R v Angela Linda Sinclair and Hieu Duy Dinh No. SCCRM 96/351, 96/352 Judgment No. 6127 Number of Pages 26 Criminal Law Evidence
[1997] SASC 6127
•29 April 1997
IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA
COX, MILLHOUSE AND DEBELLE JJ
Criminal law - evidence - evidentiary matters relating to witnesses and accused persons - corroboration - appeals against convictions for murder - Crown witnesses with criminal convictions or associations or involved in drug dealing or having interests of their own to serve - whether trial Judge required to give jury a special warning - kind and extent of warning required. Bromley v R (1986) 161 CLR 315; Longman v R (1989) 168 CLR 79; R v Smith (No. 2) (1995) 64 SASR 1; R v Winner (1995) 79 A Crim R 528; Kelleher v R (1974) 131 CLR 534, applied. Pollitt v R (1992) 174 CLR 558, distinguished. R v Prater [1960] 2 QB 464; R v Faure (1993) 67 A Crim R 172, not followed.
ADELAIDE, 21 March 1997 (hearing), 29 April 1997 (decision)
#DATE 29:4:1997
#ADD 19:5:1997
Appellant Angela Linda Sinclair:
Counsel: In person, Mr C P Beresford having been given leave to withdraw
Appellant Hieu Duy Dinh:
Counsel: Mr C J Kourakis
Solicitors: Mr G B Black
Respondent R:
Counsel: Mr S A Milsteed QC
Solicitors: DPP (SA)
Order: appeals dismissed.
Cox J
1. The circumstances of these appeals and the issues they raise are set out in the reasons of Millhouse J which I have had the advantage of reading.
2. Ground 8 of Dinh's notice of appeal (cf. ground 4 of Sinclair's) reads -
"The learned trial Judge erred in failing to give a specific direction to the jury in relation to the caution with which the evidence of the witnesses Charlie Atherton, Kelly Gray, Geoffrey Ellis, Fiona Ellis, Robert Sinclair and Eleanor Mohi ought to be carefully scrutinised because:
8.1 the witnesses had interest of their own to serve:
8.2 inducements were held out to these witnesses:
8.3 there were changes in their accounts:
8.4 the witnesses had criminal histories:
8.5 their criminal activities at the relevant time: and
8.6 the fear that in many instances they themselves might be implicated in the murder. (Request for directions p50)."
3. These were all Crown witnesses. Charlie Atherton gave evidence of the appellants' hostility towards the murdered man, Pettit, and of Dinh asking the witness how to make a letter bomb and implying that he was going to blow Pettit up. Kelly Gray gave evidence of Sinclair telling him before the murder that Pettit was going to be "fixed up or something" and of his asking Dinh after the murder whether he did the Gawler bombing and of Dinh giving a reply that could be interpreted as assent. Geoffrey Ellis gave evidence of incriminating statements by Sinclair before the murder including her saying that Pettit was going to be in for a shock and that she and Dinh had delivered a package to him that had a pin on top of it because it was so volatile. He said that after the murder one of the appellants - he was pretty sure it was Dinh - virtually admitted his complicity in it. Fiona Ellis said that after the murder she was talking to Sinclair about Pettit's death and that Sinclair admitted that she and Lee had delivered the letter bomb. Robert Sinclair, the appellant's sister, spoke of Sinclair saying before the murder that she would get Pettit, and of Dinh on another occasion talking about parcel bombs and saying that he could get hold of one. Eleanor Mohi (also known as Eleanor Sinclair) spoke of Sinclair saying that she would love to kill Pettit and asking the witness if she knew anyone who could do something to Pettit. After the murder Mohi went to the police. Later Dinh spoke to her, wanting to know what she had said to the police, but she did not tell him. He said that she could go down as an accessory to the fact. He added that he did not do it. There was a lot more to the evidence of these witnesses than this, but what I have said is enough to show how highly incriminating their evidence, if accepted, was to the appellants.
4. It happened that all of these witnesses were susceptible to criticism by reason of their criminal records or associations or their drug dealings or from their having interests of their own of one kind or another to serve or simply because of their suspected or demonstrated capacity to lie, as indicated in some cases, it was said, by inconsistencies between their trial evidence and their previous statements. Eleanor Mohi admitted that she was "stoned" when she went to the police and that she lied to the police, and the defence argued that her motive for lying was to protect Robert Sinclair, with whom she was then living, because he had told her that he was being blamed for the bombing. The character and habits and possible ulterior motives of the other witnesses specified in ground 8 are summarized in Millhouse J's reasons (Character and Circumstances of the Witnesses). Clearly the jury had to be alerted to the character defects and other possibly discrediting features or actions of these people. The issue is whether what the learned trial Judge said on the subject was adequate.
5. Early in the summing up his Honour summarized the evidence of those Crown witnesses who spoke of a hostile relationship between Pettit and Sinclair during the time they were living together. Later the Judge identified four categories of evidence that made up the Crown case and went through the witnesses one at a time, including the witnesses to whom this ground of appeal relates. He summarized the evidence of each witness at greater length than I have done. The presentation at this stage was from the point of view of the Crown. His Honour concluded his account of the prosecution case by reminding the jury of certain points made by prosecuting counsel and of the evidence of a police officer who took a statement from Sinclair. Then he turned to the defence case. Both appellants had given evidence denying any involvement in or talk about the bombing. They did admit their involvement with drugs. His Honour told the jury that the defence case had to be considered against the attack that both defence counsel had mounted against the Crown witnesses. They had argued that those witnesses were so discredited that the jury should reject their evidence. His Honour proceeded to summarize the defence criticisms of the lay witnesses for the Crown, dealing with each witness in some detail and reminding the jury of the evidence or argument that tended in each instance to undermine the witness's credibility. I take the following by way of example -
"Kelly Gray was also attacked. It was submitted that he lied about the extent of the drug dealing and about his own addiction to heroin. Counsel reminded you of the evidence that he gave about his conviction for assaulting Anne Chancellor. It was put to you that he had conned the court that sentenced him by saying not only that he had assisted the police already, but that he was going to assist them in the future. But, counsel said, he never intended to do that in the event of him going to gaol. In fact, he went to gaol and subsequently, at a proofing session about the evidence he was to give at this trial, he expressed reluctance to give any evidence until, as a result of a submission being made to the minister, he got home detention. Counsel for the defence put it to you that with that background, you must reject his evidence."
6. In the case of Geoffrey Ellis the jury was reminded
"of his track record of criminal behaviour and drug dealing. You were reminded that he robbed his co-dealer's wife and conned his way into a suspended sentence, that he had not completed his community service which was part of that suspended sentence, and that he was dishonestly helping the police to protect his own skin and to avoid going to gaol."
7. And so on with all of these witnesses who were so conspicuously open to defence attack. Then his Honour dealt with other Crown witnesses who were not vulnerable in this respect and, towards the end of his summing up, said -
"You must clearly and carefully scrutinise the evidence of the Crown witnesses and all that defence counsel have said in their attack on them. You may decide in consequence that you are not satisfied beyond reasonable doubt that the Crown has proved its case against these accused, and that it is at least a reasonable possibility that Atherton was the murderer. It is perfectly true, as defence counsel have said, that the accused do not have to prove anything at all. They do not have to prove that Atherton was the murderer.
It appears, ladies and gentlemen, that the police and Miss Grenfell, on behalf of the Director of Public Prosecutions, questioned many of the Crown witnesses a number of times, and that, in addition, most gave evidence and were cross-examined at a preliminary or committal hearing in the Magistrates' Court. Many of them have not been entirely consistent. Many admit at some stage to telling lies. Many of them have a criminal record. They are all very proper matters for you to take into account in considering whether you accept all, part of, or none of the evidence of each such witness. But you may also weigh in the scales, in considering such matters, that some people are more thorough at taking statements from a witness than others, that memories can fade and later be refreshed, that a witness can perhaps not always be entirely frank because, for example, he or she is concerned about his or her own criminal offending, such as dealing in drugs."
8. It was Mr Kourakis' submission that much more than this needed to be said by way of alerting the jury to the danger of acting on the evidence of witnesses of such poor character. We were referred to a number of authorities on the subject of jury warnings.
9. Generally speaking, a person may be convicted of a serious crime under our system on the evidence of only one witness. There is the common law exception in the case of perjury, and there are a number of statutory exceptions as well, but the general rule in the criminal court is against requiring that a witness' evidence be corroborated as a matter of law. However, the judges evolved over time a rule of practice that required a trial judge to warn the jury about the danger of convicting the defendant upon the evidence of certain categories of witnesses unless the evidence of the witness in question was corroborated in some material particular. These common law rules applied to young children, to those who claimed to be the victims of a sexual offence, and to accomplices of the accused. What the persons falling into one or other of these categories were believed to have in common was a tendency to unreliability that might not always be obvious to the jury. The unreliability might be intentional, in the case of the unscrupulous accomplice, or unintentional, in the case of an imaginative or impressionable child, but the latter circumstance was all the more reason for warning the jury of the inherent danger. Indeed, the principal justification for the common law warnings was that the jury was unlikely to know, from its own experience or common knowledge, how significant these dangers were. The courts, by contrast, had an accumulated knowledge on the subject which included established instances of a miscarriage of justice. As Brennan J put it in Bromley v The Queen (1986) 161 CLR 315, at 324 -
"The courts have had experience of the reasons why witnesses in the three accepted categories may give untruthful evidence wider than the experience of the general public, and the courts have a sharpened awareness of the danger of acting on the uncorroborated evidence of such witnesses."
10. The strict rule of practice has now been abrogated in this State in the case of two of the three common law categories, although it will still be necessary for the trial judge to give the jury a special warning in the case of a child or the alleged victim of a sexual crime where the circumstances of the particular case call for it. What is to be emphasized for present purposes is that a warning is needed where, without it, the jury, lacking a full appreciation of the risk that experience provides, may give too little weight to the danger of convicting on the uncorroborated evidence of a witness in one of the stipulated categories.
11. It is important to note that these were the only common law categories that required a full corroboration warning. No similar rule of practice was developed for witnesses who were of bad character or who might be actuated by self-interest or who might have exhibited ill will towards the accused. Occasional movements in that direction have been made. In Reg v Prater [1960] 2 QB 464, the English Court of Criminal Appeal, after holding that a particular witness in that case did not come within the accomplice rule, expressed the view that it was desirable that, in cases where a person might be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given. Prater is cited periodically in this jurisdiction as authority for the existence of a fourth common law category but, so far as I am aware, it has never been so acknowledged in this State. There are two things to be noted about Prater - the Court of Criminal Appeal, by using the word "desirable", can hardly be supposed to have been laying down a new rule for trial judges in England and, secondly, the English courts have interpreted its reference to persons having interests of their own to serve as confined to witnesses who might have been participants or otherwise involved in the crime charged. See Beck (1982) 74 Cr App R 221, at 227, and Reg v Cheema [1994] 1 WLR 147. In Reg v Kilbourne [1973] AC 729, Lord Hailsham of St Marylebone LC included (at 740) "persons of admittedly bad character" in the recognized common law categories, but his Lordship did not city any authority for that and his view does not appear to have been accepted in England or in Australia.
12. In Bromley the High Court declined to extend the common law categories to include a Crown witness whose mental disability, it was said, made his evidence inherently unreliable. The Court held, however, that where the evidence of a witness may be potentially unreliable, but does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. However, the use of the word "danger" or "dangerous" was not essential.
13. In Longman v The Queen (1989) 168 CLR 79, at 86, it was stated that "the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case."
14. In McKinney v The Queen (1991) 171 CLR 468, the High Court extended the common law categories to include a police witness testifying to a confessional statement allegedly made by an accused while held in police custody without access to a lawyer where the statement was disputed and not corroborated. Then, in Pollitt v The Queen (1992) 174 CLR 558, the High Court held that the duty of a trial judge to warn of the danger of convicting on evidence which is potentially unreliable (Bromley) applied to the gaol yard confession. Indeed, what was needed in the case of the prison informer was independent evidence confirming the actual making of the confession. McHugh J, in particular, elaborated on the reasons why such a warning was necessary:
"The evidence of a prison informer may in fact be true. But, with the exception of some remand prisoners, the source is always tainted. All accounts of traditional prisons agree that beneath the veneer of law and order imposed by the rules of prison discipline lies a brutal world of fear and sudden, and often irrational, violence where conventional standards of conduct and values such as truth and respect for the rights of others have little relevance. It is not surprising, therefore, that, exposed to such an environment, some prisoners will become so indifferent to the rights and feelings of others that they will not hesitate to make false accusations of criminal conduct against other persons if acceptance of the accusations will advance their own interests. Many years of experience in hearing prisoners give evidence for and against accused persons has alerted the judiciary to the unreliability of the evidence of serving prisoners. But it is by no means certain that every juror fully appreciates that unreliability which arises not so much because the prisoner has been convicted of serious crime but because the character of that person has been altered for the worse by exposure to the values and culture of prison society." (at 614)
15. His Honour went on to explain why the evidence of a prison informer was likely to be inherently plausible. While a full corroboration warning was not required, it was necessary to warn the jury of the danger of convicting upon such uncorroborated evidence.
16. Mr Kourakis relied particularly on Pollitt and the Victorian case of R v Faure (1993) 67 A Crim R 172 . That was a murder trial in which the chief Crown witness was the accused's wife. She said that the accused had confessed his guilt to her. There was evidence at the trial from the accused and other witnesses to the effect that Mrs Faure was trying to get rid of the applicant and had sought to have him killed. She denied those allegations. The Judge told the jury to scrutinise the evidence of key witnesses such as Mrs Faure carefully and he reminded them of defence counsel's submission that the Crown case rested entirely on Mrs Faure whose evidence, he submitted, was not supported by any other evidence. Faure was convicted but his appeal was successful because of the failure of the judge to give a suitable warning. The Court of Criminal Appeal considered that Mrs Faure was in the general class of witnesses about whom a warning should be given to avoid a risk of a miscarriage of justice. It had to be a direction to the jury from the trial judge and with the force of his authority and should be more than a general comment about the need to scrutinise evidence of important witnesses carefully. The warning should include a reference by the judge to matters of significance which are relevant to the assessment of the evidence of the witness. "The jury's attention should be drawn to the dangers inherent in such evidence and at least to the desirability, if not the need, for the search for supporting material." What warning was appropriate and adequate depended on the circumstances of the particular case. It was obviously seen as desirable, at least, that the judge should deal with the specific factors which affected the evidence of the potentially unreliable witness. It was not enough simply to allude to or even repeat the arguments of counsel in that respect.
17. In R v Smith [No. 2] (1995) 64 SASR 1 the appellant's conviction for murder depended largely upon the evidence of one Roberts in respect of whom the trial Judge gave an accomplice warning. It was for the jury to decide, of course, whether Roberts was an accomplice, and the appellant complained that the directions that the trial Judge gave the jury were inadequate if the jury did not conclude that Roberts was an accomplice. Counsel relied on Bromley and Longman. Mullighan J, with whom the other members of the Court of Criminal Appeal agreed, rejected the submission. The warning required in such a case was to be appropriate to the circumstances. In some cases the danger of convicting an accused person upon the uncorroborated evidence of a potentially unreliable witness is so obvious that the jury is fully alive to it without a warning. In such cases no warning need be given. The trial Judge had drawn attention to features of Roberts' evidence which could give cause to serious concern, he reminded them of the different versions of events which the witness had given, and he directed them to scrutinize Roberts' evidence with great care. He told them of reasons why Roberts was potentially unreliable, including the fact that he had received an immunity from prosecution. The trial Judge did not refer to all the inconsistencies but he reminded the jury of them in a general way. Counsel argued, on the authority of Faure, that the Judge was obliged to mention specifically each matter which could render Roberts potentially unreliable, and that a reference to counsel's arguments was insufficient as the jury must have the benefit of a direction which had the authority of the Judge's office behind it. Mullighan J observed that a proposition in those absolute terms did not appear to be supported by other authority and, in that respect, he declined to follow Faure. The trial Judge's direction was held to be adequate.
18. I do not think that Pollitt was directly in point in the case at bar. The credentials of the Crown witnesses to whom this ground of appeal relates were not impressive. Most of them had criminal convictions or were involved with drugs, or both, and two of them, it could be said, had interests of their own to serve by giving false evidence. There was therefore a sense in which they could be described compendiously as belonging to a criminal sub-culture. However, it was not a prison sub-culture. What led to the decision in Pollitt was the special character of a prison environment, as McHugh J explained in the passage that I have already quoted. These witnesses were not living in an enclosed community. There are any number of persons scattered throughout the community with criminal convictions and it is not uncommon for such people to be required to give evidence on occasions for the Crown. That might make it appropriate for the Judge to say something to the jury about their creditworthiness but it has never been thought necessary, so far as I am aware, for the Judge to treat them as though they were prison informers, even where they may have happened to have served a gaol sentence at some time. Indeed, if the witness who has a criminal record or who associates with criminals requires as a general rule, simply for that reason, a full corroboration warning, it was hardly necessary for the High Court to spell out a particular rule to much the same effect for the prison informer who will, of course, always come within the wider category. For these reasons I would not see Pollitt as having any application to the present appeal. The witnesses in question were simply persons of bad character who, in many cases, knew one another and were disposed to commit crimes. The jury would have had no difficulty in understanding that and in appreciating that the devotion of these witnesses to the truth might well have fallen short of the ideal. The situation was significantly different from membership of a prison culture which has its own special features of which any ordinary juror is unlikely to be aware.
19. For cases in which appeal courts have declined to extend the principle in Pollitt to different situations, see Hudd, Court of Criminal Appeal, New South Wales, 9 December 1994 (unreported), Tillett (1995) 83 A Crim R 151 and Winner (1995) 79 A Crim R 528.
20. The general principle applicable here, in my view, is that implicit in Longman and Bromley - that where there is some particular reason, such as bad character or hostility or self-interest, to question seriously the bona fides of a Crown witness, the trial judge should give the jury such warning as is appropriate of the possible danger of basing a conviction on the unconfirmed testimony of that witness. He might also have to give the warning where the confirmation comes from a similar questionable source. The kind and degree of the warning will depend on the circumstances of the case including the degree to which the need for it will or will not be obvious to the jury. There is no prescribed formula for the warning and it will often be sufficient to give it in brief and unelaborated terms. Its purpose will usually be to share with the jury the courts' "sharpened awareness" (to use Brennan J's expression in Bromley) of the danger of acting on the uncorroborated evidence of such witnesses. If, from their general knowledge and common sense and the evidence they have heard, the jury will inevitably be well aware of any potential unreliability in a witness, it may not be necessary for the judge to do any more than remind the jury of the evidence. As I understand it, that is the way that the case of the bad character witness has generally been dealt with in criminal trials in this Court. Exceptional cases apart, it will be enough to remind the jury of the discrediting evidence and that will necessarily have the effect of alerting the jury to the possible danger of acting on that witness's evidence.
21. There are many cases in the books that deal with the interrelation of the terms of the warning in such a case and the need to instruct the jury - and that can include emphasizing evidence they have already heard - on a subject that is outside their normal experience. It is relevant to bear in mind Barwick CJ's dictum in Kelleher v The Queen (1974) 131 CLR 534, at 560 -
"The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play."
22. Brennan J in Bromley made the same point -
"But in truth the rule of practice requires only such force as is needed to ensure that, in the circumstances of the particular case, there is no miscarriage of justice: cf. Chamberlain v The Queen [No.2] (1984) 153 CLR 521, at 604. When a warning is needed to avoid a miscarriage of justice it must be given; when none is needed to avoid a miscarriage, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content." (at 324-5)
23. In Reg v Spencer [1987] AC 128, the defendants were convicted on the uncorroborated evidence of prisoners who were both mentally unbalanced and of bad character. The trial judge warned the jury to approach the evidence of the witnesses with great caution, and he explained why, but he did not say that it would be "dangerous" to convict. His direction was held by the House of Lords to be sufficient. There was no magic formula that had to be used with regard to any warning which is given to a jury. In the three established categories where a full corroboration warning was obligatory, the inherent unreliability of the witness might well not be apparent to the jury. In other cases the potential unreliability of the witness was obvious for all to see - as in the case under consideration. While it might often be convenient to use the words "danger" or "dangerous," the use of such words is not essential to an adequate warning, so long as the jury are made fully aware of the dangers of convicting on such evidence. Spencer was followed by the High Court in Bromley.
24. In R v Rogerson and Paltos (1992) 65 A Crim R 530, an important but not vital Crown witness in a criminal prosecution was a heroin addict and a drug dealer. She had undergone psychiatric treatment and the Court of Criminal Appeal (NSW) said that it was appropriate for the jury to have regard to those and other matters affecting her credibility. The trial Judge, in his summing up, referred in some detail to the cross-examination about the witness' medical history, her criminal record and her addiction and concluded -
"Now much comment has been made about Miss Jones. It is for you to assess her as a witness. No doubt you would bear in mind her background, her admitted convictions, the fact that she has apparently undergone psychiatric treatment at some stages, but whether that affects your impression of her as a witness is entirely a matter for you. You should obviously bear those matters very much in mind."
25. It was held that this direction, following as it did a reminder of those facets of Miss Jones' background that affected her credibility, was sufficient to warn the jury of the danger of acting on her evidence.
26. In R v Dellapatrona and Duffield (1993) 31 NSWLR 123, the Crown witnesses in question were two police informers or agents provocateurs named Green who had a purpose of their own to serve by way of claiming a reward. It was submitted that the Judge was in error in declining to give a "special instruction" to the jury about the evidence of the witnesses. Reliance was placed on Bromley. The Court of Criminal Appeal (NSW) held that no special direction was required in relation to the evidence of an agent provocateur. A witness who has acted as an agent provocateur may by reason of some particular conduct on his part, when acting as such, attract criticism relating to his credit, but in such cases that would be obvious to the jury from the attack made upon his credit in relation to that particular conduct. The trial judge would no doubt usually draw the attention of the jury to such criticism, as the Judge did in that case, but beyond that nothing special was required. The Court distinguished the case of prisoner informants (Pollitt) and said of such witnesses -
"...the obligation of the trial Judge to warn the jury as to the unreliability of the evidence of such witnesses arises because that unreliability may not be appreciated by the jury, arising as it does out of a prison culture unlikely to be known to them. None of those special circumstances applies to the ordinary police informant. If the informant has a criminal background, that will no doubt be exposed in cross-examination. Such a background was exposed in relation to the Greens in this case, as were the rewards which they had received and the further rewards which they had sought in relation to the assistance which they had given. The Judge referred to all of this in his summing up. The possibility that the Greens may have fabricated their evidence for that purpose was made abundantly clear. It did not require any special direction..."
27. The trial Judge's directions were found to be more than adequate.
28. For a similar statement of the correlation between the duty to explain to the jury why the evidence of any particular witness may be potentially unreliable and the possibility that the jury may be unaware of the danger of convicting upon such evidence, see R v Small (1994) 31 NSWLR 575, at 602-3. The general principles were also discussed in R v Glencourse (1995) 78 A Crim R 256, where it was argued unsuccessfully that the trial Judge in a wounding case should have given a special direction to the jury that they must carefully scrutinize the victim's evidence, where the victim was the sole witness against the accused and there was evidence that the victim and the accused had had "a difficult and strained relationship involving anger on the victim's part". (Indeed, the facts and the issues in Glencourse, but not the result, have some resemblance to the case of Faure.)
29. Finally, there is the decision in Winner to which I have already referred. The Crown relied in a murder trial on a witness who claimed that the accused had made a confession to him. The confession was disputed. The witness, Mr Burt, was of bad character with an acknowledged record of criminal activity involving offences of dishonesty, he was a drug user, and he was motivated by the prospect of receiving a $50 000 reward for informing on the accused. Other credibility defects were suggested as well. The trial Judge (who sat without a jury) rejected the submission that the case was analogous to that of a prison informer (Pollitt) and the Court of Criminal Appeal (NSW) agreed with him. Kirby ACJ, with whom the other members of the Court agreed, said -
"I see no analogy between the situation of Mr Burt and that of a prison informer. The appellant and he were not imprisoned together. They were not in the situation of potential misuse of the power relationships such as may develop in a prison. Mr Burt did not have the regular contact with authority which is typical of the prison informer. Nor was he looking to the hope of reduction of a sentence as a reward for cooperation. Of course, there were dangers in acceptance of his evidence. But they were not dangers of the special kind which led to the emphatic rule in Pollitt."
30. What the learned trial Judge did was remind himself that the evidence of Burt "must be scrutinized with care and approached with great caution." The implication in Kirby ACJ's judgment (with which the other members of the Court agreed) is that this was sufficient.
31. I respectfully agree with the interpretation and application of the warning rules that have been made in the New South Wales cases. See also R v Smith (No. 2). In the simple and fairly common situation of a Crown witness being shown to have a criminal record or by reason of self-interest or ill-will to have an obvious motive for giving false evidence, a special direction is not likely to be needed. The jury will hear the cross-examination and appreciate at the time its possible effect on the witness's credibility and they will doubtless be reminded forcefully of it in defence counsel's address. The judge will then remind the jury of the evidence in his summing up and that itself will alert the jury to the need to give careful consideration to the possible impact of the discrediting evidence. Often that will be enough. In some cases he should say more - for instance, where the witness's evidence is central to the prosecution case and it is uncorroborated or where there are special features that make an explicit warning appropriate. So much is comprehended in the requirement that the warning be suited to the circumstances of the case, with the need to avoid a perceptible risk of a miscarriage of justice as the overriding consideration.
32. In the present case the learned trial Judge told the jury that they must "clearly and carefully scrutinize the evidence of the Crown witnesses and all that defence counsel have said in their attack on them." He went on to remind the jury that many of the Crown witnesses had not been entirely consistent, that many admitted at some stage to telling lies, and that many of them had a criminal record. He told them that these were all very proper matters for them to take into account in considering whether they would accept all or part or none of the evidence of each witness. That was not, in terms, a strong or explicit warning about the Crown witnesses, having in mind the importance of the witnesses, their number and the variety of the credibility defects. It is important to bear in mind, however, that his Honour had already summarized the infirmities of the witnesses at considerable length. The jury must have been well aware of the defence attack upon the witnesses and the Judge told the jury, in effect, to give careful consideration to all that defence counsel had said about them. There was nothing esoteric about the significance of the witnesses' convictions and drug dealing and the like. The risk or danger with witnesses of this kind was obvious and it was not necessary to use such words as "dangerous" or "unsafe". I dare say some judges would have said more by way of an explicit warning, in view of the large number of witnesses involved and their importance in the prosecution case, and I think it would have been better had the learned Judge mentioned expressly at this point those witnesses who had an interest of their own to serve. However, any deficiencies in the Judge's direction in these respects could not possibly, in my view, have led to a miscarriage of justice. The case against the appellants was a strong one. In my opinion this ground of appeal is not made out.
33. I agree with what Millhouse J has said about the other grounds of appeal.
34. For these reasons I would dismiss both appeals.
Millhouse J
35. On the 13th of October 1994 Ron Pettit, at a house in Gawler, opened a parcel addressed to him and marked "from a secret admirar (sic)". The parcel exploded as he opened it and Pettit was killed. The appellants were tried for his murder and convicted.
36. The female appellant, Sinclair, had been in a relationship with Pettit. The relationship had ended some time before his death. From this relationship had been born a little girl, named Bianca. Bianca was three years old at the time her father died. The relationship had ended in bitterness. A dispute over access to Bianca followed. Several people gave evidence for the Crown of hearing Sinclair express dislike, hatred, for Pettit.
37. Some weeks before his death Pettit had told the police that Sinclair and Dinh, the male appellant, were selling heroin.
38. The Crown case against Sinclair was that she hated Pettit arising out of their relationship and of the disputes over Bianca and because he had told the police she was selling heroin. These were her motives in wanting him dead.
39. The two appellants in the months before the death had become closer and closer friends. They began living together the day after Pettit was killed. Dinh, the Crown case was, was anxious to advance Sinclair's causes: as well, he resented Pettit putting him into the police over selling heroin. Thus he too had motives to kill Pettit.
40. The most cogent piece of evidence against Dinh was this: analysis of fragments of a can (I would prefer to call it a "tin" but the word "can" has been used throughout so I had better use it too), part of the parcel bomb, shewed that the can, a food can of some description, had been originally opened by an electric can opener belonging to Dinh's father.
41. The defence case was that another man, Charlie Atherton, a big dealer in cannabis and other drugs, for whom the appellants sold, had made the bomb and sent it to the victim: Atherton was the murderer.
42. Atherton had asked Dinh for old cans and Dinh had given him some from his father's house. Dinh thought these cans were to be used for storing cannabis. Instead Atherton used them or one of them, to make the parcel bomb. That was Dinh's explanation for the marks from his father's electric can opener shewing on the bomb fragments.
43. I should say that all these people - not only the appellants, Atherton and the victim but many of the Crown witnesses who gave evidence - seem to have been pretty dreadful people, part really of a criminal sub-culture in the community. The success of the Crown case against the appellants depended in part on the jury accepting their evidence.
44. Both appellants were found guilty of murder by unanimous verdict. Each has appealed. Unfortunately Ms Sinclair has been refused legal aid and she has been unable to raise the money to pay counsel and solicitors to prosecute her appeal. We gave leave to her counsel to withdraw before the hearing began.
45. As the grounds of each appellant overlapped and as Mr Christopher Kourakis was to argue Dinh's appeal, the Court decided to go on with the hearing. The success of one appeal was likely to mean the success of the other and vice versa. However we gave Ms Sinclair leave to file additional argument no later than 14 days after the hearing, if she could arrange for such argument to be prepared. No additional argument on her behalf has been received.
46. Dinh had relied in his Notice of Appeal on the same grounds as had Ms Sinclair and several other grounds as well: so all her grounds of appeal were covered by argument.
47. Mr Kourakis argued nine points. I shall deal with them pretty well in the same order as he did. As I have found one ground to be decisively in his favour I hope I may be forgiven for not canvassing the others in great detail.
SEPARATE TRIALS
48. Mr Kourakis argued that the appellants should each have had a separate trial because of the extreme difficulty, if it were not an impossibility, for the jury to disentangle which piece of evidence was admissible against one accused but not against the other. This especially was so in this case of the many conversations of which evidence was given. Some people had heard or said some things in the presence of one appellant but not of the other and sometimes, on other occasions had said or heard some things in the presence of the other appellant. The jury was presented with an impossible task of separating what was admissible and what was not admissible against each appellant.
49. The answer of Mr Steven Millsteed QC, for the Director of Public Prosecutions, was that Mr Kourakis relied on seven instances of conversations to illustrate his argument but four of them could give rise to no prejudice against Dinh: at least one other was interwoven with evidence which was admissible against Dinh. The others were covered by the learned Judge's careful directions in summing up. That being so, the general rule should prevail that those alleged to be involved in the same course of criminal conduct should be tried together.
50. I accept Mr Millsteed's argument and so reject Mr Kourakis' first ground.
EVIDENCE OF HEROIN DEALING
51. The second ground Mr Kourakis argued was that the evidence of dealing in heroin by each appellant should have been excluded; its probative value was outweighed by its prejudicial effect : the main drug in which the appellants were dealing was cannabis and the heroin was quite minor. Mr Millsteed in his opening had not mentioned heroin (he had opened only on Sinclair's antipathy towards Pettit) and the evidence only came in after counsel for the appellants had cross-examined Charlie Atherton to the effect that he had murdered Pettit to protect his own cannabis trading.
52. There was evidence that Sinclair offered heroin to a woman Colleen White: White told Pettit about it. Pettit spoke to the police and a detective called at the house of Sinclair's parents making it known about what he was inquiring.
53. This evidence was much more damaging, Mr Kourakis said, to the appellants than the admitted evidence that they were dealing in cannabis, because the general community regards trafficking in heroin more seriously than trafficking in cannabis.
54. The respondent's retort was that this evidence properly went to motive: that Pettit had told the police that the appellants were trading in heroin made them anxious to protect their own business from investigation.
55. As well, Mr Millsteed said, the learned Judge directed the jury sufficiently as to the use to which they could and could not put this evidence:-
" In this case you have heard evidence about a number of people using drugs, including speed, marijuana, and trips and heroin. You have heard evidence that some of the Crown witnesses and the two accused were actually dealing in drugs. You probably disapprove of such habits and conduct, but you must not let any such disapproval dictate or influence your verdict. As you have been told, this is not a court of morals. Your task is to consider the evidence objectively and to decide the case solely on the evidence. The accused are not charged with any offence relating to drugs and you certainly must not infer that they are guilty as charged because of any admissions they have made or any other evidence against them of drug dealing. You may take that into account in assessing the credibility of their evidence, just as you may take into account similar evidence when considering the credibility of those Crown witnesses who were using drugs and/or dealing in drugs."
56. The learned Judge gave a sufficient warning and exercised his discretion to admit the evidence and, I suggest, he exercised his discretion correctly.
JOINT ENTERPRISE
57. No exception was taken to His Honour's general directions on joint enterprise but, Mr Kourakis complained, the learned trial judge had not made it clear that before the jury could use the evidence of heroin dealing by one appellant as evidence against the other, they first had to find that the two were engaged in the joint enterprise of selling heroin. That would explain the motive in wanting Pettit out of the way because he would jeopardise their business.
58. Mr Kourakis acknowledged that there had been no request for a redirection. That, to me, was a significant omission. Having read carefully the summing up on joint enterprise I cannot see how the jury could have fallen into error because of it nor that any further direction was required.
CROSS-EXAMINATION OF DINH
1. When, at trial, counsel for Sinclair was cross-examining Atherton he put to him:
"Q. I suggest that you asked Lee (Dinh) on 10 September if he could get you some cans and he said he might be able to. You deny that.
A. Some what?
Q. Some cans.
A. Some what?
Q. Cans. Do you know what cans are.
A. Beg your pardon?
Q. Do you know what cans are?
A. C-A-N-S - cans?
Q. That's correct.
A. What for cans? What do you mean 'cans'? Say that again? What are you on about cans?
Q. Does it matter.
A. Not really
Q. I suggest that you came round to Angela's place on 11 September - the day after that - and you collected a bag of cans which he gave you. What do you say about that.
A. No.
Q. That Lee asked you what you wanted all those cans for and you said 'To teach Ron a lesson.'
A. No.
Q. He asked 'What are you going to do?' and you said 'None of your fucking business' - not so.
A. Not so. Untrue."
59. When Sinclair gave evidence she failed to come up to proof on this. This is all she said in examination-in-chief :
"Q. What else was said that night.
A. That he wanted some cans and I asked him, I said 'What do you want the cans for ?', and he said, 'Have you got any cans or haven't you ?', and I said 'No'. And he asked Lee for some cans and Lee said that he didn't have any cans and he asked Lee could he get some, and Lee said something about that he would go down and look at his Dad's house, or something like that.
Q. Still on the same night.
A. Yes.
Q. Was anything else said that night.
A. Just mainly that Charlie wanted some cans."
60. In cross-examination, she repeated what she had said in examination inchief. She did not claim that Atherton told Dinh that he was going to use the cans 'to teach Ron a lesson', or that he said to Dinh 'none of your fucking business'.
61. Pretty naturally Mr Millsteed seized on this when he was cross-examining Dinh:
"Q. You see, it was put to Mr Atherton during this trial, at p.449, that you asked Atherton what he wanted all the cans for, and that Atherton said, 'To teach Ron a lesson'. Now that was put to Mr Atherton during this trial. Do you remember that evidence.
A. Yes. ...
Q. It was put by Mr Barrett who acts for Ms Sinclair.
A. Yes.
Q. That you had asked Charlie Atherton what he wanted all those cans for and that he said, 'To teach Ron a lesson'. But you say nothing like that was ever said.
A. No.
Q. By you.
A. No.
Q. And it was also put to Mr Atherton that you said or asked, 'What are you going to do?', and Charlie said, 'None of your fucking business'.
62. At the time counsel for Dinh objected to this line of questioning: the objection was overruled.
63. Now Mr Kourakis complains that it was unfair to put questions like that, in the terms put by Sinclair's counsel in cross-examination of Atherton when the conversation was denied by Atherton and the explanations of the use of the cans attributed to Atherton by Sinclair's counsel were not confirmed. There was nothing Dinh could say about it but to deny it.
64. It was a quite legitimate line of cross-examination and the learned Judge was right to allow the questioning.
THREATS BY DINH
65. After Pettit's death there were two incidents, one at a Hungry Jacks and the other at a Trash and Treasure, when the appellant Dinh made vague but forceful threats against a witness Eleanor Mohi. He told her that if she didn't keep her mouth shut then it would be the worse for her and the members of her family. The reason for the threats was not clear but Dinh did say to her that she "could go down as an accessory to the fact" - a pretty good pointer that he had in mind something to do with the parcel bomb. That would be, as would any significance of the threats, a matter for the jury. By the time of the threats Mohi had been to the police about the appellants and there was evidence that Dinh knew she had.
66. The Crown led the evidence of the threats, over objection, as expressions of consciousness of guilt. The appellant Dinh complained that the probative value was small while the prejudice arising from it great.
67. At the time Dinh was on parole: for him to explain the incidents he had to disclose this to the jury and that was prejudicial. Maybe so, but the judge was not obliged to exclude the evidence on that account. It was a matter for his discretion.
68. I accept that the threats were capable of manifesting a consciousness of guilt. Whether they did was a jury question. The learned judge rightly allowed the evidence.
THE NEED FOR A JUDICIAL WARNING
69. Mr Kourakis argued that there was a need for a judicial warning because of the prior inconsistent statements of some Crown witnesses and because of the character and circumstances of these witnesses.
70. The law in relation to judicial warnings about the evidence of witnesses is well settled. There is a broad and flexible rule requiring a warning "in a case where the evidence of a witness may be potentially unreliable" (Bromley v The Queen (1986) 161 CLR 315 at 319 per Gibbs CJ). The rule is concerned with dangers in accepting the evidence of witnesses, dangers which are not apparent to the ordinary juror. As Brennan J says in Bromley v The Queen (1986) 161 CLR 315 at 324, "When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted. In such a case, there is a miscarriage of justice warranting the quashing of the conviction." This rule was later summarised in Longman v The Queen (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ as requiring " a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case."
The Prior Inconsistent Statements
71. There were lots of prior inconsistent statements made by many of the Crown witnesses. I mention them even though I do not deal otherwise with the evidence of those who made them.
72. Mr Kourakis pointed to the evidence of Atherton, a key Crown witness. He said that Atherton had placed the date of a crucial visit to the Appellants somewhere in April or May in an early statement to the police, then changed it to somewhere in May or June later on. This meant that a conversation about the firebombing of Sinclair's then boyfriend's car was close to the date when the car was found, damaged by fire. Atherton was also said to have elaborated on a conversation with Dinh about Molotov cocktails in a late proofing session.
73. There is also the evidence of Legg, an associate of Atherton's. He had at first denied any knowledge of the circumstances surrounding Pettit's death, or an acquaintance with the Appellants. He then testified to remembering an important conversation in which Dinh expressed an intention to blow Pettit's car up. Mr Kourakis added that this was after the Police had informed him that he was under some suspicion of the bombing himself. In a statement given shortly before the commencement of the trial, Legg added that this conversation involved an expression of intention to blow Pettit himself up. In the same statement, a discussion on the mechanics of blowing cars up is also brought up for the first time.
74. The evidence of Ellis, another important Crown witness, was similarly flawed. He testified to a number of incriminating conversations with the Appellants. Before the trial, he had at first denied any knowledge of the circumstances surrounding the bombing. Various pieces of his evidence were elicited in different statements with additions and refinements at some points.
75. Robert Sinclair also testified to a number of admissions made by the Appellants, as well as threats to keep quiet about the bombing. He too disclosed this information in stages. At the committal, he denied a conversation about Molotov cocktails which he later gave evidence about at the trial. He also added significantly to a conversation in which Dinh was initially said to have expressed a general resentment of Pettit and the idea that "someone would fix him up" one day. At the trial, this became an expression of intention by Dinh to do the job himself.
76. In his summing up the learned Judge summarised the defence case as presented through the evidence of the Appellants and said:-
" The defence case, ladies and gentlemen, also falls to be considered against the attack that both defence counsel mounted against the Crown witnesses. In short, they argued individually and collectively they were so discredited that you should reject their evidence."
77. He then referred individually to the evidence of 11 witnesses and the attacks on their evidence by the defence. In the discussion on Atherton's evidence, the learned trial judge reminded the jury of defence counsel's criticism of the "lateness of Atherton's reference to the conversation with Lee [Dinh] about Molotov cocktails, and Lee making the reference to seeing on television the bombing of tanks in the Bosnia conflict." On Legg's evidence, the learned judge said : -
"...defence counsel argued that you should reject his evidence incriminating the accused, because of the unsatisfactory early statements he made to the police and his unconvincing explanations of the lateness of his version and the way he continued to add details to his story. They reminded you that he said at a proofing session that he was afraid of Atherton, and in this court he said that his real fear was the Gypsy Jokers, because he had dobbed them in to the police." On Ellis, the learned judge again reminded the jury of defence counsel's attack on "his initial reluctance to speak to the police, and that it was only after the message got home to him that he might be implicated in the fire bombing of Kevin Mohi's car that he eventually spoke up...things came up as and when Geoff Ellis saw fit to tell the police and that he only remembered some things when he came to this court." Before he considered Ellis' evidence, the learned judge also pointed out that Robert Sinclair had "conceded he lied to the police when he said he had not bought drugs from Charlie Atherton. His evidence that these things just popped into his head just before the trial was also criticised."
78. He went on:
"Defence counsel submitted that you cannot rely on such witnesses to convict the accused, and you must find it was at least a reasonable possibility that Charlie Atherton was the culprit. He was the one with the motive. There was no evidence that Dinh knew how to make a bomb, whereas Charlie Atherton clearly had a fair idea. Defence counsel reminded you of the evidence that Angela Sinclair had received a bird with its head cut off and three bullets, and they reminded you of the threats that Dinh had received in the remand Centre after Atherton had given evidence."-
79. What he said certainly reminded the jury of the defences and probably reinforced them.
80. Mr Kourakis argued, nevertheless, that a general warning was required to impress upon the jury the significance of the fundamental changes and inconsistencies and the danger of relying on the evidence of such people as these. He said that the discussion in His Honour's summing up of the evidence of these witnesses was effectively putting the defence case to the jury. It was merely a direction to consider the defence case rather than an instruction from the judge to consider the unreliability of the witnesses in light of the prior inconsistent statements.
81. This is highlighted by the fact that after summarising defence counsel's submissions, which I have set out, the learned judge goes on to pick out pieces of the evidence he feels they should look at. His Honour starts by saying: - "Ladies and gentlemen, my advice to you, when you retire to the jury room..."
82. It gives credence to the contention that this is where the judge is emphasising the evidence which he considers important. Mr Kourakis says that it is here that a judicial warning on the prior inconsistent statements should be placed.
83. His Honour does include some reference to this in this later part of his summing up. He says that : -
"It appears, ladies and gentlemen, that the police and Miss Grenfell, on behalf of the Director of Public Prosecutions, questioned many of the Crown witnesses a number of times, and that, in addition, most gave evidence and were cross-examined at a preliminary or committal hearing in the Magistrates' Court. Many of them have not been entirely consistent. Many admit at some stage to telling lies... They are all very proper matters for you to take into account in considering whether you accept all, part of, or none of the evidence of each such witness. But you may also weigh in the scales, in considering such matters, that some people are more thorough at taking statements from a witness than others, that memories can fade and later be refreshed, that a witness can perhaps not always be entirely frank because, for example, he or she is concerned about his or her own criminal offending, such as dealing in drugs."
The law on prior inconsistent statements
84. The law on judicial warnings on the evidence of witnesses who have made prior inconsistent statements was discussed by Gibbs J in Driscoll v The Queen
(1977) 137 CLR 517. His Honour said at 536-7 that : -
"In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable."
85. What Gibbs J said has been adopted in a number of cases including the judgment of Deane, Toohey and Gaudron JJ in Morris v The Queen (1987) 163 CLR
454 and by this court in The Queen v Phan (1990) 54 SASR 561.
86. The judgment read together with the general rule on warnings I have set out, emphasises the fact that the need and the content of the warning depends on the importance of the prior inconsistent statements. Here, there are a number of disturbing inconsistencies. These inconsistencies go beyond what one may expect to be quite common fleshing out of bare statements made in the course of an investigation. There is a strong case for a warning pointing out these contradictions.
87. The contradictions were pointed out. The complaint is that this was insufficient. That the learned trial judge should have laid these contradictions out in the later part of his summing up, instead of its close proximity to a discussion of the defence case. Though this would be a useful way of setting out a summing up, it is not necessary to do so in this form. The rule is only concerned with making the inconsistencies apparent. Indeed, Gibbs J contemplates a situation in which "the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous". This the learned trial judge has done albeit in the context of summarising the defence case. Furthermore, the summing up should be read in the light of what transpired in the rest of the trial. Vociferous and competent cross-examination of these witnesses elicited the existence of these prior inconsistent statements. The lengthy addresses by counsel for the defence dwelled on the inconsistencies. The jury was left in no doubt as to the worth of the testimony of these witnesses.
88. I do not therefore accept Mr Kourakis' complaint.
Character and Circumstances of the Witnesses
89. The Appellants also complain that a warning analogous to the "prison informer" warning was necessary here.
90. In considering this ground it must be borne in mind that they were part of what I have earlier called a criminal sub-culture. To put not too fine a point on it these people were crims. Mr Kourakis also submitted that some of these witnesses were unreliable not only because of the criminal world in which they operated, but also because of evidence of an interest in the case which may have affected their evidence. I should mention them even though I do not deal otherwise with their evidence.
91. Atherton had previous convictions for serious assaults. He also dealt in cannabis. More importantly, it was submitted that Atherton had an ulterior motive in giving evidence, exemplified by the admission that he had asked the police if there might be some benefit to his girlfriend who was facing criminal charges herself, from his giving evidence. Legg also had criminal convictions. He had been convicted of a number of dishonesty offences, as well as cannabis related offences. There was also evidence that Legg was frightened of Atherton, a point Mr Kourakis submitted was important because of the defence case that it was Atherton who committed the bombing. Ellis, another witness with criminal convictions, was said to have been unhappy about Dinh and Sinclair's relationship. He was also on a suspended sentence at the time of the police interviews. It was also submitted that Ellis was worried about the revelation of the drug dealing he was involved in at the time of his suspended sentence. In addition to this, he had not complied with an order for community service, and procedures about that were under way at the time of his interview. In fact, a detective had spoken to the prosecutor at the hearing of this breach, and the matter had been adjourned. The matter had yet to be determined at the time of his giving evidence. There was also the threat of being implicated as an accessory. Fiona Ellis, his sister, who testified to a number of admissions by the Appellants, was said to be motivated in giving evidence by a desire to protect her brother. The evidence of Gray, who testified to, among other things, hearing confessions by the Appellants, was similarly tainted. Gray had assault charges against him, for which he received a reduced sentence for assisting the police in the investigation of the murder. He testified that he was not expecting to be released on home detention, but knew of police representations to a government minister which resulted in his release on those terms, the day before he gave evidence at the trial. Robert Sinclair was also no stranger to the criminal courts. Like Legg, he was frightened of Atherton and like Ellis, he was aware of suggestions that he was under suspicion over the bombing.
92. The learned trial judge dealt with the criticisms of the character and circumstances of the witnesses together with his directions on the prior inconsistent statements. He pointed out that : -
"The defence case ... also falls to be considered against the attack that both defence counsel mounted against the Crown witnesses."
93. The learned trial judge then dealt with each witness in turn. Of Atherton, he said : - "Their (defence counsel's) strongest attack was on Charlie Atherton. He lied about his drug dealings. That lie was exposed by Christopher Leg [sic]. He was obviously dealing in a very big way." Then after dealing with the defence version of Atherton's role in the bombing, he said:- "Remember, counsel reminded you, he admitted a number of convictions for offences of violence and he admitted he was a violent man." The learned trial judge certainly made it plain that Atherton was a violent criminal on the defence case.
94. The learned trial judge did not say much on Legg's previous convictions, though the context of his discussion of Legg's evidence implied that he was part of that criminal sub-culture. However, Mr Kourakis emphasised Legg's convictions for dishonesty and argued that this had to be specifically pointed out to the jury. His Honour did mention one important piece of evidence. He said that:- "Mrs Shaw put it to you that such was the reputation of Charlie Atherton that people like Leg [sic] were afraid to say they were afraid."
95. On Robert Sinclair, the learned trial judge pointed out that:-
"It was submitted that he was clearly selling drugs for the Atherton's.(sic) He thought he was in the firing line, and that's when he went to the police. He said that he was scared of the Athertons even today."
96. On Gray, the learned trial judge said:-
"It was submitted that he lied about the extent of his drug dealing and about his own addiction to heroin. Counsel reminded you of the evidence that he gave about his conviction for assaulting Anne Chancellor. It was put to you that he had conned the court that sentenced him by saying not only that he had assisted the police already, but that he was going to assist them in the future. But, counsel said, he never intended to do that in the event of him going to gaol. In fact, he went to gaol and subsequently, at a proofing session about the evidence he was to give at this trial, he expressed reluctance to give any evidence until, as a result of a submission being made to the minister, he got home detention. Counsel for the defence put it to you that with that background, you must reject his evidence."
97. With Ellis, the learned trial judge reminded the jury that:-
"...it was only after the message got home to him that he might be implicated in the fire bombing of Kevin Mohi's car that he eventually spoke up."
98. Later on the learned trial judge deals with his criminal record. He said to the jury:-
"You were reminded of his track record of criminal behaviour and drug dealing. You were reminded that he robbed his co-dealer's wife and conned his way into a suspended sentence, that he had not completed his community service which was part of that suspended sentence, and that he was dishonestly helping the police to protect his own skin and to avoid going to gaol."
99. As for his sister, Fiona Ellis, the learned trial judge said that : -
"She had no previous convictions, but lived in what Mrs Shaw called a criminal environment. She was patently determined to protect her brother, who she thought might be implicated, at least, in the Kevin Mohi bombing. Her attitude was, they alleged, that anyone can take the rap as long as it was not her brother. She frankly admitted that she wanted to speak to him before she spoke to the police. She was clearly protecting her brother in relation to the curious incident involving an attempt to bomb a car of a person who she thought had raped her friend Kirsty. It was put to you that her zeal led her to lie about her conversations with the accused."
100. The learned trial judge, after putting the defence case, said of these witnesses:-
"Many of them have a criminal record. They are all very proper matters for you to take into account in considering whether you accept all, part of, or none of the evidence of each such witness. But you may also weigh in the scales, in considering such matters, that some people are more thorough at taking statements from a witness than others, that memories can fade and later be refreshed, that a witness can perhaps not always be entirely frank because, for example, he or she is concerned about his or her own criminal offending, such as dealing in drugs."
Warnings in these circumstances
101. Mr Kourakis has submitted that a warning was necessary in these circumstances. As I have set out at the beginning of my consideration of warnings generally, a general warning is necessary where there is some unreliability in the evidence which is not apparent to the ordinary juror. This is such a situation. This criminal sub-culture, as I have called the environment in which these witnesses operate, had many facets perhaps not appreciated by the ordinary juror. This may be seen by a consideration of the reasons behind the warning given for prison informers.
102. In the case of Pollitt v The Queen (1992) 174 CLR 558, McHugh J said at 614:-
"... All accounts of traditional prisons agree that beneath the veneer of law and order imposed by the rules of prison discipline lies a brutal world of fear and sudden, and often irrational, violence where conventional standards of conduct and values such as truth and respect for the rights of others have little relevance. It is not surprising, therefore, that, exposed to such an environment, some prisoners will become so indifferent to the rights and feelings of others that they will not hesitate to make false accusations of criminal conduct against other persons if acceptance of the accusations will advance their own interests. Many years of experience in hearing prisoners give evidence for and against accused persons has alerted the judiciary to the unreliability of the evidence of serving prisoners."
103. What a chilling but, with respect, entirely accurate description !
104. The same considerations apply here. The same "brutal world of fear and sudden, and often irrational, violence" may be said to apply to the criminal drug world. It may be expected that with witnesses from the drug world as with witnesses who are prisoners, "conventional standards of conduct and values such as truth and respect for the rights of others have little relevance".
105. This is further illuminated by what Deane J said in the same case at 586 : -
"The evidence of a witness about an oral confessional statement allegedly made to him by an accused while the witness and the accused were incarcerated together in a prison is liable to be unreliable for a number of reasons. One such reason is that such evidence is easily concocted. Another is that, where such evidence is concocted, an accused will ordinarily be denied the possibility of corroboration of his denial of it. Another reason is that it is likely that a "prison informer" will be of bad character. Another is the likelihood that a prison informer may be motivated to fabricate such evidence either by a perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury."
106. The features of the evidence of prison informers identified in this passage apply equally to the witnesses here. It is apparent that at least Gray had his sentence reduced in exchange for his testimony.
107. The question on the form of the warning, and a standard of sufficiency then arises. The cases shew that for such a warning there is no set form of words: what should be said depends on the circumstances.
108. Deane J at 588 addresses this question:
" It would be unwise to seek to formulate in the abstract the contents of an appropriate warning for every case where the prosecution places significant reliance upon the evidence of a prison informer. Such a warning is most likely to be understood by a jury and to be effective if it is moulded in the words of the trial judge to fit the circumstances of the particular case. The most that should be said is that there will inevitably be cases where the minimum necessary warning will be in unqualified terms which draw attention to the fact that the evidence is of its nature potentially unreliable, which stress the need for very careful scrutiny of it and which warn that it would be dangerous to base a conviction on it."
109. Three elements are necessary in the warning: drawing attention to the fact that the evidence is of its nature potentially unreliable, stressing the need for careful scrutiny of the evidence and a warning of the danger of basing a conviction on the evidence.
Sufficiency of the Warning
110. The fact that these witnesses were criminals would, I expect, have been pretty clear to the jury: after all, they had seen and heard them. The question is whether the learned Judge should have, in his summing up, apart from what he said about each, reinforcing the defence cases, whether he should have given a general warning about the reliability or lack of it of their evidence: that because of the poor types they were and because of the possible existence of an unhealthy interest in giving evidence, their evidence should be closely considered before being accepted.
111. Mr Millsteed acknowledged that "a sterner warning" could have been given. I have already set out what the learned trial judge said of each of the witnesses about whose evidence Mr Kourakis says a warning was necessary. I now set out his general warning (I have earlier set out all but the first paragraph). Towards the end of his summing up, His Honour said:-
" You must clearly and carefully scrutinise the evidence of the Crown witnesses and all that defence counsel have said in their attack on them. You may decide in consequence that you are not satisfied beyond reasonable doubt that the Crown has proved its case against these accused, and that it is at least a reasonable possibility that Atherton was the murderer. It is perfectly true, as defence counsel have said, that the accused do not have to prove anything at all. They do not have to prove that Atherton was the murderer.
It appears, ladies and gentlemen, that the police and Miss Grenfell, on behalf of the Director of Public Prosecutions, questioned many of the Crown witnesses a number of times, and that, in addition, most gave evidence and were cross-examined at a preliminary or committal hearing in the Magistrates' Court. Many of them have not been entirely consistent. Many admit at some stage to telling lies. Man of them have a criminal record. They are all very proper matters for you to take into account in considering whether you accept all, part of, or none of the evidence of each such witness. But you may also weigh in the scales, in considering such matters, that some people are more thorough at taking statements from a witness than others, that memories can fade and later be refreshed, that a witness can perhaps not always be entirely frank because, for example, he or she is concerned about his or her own criminal offending, such as dealing in drugs."
112. Was this sufficient? With respect to His Honour I don't think it was, especially in view of the last sentence which rather negates the effect of what has gone before. Furthermore, from my reading of Deane J in Pollitt v The Queen, what is necessary is a more direct warning mentioning the three points I have already set out: that the evidence is potentially unreliable, the need for careful scrutiny and the danger of basing a conviction on it..
113. Mr Millsteed says, "Read the summing up as a whole". He pointed out that the Crown did not depend on any one of these witnesses.
114. I have hesitated about this. It is easy to state the rule, difficult to apply it. Finally I have come to the conclusion that the direction, even in conjunction with the whole of the summing up, was not sufficient.
115. The point was not raised in terms with His Honour after the summing up, although Sinclair's counsel did complain, "your Honour's summing up does not address the need to scrutinise the evidence of these witnesses acting on inducements, with interests of their own to serve, and with criminal backgrounds and a litany of inconsistent statements and recent inventions." That was getting close to the point Mr Kourakis has taken on appeal. That the point was not taken in terms is not fatal to Mr Kourakis' argument but it is something which has contributed to my hesitation.
116. On this ground the appellant Dinh succeeds. The same criticism applies equally to Sinclair, and therefore she too succeeds.
THE CANS
117. I have mentioned the cans. On the defence cases Atherton asked Dinh for cans. Dinh thought they were to store drugs. He gave Atherton some. The can used in the bomb shewed signs of the electric can opener belonging to Dinh's father.
118. Atherton completely denied the story. Mr Millsteed poured ridicule on it as just a ludicrous way of explaining the marks on the can used in the bomb: why should anyone ask someone else for cans when he could get them out of his own rubbish bin? The most obvious explanation for the marks on the can fragments - this was the Crown case - was that Dinh had used a can from his father's house to make the bomb.
119. During their deliberations the Jury asked this question:- " 'Is the fact that the cans came from Lee's father's house enough to implicate Lee as one of the murderers?' "
120. After discussion with counsel His Honour gave this agreed answer :-
" What I say is this: The evidence is, on the Crown's case, an item of circumstantial evidence which you may think links the accused Dinh to the death of the deceased. It is one item of evidence to be considered in conjunction with the other items of evidence relied on by the prosecution for the purpose of determining whether the accused was responsible for the death of Ron Pettit. Standing alone, the evidence would not be sufficient to ground a conviction. Because it is an item of circumstantial evidence, you must heed the direction that I gave you earlier in my summing up as to the nature of circumstantial evidence.
... Perhaps it is sufficient if I say this: in considering circumstantial evidence, you must have regard to the possibility that it does not necessarily point to guilt. You cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the offence. In other words, before you can be satisfied that the accused are guilty, you must be satisfied not only that his or her guilt is a rational inference, but that it is the only rational inference that the circumstances you find proved enable you to draw."
121. It was by then after eight o'clock at night: the jury were sent away to a secure place until the next morning.
122. When the Court re-assembled the next day, counsel for Dinh suggested to His Honour that the question had been misinterpreted: what the jury really wanted to know was this: " 'Look, because Lee says he gave cans from his father's house to Atherton, does that implicate him in the murder?'" In other words, may this evidence shew Dinh to have been Atherton's accomplice in the murder?
123. Apart from being a strained interpretation of the question there had not, up to that time, been any suggestion of this middle course: the trial had been run on the murder being either the work of the appellants, the Crown case, or of Atherton, the defence cases.
124. Having given the answer he had the night before, His Honour refused to give any further answer the next morning. The jury did not follow up the question with another such as, "Look, you misunderstood the question. What we really wanted to know was ...".
125. Mr Kourakis argued that the second interpretation was possible and that being so there had been a miscarriage. The point is so far fetched as to fail.
DIRECTION ON REASON FOR LIES
126. The defence case was that Dinh, out of fear of Atherton, had lied to police after Pettit's death, about his knowledge of Pettit. The learned Judge said:-
" One other legal matter that I should give you a short direction relates to the question of lies. Mr Millsteed for the Crown relied in part in his case on admissions by both accused that they had lied to the police and lied to this court. For example, Angela Sinclair admitted she lied about her relationship with Ron in 1994, and about whether Dinh was present at her mother's house when the police called on 13 October, and the accused Dinh lied about that and also about whether he knew anything about the deceased at all.
... People lie for all sorts of reasons, and sometimes for no reason at all. I do not think, in all the circumstances of this case, that you should infer that they told those lies out of a consciousness of guilt. Of course, you are entitled to take those lies into account, if you consider they were lies, in considering their general reliability as witnesses. One thing is certain, you may think: Any such lies, if you find they were lies, were not told to protect Charlie Atherton."
127. Mr Kourakis complained that by saying this the learned Judge had withdrawn Dinh's explanation from the jury.
128. I don't think so: His Honour was simply telling the jury not to infer a consciousness of guilt because of that lie. What Mr Kourakis put is a misinterpretation of what the learned Judge says. Perhaps he was making a comment on the evidence which he was entitled to do.
129. The ground fails.
CAR BOMBINGS
130. This final ground concerns evidence which I have not yet had to mention. Pettit was killed in October. In July the motor car of the witness Kevin Mohi was fire bombed: in September the motor car of another witness Carol Picken was fire bombed.
131. His Honour was reluctant to admit evidence of these bombings because of tenuous relevance but the appellants were keen that it should be before the jury. The reason for their keenness was this: their case was that Charlie Atherton had made and had delivered in some way the bomb which killed Pettit. That was after the appellants had complained to Atherton about Pettit's conduct towards them: when they complained he had said words to the effect of "Leave it to me. I'll fix it."
132. The appellants gave evidence that they had also complained to Atherton about Mohi. He owed Sinclair money: as well Mohi had taken cannabis from Atherton without paying. Atherton had replied to the same effect, "Leave it to me. I'll fix it". Soon after, Mohi's motor vehicle had been fire bombed.
133. As for the bombing of Picken's car, she had been driving Pettit and had threatened to tell Pettit about the appellant's drug dealings.
134. The inference was that this was Atherton's way of "fixing it": he protected his business by using violence in the form of explosives.
135. The appellants complain now, first that the learned Judge directing the jury on the Crown case regarding the relevance of these earlier bombings, did not sufficiently put the defence case and secondly that he did not direct sufficiently against propensity reasoning: there was a risk that the jury might reason that if Dinh would bomb the cars, then he would bomb a human being as well.
136. This is what His Honour said directly about the car bombings:-
"Kelly Gray also told you of some conversation with the accused Angela Sinclair about the damage to Kevin Mohi's car. He said: 'If I remember rightly, Geoff was talking to her and asked about Kevin's car. She said something along the lines he shouldn't have fucked me round or something. I can't recall if she said who was responsible.' That of course is admissible only against her.
That evidence about reference to the bombing of Kevin's car and the earlier references that I have given you about that, prompt me to tell you, and it is convenient here for me to tell you, that the fire bombing of Mohi's car, if that's what happened, has only a limited relevance, on the Crown case. If you think it has been proved that the accused, or one of them, were involved, you certainly must not reason that they are more likely to have been the murderers. Such evidence, such a finding, is only relevant to show that Dinh was willing to advance Sinclair's cause and is relevant for that very limited purpose only. ... It will be for you to consider the Crown's submission that the prosecution has made out a strong case that the two accused set fire to Karen's car or, at the very least, were involved in it. If you accept that submission, you must not jump from that conclusion to a conclusion that they are more likely to have murdered Pettit. You may be prepared to find that it is further evidence of the hostility of both the accused to the deceased, bearing in mind that Karen Picken was associating with him, driving him around, and so on.
In addition, if you are satisfied that both accused have lied to you about that incident, you may conclude that their credibility as witnesses has been shaken."
137. Certainly His Honour did not directly put the defence case that Atherton was responsible for all three bombings but I cannot think the jury could possibly fail to grasp that from the addresses of counsel and what I may call the general drift of the summing up.
138. As for a warning against propensity reasoning it is difficult to see what more His Honour could have said than he did in the two passages I have set out.
139. This final ground also fails.
140. All grounds of appeal fail but one. That one, I greatly regret to have to say, is so substantial that the appeal must succeed. The ground is relevant to the conviction of both appellants. Therefore both appeals must succeed and the appellants should have a new trial.
Debelle J
141. I agree with the reasons of Cox J and would therefore dismiss the appeals.
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