R v Anderson

[2002] NSWCCA 141

CITATION:	REGINA v ANDERSON [2002] NSWCCA 141
FILE NUMBER(S):	CCA 60653/00
HEARING DATE(S):	11 April 2002
JUDGMENT DATE:	24 April 2002
PARTIES :	REGINA v Michael Colin ANDERSON
JUDGMENT OF:	Mason P at 1; Dowd J at 33; Greg James J at 34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/71/0011
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

COUNSEL :	P M Strickland - Appellant R A Hulme - Crown
SOLICITORS:	D J Humphreys - Appellant S E O'Connor - Crown
CATCHWORDS:	Appeal on conviction - identification - whether trial miscarried due to cross-examination of the appellant in relation to his failure to inform the police about a person he alleged was the assailant - right to silence - Evidence Act 1995 s 89 - whether appellant ought to have answered questions during course of official questioning - whether prosecutor ought to have implied defence was fabricated because it was raised late - whether directions by judge were adequate. (ND)
LEGISLATION CITED:	Evidence Act 1995, s 89
CASES CITED:	Petty v The Queen (1991) 173 CLR 95
DECISION:	Appeal allowed - see par 32

CCA 60653/2000

MASON P
DOWD J
GREG JAMES J

Wednesday 24 April 2002

REGINA v Michael Colin ANDERSON

Judgment

1 MASON P: The appellant was tried in the District Court before Judge Woods QC and a jury. He was convicted on two counts, namely break, enter and steal in circumstances of aggravation and indecent assault. On the first count he was sentenced to 12 years imprisonment with a non-parole period of 8 years commencing from 14 February 1999 and expiring on 12 February 2007. On the second count the sentence was a term of 3 years commencing from 14 February 1999 and expiring on 13 February 2002.

2 In reality the only issue was one of identification.

3 The Crown case and case for the appellant at trial are summarised as follows in the Crown submissions:

Under s116 of the Criminal Procedure Act 1986 the victim’s statement was read to the Court.

The victim, an 88 year old pensioner lived alone at her home at 82 Eagle Street, South Gundagai. At about 10.20pm on Friday 12 June 1998 she was asleep in her bed when the Crown alleges that the appellant broke into house and entered her bedroom. The victim woke and asked the appellant what he wanted. The appellant demanded:

“I want money, I want lots of money. I know you’ve got lots of money. Give me all your money, I know you’ve got money here.”

The victim said that she told the appellant that all her money was in the bank. The appellant threatened that he would shoot her and put his hand in his pocket. The victim said that she did not see any gun but she thought that he might have had a gun in his pocket. There were two $50 notes and a $20 note on her bedside table and she gave the appellant those. He then demanded more saying:

“Money, money, money, give me more or I’ll shoot you, you old bitch.”

The appellant then ripped her pyjama top off and threatened to rape her saying:

“You old bitch, you’ve got money, I’ll rape you.”

The appellant then rubbed his hands all over the victim and grabbed her breasts. The victim kept trying to move away. She asked for her glasses so that she could see but the appellant told her:

“You don’t need glasses where you are going.”

He then punched her in the left eye and then the chest above her right breast saying:

“I better finish you off.”

The contents of her beside drawer were then tipped all over the floor. Her handbag, that was lying on the bedside table, was then emptied. The victim thought that she had another couple of $50 notes inside the bag as well as some spare buttons and some little ceramic tiles and one cent pieces.

The appellant then pulled the victim out into the hallway and into the front room. The victim told the appellant she might have some money in the car. The appellant pulled her out the back door and into the yard and threw her onto the lawn. The victim said that she started to scream out for her neighbour. The appellant then walked off and the victim rang 000 and waited for the police and ambulance to arrive.

Dr Spalding gave evidence about the victim’s injuries. She had a left black eye and a haematoma over the left hand between the second and third joint and multiple bruising over her left upper chest and left arm. The major injury was a deep laceration across her wrist which had cut down to the muscle. The victim remained in hospital for ten days.

Senior Constable Graham Wilson gave evidence that he arrived at the scene at about 10.55pm and observed that one of the front windows of the house that opened onto the front verandah was broken. Inside there was an amount of broken glass on the inside of the window sill and on the floor under the window. A white curtain had been pulled down and lay crumpled on a nearby bed. On the curtain there appeared to be a muddy scuff mark.

The victim described the man who had assaulted her as being a strong man about 5 foot 8 inches tall with short dark hair. He was wearing a grey flecked flannelette chequered shirt with the collar pulled up over his head.

At about 11.25pm the police heard yelling coming from a paddock at the end of the street. The appellant was seen stumbling up a slight rise from the paddock onto Eagle Street opposite the victim’s residence. The appellant was wearing a blue checked shirt and faded blue denim jeans. He was unsteady on his feet and smelt of intoxicating liquor. A portion of a $50 note was protruding from his pocket. The police observed some dark stains on the left front and left sleeve of the shirt the appellant was wearing. Constables Rose and O’Dwyer took hold of the appellant by his arms and escorted him to the rear of the police vehicle. He was then searched.

In the front left pocket of his jeans the police located five $50 notes, a green plastic lighter, two $2 coins, two 20 cent coins, two 5 cent coins, one 50 cent coin, one 1 cent coin, 1 large white button and 1 small elliptical shaped cream coloured ceramic tile.

The clothes that the appellant was wearing were forwarded to the Division of Analytical Laboratories for DNA blood testing. Christine Gill, a forensic biologist gave evidence that the blood found on the shirt and the blood taken from the victim matched. The DNA type of the victim and the DNA type found on the shirt occurred in approximately one person in 6.8 million of the general population.

The Crown called a number of witnesses who had seen the appellant earlier that night. Matthew Anderson, the appellant’s cousin gave evidence that he was at his home in South Gundagai drinking with some friends when the appellant arrived at about 6.30pm. They had a few drinks together. The appellant later borrowed a pair of jeans from Anderson. The last he saw of the appellant was when he dropped him off at Annette Anderson’s house at about 9.30pm. Jason Ross gave evidence that he lent the appellant the shirt that he was wearing. Annette Anderson said that the appellant arrived at her house at about 9.pm that night. He had a couple of drinks and then he left.

The Appellant’s case may be summarised as follows:

The appellant denied having entered the victim’s house and assaulting the victim. Earlier that evening he went around to visit his brother, Gary Anderson at Matthew Anderson’s house. He was intending to travel to Sydney later. When he got to his brother’s house there were a few other people present. They smoked some “grass” and drank some beer. Later the appellant, his brother and Jason Ross went for a drive to purchase some more alcohol. While they were in the main street of town the appellant pulled into a phone booth and made a call to a friend, Shane Williams. (In cross-examination, Mr Ross was asked whether he remembered the appellant making a phone call. He said that he did not think that he had because they drove straight to the bottle shop.)

The appellant said that Shane, who was coming from Albury said that when he arrived in Gundagai he would look for the appellant at his mother’s house first. They then drove to Jason Ross’s house where he borrowed a pair of jeans and a shirt. The jeans were too big. The appellant said that he needed to borrow the clothes because he was expecting to meet some girls and he wanted to make an impression. When they drove back to Matthew Anderson’s house the appellant said that he noticed another pair of jeans lying on a chair so he borrowed those as they fitted better. The appellant was then dropped off at Annette Anderson’s house.

While he was at Annette Anderson’s house he heard a car and went outside and saw Shane Williams in a car with two women sitting in the back seat. When they got there nobody was home so he took the clothes off and was going to leave them on the verandah but he thought better of it as he worried that the dogs would get to them. The appellant said that he had about $250 in his tracksuit pocket. It was a loan from his mother. Shane then asked the appellant could he borrow the clothes as he had left his in Albury. The appellant then got back into the car.

When Shane got into the car he was dressed in the jeans and shirt. He handed the appellant something wrapped in cloth. The appellant felt it and knew it was a small pistol. He unwrapped it and had a look at the gun and then placed it in the glove box. The appellant asked Shane to drop him off at his mother’s as he wanted to pick up some things. He was dropped at the corner of the street where his mother lived. At his mother’s he went to the laundry at the back of the house where he kept some syringes and one rock of heroin. He mixed up two syringes with the heroin and then walked to the Shell garage where he had organised to meet Shane.

The appellant then injected himself at the shelter at the garage. The next thing he knew he was being shaken awake by Shane. The appellant gave Shane his heroin and was going to buy something to eat when he realised he couldn’t find his wallet. He went back to the car and found it lying under the seat. The appellant said that he accused Shane of being a thief and told him to take off the clothes he was wearing because they didn’t belong to him. The appellant then put on the clothes himself and transferred the cash he had in his tracksuit bottoms into the jeans pocket. The appellant said that he was still yelling abuse at Shane while he was walking up Red Hill and was approached by the two police officers.

When the appellant gave a sample of his blood to Detective Rose at Silverwater gaol he told the detective that he had lent the clothes to Shane Williams and that he wanted to enter into an interview about this. Detective Rose said that he couldn’t interview then as there wasn’t “any sound stuff”. The appellant said that he later tried ringing Tumut Police Station on 29 December 1998 to talk to Detective Rose but he was told that he was on leave. He said that he needed to talk to someone about a person that he had lent the clothes to and also about some firearms.

In cross-examination Detective Rose outlined the searches he had made of police records and Road and Traffic Authority records such as driver’s licence checks or ownership of vehicles in an attempt to locate Shane Williams. He limited his search to the Albury Wodonga area because the appellant had told him that was where Shane lived.

The appellant said that at the time of the offence he had long hair and a moustache and goatee. His hair was also bleached. He described Shane Williams as being of solid build with short dark hair and clean shaven.

The appellant’s mother, Margaret Anderson gave evidence for the appellant. On the evening of the offence she remembered that there was a knock at her door about 9.30pm. It was Shane Williams and he asked her where “Mick” was. She knew it was Shane because the appellant had told her to expect him. Mrs Anderson told him that he was either at Gary’s or Annette’s place an she gave him directions. Mrs Anderson corroborated the fact that she had lent her son $300.

4 This was a very strong Crown case having regard to the inherent improbability that the appellant would have taken off his borrowed clothes, lent them to Shane Williams, then recovered them from Williams after the alleged altercation with him, only to put them back on again before he was intercepted by police in a disoriented and abusive state walking up Red Hill not far from the victim’s home. The jury were entitled to exercise extreme scepticism about such an unlikely scenario, all the more so in light of the police evidence casting doubt upon the existence of a Shane Williams of appropriate age living in the Albury area, as the appellant contended.

5 The appellant was nevertheless entitled to a trial according to law. His principal ground of appeal is that a miscarriage of justice arose as a result of certain lines of cross-examination of the appellant in relation to his failure to inform the police about Shane Williams at the time when he was arrested.

6 There is a second ground of appeal that is entirely without substance, although it was not formally abandoned. It relates to directions as to the mental element in the second count in the indictment.

7 The appellant was arrested shortly before midnight on the evening of Friday 12 June 1998, that is a little over an hour after the offences in the victim’s home. According to the police officers involved he was very intoxicated, waving his arms about and yelling. He abused and swore at the officers who had to struggle to subdue him with handcuffs. He was taken into custody. He was refused bail and it was not until 16 March 1999, nine months later, that he was first granted conditional bail.

8 The circumstances of his arrest and search were put before the jury, but little evidence was led in chief by the Crown in relation to what happened when he was taken into custody on the night of the offence beyond the fact that a named police officer (Detective Rose) formally arrested him and cautioned him (Tr p61). This was done in obedience to a ruling following a voir dire hearing early in the trial. In the absence of the jury the judge ruled that the Crown should not lead any evidence of the detail of the caution or of the appellant’s response to it. (Apparently there was an entry in an officer’s notebook to the effect that the appellant’s opening response to the caution was “get fucked you cunt, I’m not saying nothing”.) The exclusion of this evidence does not appear to have been the subject of any live controversy and it is relevant that the trial judge observed that:

… it is a double-edged sword for both the Prosecution and the Defence and he is clearly so drunk or affected by alcohol that his answers are fairly worthless, I think…. (Tr p17).

9 During the cross-examination of one of the Crown witnesses, Detective Senior Constable Rose, counsel for the appellant elicited the following evidence (Tr p85-6):

Q. Now some time in December 1998, you received a phone call from the accused at Tumut Police Station didn’t you?
A. Yes.

Q. And the accused told you over the phone, that he wanted to assist you in relation to this matter?
A. Yes.
Q. And that a person by the name of Shane Williams, was wearing he thought, the shirt and jeans at the time the attack occurred?
A. Yes.
Q. And he asked that you make enquiries in relation to Shane Williams.
A. Correct yes.

Q. And I think at some point last year, you were requested by the accused’s lawyer to make enquiries regarding Shane Williams?
A. I don’t know about that but I’ll accept that somebody else asked me or someone asked me.
Q. And enquiries were made?
A. Yes.
Q. And you were unable to locate Shane Williams, is that right?
A. That’s correct yes.
Q. Do you have any reason to believe that a person by the name of Shane Williams doesn’t exist?
A. No, Shane Williams is a fairly common name, I think there are probably a number of Shane Williams about but if I remember correctly, this particular Shane Williams was to be from Albury, the Albury area and I made a number of enquiries to try and locate a Shane Williams from Albury and I couldn’t do that, it was unsuccessful.
Q. What enquiries did you make?
A. I made police computer enquiries, RTA enquiries, criminal history enquiries and enquiries with the local police in the Albury area and that just about pulls it up I’d say.
Q. And have you made any enquiries since then in relation to Shane Williams?
A. No.

10 Later there were the following questions and answers in the cross-examination of the same witness (Tr pp100-101):

Q. At one point after arrest you had a conversation with the accused?
A. Yes.
Q. And he said to you I did nothing wrong, do you remember him saying that to you?
A. He shouted that at me, yes.
Q. Why am I here?
A. Yes.
Q. Why don’t you put me in a line-up?
A. No.
Q. Put it to you that that’s what he said?
A. Well I don’t recall that but he did ask why he was there.

11 As indicated, the appellant gave sworn evidence at his trial. He said that he got into a car with Shane Williams and two girls; he asked Williams to take him to his cousin Gary Anderson’s house; there he took the jeans and shirt off and put them in the boot of the car. Because Williams “didn’t have any clothes” (Tr p169) Williams asked to borrow them and he put them on. Subsequently the appellant took a shot of heroin when he was at the shelter at a petrol station and he lost consciousness (Tr p179). He was awoken by Williams. There was an argument when Williams was accused of taking his wallet. He asked Williams to return the clothes, which he did. The appellant put the clothes back on. He was asked why he did this and answered (Tr p181) “Why? Because – I don’t know. I really don’t. I really don’t remember why I put them on.”

12 While still in chief the appellant was asked (Tr p183):

Q. Back at the station when you say you came to or something, what happened there?
A. I was asked to sign a notebook.
Q. Do you remember having a conversation with Detective Rose.
A. I can’t remember the conversations or anything like that, but I remember I was approached. I remember I did see Detective Rose somewhere.
Q. You don’t recall saying anything to him?
A. I don’t remember very much. I remember there was a little of abuse yelled at the police officers. I remember I did and that’s when I came around, that’s what I thought that’s why I was at the police station for, for screaming out and that. That’s what I thought I was there for. (Tr p183)

13 The following evidence was also elicited from the appellant in chief (Tr pp184-5):

Q. You had a conversation with Detective Rose, when you were at Silverwater Jail, do you recall that?
A. Yes.
Q. What was said?
A. I just told Detective Rose I was – you know like pretty smashed and that, that night.
Q. I beg your pardon?
A. About you know on the alcohol and that.
Q. You had a conversation at Silverwater Jail about blood?
A. Yeah about blood, yeah.
Q. Do you recall that time?
A. What the time of day?
Q. Do you recall that meeting with Detective Rose.
A. Yeah, yeah I remember Detective Rose come and take blood from me.
Q. Do you know why he took the blood?
A. Yes, in relation to this here, what I’ve been charged with.
Q. What conversation was had with Detective Rose then?
A. About a person I’d give the clothes to on the night.
Q. What do you mean by that. If you can answer I said, he said, that would be best?
A. Well I told Detective Rose that I gave the clothes to the person by the name of Shane Williams. I said I want to make an interview. We stood on the front verandah. He gave me a rollie, a cigarette, a rollie. I was that that because they didn’t have the audio stuff there to do it with, that’s why they couldn’t do it.

Q. Do what?
A. Take the interview of me. The taped interview and I’m not sure which one said it but they said we should have brought something with us, like that. Should have brought it with us.
Q. What about a phone call to Tumut police station?
A. Yeah I made a phone call.
Q. When did you make a phone call?
A. It was on 29 December ’98.
Q. How do you know that?
A. How do I know that because I remember when it was.
Q. Did you speak to someone?
A. Yes.
Q. Who?
A. I don’t know who – the Detective’s name was.
Q. What did you say?
A. I asked, was Detective Steve Rose there. I was told that he went on leave. He wouldn’t be back for a couple of weeks or so. I was asked what it was in relation to. I said that I want to speak to Detective Rose about a person that I had given the clothes to, also about some firearms. That phone call was made in the presence of Mr Albrighton(?).

14 Pausing here, the evidence to this stage indicated that the appellant had declined to assist the police by answering questions on the night of his arrest; and that he was obviously affected by alcohol and (on his evidence) drugs at the time.

15 Early in the cross-examination of the appellant it was established that the police visit to the appellant in gaol when arrangements were made to take his blood for testing occurred on 20 August 1998. There was a dispute as to whether it was on this occasion that the appellant first mentioned Shane Williams (cf Tr p188) or on a later occasion in December 1998 (ibid). In the course of the Crown Prosecutor probing this issue the following questions and answers were given (Tr p191, emphasis added):

Q. At any rate, it’s your evidence isn’t it, that for (sic) the first time you told the police about Shane Williams was when the police came to you at Silverwater Gaol?
A. I’m not quite sure about that.
Q. You didn’t say anything on the night you were arrested?
A. No I didn’t .
Q. And as I understand your evidence to this point of time, the first time you said anything about Shane Williams was a gaol visit which was on 20 August ’98?
HIS HONOUR: Members of the jury, I’ll give you this direction. Any person who is taken to police custody or questioned by police, is entitled as a matter of law to decline to answer questions and to see a solicitor, and you must not draw any inference adverse to the accused because you did not on the night in question answer police questions.

16 This is the first of two passages particularly relied upon in this appeal.

17 There was further cross-examination probing various aspects of the Shane Williams scenario as painted in the appellant’s evidence.

18 At Tr pp201-2 occurs the second passage particularly relied upon in the appeal (emphasis added):

Q. When you were taken to the police station you dozed for a while, is that right?
A. Well I woke up, yes when I was in the dock.
Q. And it’s your evidence that you didn’t quite know why you were there but it was explained to you pretty quickly wasn’t it?
A. Like at the time I started screaming out “What the fuck am I doing here?” you know, right? And I thought that I was there because I remember running into the police earlier and swearing, I know that, yeah and swearing and that at the coppers. I knew that I’d done that but that’s as far as ---
Q. When do you say you first knew you’d been charged with something a great deal more serious than swearing at police officers? When did you first realise that?
A. Straight after that, after I was awake and that. I was told by O’Dwyer.
Q. You would have realised then that if these matters were proved you were in a great deal of trouble?
A. Yes.
Q. Why didn’t you say something about Shane Williams and all the events of that night you’ve related to the ladies and gentlemen of the jury?
A. Because I asked to see a solicitor.
OBJECTION
Q. Subsequently however you thought about it. A full brief was served on you, correct?
A. Full brief?
Q. Statements of witnesses the police had gathered and so on?
A. A bit of time after, yes.
Q. Some time after?
A. Yes.
Q. And when you read all of that and thought about things you decided to tell the police about Shane Williams, is that correct?
A. Do you really want to know what I done with that brief? I burnt that brief. And do you know why I burnt that brief? Because it made me sick, that’s why I burnt that brief.

19 The appellant submits that the Crown Prosecutor was cross-examining the appellant about the fact that he did not inform the police about Shane Williams at the time he was arrested. It is further submitted that the purpose and/or effect of the questions was to invite the jury to draw an adverse inference against the appellant because of his failure to inform the police about Williams at or very shortly after the time he was arrested. I would accept these submissions, at least as to the effect of the line of questioning. It is unnecessary to probe the prosecutor’s purpose.

20 Section 89 of the Evidence Act1995 provides:

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:
(a) to answer one or more questions, or
(b) to respond to a representation,
put or made to the party or other person in the course of official questioning.
(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.
(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.
(4) In this section:
inference includes:
(a) an inference of consciousness of guilt, or
(b) an inference relevant to a party’s credibility.

21 In argument before us the appellant tended not to press his case on the basis of s89. At the hearing of the appeal it seemed to be accepted that there was no material before the jury indicating that the appellant had failed or refused to answer questions put to him in the course of “official questioning”. In fact the evidence tends to suggest otherwise. The passage at Tr 183 set out above was not referred to in submissions.

22 On the other hand the appellant rested his case upon the principles stated in Petty v The Queen (1991) 173 CLR 95, especially the passage in the majority judgment (at 101) where Mason CJ, Deane J, Toohey J and McHugh J said that:

… the denial of the credibility of [a] late defence or explanation by reason of the accused’s earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted.

23 Since (in the light of s9 of the Evidence Act) the Crown did not dispute the applicability of this principle, it becomes unnecessary to explore whether there is any difference between the common law and s89 generally or in the context of the present case.

24 Issue was joined in the appeal on the question whether, at the end of the day, the jury were left to consider an unfavourable inference based upon the exercise of his right of silence on the night of his arrest.

25 The Crown accepted that some of the questioning did carry the suggestion of the proscribed inference.

26 It was the Crown’s submission that any damage was neutralised by the combined effect of the judicial warning given at the conclusion of the first passage set out above and the repeating of that warning in the summing up where his Honour said (SU 73):

In relation to the right to silence which I have mentioned before, any citizen who is detained by police in relation to a serious criminal offence has a right to remain silent in the face of police questions. It should not be held against the accused that he has exercised this right.

The Crown invokes r4 on the basis that there was no request for any direction. Indeed, it is submitted that, apart from the single objection in the second passage, there was no complaint by counsel for the appellant at any stage concerning the cross examination by the Crown Prosecutor. It is submitted that this gives rise to a strong inference that no-one present at the trial perceived there to be any injustice arising from the cross examination and from the manner in which the trial judge directed the jury.

27 The appellant has taken the Court to passages in the closing address of the Crown Prosecutor. That address forcefully and properly pointed to the many improbabilities of the Shane Williams scenario. At one stage it was characterised in the following terms (p8):

That attempt to explain the items on the accused is the attempt of a desperate and guilty man, you might think. The whole story about Shane Williams – to the extent that it can be tested and it is hard to test these matters – the accused has a right to remain silent. It’s a matter for him but it also is something that, when he gives a version like this, it gets tested against what is able to be proved in the Crown case.
The prosecutor proceeded to “test” the Williams scenario in his address in proper and effective terms.

28 At one stage however he said this (p11, emphasis added):

He’s entitled to give his version, his mother as well. But look at it carefully, the Crown says. You might think it’s not very easy for someone with a full prosecution brief served on them, even though he says he burned it, and you might wonder about that. Why would you burn that sort of thing in the face of these sort of serious charges, walk in cold without knowing what your charges are? It’s just ridiculous.
You might think someone like the accused might sit down and carefully work a story that gets about all of the difficulties – where he can, because he’s got no explanation, he said so himself, about the items found on him. The plant by the police just is nowhere – and come up with a story.

29 The appellant submits that the debunking of the appellant’s evidence about burning the Crown brief in this particular context had the capacity of reminding the jury about the evidence he had given in the second passage. There a link had been drawn by the appellant and the cross-examiner between the burning of the Crown brief and the occasion when (according to the cross-examiner) the appellant “thought about” the Shane Williams defence. There is some force in this submission, at least to the extent that it adds some weight to the ground of appeal asserting miscarriage.

30 The appellant further submits that the two warnings to which I have referred were insufficient in their context, because they did not really address the sting of the prohibited inference that had been raised before the jury. That is because the directions did not instruct the jury that no adverse inference should be drawn because the appellant failed to refer to Shane Williams or say that Williams had put on the clothes. In my view, the first direction would have conveyed this because of the context in which it was given. But the second direction (given during the summing up) did lack some of its neutralising force for failure to link it to the sting of the Crown’s suggested inference, that is the suggestion that the Williams story was an invention because it had not been advanced on the night of the arrest.

31 In the upshot I am persuaded that the trial regrettably miscarried when the totality of the material is taken into account. The (rather fantastic) defence raised by the appellant depended entirely upon the jury’s assessment of his credibility – subject, of course, to the proper application of the Crown’s burden of proof. The cloud erroneously placed above the appellant’s testimonial head by the effective invitation to disbelieve the Shane Williams story because inter alia it was a late invention when it should have been adverted to on the night of the arrest cannot be dispelled by invocation of r4 or the proviso.

32 I propose the following orders:

1. Appeal allowed.

2. Set aside conviction.

3. Order new trial.

33 DOWD J: I have read the judgment of Mason P in draft form. I agree with the reasons and the orders proposed by Mason P.

34 GREG JAMES J: Having regard to the matters referred to by Mason, P. in paragraphs 21 to 25 of his draft judgment, which I have had the advantage of seeing, I, too, do not consider it necessary in this case to examine s.89 of the Evidence Act or the full ambit of the right to silence. The combination of the effect of the judicial warning and the Crown Prosecutor's remarks infringed the principle referred to in Petty v. The Queen (1991) 173 CLR 95, which it was accepted before us applied. For that reason the trial miscarried.

35 I agree that notwithstanding the almost absurd defence, for the reasons given by Mason, P., the appeal should be upheld and a new trial ordered.

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