R v Baartman

[2000] NSWCCA 298

CITATION:	Regina v J L Baartman [2000] NSWCCA 298 revised - 5/10/2000
FILE NUMBER(S):	CCA 60664/98
HEARING DATE(S):	08/08/00
JUDGMENT DATE:	13 September 2000
PARTIES :	Regina Jon Leslie Baartman
JUDGMENT OF:	Spigelman CJ at 1; Kirby J at 2; Smart AJ at 77

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70368/93
LOWER COURT JUDICIAL OFFICER :	Dunford J

COUNSEL :	T L Buddin SC (Crown) A P Cook (App)
SOLICITORS:	S E O'Connor (Crown) Sydney Regional Aboriginal Corp Legal Service (App)
CATCHWORDS:	CRIMINAL PRACTICE & PROCEDURE - Appeal against conviction - Circumstantial evidence direction - whether warning required where evidence outside categories s165(1)(a) to (g)
LEGISLATION CITED:	Evidence Act, 1995 - s165(1), s165(6)
CASES CITED:	Peacock v The King (1911) 13 CLR 619 R v Velevski [1999] NSWCCA 96 Shepherd v The Queen (1990) 170 CLR 573 R v McIntyre [2000] NSWCCA 6 R v Gary Perks (1986) 20 A Crim R 201 R v Lewis (CCA, unreported, 8 September 1998) Bromley v The Queen (1986) 161 CLR 315 Longman v The Queen (1989) 168 CLR 79 Farrell v The Queen (1998) 194 CLR 286
DECISION:	Ref para 76

IN THE COURT OF

CRIMINAL APPEAL

60664/98


SPIGELMAN CJ
KIRBY J
SMART AJ

Wednesday 13 September 2000

REGINA v Jon Leslie BAARTMAN

JUDGMENT

1   SPIGELMAN CJ: I agree with Kirby J.

2   KIRBY J: Jon Leslie Baartman (the appellant) was charged with the murder of Leszic Henryck Betcher at Lugarno on 23 February 1993. Others were charged with the same murder. An order was made for separate trials. The trial of Mr Baartman took place before Dunford J and a jury, it being a retrial. The appellant was convicted on 2 November 1998. He appeals against that conviction.

Background

3   On 23 February 1993, Mrs Betcher was at home at Lugarno with her husband (the deceased). She heard footsteps on the driveway. Her husband went to the door, which was open. There was a wire screen door which was locked. Mrs Betcher heard a male voice say loudly: “I want to speak to Tony.” The deceased responded by saying that no-one by that name lived at that address. Mrs Betcher then heard a gunshot. She went to the aid of her husband. He had collapsed, and died shortly after.

4   Neighbours of Mr and Mrs Betcher heard the shot. They witnessed a vehicle leaving the suburban street at high speed. Some had observed the vehicle parked in the street beforehand. The accounts given by witnesses varied as to the number of occupants. None could provide more than a general description of their features and clothing.

5   However, the vehicle itself was described. It was white, perhaps ten years old, and of Japanese make. It had a registration number with a prefix “KPT”. It also had a roof rack.

The Murder Weapon

6   Approximately one month after these events (on 24 March 1993), Mr Baartman went to a flat in Kings Cross. The flat was occupied by a woman, given the name “Miss Brown”. Miss Brown had a young child. Mr Baartman showed Miss Brown a hand gun soon after his arrival. She screamed, and told him to place the gun in a linen cupboard. Soon thereafter Mr Baartman stumbled and collapsed. He lost consciousness. He began to turn blue. Miss Brown attempted to revive him, but was unable to do so. She therefore called an ambulance.

7   Several ambulance officers answered the call. Mr Baartman was lying on the floor. A child’s cot was moved to gain access to him. In moving the cot, a black pistol was uncovered near Mr Baartman.

8   The pistol was given to another ambulance officer, and secured in an ambulance. The police were called. Mr Baartman gradually regained consciousness. He was seen to pick up a black calculator, and then throw it down. He then went to his jacket, which he also picked up. His actions were described by the ambulance officer in these words:

“… (he) was feeling the pockets, and searching, just feeling the jacket and put it down.”

9   After the ambulance officer left the room, Miss Brown said she had a conversation with Mr Baartman. He was sitting up, and leaning against the wall. She said this: (T.144)

“A. … it was hard for him to get much sense out of… I tried to tell him that the police were coming, that they’d found the gun that he supposedly left in the linen cupboard and the police were coming, and he said it was a murder weapon.”

10   The police arrived. They took possession of the pistol. It was later examined by ballistics experts. The imprint made by the pistol matched that of the bullet recovered from the body of the deceased. Ballistics evidence was given (which was not challenged) that the pistol was the murder weapon.

11   Miss Brown was interviewed immediately after the discovery of the pistol. She said that she had not seen it before. However, some months later she changed her account. She recounted the conversation with Mr Baartman set out above. She did so after she had been interviewed by police in connection with another matter, described as a “rip off” involving $6,000. Miss Brown acknowledged that she had told the police a number of lies, both in connection with the “rip off”, and other matters. She said that she would do anything to protect her child, and not to lose custody of that child.

12   Once the pistol had been identified as the murder weapon, Mr Baartman was arrested. He was charged with having concealed a serious offence. Some publicity was apparently given to his arrest.

The Evidence of Mr Bicanic

13   It was in this context that Mr Bicanic came forward. He had seen the publicity. He acknowledged a fear that he may also be charged with having concealed a serious offence. At first, he attempted to furnish the police with information anonymously. A solicitor wrote a letter on his behalf. He later agreed to provide the police with a statement. Indeed, he agreed to allow the police to enter the flat in which he was then living, to install a listening device.

14   Mr Bicanic said that on 19 or 20 February 1993 (that is, a few days before the murder) he moved into a flat at Waterloo. The flat was occupied by a number of men. One was Paul Crofts, and another was Mr Baartman, the appellant. He had not met Mr Baartman before.

15   At about 1.00 am, a person, Chris Sharpe, came to the door. He went with Paul Crofts to a bedroom. They spoke for about ten minutes, after which Mr Sharpe left.

16   Mr Paul Crofts then spoke to Mr Baartman, in the presence of Mr Bicanic. The conversation was in these terms: (T.35)

“Paul Crofts was saying that Chris Sharpe is going to get them another gun or fix the gun because it didn’t work. Jon Baartman was in a sort of a boasting sort of way saying that, ‘I’m glad I tried the gun’ or ‘tested it’ and that he had found out it didn’t work.”

17   The gun was described as a “Barretta”, or “a little black gun”.

18   The following evening Mr Bicanic saw Mr Baartman again. This was Tuesday 23 February 1993, the day of the murder. He said Mr Baartman came to the unit at about 7.30 p.m. He witnessed a further conversation which was as follows: (T.76)

“Paul Crofts said that they were going to try again tonight, being the Tuesday, that the gun should work this time, and he was saying that Wayne Crofts - Paul Crofts’ brother - yes, brother, - was going to drive them there and that Jon Baartman was going to keep cocky, or keep a look out.”

19   Paul Crofts was going to fire the bullet. He had the Barretta, the black gun. Mr Baartman, according to Mr Bicanic, had another gun. It was described as being a “silvery metal colour”.

20   Paul Crofts outlined the plan. Chris Sharpe (known as “Big Boy”) wanted a man, Tony, shot. Tony lived at Lugarno. Mr Bicanic said this: (T.77)

“Paul Crofts said that they will be paid $1,000 to do this job, to shoot a man in the leg, that it was going to be split up between himself, Wayne Crofts, being the driver, and Jon Baartman for being the look-out.”

21   Tony had been “playing up” with the wife of a friend of Chris Sharpe.

22   Mr Bicanic said that he saw Paul Crofts return to the unit at about 11.30 pm. Mr Baartman came to the flat over the next few weeks. He heard Paul Crofts say to him that if he were ever caught with the Barretta, he should tell the police he got it from someone in Kings Cross.

23   Mr Bicanic described Wayne Crofts’ vehicle. It was a white station wagon, an older model, with roof racks. The police located a vehicle with a registration plate KPT.549. It was a white 1979 Corolla station wagon. It had once had roof racks. It had since been sold to an auto wrecker.

The Case for the Appellant

24   The appellant made an unsworn statement. He denied any wrongdoing. He denied knowing Mr Bicanic. He never went to the unit at Waterloo. He did not know Paul Crofts, his brother Wayne Crofts, or others said to have been involved in the shooting.

25   Mr Baartman sought to answer evidence called by the Crown, designed to prove an association with Paul Crofts. A hotel manager had been called by the Crown, who remembered Mr Baartman drinking almost every day with a person who, from photographs, was identified as Paul Crofts. Mr Baartman said that he did drink at that hotel with a person he knew as “Kel”. He had since learned that that person was Paul Crofts. He had no association with Kel outside the hotel.

26   Mr Baartman’s statement dealt briefly with the evidence of Miss Brown. It was Miss Brown who had told him that the gun was a murder weapon, not the other way around. He knew nothing of the gun. When he felt his jacket, he was looking for cigarettes.

The Notice of Appeal

27   The Notice of Appeal raised four issues, namely:

“(i) His Honour erred when directing the jury on circumstantial evidence.
(ii) His Honour’s directions on the second element of murder, (that the accused must have an intent to cause grievous bodily harm to the deceased), were flawed.
(iii) His Honour failed to warn the jury that Bicanic’s evidence may be unreliable and there was a need for caution in determining whether to accept his evidence and the weight to be given to his evidence.
(iv) His Honour failed to remind the jury of a warning earlier given (summing up p9) when dealing with the evidence of ‘Miss Brown’. pp52-56.”

28   I will deal with each ground in turn.

The Circumstantial Evidence Direction

29   His Honour began his directions concerning circumstantial evidence with the standard direction based upon Peacock v The King (1911) 13 CLR 619. He said this:

“Before you can convict on circumstantial evidence, however, you must be satisfied beyond reasonable doubt that the facts as found by you are not consistent with any other rational conclusion than that the accused is guilty.”

30   His Honour then reminded the jury that it was the cumulative weight of circumstances, not the quality of proof of each circumstance, which must guide them. He said this:

“But that does not mean you should consider each circumstance by itself and consider whether that circumstances is consistent with innocence and then move on to the next circumstance.”

31   There followed, in his Honour’s directions, the passage about which complaint is made. His Honour said:

“It is the combination and totality of the circumstances that you find proved that you must look at, and you must consider whether that combination and totality of circumstances is consistent with innocence. If it is, then it is your duty to acquit…”

32   The directions, on this aspect, concluded with a restatement of the Peacock direction, in these terms:

“… but if, having regard to the nature, totality and combination of circumstances, you are satisfied beyond reasonable (doubt) that the circumstances are consistent only with guilt, then it is your duty to convict.”

33   A number of complaints are made by the appellant concerning these directions.

· First, it is said that the direction reversed the onus of proof. It suggested, inappropriately, that the applicant had the burden of establishing his innocence.

· Secondly, the directions made the contrast between innocence and guilt. The true contrast was between guilt proved beyond reasonable doubt, and a failure to prove guilt to that standard.

· Thirdly, the jury’s mind was, misleadingly, directed to the totality of proven facts. The test, however, did not require proven facts. It simply required an hypothesis consistent with innocence, or inconsistent with guilt. The test, therefore, was much less demanding.

34   A complaint along similar lines was made against the summing up by the same Judge (Dunford J) in R v Velevski [1999] NSWCCA 96. The summing up on circumstantial evidence was in the same terms (see para 13). Grove J (with whom James and Kirby JJ agreed), said this: (para 14)

“It was argued that the expression ‘consistent with innocence’ appearing twice in the above passage was, on first appearance suggestive and on second appearance effective, of reversing the onus of proof. I am unpersuaded that such a conclusion is fairly open. In context, his Honour was elaborating the meaning and application of his instructions concerning the appellant’s entitlement to be acquitted unless the jury were satisfied beyond reasonable doubt that the facts were inconsistent with any other rational conclusion other than that the accused was guilty.”

35   His Honour made it very clear to the jury that Mr Baartman was not required to establish his innocence. His directions on onus included the following:

“It is not for the accused to prove his innocence. He is presumed to be innocent unless and until the Crown has proved him guilty. The responsibility or onus, as it is called, of proving the case is on the Crown and it remains on the Crown from the beginning to the end of the trial.”

36   Shortly before the direction about which complaint is made, his Honour said this:

“There is one further matter relevant to the question of inferences. You have already heard it said that an accused is not obliged to prove his innocence and not obliged to say anything.”

37   Moving to the second complaint, it is not uncommon, in the context of circumstantial evidence, for the direction to be given either in terms of eliminating an hypothesis consistent with innocence, or the evidence only being consistent with guilt. In Peacock v The King (supra), Griffith CJ said this: (at 634)

“The rule is sometimes stated that the circumstances must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.”

38   In Shepherd v The Queen (1990) 170 CLR 573, McHugh J expressed the rule in these terms: (at 592/3)

“Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances - often numerous - which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.”

39   Whilst I believe that it is preferable to formulate the direction by reference to guilt rather than innocence, no error has been established.

40   Turning, then, to the third complaint, the jury was asked to look at the totality of circumstances “that you find proved”, and then enquire whether that was consistent with innocence. That was, on the appellant’s argument, a more demanding test than was appropriate. The appropriate test required simply an hypothesis consistent with innocence. In formulating such an hypothesis, proven facts were not required. Possible facts were enough. The appellant drew attention to R v McIntyre [2000] NSWCCA 6, where Hulme J (with whom Sully and Hidden JJ agreed) said this: (at para 30/31)

“30. It is, of course, both proper and common for a judge in the course of a summing up to tell a jury that they must not speculate or guess, operations of the mind quite different from the drawing of inferences. However, as his Honour pointed out to the jury, this was a circumstantial evidence case. The appellant was entitled to be acquitted if the Crown could not exclude all reasonable hypotheses consistent with innocence.
31. Such hypotheses must, as I have said, be reasonable. But a jury does not have to be able to infer that an event, the subject of such an hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event. …”

41   His Honour was concerned, appropriately, to ensure that the jury did not consider each circumstance in isolation. The use by his Honour of the words “consistent with innocence” is a reference not to proven facts, but to the possibility of innocence; that is an hypothesis consistent with innocence. There is no substance, therefore, in the complaints made by the appellant.

42   There was a further aspect to the first ground of appeal. Having given the directions set out above, his Honour then identified an essential circumstance (Shepherd v The Queen (supra)). He said this:

“Having regard to the Crown case and the way the trial has been conducted, one of the matters or circumstances of which you would have to be satisfied in this case is that the accused was at or near the scene of the shooting (on) the evidence (on) 23 February 1993, not necessarily at the front door or the front gate or on the footpath outside the premises, but either nearby, keeping lookout or waiting in the getaway car or otherwise in the area with a common intention to support or assist the person who did the shooting.”

43   The appellant complains that his presence at the scene was a crucial intermediate fact. His Honour was, therefore, obliged to instruct the jury that it needed to be satisfied as to that fact beyond reasonable doubt.

44   However, such an instruction was given. Indeed it was given immediately after the passage set out above. His Honour gave the jury the following direction:

“I will explain this in more detail when I come to deal with common purpose but before you could be satisfied that he was involved in the shooting, one of the circumstances of which you would have to be satisfied would be that he was in Lugarno that evening. This is a circumstance of which, although it may itself be proved by the combination and totality of other circumstances, you would have to be satisfied beyond reasonable doubt before you could be satisfied in accordance with the principles I have given you about circumstantial evidence that the accused was involved in the shooting.”

45   I would reject, therefore, the first ground of appeal.

Ground 2: The Direction on Intent

46   The second ground of appeal was in these terms:

“(ii) His Honour’s directions on the second element of murder, (that the accused must have an intent to cause grievous bodily harm to the deceased), were flawed.”

47   The Crown case was one of common purpose. The plan was to shoot “Tony” in the leg. Tony lived at a particular address in Lugarno. The plan, however, went badly wrong. Paul Crofts (and those with him) went to the wrong address. He shot the wrong man, and he shot him in the abdomen, not the leg. The appellant was said to be the “look out” for the group.

48   That being the context, the appellant made a number of complaints in respect of his Honour’s direction as to intent.

· First, that it failed to put clearly whether intentionally firing a bullet at the victim’s leg amounted to intentionally inflicting grievous bodily harm.

· Secondly, that his Honour, irrelevantly, and misleadingly, made reference to intention to kill. That was never the Crown case. The Crown case was a common purpose to shoot the victim in the leg.

· Thirdly, his Honour said to the jury that where a specific result was the obvious and inevitable consequence of the act, it may readily infer that the person intended that result. Such a direction, in circumstances where the victim had died, was unfortunate. It diverted the jurors from the real issues which were:

· whether Mr Baartman was part of the common purpose to shoot the victim in the leg,

· whether that amounted to intent to cause grievous bodily harm, and

· whether the common purpose embraced the possibility of grievous bodily harm through incompetence or misadventure.

· Fourthly, that his Honour, at a vital point of his directions, misstated the meaning of grievous bodily harm. He referred to an intention to cause “serious injury”, rather than an intention to cause “really serious injury” (R v Gary Perks (1986) 20 A Crim R 201 at 210). That, it was suggested, was an important error where the common purpose alleged by the Crown was shooting in the leg (from which a victim may well recover).

49   In support of these submissions, the appellant pointed to particular directions given by his Honour. It is important, however, to examine the whole of what his Honour said on this aspect. He said this:

“Secondly, the act must be done with intention to kill or inflict grievous bodily harm. Grievous bodily harm means really serious bodily injury. Was the act of shooting done with an intention to carry out or inflict grievous bodily harm, really serious bodily injury, upon some other persons, that is the question. There can be no doubt that such an injury was in fact inflicted in this case.
The issue here is not whether, in fact, such an injury was inflicted but whether such an injury was intended. The Crown does not press that it was done with an intention to kill. It is not necessary for the Crown to prove that. It is sufficient that the Crown proves that the shooting was done with an intention to cause really serious physical injury. Was that the specific result which the person who fired the gun sought to achieved (sic) by the act which in fact caused the death? … The Crown says that here the specific act is firing the gun.
There is evidence that the intention was to shoot someone in the leg. The Crown says that no one would have done that to another person without intending to at last cause really serious bodily injury to that other person. If you accept the Crown case, the evidence is that there was an intention to shoot someone in the leg, not in the abdomen. It is a question of fact for you but you may well consider that to shoot someone in the leg at close range with a .32 calibre pistol would cause really serious physical injury, and a person would only shoot another person in the leg in those circumstances if he intended to cause the other person really serious physical injury to his leg. If that was the intention, that is sufficient to satisfy the element of murder, the intention to cause grievous bodily harm. I direct you as a matter of law that it does not matter that the wrong person was shot. If there was an intention to cause serious physical injury to one person and another person gets killed, that is sufficient intent to constitute murder." (S/U 18-19)

50   Dealing with the appellant’s arguments one by one, first, I believe the direction was clear. The jury was provided with the definition of grievous bodily harm. It was told it was a question of fact, and a matter for them. His Honour made a comment. However, he was entitled to do so.

51   Moving to the second complaint, I cannot accept that the reference to an intention to kill was misleading. The jury was reminded of the way in which the Crown put its case. It was told that it did not include an intention to kill.

52   Thirdly, his Honour gave the conventional direction on intention, which was entirely appropriate. The jury would have been in no doubt that it was required to determine whether shooting someone in the leg could be characterised as an intention to inflict grievous bodily harm. His Honour later dealt with the issues which arise where it is suggested there was a common purpose. He provided appropriate guidance as to whether consequences outside the defined purpose were contemplated as possible consequences of carrying out the common intention (S/U 20-24).

53   Fourthly, whilst his Honour occasionally used the words “serious bodily injury” when referring to grievous bodily harm, omitting the word “really”, the jury cannot have been in doubt. His Honour defined the term “grievous bodily harm”. He repeatedly used the phrase “really serious bodily injury”. Counsel who appeared at the trial made no objection to his Honour’s direction.

54   I would reject the second ground of appeal.

Ground 3: Was there a Failure to Give a Warning?

55   Ground three was in these terms:

”(iii) His Honour failed to warn the jury that Bicanic’s evidence may be unreliable and there was a need for caution in determining whether to accept his evidence and the weight to be given to his evidence.”

56   Mr Bicanic’s evidence was fundamental to the Crown case. He was the only witness who gave evidence of common purpose, and Mr Baartman’s participation in that purpose. Indeed, his Honour told the jury this: (S/U p47)

“If you do not accept the substance of Mr Bicanic’s evidence as truthful, there would be very little evidence against the accused, except for the finding of the murder weapon a month later, allegedly in his presence.”

57   There are a number of issues:

· First, was there a request for a warning in respect of the evidence of Mr Bicanic? (cf s165(2))

· Secondly, was there a need to give a warning?

· Thirdly, was there error, having regard to the directions given concerning Mr Bicanic?

58   Counsel for the appellant addressed the jury on the assumption that his Honour would provide a warning that Mr Bicanic’s evidence may be unreliable. Before counsel had concluded his address, and in the absence of the jury, the need for such a warning was debated. A full transcript of the debate was not taken. The Crown contended that the only request made was for a warning under s165(1)(d) of the Evidence Act, 1995. That section is in these terms:

“s165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence.
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding.”

59   His Honour determined that Mr Bicanic was not such a person. That determination was plainly right. Mr Bicanic was a bystander. He had overheard conversations. There was no evidence that he shared in the common purpose.

60   The appellant contended, however, that the request for a warning was more general. It was not confined to s165(1)(d). Since the transcript of the argument is incomplete, I am prepared to assume that a more general request was made.

61   Section 165(1) is not an “exclusive code” (Beazley JA (with whom Wood CJ at CL and Sperling J agreed) in R v Lewis (CCA, unreported, 8 September 1998) at p17. The opening words of s165(1) make it clear that the circumstances in which evidence may be unreliable extend beyond the classes of evidence identified by subsections (a) to (g). The terms of his Honour’s judgement make it plain that he recognised that this was so. He nonetheless declined to give a warning. Was he in error?

62   In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence (see ALRC 26, Vol 1, para 1017). In Bromley v The Queen (1986) 161 CLR 315, Brennan J said the following: (at 325)

“When the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence … are such that the jury may not have fully perceived or the jury’s attention may have been diverted from the danger, a warning should be given.”

63   Brennan J added: (at 323)

“If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given.”

64   In Longman v The Queen (1989) 168 CLR 79, Deane J made a similar observation: (at 95-96)

“[The] responsibility [of a trial judge] includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury.”

65   See also Farrell v The Queen (1998) 194 CLR 286.

66   Here, two matters were said to have made Mr Bicanic’s evidence unreliable, such that there was a need for a specific warning under s165. First, Mr Bicanic acknowledged a fear that he may be charged with having concealed a serious offence. He provided information in the context of that fear. Secondly, there was delay in Mr Bicanic coming forward. The conversations which he recounted took place before 23 February 1993. He came forward in June 1993.

67   However, I believe both matters would have been obvious to a jury. His Honour, as you would expect, provided general guidance to the jury as to the way in which it should assess the evidence given by witnesses. His directions included the following:

“Another matter you may consider is whether some particular interest or purpose of the witness will be served or promoted by giving particular evidence or saying particular things, or whether the witness is a relation, friend or associate of a person whose particular interest or purpose will be served or promoted by particular evidence.”

68   His Honour dealt with the evidence of Mr Bicanic at some length (S/U p34-47). His analysis included the points made in cross examination. He dealt with Mr Bicanic’s fear of prosecution, his attempt to provide the information anonymously, and the circumstances in which he implicated Mr Baartman. His Honour returned to these issues when summarising the submissions of the appellant’s counsel. He said this:

“So therefore, to protect himself so that he will not be charged with concealing a serious offence, he puts the defendant together with Paul Crofts and that story will fit in with the finding of the gun at Kings Cross. Otherwise, the finding of a gun at Kings Cross will come back to him in some way.”

69   In circumstances where evidence does not fall within s165(1)(a) to (g), and does not fall within any Common Law requirement for a warning (cf s165(6)), a trial Judge may be called upon to determine whether, in a particular case, a warning is required. Questions of judgement arise. On such questions reasonable minds may differ. An appellate court should only intervene where a warning was plainly necessary. It will be necessary where the danger of acting upon the evidence is real and substantial, and unlikely to have been fully perceived by the jury in the absence of a warning.

70   Here the circumstances in respect of Mr Bicanic were quite different from those in respect of Miss Brown. His Honour gave a warning in respect of Miss Brown. Miss Brown had been arrested in connection with the “rip off”. She sought, and obtained, advantage through the provision of information. Her evidence could not be characterised as coming within one of the subparagraphs of s.165. Yet, her position was analogous to that of a prison informer. She traded information for advantage to herself. His Honour determined, in those circumstances, that a warning was appropriate.

71   However, Mr Bicanic came forward at a time when there was nothing to implicate him in the murder. The publicity surrounding discovery of the gun did not suggest a connection with the occupants of the unit in which Mr Bicanic resided. His position was in no way analogous to that of Miss Brown.

72   It could not be said, in these circumstances, that a warning in respect of Mr Bicanic was plainly necessary. The issue, I believe, was exposed in the addresses by counsel, and by the terms of the summing up. In my view there no was error. I would reject the third ground of appeal.

Ground 4: Failure to Refer Again to the Warning

73   Ground four was in these terms:

“(iv) His Honour failed to remind the jury of a warning earlier given (summing up p9) when dealing with the evidence of ‘Miss Brown’. pp52-56.”

74   His Honour began his summing up by providing directions of law (pp 1-24). He then identified a number of issues, and the evidence relevant to such issues. One such issue was the circumstances in which the gun was found in Miss Brown’s flat (p 52 ff). No complaint is made by the appellant concerning the warning administered in connection with Miss Brown’s evidence. Nor is there complaint concerning the outline provided by his Honour in respect of the evidence of Miss Brown, and others, relating to the finding of the gun. The only complaint is that his Honour failed to relate one to the other, and remind the jury of his earlier warning.

75   There is, in my view, no substance in this complaint. It was a relatively short summing up. Counsel for the appellant did not ask that the jury be reminded of the earlier warning. Although it would have been appropriate, and helpful, to have reminded the jury of the earlier warning, there is no error in having failed to have done so. I would therefore reject this ground.

Order

76   The order that I would therefore propose is that the appeal be dismissed.

77   SMART AJ: I agree with Kirby J.

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