R v Baker
Case
•
[1999] NSWCCA 277
•9 September 1999
No judgment structure available for this case.
CITATION: REGINA v BAKER [1999] NSWCCA 277 FILE NUMBER(S): CCA 60467/98 HEARING DATE(S): 23 June 1999 JUDGMENT DATE:
9 September 1999PARTIES :
REGINAv
KELLIE ANNE BAKERJUDGMENT OF: Spigelman CJ at 1; Studdert J at 2; Adams J at 3
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 96/21/1243 LOWER COURT JUDICIAL OFFICER: Delaney DCJ
COUNSEL: Mr P Berman (Crown)
Appellant in personSOLICITORS: C K Smith (Crown)
Appellant unrepresentedCATCHWORDS: Appeal; unresponsive answers alleging bad character; cross-examination by prosecutor as to motives of other witnesses; lying; relevance of issues at trial; no miscarriage ACTS CITED: Crimes Act 1900
Criminal Appeal Rules 1952
Jury Act 1977
Sentencing ActCASES CITED: Wentworth v Rogers (No 10) (1987) 8 NSWLR 399
R v Leak [1969] SASR 172
R v Praturlon (unreported, NSWCCA 29 November 1985)
R v Rich (1988) 102 ACrimR 165
Palmer (1988) 193 CLR1; 96 ACrimR 213
R v Gilbert (unreported, NSWCCA 10 December 1998)
R v Dennis (unreported NSWCCA 23, 25 February 1999)
R v Uhrig (unreported NSWCCA 24 October 1996)
Regina v F (1995) 83 ACrimR 502
Regina v E (1996) 39 NSWLR 450
Palmer (193 CLR 1; 96 ACrimR 213)
Piazza (1997) 94 ACrimR 459
Domican (1992) 173 CLR 555; 60 ACrimR 169
R v Hampton (1998) 44 NSWLR 729DECISION: Appeal against conviction dismissed; Application for leave to appeal against sentence refused
IN THE COURT OF
CRIMINAL APPEAL
60467/98
SPIGELMAN CJ
STUDDERT J
ADAMS J
THURSDAY 9 SEPTEMBER 19991 SPIGELMAN CJ: I agree with Adams J. 2 STUDDERT J: I agree with Adams J. 3 ADAMS J: On 6 August 1998 the appellant was convicted of an offence under s 98 of the Crimes Act 1900, namely armed robbery with wounding of one Colin McIntosh on 6 August 1996 at Blacktown. She was jointly charged with one Mark Wayne Warman but he was acquitted. The Notice of Appeal was filed by facsimile transmission to the Registry on 19 August 1998 and contained a number of enumerated grounds concerning both her conviction and sentence. On 30 April 1999, a further document was transmitted to the Registry by the appellant described as “Arguments for continuation of Appeal”. When the appeal came on for hearing, the appellant was unrepresented but read out to the Court a carefully constructed argument which was directed in the main to additional grounds of appeal. The Crown prosecutor took no point as to this expansion of the appeal and I consider that, in the circumstances, though leave to amend the Notice of Appeal was not sought, such leave should be granted. These oral submissions require consideration of the course of the trial and some of the evidence and it is therefore convenient to deal with them first. In respect of the other two documents, where clarity requires, I have specified the identifying number of the ground. However, some of the grounds are substantially the same, though somewhat differently expressed. In those cases I have set out what I understand to be the substance of the complaint. 4 The evidence of Mr McIntosh was that he attended at a methadone clinic in Granville at about 8am on the morning of 6 August 1996 and was given a dose of methadone together with two small bottles of methadone to take away, that he then went to Blacktown to his parents’ house, leaving there about midday to go to the Blacktown city centre, where he was attacked and robbed. He had arrived at the Blacktown Mall at about 12.15 and was sitting near the railway station when he heard a woman say, “There’s Colin McIntosh, he won’t fuck me because I’m covered in tattoos”. He recognised the voice as that of the appellant, whom he had known for about ten years, meeting her from time to time, often at the Blacktown methadone clinic. He said that because he met her there he changed to Granville. He said that he did not reply and that Mark (Warman), the co-accused, walked around from a brick wall in front of him together with a man described as “a red-headed Aboriginal guy”. Mr McIntosh said that Mr Warman demanded that McIntosh should give the appellant some money “every cheque day” and, when Mr McIntosh refused, demanded to see what was in the bag that he was holding. Mr McIntosh alleges that Mr Warman saw the outline of bottles in the bag and asked whether they were methadone and then that the appellant produced a knife and stabbed him in the buttock whilst he was arguing with Mr Warman. Mr McIntosh’s account as to when the knife was produced is somewhat confused. When he was stabbed, Mr McIntosh looked at the appellant and saw the knife in her hand. She was pushing her chest against the left side of her body, in an agitated state, saying, “You’re a dog, you’re a dog”. Mr McIntosh said he let Mr Warman take the bottles out of the bag and walked off, the appellant and Mr Warman following him. He went into a nearby bread shop to get help, followed by the appellant and Mr Warman but, in effect, was asked to leave. (There was later evidence that the proprietors, who were not called, refused to give a statement to police.) There was some uncertainty developed in cross-examination about whether this occurred before or after he was stabbed. 5 Mr McIntosh then went into a nearby medical centre where he was recognized by the receptionist as one of the centre’s patients. Before he entered, he was seen by the receptionist at the entrance in the company of two men. They all walked away and, about 15 minutes later two of them returned to the Centre and walked past her, down a corridor towards some toilets, although Mr McIntosh did not enter; they returned and then left the Centre. A short time later Mr McIntosh came back in, spoke to the receptionist and, as he turned to walk away she saw blood on his trousers near the left buttock and said he was stabbed. He was then taken to a treatment room and, later, to hospital. The receptionist thought all this took about 45 minutes, although she was not taking notice and this was a rough estimate. According to Mr McIntosh, Mr Warman had followed him and there was a further brief conversation after which they went to the toilets, which he did not enter because he was afraid, during which Mr McIntosh accused Mr Warman in a loud voice of stabbing him. The Aboriginal man was waiting at the door whilst the appellant was out of his sight. Mr McIntosh had made a telephone call from the medical centre to his mother, who came and picked him up and conveyed him to Blacktown Hospital where his cut was treated. 6 It is difficult on the face of it to reconcile the account given by Mr McIntosh with that of the receptionist. The receptionist was not asked and was apparently unable to identify the men who she saw on that occasion. She said nothing about seeing any woman. On the other hand, her opportunity for observation was limited and it seems that she only glanced at the men in the course of a casual observation. It was obvious from Mr McIntosh’s evidence in chief that he bore some animus towards the appellant and that this attitude predated the alleged attack by a considerable period. 7 Mr McIntosh was cross-examined by counsel for Mr Warman about his relationship with the appellant. She elicited that Mr McIntosh did not like the appellant, that they had been on bad terms for almost the whole of the time he had known her and that he had fist fights with her boyfriends in which she had participated. Counsel suggested to Mr McIntosh that he had previously seen the co-accused together on a number of occasions. Mr McIntosh denied this, adding that he had specifically avoided Blacktown methadone clinic “because Kellie [the appellant] goes there and that’s where Kellie pulls her weapons on me, wheel braces and wheel locks and all of that . . .” The trial judge told him simply to answer the question that he was asked and he added, “Okay, well I left Blacktown and I go to Granville and pay for my methadone to avoid people that want to stab me and do that sort of crap so, no I don’t - I don’t know that they were together except for that one time I seen them”. He had earlier said, when asked whether he had actually had fist fights with her, that he had fist fights with her boyfriend, that “she’s tried to skitch [sic] onto me and I have done nothing about it until knives where brought into it”. In the context it appears that this was a reference to the robbery in question. However, later in this cross-examination, when counsel had asked him about the conversation with Mr Warman before the stabbing, when he was asked whether he did not feel threatened at that time, Mr McIntosh answered, “Yes, I was. Three people around and you know one uses weapons pretty easily, yeah, you’re pretty well on guard.” This was obviously a reference to the earlier use of weapons, implicitly by the appellant. Although there is a distinction between asking whether a person felt something on the one hand and why he or she had that feeling is another, the two are frequently conflated by lay witnesses and, in the context of this particular question, I consider that the answer, though not responsive in point of strict logic, was reasonably within the ambit of the substance of the question. 8 Mr McIntosh’s final version was that following the initial attack, as I have mentioned, he had gone into a nearby shop to seek refuge but to no avail. He said that his three assailants were attempting to mollify him and he left the shop with them. He was asked -JUDGMENT
REGINA v KELLIE ANNE BAKER9 Having regard to his previous evidence as to his relationship with the appellant I do not regard this answer as significantly enlarging its ambit. Counsel then questioned Mr McIntosh about when he made his complaint concerning the incident to the police. He said that he had seen the police in the hospital when he was being treated for the stabbing but that although he told them what happened, he did not make a statement at that time. He was asked -
“Q Are you saying that at that stage you didn’t feel threatened? A Oh yeah, I felt threatened. Every time I see Kellie and someone I feel threatened.”
10 This cross-examination suggested that Mr McIntosh did not name the appellant because she had in fact not been one of the assailants and that he did not decide to implicate her until the occasion of his statement to the police. I consider that this opened up the reason for his not naming her on the occasion at the hospital which was, as he said before he was interrupted by the objection, that the police were aware of whom he was intending to identify from his indication that he had been attacked by a female. Although the delayed identification had been opened up by counsel for Mr Warman, the appellant’s counsel also cross-examined on that topic, putting to Mr McIntosh that he did not see the appellant on the day in question at all, that he named her in order to end what he perceived to be harassment from her over the years and that “having thought about it for two days, you then went and made a statement to the police and that you just made this all up?” There is no doubt that the explanation could have been elicited in re-examination (Wentworth v Rogers (No 10) (1987) 8 NSWLR 399 per Glass JA at 409) and I do not see why the answer could not be given immediately, let alone how its being given would have caused the trial to miscarry. I am of the view that this line of questioning, clearly implicit when the matter was first broached by counsel for Mr Warman, invited an explanation by Mr McIntosh, if he could conscientiously give one, as to why he had not named the appellant when he first spoke to the police. In essence, his explanation was that the police to whom he spoke identified her from what they already knew and his statement that he had been attacked by a female. It may be that, strictly speaking, this explanation should have awaited re-examination by the Crown prosecutor but I consider that Mr McIntosh’s giving it at that stage did not cause or contribute to any miscarriage of the trial. 11 Counsel for the appellant asked Mr McIntosh how he would describe the knife that she stabbed him with -
“Q “Did you report at that time the name of the person you alleged was involved in this?
A As soon as I said female, they knew who.
OBJECTION BY APPELLANT’S COUNSEL.
Q Mr McIntosh, did you give them the name of the -
A No.
Q - female person you said was involved?
A No, m’am, I didn’t.”
He did not give them that name until two days later when he made a full statement.
12 The Crown also called evidence of one Barbara Anne Gilmore, an erstwhile friend of the appellant’s, who gave evidence that in August 1996 she and Mr Warman came to her home at Doonside shortly after lunch when the appellant told her, “I stabbed that Colin fuckin’ McIntosh” and asked her for a change of clothing, giving her a red jumper on which she said she had spilt coffee whilst arguing with Mr McIntosh. Ms Gilmore said she lent her a shirt to wear. She said that she went to the appellant’s house the next day and returned the jumper but that the appellant left it with her the following day, saying that she did not want to burn it. The appellant denied all of this evidence, including ownership of the red jumper. Ms Gilmore said she kept the jumper until April 1997 when she gave it to police. She gave a statement to police the following October. Evidence was led that forensic tests were performed on the jumper (and also on the knife), but no blood was found. 13 Ms Gilmore also said that she had seen Mr Warman acting suspiciously at the time of a police search of the house in which he and the appellant were living. She said that, when he was outside, he told her that he had to go back into the house “to get the knife”, that he then entered the house and returned, showing her the knife. She said that he went to a nearby stormwater drain and, when he came back, said he had put the knife down the drain. During cross-examination Ms Gilmore added that Mr Warman had showed her the knife in a bum bag which he wore around his waist. This part of her evidence was, in effect, contradicted by police evidence of the circumstances of the search and the movements of Mr Warman at this time. Counsel for Mr Warman suggested three times to Ms Gilmore, in terms, that she had made up her evidence because she had fallen out with the appellant. Her cross-examination commenced with questions about the relationship between Ms Gilmore and the appellant, moving from friendship to enmity. Counsel then asked -
“Q What class of a knife would you say it would be?
A Skinning knife, I don’t know.
Q Sorry?
A A skinner knife, I don’t know. The knife you use just for weapons.
Q Skinning knife?
A I don’t know. I don’t know what you’d use it for apart from stabbing people because it’s got no butcher use as far as I’d know.
Q So it’s only good for stabbing people you think?
A I don’t know but yeah, I can’t see what else you’d use it for. Or whatever, you know. I can’t see what professional use it would be unless you’re a hunter or something.
Q So you think it might be a skinning knife?
A Look I don’t know - I have no idea what it’s for.
Q Would you class it as a dagger?
A No.
Q What about a bowie knife?
A No, because the handle fold - it folds in. It’s like a big pocket knife to be honest.
Q Now that day, you did give a pretty detailed description of the knife to the police two days later?
(No verbal reply)
Q You agree with that?
A Is that in the statement?
HIS HONOUR: Q Did you give a detailed description of the knife to the police - -
A I don’t remember sir, that’s why I asked if it’s in the statement.
Q If you don’t remember, please say so.
A Well I don’t remember sir. I remember describing the gold tips to the police and that but I don’t know if I mentioned the bone handle being - cause I don’t remember but I do remember saying the gold tips at the end.
NEWTON: Q Perhaps if I assist you, “The knife was gold on both ends with dark, brown bone along the handle. It was a knife that folds up but when I saw it the blade was out. The knife was about fifteen to twenty centimetres”. Now you’d agree that’s a fairly detailed description?
A Yeah, yes sir.”
It will be seen that the question first asked was of a general kind and invited any answer which a witness might conscientiously give as to the use to which the knife might be put. In my opinion, the answer was therefore responsive to the question. If what was being sought was a physical description of the knife as distinct from the purpose for which it was or might be designed, a more specific question could and perhaps should have been asked. Indeed, counsel put to McIntosh shortly afterwards the suggestion that the knife which he had described to police was in common use and, in particular, that he would have been aware that the appellant or friends of hers would be likely to own a knife just like it. Having regard to the issues in the trial I do not consider that any unfair prejudice was caused to the appellant as a result of this evidence.
14 I have mentioned that the witness said that she had seen certain suspicious behaviour on Mr Warman’s part at the time of a police search of the premises. She added that a number of people were in the street watching what was happening. Counsel for the appellant asked -
Counsel then returned to the subject of the alleged delivery of the red jumper by the appellant to the witness and put to her -
“Q And it’s the case that you [witness and the appellant] were in fact still friends at August 1996?
A Yes.Q And what I want to suggest to you is that it was only after you had had the falling out with Miss Baker that you went to the police and told them this story?
A Yes.Q I want to suggest to you that in fact you made up this story?
A No.”When counsel for Warman cross-examined Ms Filmore about the knife being obtained by him from the house and concealed in a nearby drain, she said -
“Q What I want to suggest to you Miss Gilmore is that you have made up the whole story about the knife and Mr Warman?
A No.”
Counsel for Mr Warman also put the following -
“Q I want to suggest to you that you have made up this story because of your falling out with Miss Baker?
A No, its not.”
“Q You certainly didn’t come forward at the time?
A When you fear for your life, because of these two people --
OBJECTION (APPELLANT’S COUNSEL)
Q Well, you say that but you --INTERRUPTION - OBJECTION CONTINUED (APPELLANT’S COUNSEL) OBJECTION REJECTED.
Q You see, you say that Miss Gilmore but on the other hand you weren’t too frightened to go to the police?
A In the end I had no choice.
Q You did go to the police, didn’t you, in April 1997?
A Yes.
Q You gave them the jumper?
(No verbal reply)
Q Which you said was Miss Baker’s?
A (No verbal reply)
Q And then in October of that year you made a written statement to the police?
A Yes.
Q Knowing that would mean you’d come to court?
A Yes.
Q You weren’t too frightened to give information to the police were you?
A I was. Cause that’s why it took me so long to make it.
Q You could’ve gone at the time that you say that the knife was thrown in the drain?
A I feared for my life because of these people--
Q That was at a time when you were good friends with them?
A No, I wasn’t really, I was trying to avoid them of all contact.”
I am of the view that the penultimate question invited an explanation from the witness for not coming forward and, accordingly, that the answer was not unresponsive. The witness also referred to “a couple of other incidents that I’ve reported to the police”, but this was in the context of a chronology of contacts with the police which was invited by a question which itself suggested that there was another incident.
15 I have mentioned these particular matters since the appellant, who appeared for herself, submitted in a careful and thorough argument, that the accumulation of these answers should have resulted in the discharge of the jury. For the reasons expressed, this argument should be rejected. The appellant needs leave under Rule 4 of the Criminal Appeal Rules 1952 to rely on this ground. I consider that leave should be refused. 16 The next matter which the appellant argued in this Court justified the intervention of this Court concerns cross-examination submitted to be prejudicially impermissible. The appellant relied on the principle that a line of cross-examination whereby one witness is invited to express an opinion about the truthfulness of another ought not to be pursued. 17 In R v Leak [1969] SASR 172 the Court said (at 173-4) -
“Q And you say on that day there was a whole lot of people?
A Everyone was out watching. They were used to the police going there.”
The comment was undoubtedly unresponsive to the question and it was capable of being used to reflect adversely on the character of the accused. An objection was taken by the appellant’s counsel at this point which was overruled but the transcript does not disclose the nature of the objection. If counsel sought a direction from the trial judge to the witness to confine herself to answering questions and not add comments, this direction should have been given. At the commencement of the next day, counsel for the appellant sought a discharge of the jury apparently based upon the question and answer objected to. His Honour declined to do so, expressing the view that having regard to the context in which the evidence was given and the description of what was occurring, a proper direction to the jury would satisfactorily deal with the matter raised by counsel. In this regard, I note that none of the other matters which I have set out which may have carried implications derogative of the appellant’s character and about which the appellant complains in this appeal appear from his Honour’s judgment to have been the subject of the application. (The appellant asserts that they were relied on. Whether or not this is the case, for the reasons I have already given I do not consider that those matters caused the trial to miscarry.) His Honour did not, as it happens, advert to this matter in his directions to the jury. However, counsel did not seek any redirection. For all the jury knew, the police may have been called to the premises prior to its occupation by either of the accused. In the circumstances, the mere speculative possibility that the jury may have been influenced against the appellant by evidence which was not in terms directed at her did not cause this trial to miscarry. I regard the omission by counsel to seek a direction on this point as significant. The conclusion that this evidence was of trivial importance is reinforced by the acquittal of the appellant’s co-accused who was, to much the same extent as she was, implicated in any possible reflection on character. Having regard to the issues in the trial and the evidence of the nature of the acquaintance between the appellant and the alleged victim, I think that the evidence was not such as to have caused a miscarriage whether considered alone or together with the other matters to which I have adverted.
18 In R v Praturlon (unreported, NSWCCA 29 November 1985) it was held that no miscarriage of justice occurred where a ten year old witness who was wrongly cross-examined by the Crown prosecutor in this way maintained emphatic denials despite being confronted with the contrary evidence of her three friends. However, Street CJ said that if he felt there was the slightest basis for concern that the appellant suffered any prejudice as a result of the impermissible cross-examination he would unhesitatingly have proposed the appeal succeed. In the context, the prejudice referred to by the Chief Justice was the possibility that the cross-examiner had unfairly extracted some qualification from the witness which lessened its favourable tenor so far as the accused was concerned. 19 In R v Rich (1998) 102 ACrimR 165 the Crown prosecutor elicited from the appellant assertions that particular witnesses were lying in those parts of their evidence which he contradicted. Hidden J said (102 ACrimR at 169) that the “situation is analogous to cross-examination of an accused in a case of alleged sexual misconduct about whether he can attribute any motive to the applicant to fabricate the evidence against him: a practice condemned in a number of decisions of this Court and, more recently, by the High Court in Palmer (1998) 193 CLR 1; 96 ACrimR 213”. His Honour pointed out that, in addition, the Crown prosecutor had referred in his address to the jury to the accusations of untruthfulness he had procured from the appellant. After referring to the “clear benefits to the cross-examiner in the impermissible questions that were asked, quite apart from the terms of the answers” even though the Court “is quite unable, from the printed page, to distil the consequences of those impermissible questions”, Hidden J stated succinctly the relevant principle (102 ACrimR at 170) -
“… In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true. He can be asked if he knows of any reason why the other witness should be hostile to him or should tell a false story about him. But … he should not be asked to enter into that witness’s mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. … No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness … is a liar.”20 In R v Gilbert (unreported, NSWCCA 10 December 1998) the accused was repeatedly asked in cross-examination whether witnesses had made up or lied about evidence, the truth of which he denied. No objection was taken to these questions. Grove J, with whom the other members of the Court agree, referred with approval to the remarks of Hidden J in R v Rich which I have set out above and went on to say, borrowing the expression used by Street CJ in Praturlon, that, “particularly as the impermissible cross-examination was directed at the appellant where the central issue involved oath against oath, I would have more than slight concern”. 21 In R v Dennis (unreported [1999] NSWCCA 23, 25 February 1999) the Crown prosecutor had again used the impermissible line of questioning which elicited allegations from the accused that a witness was lying. This was compounded by further inappropriate questioning concerning a failure by his counsel to put certain questions to the witness which were the subject of directions considered by the Court on appeal to have been inappropriate. McInerney J, with whom the other members of the Court agreed, concluded that these matters caused considerable unfair prejudice to the appellant and deprived him of the right to a fair trial, with the consequence that it was not proper to apply the proviso. The Chief Justice made the following additional point -
“The cross-examination and the final address had a tendency to deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the appellant, in accordance with the burden and standard of proof borne by the Crown…The problem was hardly solved by the brief observation of the trial judge in summing up that the appellant was not ‘obliged…to provide any explanation for such false allegations’.”
22 It was also submitted that the appellant was wrongly cross-examined by the Crown prosecutor concerning the possible motives that Mr McIntosh and Ms Gilmore had to give dishonest incriminating evidence, relying on Palmer (1998) 193 CLR 1; 96 ACrimR 213. The appellant refers not only to questions asked of her in cross-examination but also asked of her co-accused Warman. In relation to the latter the following questions are identified as objectionable -
“….[On] the subject of putting to an accused that other witnesses have lied, there is now a significant body of authority… Such a line of cross-examination should now be understood by Crown prosecutors to be extremely dangerous, as the Court has previously indicated. In my opinion it is usually puerile. However, it is the danger which is of concern - the danger the accused did not get a fair trial by reason of such conduct.”
With respect, I consider that these remarks were entirely correct. The accused’s opinion about whether evidence he or she has explicitly or implicitly contradicted is a lie is quite irrelevant. It inappropriately focuses attention on an immaterial and manufactured conflict which, as Hidden J observed in Rich (supra), is calculated to deflect the jury from the true issues in the case. Its usually dramatic character is likely to introduce an adversarial element between the accused on the one hand, and the Crown witnesses on the other, which may be highly prejudicial and difficult for the jury to ignore. This is especially true where the witness said to be lying is the alleged victim and emphatically so where the allegation is sexual in nature.
23 During his cross-examination of Mr McIntosh, counsel for Mr Warman also had elicited evidence that Mr McIntosh had fought with the appellant on a number of occasions but had never fought with Mr Warman and suggested to him that he “picked out the photograph of Mr Warman because you knew that Mr Warman lived with Miss Baker” and that “this man’s only offence against you is being a friend of” the appellant and that his evidence “is really a vendetta on your part to get back at” the appellant. These allegations were denied as was the final suggestion “that Mark Warman gets into the picture just because he happens to be the person who you know lives with Miss Baker”. This line of questioning plainly enough alleged that Mr McIntosh had fabricated his evidence incriminating Mr Warman. 24 I am of the view that the Crown prosecutor’s questions as to whether Mr McIntosh’s identification of him at the scene was wrong and whether they had a falling out did not go further than that which, in substance, had already been put to Mr McIntosh on Mr Warman’s behalf by his counsel. These questions were not objected to. So far as the questions about Ms Gilmore’s evidence were concerned, they took up what had already been thrice suggested to Ms Gilmore by Mr Warman’s counsel in the same terms. To take up the point I made earlier, the adversarial character of the evidence of Mr McIntosh and Ms Gilmore had already been created, so far as Mr Warman was concerned, by his own counsel, although the Crown prosecutor took them slightly further. Even so, although it was clearly Warman’s case that Ms Gilmore was lying, his opinions about the fact were irrelevant. The questions were an inappropriate forensic flourish and should not have been asked. Moreover, the cross-examiner used inappropriate and argumentative irony such as “just a coincidence”, “gilding the lily a bit”, “made it seem a bit better” and “it’s just lucky” in referring to contextual details referred to by the witness. Mr Warman gave evidence in his case but, of course, it was admissible for all purposes. In effect, he was a defence witness in the appellant’s case also. The inappropriate question by the Crown prosecutor of Mr Warman was therefore capable, not only of prejudicing his case but also the appellant’s. Even though these points may well have been made in address to the jury it was not proper to put them to a witness, especially the accused. 25 So far as the appellant is concerned, the following cross-examination is the subject of complaint -
“Q So you say that in relation to Mr McIntosh when he says that it was you who took the methadone he’s got that wrong?
A That’s wrong.
Q It certainly wasn’t you?
A It wasn’t me at all.
Q In fact you barely know Mr McIntosh?
A That’s correct.
Q You’ve never had a falling out with him?
A No.
Q You’ve never caused him any trouble and he’s never caused you any trouble?
A That’s correct.”“Q Are you able to say how it is that she’d know that owned a bum bag?
And, later on, -
A Well she’s been to the house a couple of times and she’s seen me with the bum bag because I used to carry the bum bag with me or have it on my shoulder.
Q Did you carry the bum bag with you around all the time or was it only from time to time?
A I carried it around all the time.Q All the time? So you see what you say is to make it perfectly clear that Ms Gilmore is not telling the truth when she says she had this conversation with you outside her friends place?
A That’s correct.Q As far as you can tell she’s made it up?
A Yes.Q When she’s made it up she’s gilded the lily a bit by putting in this detail about your bum bag, made it seem a bit better by putting in the bit about the bum bag?
A I don’t know whether she was making it seem better or anything but she knew I had a bum bag.Q So you say that’s the explanation as to how just by coincidence she mentions you with a bum bag when in fact you did own one?
A Yeah I owned a bum bag.Q You heard her evidence that after she had a brief conversation with you you indicated that you were going to go back to the house and try and retrieve a knife?
A Yeah that’s correct.Q Again you say that conversation did not take place?
A Didn’t take place.Q So she’s not telling the truth about that?
A That’s correct.Q You recall her evidence when she said that you told her you were going to go back to the house and ask for some medication as your excuse to get back into the house?
A No I never spoke to her.Q Do you remember her giving that evidence?
A Yeah I remember her giving that evidence.Q So you agree that in fact you did go back to the house to get some medication?
A Yeah I agree with that.Q You never spoke to Ms Gilmore at all on this day?
A No.Q Is it just a coincidence that when she tells these untruths about you she includes the detail that she says you told her you were going to go back to the house to get some medication?
A Yeah that’s correct.Q So she’s just made that part up as well?
Q And it’s just lucky that it’s the same as what you in fact were going to do?
A That’s correct.
A I wouldn’t say it’s luck because she knew Kellie personally and Kellie spoke to her about personal matters.”
Mr Warman had given evidence that neither he nor the appellant had committed the alleged offence. In effect, his evidence was that they had not seen Mr McIntosh on the day in question. He claimed they were together on the day and at the time of the alleged robbery at the house of a Ms Wheeler. He denied the account given by Ms Gilmore relating to the events of the police search at his premises.
26 In cross-examination of Mr McIntosh by counsel for the appellant the following transpired -
“Q In any event you say that you were at Ms Wheeler’s house the whole of this period of time?
A Yes.
Q So it would have been impossible for you to have done what Mr McIntosh says you did?
A Yes.
Q Because you just weren’t there?
A That’s right.
Q So Mr McIntosh has not told the truth about what he says happened, that’s so isn’t it? He can’t be telling the truth because you weren’t there?
A That’s right.
Q You’d known Mr McIntosh over a period of about ten years off and on?
A Yes.
Q I’m not suggesting that you saw him every day of the week or anything like that but he was a person who was relatively well-known to you?
A I suppose over a period of ten years yes.
Q I mean if you were down the street and you saw him even fifty yards away you’d know who he was?
A No not unless I particularly went looking for him.
Q But certainly if you were standing five feet away from him you wouldn’t have any doubt about who he was?
A No not five feet.
Q No because of the familiarity of his appearance that you had got to know over the preceding ten years, is that right?
A Yeah.
Q And I think you heard his evidence here during the trial that there had been occasions over that period of time when he’d, to use an expression, he’s got into blues with boyfriends of yours over that period of years?
A Pushing and shoving and calling people names.
Q Yeah but that had happened on a number of occasions?
A Yes.
Q And indeed there had been occasions when you yourself had got involved in a bit of the pushing and the shoving over the years?
A No.
Q But certainly it’s true to say that you didn’t like him and as far as you could tell he didn’t like you?
A It was a personality thing I think yeah.
Q But the reality of it is, perhaps as unfortunate as it might be, he didn’t seem to care much for you and you didn’t like him either because of this conflict of personalities?
A Perhaps yeah.
Q And certainly in relation to this matter the only reason that you can think of as to why he’s made it up is because of his ongoing dislike of you?
A I hadn’t really given it any thought for any reason sir.”27 It is clear from this line of cross-examination that it was the appellant’s case that Mr McIntosh had invented the involvement of the appellant and the co-accused and that his motive for doing this was, so far as the appellant was concerned, to end her alleged harassment of him. For her part, the appellant gave evidence in chief that she and Mr McIntosh did not like each other and had arguments which involved pushing and shoving over a period of about ten years. 28 It appears to me that the cross-examination by the Crown prosecutor did not in substance go further than take up the appellant’s case as it had been already put by her counsel in cross-examination of Crown witnesses and by her in examination in chief except insofar as it sought her opinion, which was irrelevant and which, at all events, she declined to give. 29 An additional complaint is made of the following cross-examination concerning Ms Gilmore’s evidence that the appellant and Warman had gone to her residence and asked her, in effect, to set up a false alibi for them -
“Q Now you say that you recognised her voice when she first approached you?
A Hmn.
HIS HONOUR: Q Was that a ‘yes’?
A Yes sir, sorry, yes sir.
NEWTON: Q You must answer verbally?
A Yeah I know, sorry, yes sir.
Q And you’ve given evidence that you have a bad relationship?
A Yes sir.
Q And you’ve also given evidence that at times you’ve been involved in fights with Kellie Baker that involve --
A Fists.
Q --fists?
A With her boyfriends I said.
Q You see the fact is that it wouldn’t be putting it too high to say that you hate her?
A Yes, it would. I don’t hate anyone. It’s not good karma to hate anyone.”
The cross-examination concluded in the following manner -
“Q What I’m suggesting to you is that neither Miss Baker or Mr Warman were there on the day that you were stabbed?
A I disagree sir.
Q And I think you’ve already said in cross-examination that you wanted to get rid of what you perceived to be harassment from Kellie Baker?
A Yeah, that’s right. Yeah, it is right.
Q And what I’m suggesting to you, is that having thought about it for two days, you then went and made a statement to the police and that you just made this all up.
A Like I said, subpoena the witnesses and that’ll sort it out. No sir, you’re wrong.”30 Counsel for the appellant commenced his cross-examination of Ms Gilmore by asking whether she was a friend of Mr McIntosh, which had already been put to Mr McIntosh by him in his cross-examination. Counsel suggested to her that she had developed a relationship with Mr McIntosh and, indeed, that the detail in her statement about what she alleged she had been told by the accused had come from what Mr McIntosh had told her. Counsel also attributed to her a motive for dishonestly incriminating the appellant -
“Q You wanted Barbara Gilmore to lie for you about where you’d been, isn’t that so?
A No.
Q You wanted her to say that you had been at her place when in fact you had not?
A No.
Q The reason that you wanted her to do that was because you knew that you had in fact stabbed Mr McIntosh down at the mall that very day, that’s the situation isn’t it?
A No.
Q You were trying to set up an alibi to try and suggest that you were somewhere else?
A No.
Q So when she says - when Ms Gilmore says that you said that to her she’s not telling the truth about that?
A That’s correct.
Q And that must be motivated because of this falling out that you’ve had subsequently?
A I don’t know what’s motivated it.
Q So certainly you didn’t have any conversation with her which could be said to be an attempt by you to set up a false alibi?
A That’s correct.
Q And you certainly didn’t leave a jumper at her place?
A No.
Q And that red jumper that she’s produced that doesn’t even belong to you?
A No.
Q So when she says that the jumper belongs to you she’s made that up as well?
A Yes.
Q Apparently to what, to make her story seem a bit better or something?
A I’m not in the habit of surmising why she’s making the story or what story any better sir.
Q But certainly it’s not your jumper?
A No.”31 Again , it will be seen that the prosecutor had put to the appellant substantially that which had already been put by her counsel to Ms Gilmore or was implicit in it. No objections were taken to these questions. 32 The mere fact that counsel for the accused puts to a witness that he or she is lying will not justify a cross examination of the accused by the Crown prosecutor calculated to deflect the jury from an objective consideration of the true issues in the case by attempting to elicit from the accused that the opinion that the witness is lying. As was said in Leak (supra) the opinion of the accused is irrelevant. I am of the view that the questioning of each of the accused by the Crown prosecutor which I have quoted was improper and impermissible, as was conceded in this Court by Mr Berman for the Crown. It was, in reality, commentary directed to the jury rather than cross-examination designed to test the witness’ evidence. Even so, I think it may fairly be seen as having been instigated by the attacks (quite properly) made on the Crown witnesses by counsel for the accused and fairly represented their cases. The question remains, however, whether in pressing for the irrelevant opinions, the appellant was unfairly prejudiced. In the circumstances of this case, this question could be recast into the form: did the impermissible questioning have a real or perceptible tendency to deflect the jury from properly considering the issues in the trial, having due regard to the onus and standard of proof land, in particular, fairly evaluating the evidence of and the case made by the appellant? 33 It appears that no reference was made to this particular evidence in addresses. His Honour’s directions to the jury emphasised the presumption of innocence and pointed out unambiguously that the onus of proof of the charges beyond reasonable doubt “remains at all times though the trial on the Crown and there is no onus of proof on the accused at all; it is not for the accused to prove his or her innocence but for the Crown to prove his or her guilt beyond a reasonable doubt”. This was repeated in a number of different ways throughout the summing up, in particular warning the jury that merely by going into the witness box the accused did not take up any onus of proof and that neither of them needed to prove anything. His Honour did not advert to the evidence which I have set out above and no redirection was sought in this regard. 34 In Regina v Uhrig (unreported NSWCCA 24 October 1996) Hunt CJ at CL, with whom the other members of the Court agreed, referred to Regina v F (1995) 83 ACrimR 502 and Regina v E (1996) 39 NSWLR 450, pointing out that in the latter case (which concerned the mere rhetorical question “Why would the witness lie?”) there was no evidence capable of supporting a submission that the witness did have a motive to lie and the question merely invited the jury to speculate illegitimately that unless they were satisfied by the accused that there was a motive for the witness to lie they should accept that witness’s evidence, whilst in the former case (where there was a basis for asserting the existence of a motive for a witness to lie), the issue of the existence of that motive was given inappropriate emphasis in the trial judge’s directions to the jury and juxtaposed, in a way likely to have caused confusion, the question about the existence of that motive and the illegitimacy of drawing an adverse inference against the accused if one could not be pointed to. His Honour went on to say -
“Q See what I’m suggesting to you is that since this happened, that none of this happened at all?
A None of?
Q None of this coming round to the house the next day happened at all?
A It did happen. It did, it’s true.
Q And that what’s happened is that there’s obviously been some dispute in the meantime, I mean I think you’ve told my friend that you made a complaint in early ’97, you agree with that?
A February?
Q Yes.
A Yes.
Q And what I’m suggesting to you is that things have soured to the extent that you’re prepared to come along and say this even though it didn’t occur?
A No, it’s not like that at all.
Q What I’m suggesting too is that you know Mr McIntosh and that he may well have told you some of the things--
A I wouldn’t come here and like for somebody that I didn’t know in the first place and then got to know. Do you know what I mean?
Q That may well be the case madam--
A It’s not.
Q --but the point is that it wasn’t until October that you told the truth? That’s correct, isn’t it?
A Yep, yes.
Q And you met him some time after August?
A Yes.
Q In ’96?
A Yeah.”35 In Palmer, Brennan CJ, Gaudron and Gummow JJ said (193 CLR at 9; 96 ACrimR 219) -
“What this Court said in Regina v F and Regina v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth and to emphasise that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court’s decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all.”
This passage was cited with approval in Palmer (193 CLR 1 at 10; 96 ACrimR 213 at 219) by Brennan CJ, Gaudron and Gummow JJ. In Palmer (a case involving alleged sexual offences) the appellant’s counsel had suggested to the complainant that her evidence was “some sort of pay back on [the appellant] for some indiscretion he doesn’t even know about.” The Crown prosecutor commenced his cross-examination of the appellant with the question: “Mr Palmer, as I understand it, from the questions that were put to [the complainant] yesterday, you would really, it seems be at an absolute loss to think as to why she should make up the allegations?” This question was put, in slightly different terms, on a number of occasions during the rest of the cross-examination (set out at 193 CLR 5-6; 96 ACrimR 216). Brennan CJ, Gaudron and Gummow JJ pointed out that -
“Cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations.”
Their Honours went on to state (193 CLR at 7; 96 ACrimR at 217) -
“It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complaint’s credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred (23). But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury’s attention on irrelevancies, especially when the case is “oath against oath”. In such a case, to ask an accused the question: “Why would the complainant lie?” is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused.”
In my view, the cross-examination here was not directed to demonstrating that neither of the accused could show any ground for imputing a motive for Mr McIntosh or Ms Gilmore to lie. To the contrary, in cross-examination of those witnesses by counsel on behalf of both accused, a motive for lying had not only been put but was established. The question whether these motives had actually led them to lie became the issue, or one of them. Counsel for both accused put to them that, indeed, they had done so. The cross-examination by the Crown prosecutor here differed from that criticised in Palmer. The reason for the illegitimacy of the questions in Palmer is expressed thus (193 CLR at 9; 96 ACrimR at 219) -
Here, as I have pointed out, counsel for both accused put to Mr McIntosh and Ms Gilmore matters which established a motive for lying and put to them that they had fabricated crucial parts of their evidence for specified reasons. Mr McIntosh had already given evidence in chief from which a motive for lying might be inferred. Each of the accused gave evidence of matters tending to prove the Crown witnesses each had a motive for lying. Counsel for the appellant, moreover, sought a direction from the trial judge that the jury should be told it was her case that Mr McIntosh’s identification of her as one of the offenders was a deliberate dishonestly.
“… a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Creswell J in the case cited by Wills [on Circumstantial Evidence 6th ed (1912) at 256-257] where his Lordship acknowledged that proof of a motive to lie weakened a complainant’s credibility. The correct view is that absence of proof of motive is entirely neutral.”
36 In this case, the issue of the motive of the witnesses for fabricating incriminating evidence against the accused and the allegation that they had done so, was raised distinctly and emphatically by counsel for the accused, in particular for the appellant. The cross-examination of the accused by the Crown prosecutor took up this theme, in somewhat different language. The cases presented by both accused were that the incriminating witnesses had fabricated their evidence out of ill-will towards them, and there was a deal of material that supported them. 37 The open-ended rhetorical question, “Why would the witness lie?” was never put in those or other words either in cross-examination or to the jury by the learned trial judge in his Honour’s summing up. It is not suggested that it was posed by the Crown prosecutor in his address to the jury. The ill-will of the witnesses McIntosh and Gilmore towards her was an important aspect of the appellant’s case and, to a considerable degree, was conceded by them. In that sense, then, the appellant had indeed established that they had a motive to lie. Since the motive was established, it was unnecessary for the trial judge to have made the distinction referred to by Hunt CJ at CL in the concluding sentence of his judgement in Uhrig which I have set out above. 38 Having regard to the course of the trial and the evidence as a whole, I consider that the impermissible questions did not, in the result, have the tendency of deflecting the jury from a proper assessment of the credibility of the Crown witnesses or of the accused or from applying the principles as to the burden and standard of proof to which their attention was drawn by the trial judge’s directions. It seems inescapable that counsel for the accused put to the jury, amongst other things, that Mr McIntosh and Ms Gilmore had fabricated their evidence for the motives elicited in evidence. Counsel for the appellant sought and obtained a direction by the trial judge that her case was not merely, as had initially been put by his Honour, that Mr McIntosh’s identification of her was inaccurate, but rather that it was dishonest. I consider it also as of some significance that the jury acquitted Mr Warman, in respect of whom there was little, if any, evidence of animosity so far as either Mr McIntosh or Ms Gilmore was concerned. Accordingly, I conclude that, although impermissible cross-examination was undertaken by the Crown prosecutor, there was no prejudice to the appellant such as to have caused a substantial miscarriage of justice. 39 The appellant’s grounds of appeal were apparently prepared without legal assistance. I have dealt with those which were the subject of submissions made by her at the hearing. However, it is appropriate that I should deal with those set out in the notice of appeal. The first ground of appeal, which appears to be that the verdicts were inconsistent, I will deal with after discussing the other grounds. The second ground of appeal relates to the failure of the trial judge to give the promised direction relating to police activity at the appellant’s home, with which I have already dealt. 40 Ground 3 is as follows -
“It is necessary to distinguish between cross-examination of a witness as to motive of that witness to lie and cross-examination of another witness designed to show that that witness does not know of any fact from which to infer that the first witness had a motive to lie.”
Here, not surprisingly, no cross-examination was directed to demonstrate the latter situation except, perhaps, in the sense that no other motives than those articulated were known or suspected, although this was at all events implicit. The cross-examination complained of sought the opinion of the accused as to whether other witnesses had lied. As I have pointed out, even though this was indeed the defence case, the opinions of the accused were irrelevant. Palmer , however, did not concern the possible significance of this circumstance.
41 The fourth ground of appeal is -
“Six weeks prior to trial Judge Neild refused both my barrister Tim Watts and my co-accused barrister another trial date as both barristers . . . both had part heard trials and he made us get other legal representation approximately 6 weeks before the trial. Mr Newton I had never seen since the first day of the trial, same as my co-accused.”
In the submissions transmitted on 30 April 1999 the appellant added that she was informed by her solicitor on the day of trial that Mr Watts could not appear for her and that she had not previously met counsel then briefed for her, Mr Newtown. She claimed that he had no interest in her case and that he did not know what was going on. Even if it were the case that the appellant had only met Mr Newtown on the day of the trial, that does not mean that he was not fully briefed with adequate time for preparation. After all, the issues were relatively simple. Counsel did not seek any adjournment. A reading of the transcript does not support any suggestion that counsel were inadequately prepared, rather the contrary. Furthermore, the appellant does not point to any particular respect in which her case was insufficiently put to the jury. I would reject this ground of appeal.
42 Grounds 5, 6, 7, 8, 14 and 15 in the Notice of Appeal, together with paragraphs 2, 4, 5 and 7 in the later document all concern particular criticisms made by the appellant concerning the case against her. As the appellant has sought to appeal on the ground that the verdict against her was unsafe and unsatisfactory, it is convenient to deal with these matters together. These criticisms may be summarised as follows. Mr McIntosh had given some inconsistent descriptions of the weapon used describing it in chief as having a silver blade, brown-handled with a gold tip at one end and a gold tip at the other end of the handle with a blade about six inches or so perhaps a little longer with a curve at the end, that it was hard to describe, that the knife tendered in evidence looked like the knife, that he would not class it as a dagger or a bowie knife (in cross-examination) although in later cross-examination he said that he had called it a bowie knife and a dagger to the doctor who had treated him in the hospital, meaning thereby that it was not a domestic utensil, this explanation being given when he knew that he would be faced with the history given to the doctor that he had in fact described it as a bowie knife. There was no evidence from the proprietors of the bread shop. Ms Gilmore handed over the red jumper some eight months after the date of the offence and made a statement six months after that (the cross-examination about this matter is set out above). She was biased against the appellant. The appellant was not identified at the scene by any independent witness. There was no forensic evidence concerning fingerprints on the knife discovered by police at the appellant’s premises and tendered in evidence nor of any blood or hair belonging on clothing either of the appellant or Mr McIntosh. The receptionist had not seen a woman in McIntosh’s company and could not identify Mr Warman, nor had she seen blood on McIntosh’s buttock on the first occasion he had entered the Medical Centre and walked past her. There was a substantial and serious conflict between the evidence of Ms Gilmore concerning the activities of Mr Warman when his premises were being searched and the possibility that he might have been in possession of a knife which he allegedly concealed and that of the police. Although three other adults were present at the home of the accused when the knife allegedly used in the robbery was found none of those persons were detained, although the appellant’s evidence was that they all had knives on their persons (which was contradicted by the investigating police who said that the only knife found on the premises that day was that which was tendered). All these matters were before the jury. The trial was short. The trial judge’s directions, though brief, were adequate. I do not consider that these considerations should lead to the conclusion that the verdict was unreasonable or cannot be supported having regard to the evidence. 43 The appellant also submitted that the verdicts convicting her on the one hand and acquitting her co-accused on the other were inconsistent, arguing that virtually the same evidence was given in respect of each of them, the only deviation being that she had known the victim for approximately ten years. This latter factor, however, was an important one in the context of the case. Although the trial judge pointed out to the jury the dangers of identification evidence relating both to the appellant and her co-accused, it is clear that in respect of the former there was no possibility of mistaken identification. As I have already mentioned, defence counsel later sought and obtained an appropriate direction by the trial judge in this regard in which the jury were told, as was the case, that Mr McIntosh knew the appellant well and that her case was that he had dishonestly identified her as involved in the attack upon him although his Honour had warned them already, in dealing with the accuracy of his identification, that they should bear in mind the evidence of an inharmonious relationship between them. On the other hand, so far as Mr Warman was concerned, his Honour pointed out that the victim’s evidence was that he had seen him before but they had not met or spoken prior to the day in question nor had he ever seen him in close proximity or known his name and his Honour referred to certain other aspects of the circumstances which his Honour suggested weakened the strength of the identification. Furthermore, so far as the knife was concerned, although it was found in the premises occupied by both accused, a pouch found in the bedside table in their bedroom which had the word ‘Bob’ on it and the appellant said that she was going out with a man called Robert prior to her relationship with Mr Warman. Ms Gilmore’s evidence of the conversations with the accused on the day of the robbery implicate the appellant far more cogently than Mr Warman and the jury may have thought it unlikely that she would invent the story of the request to look after the red jumper. On the other hand, they had good reason to doubt the reliability and perhaps veracity of this witness’s evidence of seeing Mr Warman concealing a knife on the day of the police search of his premises. If they did so, that certainly would have made it unsafe to place much reliance on her other evidence, especially when her relationship with Mr McIntosh was considered. However, I do not think that the jury were not entitled to give the evidence of this witness, so far as the appellant was concerned, some weight. 44 Each of the accused gave evidence and the jury might well have formed a different evaluation of the truthfulness of each of them. So far as the alibi was concerned, Mr Warman said that he and the appellant had gone to Vicki Wheeler’s house after attending the methadone centre, that the two women went inside to have a cup of coffee whilst he went to the backyard to fix up her lawnmower and mow the lawn for her but the mower could not be repaired and he placed it in the shed, cleaned up the backyard and worked on a motor car which was in the premises. His relatively detailed account contrasted with the account of the appellant which was that she and Vicki sat inside and talked, having a cup of coffee, whilst Mr Warman was “out the back mowing the lawn”, referring to no other activity undertaken by Mr Warman whilst the activity she did mention he did not in fact do, according to him. 45 I consider that the inconsistency for the verdicts may be reasonably explained by the different evidence affecting each accused. There is no merit in this ground. 46 The next ground of appeal concerns the availability of Ms Wheeler to be called as a witness. Alibi notices had been served by the accused on the Crown as a result of which the officer in charge of the investigation attended at her home and had a conversation with her but later attempts to locate her were unsuccessful. The Crown prosecutor informed the learned trial Judge that he had been given some information suggesting that Ms Wheeler may have been on the witness protection program and that although Detective Schaefer did not know where she is, maybe that she could be contacted. The Court then adjourned for lunch. On resumption the prosecutor informed his Honour that attempts were being made to telephone the witness but her telephone was not answering. The prosecutor suggested that if the witness could not be contacted or could not be brought to court it seemed to him that it would suffice if he tendered in the Crown case the notices of alibi and consented to the tender in the defence case of affidavits of attempted service. He submitted -
“On the second or third day of the trial Judge Delaney quoted an appeal of Regina v Piazza .”
The trial commenced on 3 August 1998 and the evidence was completed on 5 August 1998. After the luncheon adjournment on that day counsel addressed the jury and his Honour commenced summing up, which he had substantially concluded by the end of the day. At four o’clock, his Honour sent the jury away and invited counsel to make any applications they thought necessary for redirections. His Honour indicated that he would make the directions sought. On the following day, his Honour said to counsel before the jury was returned, that he had read overnight the decision in Piazza (1997) 94 ACrimR 459, and went on to state (p 207) -
“. . . I should at least enquire of you specifically as to whether or not there were any further matters which you thought I might perhaps have not properly dealt with, having regard to the views indicated in that as to the degree to which directions need to be given and if, after quickly perusing that case, you are of that view, then I’m more than happy to deal with that issue so that there can be no problem. If, after looking at it, you’re satisfied that the only further directions that are needed are the ones that we referred to yesterday afternoon, then I can just give those directions in that fashion.”
The Crown prosecutor submitted that the directions given on the previous afternoon were “full and appropriate”, with which neither counsel for the accused dissented although counsel for the appellant asked his Honour to remind the jury that the forensic testing had indicated that there was no blood either on the knife which had been produced or on the red jumper, with which his Honour agreed. The substance of Grove J’s judgment in Piazza, with which the other members of the Court agreed, was that s 405AA of the Crimes Act 1900 did not qualify the duty of a trial judge “to communicate to the jury of what the respective cases being presented on behalf of the Crown and accused consist, and how it is that [semble, those] cases are claimed to be supported (or not) by the evidence (94 ACrimR at 463)”. His Honour went on to point out that the “judge is not required to restate every argument put on behalf of an accused but he must ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence: Domican (1992) 173 CLR 555; 60 ACrimR 169”. I do not consider that it was an error of law for the learned trial judge to have regard to this principle; indeed, he was bound by it. Moreover, I think that it was perfectly proper for his Honour to bring the judgment to counsels’ attention and invite any submissions that they might wish to make concerning its application to the case.
47 The trial was shortly afterwards adjourned to the following day. Counsel for neither of the accused objected to the course of action proposed by the prosecutor. When Court resumed on the following day, no mention was made of this matter and, as he had said he would, the prosecutor tendered the notices of alibi. The appellant gave the following evidence, which was not subject to objection -
“No doubt it would be in everyone’s best interests if she can be contacted and produced but if she can’t be by tomorrow morning at the latest, then I would be content to adopt the proposal that I have just outlined. That way the jury have the benefit of knowing that they said early on that they had an alibi, they’d taken some steps to find that person and she can’t be located.”
48 At the close of the appellant’s evidence the subpoena directed to Ms Wheeler was tendered as was an affidavit of attempted service. Again, as foreshadowed, no objection was taken. Counsel for the accused did not seek any adjournment. There is no evidence as to what Ms Wheeler had said to Detective Shaefer in the initial conversation to which I have referred. His Honour summed up to the jury following counsels’ addresses for the balance of that day, adverting to this matter as follows -
“Q Now, I understand that Vicki Wheeler was going to be coming along to give evidence on your behalf. Is that correct?
A Yes.
Q And I understand that as my friend has indicated when speaking to Mr Warman that inquiries your solicitors have made have not been able to locate her whereabouts at the moment, is that correct?
A That’s correct.
Q And can you just tell me whether it’s true that your own inquiries indicate that as far as you directly contacting her you’re not able to contact her at the moment either?
A No, no.”49 The appellant made the following submission about this matter -
“Members of the jury, you have heard that unfortunately the witness Wheeler is not available. No inference is to be drawn in relation to that adverse to anyone, and certainly not adverse to either of the accused. It’s just a fact that Wheeler is not available. Every attempt has been made. You have to decide the case on the evidence. You are not to speculate, you are not to guess. You are to decide the case on the evidence which has been led in this trial, and on that evidence alone - that is the oath that you took at the beginning of this trial.”
Counsel did not seek any redirection in this regard.
50 Two complaints are made by the appellant concerning the jury -
“3. My alibi witness Mrs V Dale@Wheeler was in a witness protection scheme (nothing to do with this matter) and when asked to produce Dale and stated that she could have been out of the State, which they knew very well that she wasn’t. Her statement was allowed in but the judge didn’t press for her to be produced.”
No statement was allowed in because, as I understand it, no statement had been taken. It appears that the appellant has confused a statement with the alibi notices. The notices said that it was anticipated that Ms Dale (Ms Wheeler’s married name) “will give evidence that she was with the accused between approximately 10.30am to approximately 2.30 - 2.45pm and that she was with the accused at her address at 3 Mikado Way, Doonside between 10.30 - 11am and 11.30am to 2.30 - 2.45pm on 6/8/96.” Having regard to the way in which the matter was raised before his Honour and, in particular, in the absence of any application by the defence, I do not consider that his Honour erred in not requiring the witness to be produced. Aside from the somewhat tentative suggestion by the prosecutor as to the witness being in a witness protection scheme, there was no evidence either before the trial judge nor before this Court that this was in fact the case. It may be that defence counsel had very good reasons for not seeking an adjournment for the purpose of ascertaining the whereabouts of Ms Wheeler and calling her to give evidence. The trial judge brought the jury’s attention to the notices in the following terms -
“Members of the jury, you also heard evidence given by each of the accused in this trial which related to what is sometimes called, in shorthand fashion, alibi evidence. You have heard that each of them says that they were elsewhere at another person’s premises at the time when these events occurred and notwithstanding the fact that the other person referred to was not able to be called, as no-one has been able to locate her, it is necessary that I give you this direction; each of the accused has adduced evidence to try to show you that at the time the offence was being committed, each of the accused was somewhere else. You will recall the evidence that they had picked a lady up from her home, gone down to the Methadone clinic, come back to that home and remained there, Mr Warman working on the lawmower and Miss Baker, the accused, drinking coffee.”
In the document of on 19 August 1998, the appellant said that the police had denied knowing where Ms Wheeler was but her husband was incarcerated in the witness protection gaol at Long Bay. However, nothing was said to this effect to the trial Judge and there is no evidence before us to verify the statement. Moreover, as the matter comes before this Court, there is no indication of what Ms Wheeler might actually say or be able to say in respect of the alibi. It is, perhaps, worth noting that whilst the appellant and Warman might have every reason to recall where they were on the date of the offence of which they were convicted, Ms Wheeler may have no reason to remember it at all. Having regard to all these matters I consider that this ground of appeal has not been made out.
The jury were invited to consider the notices as evidence of the facts. In the circumstances, I consider that the prosecutor’s concession and the trial judge’s directions in this regard were fair and appropriate.
51 So far as sentence was concerned, the appellant made the following complaints -
“10. Three jury members were brought into the Court before my co-offender was brought up from the cells.”
Assuming this to be correct, it was not the subject of any application to the trial judge. At all events, Mr Warman was acquitted. The trial did not miscarry on this ground.
“11. The jury asked specific questions but Judge Delaney constantly convinced them to condense these questions. They were: (1) They wanted to hear the victim’s (Colin McIntosh’s) complete evidence again; (2) They wanted to hear Judge Delaney’s summing up again; (3) Co-offender’s complete evidence. This was not allowed thus making them condense and shorten their questions.”
The content of the jury’s request and his Honour’s response to it appears sufficiently from the transcript -
“I’ve noted and marked mfi 2 the request that you have made to (a) listen to Mr McIntosh’s first statement on the stand (Crown) (b) judge’s summing up and (c) Warman’s full statement on the stand. Because of the breadth of that request, my request to you is that as that would involve the replay of a substantial proportion of this trial which you, of course, as I indicated to you, are entitled to have done, I would, particularly in relation to “judge’s summing up” and “Warman’s full statement on the stand”, ask you to return to the jury room and re-cast your request in somewhat more specific terms to assist the sound monitors to be able to identify the actual area of the evidence that you require. I note that you require the whole of my summing up to be replayed to you. If that is your request, that will be done, but if there is some specific aspect thereof which is concerning you which you wish me to re-state, then I will do so personally if necessary. In those circumstances, could I ask you to retire again and re-cast any further questions or any further requests for parts of the tape to be replayed, perhaps in a more narrow fashion so that we can properly identify it? If you’d help us in that way, I’d be grateful.”
Advantage could not be taken of s 55C of the Jury Act 1977, since a transcript was not available. Shortly after the jury retired a further message was received from the jury (MFI 3). His Honour said -
“Yes, well this request appears to require . . . that part of the accused Warman’s evidence of what they did on the morning of 6 August in chief. So that I propose to play his evidence in chief to the jury . . .[as to the second request] - McIntosh’s statement made to the police during his stay at Blacktown Hospital - well my recollection about that is that he gave some evidence at some stage during the course of the proceedings, I think mainly in cross-examination on what, if anything, he said to anybody at the hospital. But it will be almost impossible to find the one or two lines which related to that. And again I think that it may be necessary to ask for further particulars of that question . . . And they require my summing up in full . . . have you any objection if that . . . is made into a separate tape and they can play it to themselves in the confines of the jury room? It goes for about 40 minutes.”
Counsel raised no objection to his Honour’s proposals concerning Mr Warman’s evidence or his summing up but after some further discussion, the substance of what was believed to be the material evidence was agreed on and his Honour in due course conveyed that material to the jury. All counsel agreed to this process. When the evidence of Mr Warman was played, the trial judge asked the foreman of the jury whether that was the evidence which they required to be played and was informed in the affirmative. I am of the view that his Honour’s response to the queries from the jury was appropriate. This ground of appeal has no merit. Taking all the appellant’s complaints about her conviction into account I consider that the verdict was not unreasonable having regard to the evidence.
52 Following conviction, counsel for the applicant sought an adjournment of one month to permit a psychiatric report to be obtained, informing his Honour that the applicant had suffered a head injury in a motor vehicle accident on 12 February 1998 and had also been the victim of an assault. His Honour informed counsel that any adjournment would be on the basis that the applicant remained in custody. Counsel then applied for bail upon a number of grounds, including the illness of the applicant’s mother, the care of her then 12 year old son and the need for ongoing treatment. In a brief judgment refusing bail, his Honour noted -
“12. The day I was found guilty Judge Delaney would not grant 1 months remand with continuation of bail for reports from Drs, psychologists etc. He gave one week and said he would strongly consider a non-custodial sentence. After the week passed the Crown informed him that they would appeal but said nothing the week prior.
13. On the 7th Feb ’98 I had a home invasion which I sustained organic head injury. 5 days later I was in a motor vehicle accident and received another closed head injury. When I appeared in front of Judge Neild my G P, P Manalaris as well as Dr John Pickering stated that I would be unfit to brief legal people due to the extent of the head injuries. As I was comatosed for 3 days both Drs. stated that the healing process of the extent of the head injuries could take from 6 months to 18 months. Judge Neild refused this as well.
16. Please I have maintained my innocence all thru this trial as I am not guilty but in Judge Delaney’s summing up on sentencing he stated that I never co-operated with police (cannot co-operate if innocent). And Judge Delaney said he was making an example of me. This charge is two years old and the new knife laws did not exist.
17. Judge Delaney refused to sentence me under special circumstance sections (My mother has cardiomyopathy which is hereditary as well as another hereditary disease which is called Porphyria which only 40 people in the country have. As well as this she is on a waiting list at St Vincents Hospital awaiting a heart transplant. Her specialists are Dr M Cooper (heart) Dr Alan Skyrink (re gastro and Porphyria). Dr Peter Manalaris, family physician for 30 years and Dr John Pickering for management of illnesses.
18. As well as this I have 12 year old son who at this present time is in the care of my father whom is also carer for my mother. And my son has many psychological problems at the moment.”
53 There is no basis for any appeal to this Court in these circumstances in respect of his Honour’s refusal of bail unless, it may be, that the refusal of an adjournment might explain why evidence which should have been considered on the question of sentence was unable to be produced. In dealing with the need for further information, his Honour pointed out that notwithstanding the serious nature of the crime and the Crown’s submission that a full time custodial sentence might be appropriate, his Honour referred to the possibility of an alternative based on what he described as “other considerations, and a closer and more exacting examination of the actual record of the prisoner”. In the result, his Honour adjourned the sentence hearing for a week, refusing bail and directing that a pre-sentence report be made available. 54 On 13 August 1998 a pre-sentence report was tendered, together with a detailed report from Ms Robilliard, a psychologist who had interviewed the applicant and had considered information obtained from Dr Manalaris who was able to give her an adequate history, including the nature of her brain injuries. The Probation and Parole Service report was brief and noted that due to time constrains the “Service’s extensive records were unable to be produced in depth” but that given time, “further information in this regard would be available to the Court”. However, the officer had interviewed the applicant twice, had perused Departmental records and the report of Ms Robilliard, and had conducted telephone discussions with the previous community service order organising officer, the arresting police office and the applicant’s mother as well as perusing the depositions. In brief, the assessment of the officer was that extensive intervention by the Service did “not appear to have resulted in any significant rehabilitation, although at times she has made some efforts to break with undesirable associates”. The outlook was not optimistic and the applicant’s illnesses made it inappropriate that she should undertake available community service or periodic detention. Despite the limitation in research of the Service’s records, no adjournment was sought by counsel on the applicant’s behalf. 55 Having regard to the material contained in the Probation and Parole Service report, together with the psychologist’s report and the applicant’s antecedents, it is fair to infer that her counsel, quite reasonably, thought it unlikely that anything would be exposed following an adjournment which might assist any argument for leniency. The applicant, who is no doubt aware of her history with the Probation and Parole Service, does not suggest that there might be material not adduced which could have assisted her. The applicant called her father to give evidence on her behalf. He described his daughter’s condition following the motor car accident, his wife’s medical condition, what his daughter had been doing at home and her relationship with her son and her mother and the changes for the better he had noticed in his daughter since the car accident. 56 I am of the view that the complaints numbered 12 and 13 above are not made good and do not provide any basis for interfering with the applicant’s sentence. 57 The learned sentencing judge referred, in his account of the trial, that the applicant had maintained her innocence and continued to do so. However, there is no suggestion in his Honour’s reasons that a heavier sentence was imposed for this reason. His Honour referred to the lack of the applicant’s cooperation with the police and that there was no evidence of contrition, in the context of looking to the subjective circumstances to see “whether there are any . . . matters which could assist me in determining the way in which I could approach this case in a more lenient way . . .” His Honour gave detailed and thorough consideration of the significance of the applicant’s medical condition which he accepted had caused “some cognitive damage”. His Honour, however, considered that the Department of Corrective Services would have access to the applicant’s medical advisers and ensure that appropriate treatment would be provided for her. I do not propose to make a long judgment longer than is strictly necessary, and accordingly I will not set out the applicant’s lengthy criminal history, which was only set out in part in his Honour’s judgment, in respect of which his Honour said -
“However, as the Crown correctly says, having regard to the antecedents of the prisoner, and having regard to the serious nature of the matter in respect of which the jury has found her guilty which as the Crown said, having regard to the way in which this incident unfolded, may well attract a custodial sentence, depending on the evidence that is heard in relation to this matter in due course, led by [applicant’s counsel]”.
It will be seen that there is no basis for the suggestion that his Honour had indicated that a non-custodial sentence would be likely, indeed, to the contrary.
58 His Honour considered and rejected the possible tempering (as his Honour put it) of the otherwise appropriate sentence because of special circumstances. A powerful case could be mounted that there were indeed special circumstances in the applicant’s situation. However, it is one thing to consider that the evidence justified such a conclusion and quite another to conclude that the view that there were no special circumstances justifying a variation in the statutory norm is a mistaken one. Furthermore, even if there were special circumstances, “this triggers the exercise of the discretion as to whether or not the existence of such circumstances justifies an additional term in excess of one third of the minimum term” (R v Hampton (1998) 44 NSWLR 729 at 732 per Spigelman CJ). His Honour clearly considered that there should be no adjustment of the relationship between the minimum and additional terms. I am not satisfied that in so deciding, his Honour was in error. His Honour sentenced the applicant to penal servitude for a period of three years comprising a minimum term of two years three months and an additional term of nine months, ordering release on parole on 6 November 2000, subject to the condition that the applicant accept the supervision of the Probation and Parole Service during the period of the additional term. The applicant submits that the ratio which the minimum term bears to the total term is wrong since it is not two thirds of the total term. However, under s 5(2) of the Sentencing Act the statutory calculation, absent special circumstances, is undertaken by giving an additional term which is one third of the minimum term. The sentence therefore complied with the statutory requirement. 59 The applicant, in a later written submission to the Court, substantially repeated these objections to her sentence adding, however, that her mother was terminally ill, awaiting a full heart bypass and that this was her first conviction under s 98 of the Crimes Act. As to the former additional point, her father had given evidence which was accepted “without hesitation” by the learned sentencing Judge. As to the second matter, the applicant’s record demonstrates many convictions for stealing though some appear to be relatively trivial, convictions of assault, assault occasioning actual bodily harm and carrying an offensive implement. It is fair to observe, however, that this offence is, by a considerable margin, the most serious committed by her. However, I consider that the sentence that was imposed extended a considerable degree of leniency to the applicant and was towards the lower end of the appropriate range of sentences for crimes of this degree of seriousness.
“It is clear from the background of the prisoner that she has learnt nothing from the leniency which has clearly been occasioned to her by many courts in many places and many judicial officers, and the time has come for that leniency to cease today.”
I consider that this observation was entirely appropriate. His Honour made reference to the submission by the Crown that he would fall into appealable error should he impose anything other than a full-time custodial sentence and agreed with that submission. I consider that, in the circumstances of this case, his Honour was correct in so doing. His Honour referred to the use of knives as having received “significant public attention to the extent that the legislature has seen fit to enact specific legislation relating to the use of knives, especially those knives which are concealed upon one’s person as this particular knife, I find, was”. However, the use of knives in robberies has always been regarded as very serious. The maximum penalty for the offence of which the applicant was convicted is 25 years penal servitude. I do not consider that his Honour placed inappropriate weight on the circumstance that the victim was attacked and wounded with a concealed weapon.
60 In the result, I propose that the applicant’s appeal against conviction should be dismissed as should her application for leave to appeal against sentence.
So far as the proceedings before Judge Neild were concerned, no application was made to his Honour the trial Judge to delay the trial because of any medical condition suffered by the applicant nor was it suggested that she was in any way unfit to plead. Having regard to this ground of appeal, I have carefully considered the evidence given by the applicant at her trial. I can see no evidence of any difficulty in giving responsive answers to the questions asked of her or of understanding either the case made against her or which she was advancing. It may be that, at an earlier stage, perhaps when appearing before his Honour Judge Neild, that the applicant was more handicapped than was the situation at her trial although his Honour, it seems, did not think so. At all events, I do not consider that this material provides any ground for interfering either with the appellant’s conviction or her sentence.
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Citations
R v Baker [1999] NSWCCA 277
Cases Citing This Decision
4
R v Privett
[2001] NSWCCA 518
R v Murray
[1999] NSWCCA 402
R v Davis
[2007] VSCA 276
Cases Cited
7
Statutory Material Cited
0
Wentworth v Rogers & Anor
[2007] HCATrans 747
R v Rich
[2000] NSWCCA 448
Jeans v Cleary
[2006] NSWSC 647