R v Allen

[1993] QCA 546

IN THE COURT OF APPEAL [1993] QCA 546

SUPREME COURT OF QUEENSLAND

C.A. No. 376 of 1993

Brisbane
[R. v. Allen]

BETWEEN:

T H E Q U E E N
v.
TIMOTHY FRANCIS ALLEN

(Appellant)

The President
Mr Justice Pincus

Mr Justice Williams

Judgment delivered 17/12/93

Separate reasons for judgment by each member of the Court. All agreeing in the order.

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Appeal and new trial - whether sufficient evidence of a violent common unlawful purpose to leave ss. 8 and 302(2) Criminal Code to the jury - whether judge erred in directing jury to have regard to accused's interest in weighing his evidence.
Counsel:	S Herbert QC for the appellant B Butler for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing Date: 10 December 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 376 of 1993

Brisbane

Before The President
Mr Justice Pincus
Mr Justice Williams

[R. v. Allen]

BETWEEN:

T H E Q U E E N
v.
TIMOTHY FRANCIS ALLEN

(Appellant)

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 17/12/93

The appellant has been convicted on three occasions of the murder of a taxi-driver, Robin John Miller, on 11 August 1990. Two previous appeals have been successful on the basis of misdirections to the jury and a new trial has been ordered. Following his third trial, the appellant was again convicted on 20 September 1993 and sentenced to life imprisonment. This is an appeal against that conviction.

On the night of the killing, the appellant and another who has been separately convicted of the murder, one Bradford, had been drinking for some hours at premises in Fortitude Valley. They engaged the deceased's taxi to drive them to their destination although they had no money to pay the fare. The appellant, who gave evidence at his trial, admitted that he and Bradford intended to evade payment of the fare. Of course, it does not follow that the jury was obliged to accept that that was the only offence intended. The evidence was sufficient to allow the jury to conclude that the appellant and Bradford had a common intention to rob the deceased and/or to kill him or cause him grievous bodily harm.

Prior to entering the taxi, the appellant saw Bradford pick up a broken piece of glass and put it in his jeans. According to the appellant, Bradford told him that he had picked up the glass "... just for fun." Bradford, who is left-handed, sat in the front passenger seat next to the deceased. The appellant, who is right-handed, sat behind them in the rear seat.

The deceased died from blood loss caused by multiple
lacerations and puncture wounds in and around his face and head.
The principal wounds were to his neck and throat. The
pathologist who conducted the post-mortem expressed the opinion
that it was probable that a sharp instrument had been drawn
across the deceased's throat from left to right. According to
the appellant, it was Bradford who caused the injuries to the
deceased and he, the appellant, was surprised by what had
occurred. It was open to the jury to be satisfied that it was
the appellant who had injured the deceased or that Bradford had
done so aided and abetted by the appellant or in the performance
of a common intention to prosecute an unlawful purpose. It will

be necessary to identify the unlawful purpose in more detail in

due course.

Other evidence included evidence of the appellant's palm print on the armrest between the front seats of the taxi and, in blood, on a telephone post near where the deceased's body was located. It was also established that (i) the appellant participated in the removal of the deceased's body from the taxi to where it was left behind a pole, (ii) the appellant drove Bradford from the scene in the taxi, (iii) the following day the appellant changed blood-stained coins at a post office and (iv) money had been stolen from the taxi.

The appellant's first ground of appeal is that photographs of the injuries to the face and neck of the deceased should not have been admitted into evidence because their probative value was outweighed by their prejudicial affect. It was submitted that evidence as to the nature of the deceased's injuries was given from an expert pathologist and that the photographs therefore served no useful purpose.

There is no reason to interfere with this exercise of the trial judge's discretion. Further, the directions which he gave were sufficient to minimise any prejudice to the appellant. As was submitted for the prosecution, the photographs were integral to the evidence from the pathologist who was called and it was important to the development of the prosecution case to depict to the jury accurately the nature and location of the wounds to the face and neck. The photographs were considerably more satisfactory for this purpose than verbal descriptions of the location and relationship of the injuries.

It is convenient to turn next to the appellant's fifth and final ground of appeal, namely that the jury's verdict is unsafe and unsatisfactory. The appellant described the "core" of this fifth ground as "... the submission ... that against the Appellant's evidence, there was simply no evidence sufficient to conclude that he had taken part himself in the killing by way of carrying out any actions, or any evidence by which he attached himself to a plan of which such killing was a probable outcome."

The point is wholly without substance. This was a strong prosecution case and there was ample evidence upon which the jury, acting reasonably, could have been satisfied of the appellant's guilt beyond reasonable doubt.

It remains to be considered whether the jury was properly directed. For this purpose, it is convenient to set out certain of the provisions of the Criminal Code relied on by the prosecution, sub-sections 302(1) and (2) and section 8.

Sub-sections 1 and 2 of s. 302 provide:

"302. Definition of murder. Except as hereinafter setforth, a person who unlawfully kills another under any of the following circumstances, that is to say, -

(1) If the offender intends to cause the death of the person killed ... or if the offender intends to do to the person killed ... some grievous bodily harm;
(2) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

...

In the second case it is immaterial that the offender did not
intend to hurt any person."
Section 8 provides:

"Offences committed in prosecution of common purpose. When two or more persons form a common intention to

prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

Grounds 2, 3 and 4, as set out in the Notice of Appeal, are

as follows:

"2. That the learned trial judge erred in directing the jury that it was open to them to convict the appellant of murder pursuant to subsection 302(2).

3.    That the learned trial judge erred in directing the jury that they should have regard to the interest of the accused in avoiding a conviction in determining the weight to be given to his evidence.

4.    That the learned trial judge erred in directing the jury that it was open to the jury to convict of either murder or manslaughter on the basis that either was a probable consequence of a plan to "do a runner" from the cab."

In his written outline of submissions, the appellant

stated:

"Ground 2.
...

4. In these circumstances it will be submitted that no direction under Section 302(2) was appropriate, given that it was not possible to identify any particular unlawful purpose or that the Appellant had committed the relevant act.

Ground 3.

5.   It will be submitted that if the total effect of the learned Judge's directions was to single out the evidence of the Appellant for special scrutiny, which is impermissible.

Ground 4.

6.   Ground 4 is essentially a factual complaint. The Appellant conceded the plan to evade the fare. It is submitted that there is no evidence sufficient to enable the conclusion that a killing was a probable consequence of such plan."

The oral argument advanced for the appellant dealt with grounds 2 and 4 together, and focussed not on the directions given but on the sufficiency of the evidence. It was, in substance submitted that a common unlawful purpose to rob and overcome resistance could not be inferred from the evidence. There is no substance in the point, viewed in this way.

It was open to the jury to infer that it was the appellant who cut the deceased's throat and that he did so intending to cause the death of, or to do grievous bodily harm to, the deceased (sub-section 302(1)) or in the prosecution of an unlawful purpose - evading the taxi-fare, robbing the deceased and/or killing or injuring the deceased (sub-section 302(2)).

Further, if of the opinion that Bradford did the killing or unsure whether it was the appellant or Bradford who did so, there was ample evidence upon which the jury could infer that the appellant and Bradford had a common intention to prosecute an unlawful purpose and that the killing occurred in the prosecution of such purpose.
The remaining element required by section 8 of the Code is that the killing "was a probable consequence of the prosecution of such purpose". The jury could have been satisfied of that requirement if killing the deceased was the unlawful purpose and perhaps if robbery of the deceased or the evasion of the fare was the purpose provided that it was intended to use the broken glass upon the deceased in the course of such purpose.

However, if the jury concluded that Bradford had actually killed the deceased or if it was unsure whether it was the appellant or Bradford who did so, it could not convict the appellant pursuant to section 8 of the Code if the common intention of the appellant and Bradford to prosecute an unlawful purpose was to rob the deceased or evade payment of the fare simpliciter; i.e., without violence. In that event, the killing of the deceased would not have been "a probable consequence of the prosecution of such purpose" as required by section 8.

I am satisfied from a perusal of the summing up that the
trial judge satisfactorily maintained the necessary distinction.
It is sufficient for present purposes to quote the relevant

passage from his Honour's redirections which was accepted as

satisfactory by the appellant's counsel at trial:

"Members of the jury, in the light of the long summing-up I have given you I have been asked to clear up a couple of points which I will do in case you have any doubts as to the principal matters for your consideration.

Firstly, I just reaffirm that before you could convict the accused man of murder you would have to be satisfied beyond a reasonable doubt that the killer intended to kill, or intended to do grievous bodily harm. To the extent that there was a plan between the accused and Bradford - if you think there may have been - and to the extent that the accused did not physically engage in the application of force that led to the death of the taxi driver, you would have to be satisfied beyond reasonable doubt that it was in the pursuit and working out of the plan that they had made between them and that there was a likelihood, that the death or serious injury would result to the taxi driver before you could convict of murder. if you were not satisfied of that you would have to be satisfied beyond reasonable doubt that there was a likelihood of a non-intentional killing before you could convict of manslaughter simpliciter.

..."
It remains to refer to ground 3 of the Notice of Appeal. I

have read what has been written on this aspect of the matter by the other members of the Court, and am content to agree with what has been said by Williams J.

The appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 376 of 1993.

Brisbane

Before The President
Pincus J.A.
Williams J.

[R v. Allen]

T H E Q U E E N

v.

TIMOTHY FRANCIS ALLEN

(Appellant)

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17/12/93

The appellant got into a taxi with one Bradford and during the course of the journey the taxi driver was killed by use of a piece of broken glass. According to the appellant, Bradford had (to the appellant's knowledge) armed himself with the piece of broken glass before entering the taxi. The two passengers in the taxi did not have the money to pay the fare and the appellant said in effect that they had in mind evading payment.

The appellant gave in evidence a version of the driver's mode of death which tended to exculpate him, but the jury was not obliged to accept that. The bare facts of the matter strongly inculpated him: those I have mentioned; that money was stolen from the taxi; that the appellant assisted in dumping the body;

that the appellant drove the taxi away from the place where the body was disposed of; that the appellant changed blood stained coins at a Post Office the next day; that there was a palm print of the appellant's in blood on a post near where the body was dumped. The jury might not have been satisfied that it was the appellant rather than Bradford who cut the driver's throat, but there was ample evidence on which they could properly be satisfied that the appellant was a party to the killing.

I agree with Williams J that the submission that the verdict of murder was unsafe has no substance. I also agree that there is nothing in the point that photographs of the injuries to the deceased were tendered.

Two points taken, however, require discussion. One is that the judge erred in directing the jury that they should have regard to the interest of the accused in avoiding a conviction, in determining the weight to be given to his evidence. The High Court decided in Robinson (No. 2) (1991) 65 A.L.J.R. 644 that a direction having the effect that the evidence of an accused person had to be scrutinised more carefully than that of any other witness was wrong, as was a direction that the accused's evidence should be the subject of close scrutiny because of his or her interest in the outcome of the case (646). When refusing special leave in Stafford (1993) 67 A.L.J.R. 510, the Court said that juries should not be directed that:

the interest of an accused in the outcome of the trial is a factor to be taken into account when assessing his or her evidence;

or that

in assessing the evidence of all the witnesses, the jury should take account of their relative interests in the outcome.

The Court also said that:

"If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial".

It appears not to have been decided that the prosecutor should be stopped from addressing on the interest of the accused in avoiding conviction or suggesting, in a case where the accused has given evidence, that the interest of each witness at the trial in its outcome is relevant, in assessing credibility.

In the present case it appears that the prosecutor (according to a submission made by counsel for the defence below) said with reference to the appellant's evidence: "Wouldn't you expect him to get in there and deny it?" or (according to the judge's summing-up):

"...well, of course if he did not blame it all, the whole affair on Mr Bradford he would be convicted - clearly convicted - and therefore what would you expect".

The word "interest" is not said to have been used by the Crown, but the implication is that the interest of the accused in avoiding conviction made his evidence suspect.

In my opinion the case was one in which it was desirable for the judge to make it clear to the jury that the accused's interest in securing an acquittal, to which the prosecutor had alluded, was no ground for rejecting or discounting his evidence. The passages in the summing-up and in the re- directions which are relevant are set out in the reasons of Williams J.

In my opinion the directions initially given went further than the judgment in Stafford recommended, particularly in telling the jury that:

"...you always look at the interest that a witness may have in the outcome of the proceedings when you are weighing up the reliability of his evidence".

Although that related to the witnesses generally, it was followed immediately by a reference to the accused's interest in not being convicted.

I am also respectfully of opinion that his Honour was in error in telling the jury, when he redirected, that the appellant had an interest in not being convicted and that accused persons "are giving evidence with a view to establishing - or at least with a view to persuading you against conviction".

These observations occurred in a context which generally favours the appellant, but nevertheless they were I think erroneous.

The more difficult question is whether in the whole circumstances of the case there should be a new trial on this ground. My view, that there was no miscarriage of justice, is influenced by the strength of the Crown case and the implausibility of the appellant's account of the events surrounding the driver's murder. But the more important issue is whether, considered as a whole, the judge's remarks on the subject of the proper approach to the appellant's evidence were likely to have assisted the Crown. In my opinion the proper answer to that is in the negative. The appellant's interest in avoiding a conviction had already been referred to by the Crown, in a way which would encourage the jury to think that they might properly regard his evidence with considerable scepticism, simply because of the appellant's interest in obtaining an acquittal. I think the judge's discussion of the subject would have tended to dispel that impression. It was designed to persuade the jury of the unfairness of taking a course which they might otherwise have thought was reasonable enough - that is, to treat the appellant's evidence as especially suspect because it was given by an accused person.

The other substantial ground of appeal was that the judge misdirected the jury with respect to ss. 8 and 302(2) of the Code (grounds 2 and 4). These grounds are briefly argued in the written outline; in his oral argument, Mr Herbert Q.C. explained that the difficulty in the judge's direction under s. 302(2) is identifying the unlawful purpose. Mr Herbert referred to passages in the summing-up in which the jury was invited to consider, under s. 302(2) and also under s. 8 of the Code, the submission, put by the Crown, that the plan was to rob the driver. On behalf of the appellant, Mr Herbert questioned whether or not that purpose could be made out on the evidence, by way of inferences drawn by the jury. Mr Herbert did not, however, further elaborate on the submission; it is not clear whether he intended to press it.

In my opinion the inference that the two men formed a plan to rob the taxi driver was one which was open. The only plan the two had when they entered the taxi, according to the appellant's evidence, was to evade payment of the fare, but the taxi driver was attacked and robbed; there was, in my opinion, evidence on which the jury could be satisfied that the appellant was a party to that, although it is difficult to see how they could have formed a definite conclusion as to what part each of the two passengers took in the attack on the driver. An inference which was open to the jury was that there was a plan to attack the driver using the piece of broken glass - in the place where it was in fact used, on the driver's throat.

According to the respondent's arguments, the judge ultimately withdrew s. 302(2) from the consideration of the jury and there seems to be some substance in that suggestion. But if his Honour did so, that was an error in favour of the accused; a case under s. 302(2) was well open to the Crown, on the evidence.

As for s. 8, the judge directed the jury in effect that a probable consequence, which his Honour defined as a "likely consequence; not something that is just possible", of the two taking the glass with them and setting about "to threaten or disable the taxi driver with a view to stealing his money and stealing his taxi cab" would be murder. It would have been more accurate for his Honour to have said that this was the Crown's submission, but in the context, that seems to have been what was meant. No complaint is made of the judge's omission to say that he was explaining the Crown submission, nor is it submitted that the judge was wrong in implying, as he did, that a case under s. 8 was a possible path for success for the Crown.

In my opinion the complaints made under grounds 2 and 4, as elaborated on at the hearing, are not made out. The appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 376 of 1993

Before The President

Mr Justice Pincus

Mr Justice Williams

THE QUEEN

v.

TIMOTHY FRANCIS ALLEN

(Appellant)

JUDGMENT - WILLIAMS J.

Judgment delivered 17th December, 1993

The appellant appeals against his conviction for the murder of a taxi driver, Robin John Miller. There is no doubt that Miller was viciously murdered on 11th August 1990, and that the appellant and one Bradford were the only other persons present at the time he met his death. Bradford has been separately dealt with, and this appeal is concerned with the separate trial of the appellant.

The Crown called a number of witnesses who could give relevant evidence of the appellant's movements and activities prior to his getting into the cab with Bradford and also subsequently to the death of Miller. Such evidence established, inter alia, that the appellant and Bradford had been drinking for some hours prior to entering the cab in the Valley area, that they were then affected by the alcohol they had consumed, that the appellant drove the taxi away from the place where the deceased's body was subsequently located, and that the following day the appellant changed blood stained coins at a post office. Money was missing from the taxi. Police forensic evidence located the appellant's palm print on the armrest between the front seats of the taxi, and a further palm print of the appellant in blood on a telegraph post near where the body was located.

Dr Ashby performed the post mortem on the deceased and gave specific evidence with respect to two wounds to the throat. She expressed the view that the probability was that the instrument causing the gashes was drawn from left to right across the deceased's throat.

It is obvious from a consideration of those facts, which were largely unchallenged, that there was a strong prosecution case implicating the appellant in the death. But there was added to that evidence the testimony of the appellant himself and the conviction should be reviewed in the light of all the evidence before the jury.

Some parts of the appellant's evidence were not challenged by the prosecution, and, as many of such statements were against interest, it is highly likely that the jury accepted those parts of the testimony. Matters coming within that category would include the following. Prior to entering the taxi the appellant and Bradford, neither of whom then had any money, decided to "do a runner"; i.e., evade paying the fare at the end of the journey. Prior to entering the taxi the appellant saw Bradford pick up a piece of glass and put it in his jeans. The appellant asked him why he did that and he replied, "Oh, it's just for fun". During the journey Bradford was sitting in the front alongside the driver, and the appellant in the rear. After the deceased had been attacked (on the appellant's evidence solely by Bradford) the appellant helped Bradford carry the driver, who was still then alive, from the taxi to a grassy area on the side of the road where the body was dumped.

It should also be recorded that both the appellant and Bradford were mute. The appellant could write but Bradford could not. The appellant was right handed and Bradford left handed. They had been friends for very many years.

For present purposes it is not necessary to set out the evidence in any greater detail.
In those circumstances it was contended that the verdict of the jury was unsafe and

unsatisfactory because there was no evidence on which the jury could be satisfied beyond reasonable doubt that the appellant's version was untrue. There is no substance in that contention. The brief narration of facts above is sufficient to demonstrate that the jury could well have been satisfied beyond reasonable doubt that the appellant was a party to the killing. Given the evidence, any reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty of murder by applying either sub-section (1) or (2) of s. 302 of the Code. There was also evidence which would have entitled a reasonable jury to use s. 8 of the Code if necessary in order to arrive at the result.

If that ground failed a number of other more specific grounds were relied upon by counsel for the appellant.

It was submitted that the learned trial judge erred in admitting prejudicial photographs of the injuries sustained by the deceased. The objection was to 3 photographs taken immediately prior to the post mortem. The photographs are not in vivid colour, and could be said to be rather clinical. The head and neck area of the deceased had been cleaned before the photographs had been taken and the photographs would not give rise to any unnecessary prejudice against an accused person. Further, as was pointed out by the learned trial Judge in ruling on their admissibility, the exact nature and location of the wounds to the face and neck were of importance to the prosecution case. Verbal descriptions could not adequately raise the issues necessary for consideration by the jury. As is obvious from a reading of Dr Ashby's evidence the photographs in question were an integral part of adducing the relevant evidence from her.

In his summing up the learned trial Judge made observations calculated to minimise any prejudice which might have flowed from the jury seeing the photographs. A simple answer to this ground is that the probative value of the photographs outweighed any prejudicial effect they may have had.

There is no substance in this ground.
Grounds 2 and 4 in the Notice of Appeal were argued together. Ground 2 asserted that

the learned trial Judge erred in directing the jury that it was open to them to convict the appellant of murder pursuant to s. 302(2) of the Code. Ground 4 contended that the learned trial Judge erred in directing the jury that it was open to them to convict of either murder or manslaughter on the basis that either event was a probable consequence of a plan to "do a runner" from the cab.

The submissions made reflected substantially those made in support of the contention that the verdict was unsafe and unsatisfactory. It is sufficient to say that the court can discern no error in the summing up in dealing with those matters. On the appellant's own evidence there was a plan to avoid payment of the fare, and the appellant got into the taxi with Bradford knowing that the latter had a piece of broken glass hidden in his jeans. Given what then occurred at the place where the deceased met his death, and what the appellant did thereafter with the cab and some of the deceased's money, it was open to the jury to draw the inference beyond reasonable doubt that the "unlawful purpose" when considering s. 302(2) of the Code was either to rob or avoid paying the fare. Such an unlawful purpose could readily be inferred beyond reasonable doubt from the evidence to which reference has been made.

If the jury was satisfied that the plan was to avoid paying the fare then there was sufficient evidence to enable them to draw the conclusion that a killing was a probable consequence of that plan. That is particularly so in the light of the evidence from the appellant that he knew that Bradford had the glass with him when he entered the cab.

Counsel for the Crown submitted that, though the learned trial Judge initially summed up leaving a case under s. 302(2) to the jury, he subsequently effectively withdrew that. That submission does not appear to be supported by reading of the summing up as a whole. The learned trial Judge appears to have emphasised other limbs of the prosecution case in preference to that relying on s. 302(2); but in the end that section was left to the jury as an alternative basis upon which they could convict.

In all the circumstances there is no substance in either grounds 3 or 4.
Ground 3 claims that the learned trial Judge erred in directing the jury that they should

have regard to the interest of the accused in avoiding a conviction in determining the weight to be given to his evidence. Counsel for the appellant elaborated on that by referring to Robinson v. The Queen (No. 2) (1991) 65 A.L.J.R. 644 and Stafford v. The Queen (1993) 67 A.L.J.R. 510. It is sufficient for present purposes to quote the following passage from Stafford at 510-1:-

"Ordinarily . . . it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant fact in assessing the reliability in his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial."

Here the learned trial judge felt constrained to say something about the "interest" of the accused in consequence of statements made by the prosecutor in his final address to the jury. It seems obvious that the learned trial Judge included such a reference in the body of his summing up because he was of the view that "fairness to the accused" in the circumstances obliged him to do so. Defence counsel raised the matter again in the course of asking for redirections. She conceded that what was said was "in response to a submission made by my learned friend in his address", but contended that the words used by the learned trial Judge had put the accused's evidence "in a different category to the evidence of others". She did not ask that any specific direction be given, but generally submitted that the redirection should make it clear that the jury should not discount the accused's evidence because he is on trial, and further that the jury ought not scrutinise the accused's evidence more carefully than the evidence of any other witness. In the light of what was said by both counsel with respect to redirections, his Honour gave the jury a further direction.

In the circumstances it is desirable that the passages in question be set out in full. In the body of the summing up his Honour said:-

"One of the things you might think when you are considering the evidence of the accused you might say to yourself, well, goodness, of course he would give that evidence exculpating himself, and the Crown Prosecutor in the course of his address to you, well, of course if he did not blame it all, the whole affair on Mr Bradford he would be convicted - clearly convicted - and therefore what would you expect.

Well, members of the jury, I must tell you this, as a matter of common sense you always look at the interest that a witness may have in the outcome of proceedings when you are weighing up the reliability of his evidence. In this case the accused, of course, has an interest in not being convicted, but all people charged with criminal offences have an interest in not being convicted and it would be a terrible state of affairs if you said, well, because that person has got an interest in not being convicted I am not going to take too much notice of what he says when he gives evidence on oath. So you have to adopt a sensible approach and you keep in mind, of course, the accused person has an interest in not being convicted, but it does not mean that therefore you take with a grain of salt what he says. That would be an appalling state of affairs. It would simply mean that if a person was charged with an offence he would start off well behind scratch in giving evidence showing he was not guilty of the offence, and, as has been pointed out to you again and again, he is presumed innocent until he is proved guilty. The presumption is that he is innocent and that presumption will remain until you are satisfied upon your evaluation of the whole of the evidence that his guilt has been established."

The passage in the redirections is as follows:-

"I said something to you on Friday about what interest the accused might have in giving evidence and I mentioned to you, I think, that one of the things that you have got to look at in considering the evidence of people is what might strengthen or weaken their reliability and one of the things you look at is a question of any interest they might have for being accepted. For example, Dr Ashby might have a professional interest in the jury agreeing with the professional views and opinions she expresses and you take that into account when you are weighing up the evidence that witnesses place before you.

Now, the accused man, as I mentioned then - I restate now in case there is any doubt about it - the accused man is on a very serious charge and he has given evidence which exculpates him; that is, he has given evidence which, if you think it might be correct, would lead to his acquittal of the charges. Now, I simply draw attention to the fact that he, of course, as all accused people have, has an interest in not being convicted. There is nothing very extraordinary about that, and you accept that as a matter of common sense, but because an accused person, or the accused, or anybody else for that matter, has an interest, if he gives evidence or she gives evidence in not being convicted you don't for that reason discount it. They do not start behind scratch. You simply, as a matter of common sense, keep in mind that, in fact, they are giving evidence with a view to establishing - or at least with a view to persuading you against conviction. It does not mean that an accused persons evidence must be scrutinised and looked at under a magnifying glass more carefully and with more hesitation than you look at the evidence of anybody else. It simply means that you - I mean, all people who are charged with criminal offences have the right to give evidence.

You heard me telling him what his rights were and so on. It would be a terrible state of affairs if juries said, oh, well, of course he is the accused so we are going to take with a grain of salt what he says. That is not appropriate at all. I simply direct your attention to the fact that you must look at his evidence carefully and if at the end of the day you have a reasonable doubt as to his guilt based upon his evidence, not just alone but taken in the context of all the evidence, if you have a reasonable doubt you acquit him because that is his entitlement.

I said that to you because the Crown has described his evidence as a fairy story and I have taken you to various aspects of that evidence and so you will consider it. It simply means that you look at that evidence carefully and you certainly do not disregard it simply because he is giving evidence that would exculpate him from criminal responsibility with respect to the death of this taxi driver."

It can immediately be seen that the learned trial Judge used similar language to that used by the High Court in Stafford in circumstances where out of "fairness to the accused" he considered it was necessary to say something. In the passage from the body of the summing up there is reference in this context to the presumption of innocence. The jury were also told, particular in the redirection, that they should not discount the evidence of the accused simply for the reason that he has an interest in the outcome of the trial.

If the matter had been left at that, there would be no problem. But the learned trial Judge did by his choice of language, both in the body of the summing up and in redirections, lend support to the notion that the interest of the accused in the outcome of the proceedings was in some way relevant. That is to be deduced from expressions such as: "as a matter of common sense you always look at the interest that a witness may have in the outcome of the proceedings" and "You simply, as a matter of common sense, keep in mind that, in fact, they are giving evidence with a view to establishing -or at least with a view to persuading you against conviction." Given what has been said by the High Court in Robinson and Stafford, by using expressions such as that the learned trial Judge erred. But nevertheless when the passages quoted are read in their entirety it is clear that the overall effect of what was being said, and undoubtedly the message which the jury would have received from all that was said, was that the accused's evidence should be treated as the evidence of any other witness; it should not be discounted in any way because of the fact that he was the accused person, and it ought not to be scrutinised in any more detail because of that consideration.

Though the offending words in the summing up differ from the words used by the learned trial Judge in his summing up in The Queen v. Rezk (C.A. 281 of 1992, judgment delivered 8th October 1993) in each instance the statements were made in response to something said by the Crown Prosecutor and out of "fairness to the accused". Further, in each instance the overall effect of what was said was to tell the jury that they ought not discount the evidence given by the accused merely because of the circumstance that he was giving evidence at his own trial. Because some of the words used in Rezk offended the principle derived from Robinson and Stafford the Court of Appeal considered the application of the proviso. On the facts of that case the court was satisfied that the error did not have the effect that the accused was deprived of a chance of acquittal.

Here the objectionable observations were far from amounting to a reversal of the onus of proof. As already said the overall effect of the directions in question was to firmly fix in the jury's mind the proposition which underlies the reasoning in cases such as Robinson and Stafford. In the circumstances of this case the accused was not deprived of a chance of acquittal by what was said; applying the usual test pursuant to s. 668E of the Code there has been in this case no substantial miscarriage of justice.

It follows that the appeal should be dismissed.