is likely that the jury would still have been satisfied beyond reasonable doubt of the applicants’ guilt. The only reason that one might hesitate before applying the proviso in such circumstances is that, if Biddle’s evidence had been admissible, it would have gone to Baker’s credit, and authority suggests that, where the application of the proviso turns upon an assessment of credit, the matter should ordinarily be left to a jury. (see Nudd v The Queen (2006) 225 ALR 161; AK v Western Australia (2008) 232 CLR 438; R v Nicoletti & Tolone [2006] VSCA 175).

23 As I say, however, I do not consider that Biddle’s evidence would have been admissible in the circumstances of this case and, on that basis, I would dismiss the application.

24 SIMPSON J: I have read in draft the judgment of Nettle AJA. Although I agree with the orders his Honour proposes, my analysis and the path by which I reach that conclusion is significantly different. On two aspects of his Honour’s draft I respectfully disagree with the approach his Honour takes.

25 It is unnecessary to re-state the facts, other than such as are material to these two issues.

26 My points of disagreement concern the potential admissibility of the evidence of Biddle, and the criticisms of the conduct of the Crown in failing to make Biddle available for cross-examination.

The admissibility of Biddle’s evidence

27 Shane Baker testified that, some months prior to the assaults, he had entered the Peacock home and had stolen a number of items, including a pound of marijuana, and some samurai swords. When he did this, he said, he was in company with Dale Biddle. Indeed, his evidence was that Biddle initiated the offence, by telephoning him and inviting him to join Biddle at the Peacock home. He gave some detail about what they had done while present in the apartment. He was cross-examined at some length on this issue.

28 Although it was common ground that there had been an occasion when the Peacock home was entered and property stolen, it was explicitly put to Baker in cross-examination that he had not been present on that occasion, a proposition that he rejected.

29 Baker’s evidence was put in the Crown case as going to establishing that the appellants had a motive for the attack upon Baker and Isgro. It was also put as explaining some remarks that Baker said had been made to him by one or other of his attackers, and questions asked of him, during the course of the attack the subject of the trial.

30 It is in this context that the only ground of appeal arises: it was contended that the Crown ought to have called Biddle as a witness and that its failure to do so amounted to a miscarriage of justice.

31 For the purpose of evaluating this ground of appeal it must be assumed that Biddle, if called, would have given evidence in accordance with the statement annexed to his affidavit: that is, that he did not participate with Baker in the thefts at the Peacock home.

32 The questions which now arise are whether evidence to that effect by Biddle would have been admissible; and, if so, whether its absence from the trial caused a miscarriage of justice.

33 Nettle AJA considers that the evidence would not, by reason of s 102 of the Evidence Act 1995, have been admissible. That is because, in his view, the evidence is relevant only to Baker’s credibility. It is with this view that I disagree.

34 S 102 is in the following terms:

“Evidence that is relevant only to a witness’s credibility is not admissible.”

35 S 102 perpetuates a distinction drawn by the common law between evidence relevant to a fact in issue and evidence relevant only to the credibility of a witness. Whether a particular tendered item of evidence “is relevant only to a witness’s credibility” is not always easy to determine. Of the common law position, McHugh J has said, in Palmer v The Queen [1998] HCA 2; 193 CLR 1:

“52. The rationale behind the credit and facts in issue distinction does not depend on logic. It ‘is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness’. It is rooted in the need for ‘case management’ rules. The distinction is regarded as necessary to prevent the trial of a case being burdened with the side issues that would arise if parties could investigate matters whose only real probative value was that ‘they tended to show the veracity or falsity of the witness who was giving evidence which was relevant to the issue’. It is for that reason, as Lord Pearce pointed out in Toohey v Metropolitan Police Commissioner [[1965] AC 595 at 607] that ‘[m]any controversies which might … obliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money and mental comprehension available to make use of them.’
That being so, the evidentiary rules based on the distinction between issues of credit and facts-in-issue should not be regarded as hard and fast rules of law but should instead be seen ‘as a well established guide to the exercise of judicial regulation of the litigation process’ [ Natta v Canham (1991) 32 FCR 282.] This view is consistent with the statement of that formidable advocate and judge, Sir Hayden Starke …, where he accepted that the finality rule is ‘a rule of convenience, and not of principle’. To elevate the finality rule and the prohibition on bolstering to fixed rules of law rather than rules of convenience would be a mistake, particularly as the finality rule has been strongly criticised.” (italics in original; internal references omitted)

36 McHugh J went on to quote the English Court of Appeal in R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482, saying:

“The difficulty we have in applying that celebrated test is that it seems to us to be circular. If a fact is not collateral then clearly you can call evidence to contradict it, but the so-called test is silent on how you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one based on the prosecutor’s and the court’s sense of fair play rather than any philosophic or analytic process.”

37 McHugh J also said:

“55. No doubt considerations of case management require that not all evidence going to the credibility of a witness should be admissible. Much of it, while relevant to the issues in a logical sense, has so little probative value with respect to those issues that it is impracticable to admit it. For reasons of convenience, it is necessary to maintain the rule that independent evidence rebutting the witness’s denials on matters going to credibility is not ordinarily admissible. In this, as in other areas of the law of evidence, a distinction exists between what is relevant and what is admissible. …” (italics added; internal reference omitted)

38 Two cautions need to be observed in applying his Honour’s strong views in the present case. Firstly, the judgment was a dissenting one (although I do not understand the majority to have expressed views inconsistent with those of McHugh J on this subject); secondly, the remarks were made in the context of an appeal from the Supreme Court of Victoria, a state where the common law rules of evidence apply. In this state this Court must give full weight to the circumstance that the legislature has effectively re-enacted the common law rule. It is therefore necessary to give effect to the principle. But the practical difficulty in doing so to which McHugh J draws attention is not diminished by the terms of the legislation.

39 It is only evidence that is relevant solely to a witness’s credibility that is excluded by s 102. Evidence that is otherwise relevant is not excluded by that section (although it may be excluded on some other basis).

40 In Adam v The Queen [2001] HCA 57; 207 CLR 96, the High Court rejected an argument that s 102 should not be read literally. The Court formulated the correct question (precisely in terms of the legislation) as:

“Is it [the evidence in question] relevant only to a witness’s credibility?” (italics in original)

41 By s 56 of the Evidence Act, evidence that is relevant in a proceeding is admissible in that proceeding (except as otherwise provided). In s 55(1), relevant evidence is defined in the following terms:

“(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.”

42 Relevance does not depend upon weight, reliability, or the likelihood or otherwise that the evidence will be accepted. The assessment of relevance proceeds upon the assumption that the evidence will be accepted.

43 S 102 has been considered by this Court previously. In R v Chen [2002] NSWCCA 174 the Court, constituted by Heydon JA (as his Honour then was), Sully and Levine JJ, was considering whether evidence adduced by the prosecution that a prosecution witness had provided a written undertaking to co-operate with law enforcement authorities was admitted in breach of s 102, because it was tendered as evidence relevant only to that witness’s credibility. The Court held that it was not, because it was tendered for another purpose: pursuant to the Crown’s duty of fairness (in the disclosure of the status of the witness). In other words, as I read the judgment, the Court, in accordance with Adam, gave weight to the word “only” as it appears in s 102. (Interestingly, the Court did not distinguish between the purpose for which the evidence was tendered, and its relevance to a fact or facts in issue.)

44 S 102 is, as I have mentioned, a statutory formulation of a common law rule, for which the most commonly cited authority is Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; 63 CLR 533.

45 Examination of the judgments in Piddington illustrates and highlights the difficulty that can be involved in determining whether a particular item of evidence is relevant only to the credibility of a witness, or has some broader relevance. The nearest to a general statement of the rule that emerges from that case is to be found in the (minority) judgment of Latham CJ, who said:

“Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness’s answers cannot be contradicted by other evidence except in certain exceptional cases.”

46 His Honour then set out some exceptions – that a party may, after cross-examination of the opponent’s witnesses, give evidence to show that they are “notorious liars”, or have given their testimony from a corrupt or other wrong motive, or have previously made statements inconsistent with the evidence they have given.

47 None of the other members of the court stated the principle; the case was no more than an application of what was recognised as an established rule, in circumstances where the questioned evidence sat near to the boundary, resulting in the differing views that can be found in the separate judgments. Latham CJ and Starke J thought that the evidence there in question was admissible; the remaining members of the court thought otherwise.

48 In certain passages some light on the different approaches is cast. Latham CJ held that it was always permissible to give evidence as to the facts in issue, and as to facts relevant to facts in issue. He considered that, where a witness had purported to give eye-witness evidence of events constituting the facts in issue, then the other party was entitled to call evidence to show that that witness was not present at the relevant time or place, or that, if he were, he could not have seen what he claimed to have seen.

49 Starke J agreed that such evidence would be admissible, and, on the facts of Piddington, felt that the evidence there in question was relevant to that fact.

50 Evatt J also dealt with the question, in part, with reference to the admissibility of evidence concerning the presence or otherwise at a relevant place or time of a witness who has given evidence of such presence. He appeared to accept that evidence that a particular witness had “garnished his account of the relevant facts with associated details designed to give verisimilitude” would be admissible. However, the real test for Evatt J depended upon remoteness. His Honour held that remoteness involves considerations of degree, and that a trial judge must exclude the evidence in contradiction of a witness’s evidence “at the very point where the relationship has become too remote.”

51 It was because the result in Piddington really depended upon an evaluation of how remote the evidence was from the facts in issue that different judges took different views. Whether a particular item of evidence is relevant only to the credibility of a witness or not will depend upon the facts and circumstances of each individual case.

52 Contrary to the views expressed by Nettle AJA, I have come to the conclusion that the relevance of the evidence Biddle could give was not confined to Baker’s credibility. The “fact in issue” to which it was relevant was that the appellants were (or either of them was) the perpetrator(s) of the attacks on Baker and Isgro. The Crown sought to prove that fact by, inter alia, direct identification evidence of both complainants; and by proving, through Baker’s evidence of the thefts, that each of the appellants had a motive to attack him.

53 Motive was certainly relevant to the identification of the appellants as the perpetrators. Baker’s evidence went directly to that question.

54 Could, then, the evidence that Biddle would have given also go to that issue? In my opinion it could, although less directly.

55 The answer depends upon an analysis of the content of the evidence given by Baker. It was not merely an assertion that he had entered the Peacock home and stolen property. It went further than that, and gave colour to that evidence by the addition of supporting detail: one detail was that he was in company with Biddle, others were what each of them did, and stole, whilst in the premises.

56 Since (rather curiously) it was in the interests of the appellants to cast doubt upon Baker’s evidence that he had been guilty of the thefts, it would have been open to them to call evidence, for example, that no thefts had occurred from the house at the relevant time, or that any thefts that had occurred had been committed by somebody else, or that property of the kind described by Baker had not been present in the premises. Evidence of that kind would have cast doubt upon Baker’s evidence, and the Crown case on motive, and it can not be suggested that it would not have been admissible in the appellants’ cases.

57 Biddle’s evidence, in my opinion, would also have been capable of casting doubt on that evidence given by Baker. There is, in my opinion, a distinction to be drawn between evidence going to the credibility of a witness, and evidence going to the credibility of the evidence given by that witness (in this context it might be better to use the word “reliability”). Section 102 prohibits evidence going only to the former: it does not prohibit evidence going only to the latter of which an obvious example is evidence contradicting facts asserted by a witness. The reliability of evidence given by a witness might be challenged by evidence contradicting all, or part, of that witness’s evidence. That contradictory evidence is not rendered inadmissible by s 102.

58 A classic example of evidence relevant to the credibility of a witness is evidence that, on another, unconnected, occasion, that witness had lied on oath. Subject to the restrictions imposed by s 103, and, in a criminal case, s 104, cross-examination of that witness on that subject is permissible; but what used to be called the collateral evidence rule, now s 102, precludes the adducing of such evidence from another source.

59 I make no comment on the weight that might be attributed to Biddle’s evidence. Biddle’s evidence, if accepted, would have been capable of casting doubt on Baker’s account of the thefts in respect of the surrounding detail, and therefore upon the central fact that he alleged. It is true, as Nettle AJA says, that Biddle’s evidence could not have established that Baker was not involved in the burglary. But that is not the question posed by s 102. That question is whether Biddle’s evidence was relevant to some issue other than Baker’s credibility. In my opinion it was. True it is that Biddle’s evidence is more remote than that of Baker, and, therefore, has less probative value. But that does not mean that it was not relevant to a fact in issue.

60 The issue might be tested this way: could the appellants have called Biddle to deny that he was involved in the entry and theft? I find it difficult to imagine that any trial judge would reject, as evidence going only to the credibility of a Crown witness, evidence of a defence witness directly contradicting one significant aspect of the evidence of that Crown witness. This neatly illustrates the slipperiness of the distinction between “fact in issue evidence” and “credibility evidence”.

61 If the appellants could have called him, the Crown could have called Biddle. I have come to the conclusion that Bidddle’s evidence, had he been called, would not have been inadmissible by reason of s 102.

The failure of the Crown to call Biddle: miscarriage of justice?

62 The second question, therefore, is whether the absence of Biddle’s evidence from the trial caused a miscarriage of justice. This question, also, is in two parts: whether Biddle’s evidence could realistically be seen as being capable of having a bearing on the outcome; and, if so, whether the Crown was under an obligation to make Biddle available.

63 In my opinion the first part of the question ought to be answered negatively. In one sense, this involves an approach to the evidence of the kind outlined by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, concerning the application of the proviso to s 6 of the Criminal Appeal Act 1912. Weiss, of course, involved the consideration of the application of the proviso after the wrongful admission (as distinct from omission) of evidence. But the decision in Weiss requires an appellate court:

“ … so far as it properly can, to judge the evidence for itself.”

64 Here, the Crown case was, in reality, overwhelming. Both complainants gave evidence that it was the appellants who had attacked them. Both complainants were well acquainted with both appellants.

65 Further, the jury could not have regarded Biddle’s evidence other than with the utmost scepticism (in saying this I am conscious that Biddle was not cross-examined during the proceedings on appeal and this Court has not had the opportunity to make any evaluation of his credibility or demeanour).

66 In these circumstances it is strictly unnecessary to answer the second part of the second question. However, I would make these observations.

67 The trial was fixed to commence on Monday 13 March 2006. For reasons not explained, but apparently to do with court administration, a jury was not empanelled until Thursday 16 March. That jury was immediately (even before being sworn) discharged, on grounds quite unrelated to the present appeal.

68 On 15 March counsel for the appellants sought leave to cross-examine Baker, in a limited way, on the principles stated in R v Basha (1989) 39 A Crim R 337. This was because the Crown had disclosed that Baker had recently admitted his participation in the thefts from the Peacock home, and the Crown proposed to call that evidence as evidence of motive. This was new material, both to the Crown and the defence. Leave to cross-examine was granted and the enquiry took place on Thursday 16 March. It was during initial questioning by the Crown prosecutor that Baker asserted, for the first time, that his co-offender in the thefts had been Dale Biddle.

69 A new jury was empanelled on Monday 20 March, and the trial began and proceeded. At that time no statement had been taken from Biddle by either side. At no time was any request made on behalf of the appellants that the Crown make Biddle available. This is hardly surprising: Biddle would have done one of only two things. Either he would have admitted his involvement in the thefts, thereby corroborating Baker’s evidence and strengthening the Crown case on motive; or he would have denied it. It is entirely within the bounds of possibility that the appellants’ legal representatives made a considered, tactical (and reasonable) decision not to ask the Crown to make Biddle available. To have done so may well have prompted the Crown to make its own inquiries, to the potential detriment of the appellants. To have asked the Crown to make Biddle available, without knowing what he would have said, would have been an extremely risky, hazardous, gamble. Alternatively, the appellants’ legal representatives may not have turned their minds to the possibility of seeking to have Biddle called, or perceived his possible evidence in the way his present legal representatives do.

70 No explanation has been provided by trial counsel for not requesting that he be made available. This may have been, in recognition of the possibility that he would corroborate Baker, for tactical reasons; or it may have been because counsel did not consider his evidence likely to have any real bearing on the outcome of the trial. Either way, it does not now assist the appellants.

71 Nor is there any evidence that the legal representatives of the appellants made any attempt to locate Biddle themselves. It is interesting to note that, in the submissions now made on behalf of the appellants, it was observed that, for the purposes of the appeal, a legal clerk was able to locate Biddle and obtain a statement from him. From that, it was suggested that the Crown could have done the same thing. But the submission cuts both ways. So also could the legal representatives of the appellants at the trial (notwithstanding the significantly greater resources of the Crown).

72 I also would not accept the proposition that, because there was evidence that Biddle was obliged, by reasons of bail conditions, to report to police on a regular basis, “the police” would have had no difficulty in locating him to give evidence at the trial.

73 “The police” and “the prosecution” are not an amorphous mass having a corporate mind or corporate knowledge. In order to show some relevant failing on the part of the Crown, it would be necessary, in my opinion, to show that some person connected with the prosecution of the appellants had relevant knowledge.

74 I would infer that nobody, including counsel for the appellants, considered that Biddle could give any relevant evidence. Whether that was correct or not, it explains the absence of Biddle from the trial. In particular, if it be the fact that no request was made on behalf of the appellants because their legal representatives did not think of it, the same must apply to the prosecuting team.

75 Given the circumstances, I do not think any fair criticism can be made of the Crown on this occasion.

76 For the reasons I have given I would dismiss each appeal.

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