R v Burns

[2003] NSWCCA 30

Reported Decision: 137 A Crim R 557

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Bradley Scott Burns [2003] NSWCCA 30
HEARING DATE(S):	4 February 2003
JUDGMENT DATE:	25 February 2003
JUDGMENT OF:	Hodgson JA at 1; Sully J at 5; Buddin J at 91
DECISION:	Appeal against conviction allowed; conviction and sentence quashed; new trial ordered
LEGISLATION CITED:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Criminal Appeal Act 1912
CASES CITED:	Reg. v Zorad (1990) 19 NSWLR 91 Azzopardi v The Queen (2001) 205 CLR 50 Fernando (1992) 72 A Crim R 58 Fernando (2002) NSWCCA 28 R v Beattie (1996) 40 NSWLR 155 R v Hasenkamp, CCA unreported, 24 February 1998 R v McGoldrick, CCA unreported, 28 April 1998 R v RPS, CCA unreported, 13 Augusut 1997 Stanoevski v The Queen (2001) 202 CLR 115 Palmer v The Queen (1998) 193 CLR 1 V (1998) 100 A Crim R 448 Mraz v The Queen (1955) 93 CLR 493
PARTIES :	Regina Bradley Scott Burns
FILE NUMBER(S):	CCA 60832/01
COUNSEL:	L. Lamprati - Crown H. Dhanji - Appellant
SOLICITORS:	S. E. O'Connor - Crown D. J. Humphreys - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/61/0038
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

60832/01

HODGSON JA
SULLY J
BUDDIN J

Tuesday 25 February 2003

REGINA v BRADLEY SCOTT BURNS

Judgment

1 HODGSON JA: I agree with Sully J and Buddin J that Grounds 1-7 fail, for the reasons given by Sully J.

2 In relation to Ground 8, I agree with Buddin J. It is unfortunate that the question of cross-examination of Mr. Borton on his convictions was raised so belatedly and so diffidently by Counsel for the appellant; but it was raised, and no rule 4 point arises.

3 The jury were aware that Mr. Borton was in custody, was a user of illegal drugs, and had a motive to give evidence against the appellant. However, for all the jury knew, his custody could have been on remand, with Mr. Borton still being entitled to the presumption of innocence. His evidence was crucial to the Crown case. In those circumstances, my opinion is that evidence of convictions for dishonesty would have substantial probative value, and the eliciting of that evidence in cross-examination could, as a matter of reasonable possibility, have resulted in acquittal.

4 For those reasons, I agree with the orders proposed by Buddin J.

5 SULLY J: In August 2001 the appellant, Mr. Burns, stood trial in the District Court at Bathurst and before his Honour Judge Nield and a jury. The appellant was charged with, and the jury found him guilty of, an offence of armed robbery with an offensive weapon, namely a knife. Such an offence contravenes section 97(1) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. The appellant was in fact sentenced to imprisonment for 7 years, a non-parole period of 4-1/2 years being set. The appellant challenges his conviction, and seeks leave to appeal against what he asserts to have been an excessively severe sentence.

6 The grounds of appeal against conviction are, in their final and amended form, eight in number. They are expressed as follows:

“1. There was a miscarriage of justice as a result of the Trial Judge’s failure to sum up to the jury the appellant’s case and the arguments relied upon by appellant’s counsel in his closing address.

2. There was a miscarriage of justice as a result of the Trial Judge’s failure to adequately warn the jury as to the dangers in relying on evidence of admissions.
3. There was a miscarriage of justice as a result of the failure of the Trial Judge to confine the warning in relation to the unreliability of identification evidence to that part of the evidence which supported the Crown case
4. There was a miscarriage of justice as a result of the trial judge leaving to the jury the appellant’s statement to Lana Ryan not to say anything as an admission on the part of the appellant that he knew about the robbery.
5. A miscarriage of justice was occasioned by the failure of the trial judge to adequately direct the jury in relation to the appellant’s silence and decision not to give evidence.
6. A miscarriage of justice was occasioned by the failure of the appellant’s counsel to cross examine the Crown witness Simon Borton in relation to whether he expected to receive more favourable treatment on his pending appeal before the trial judge as a result of giving evidence against the appellant.
7. A miscarriage of justice was occasioned by the failure of the appellant’s counsel to cross examine the Crown witness Audrey Knox in relation to her prior history of dishonesty as revealed by her criminal record.
8. A miscarriage of justice was occasioned by the refusal of the trial judge to allow counsel for the appellant to cross-examine the witness Simon Borton in relation to his criminal convictions for offences of dishonesty.”

7 The competing cases at trial are summarised sufficiently for present purposes in the written Summary of Trial filed by the Crown in connection with the present appeal.

8 The Crown case at trial, as thus summarised, was:

“Around 9.15 am on 14 November 2000 a corner store at 15 Oliver Street, Orange was robbed by a male (on the Crown case, the appellant) and a female (Lana Ryan, who subsequently pleaded guilty to the offence of robbery with an offensive weapon). Both were seen by witnesses outside the store to have been wearing dark clothing, and one witness (Susan Johns) said that the male was cross-eyed and had dark coloured eyes (T 56). Johns had been at the phone box across the road from the store, and she saw a male and a female near the phone box. She saw them go into the store and then run out. She identified the male to police from a series of photos as the male in photo number 16, which was not the appellant (T 56-58), but she was not one hundred per cent sure of the accuracy of her identification. (The appellant’s photo was number 12 in the series of photos – Exhibit F.)
There was a residence at the back of the store, and one of the owners, Lesley Thorley, was in the store at the time of the robbery. Her husband was asleep in one of the bedrooms, and her 4 year old daughter was in the lounge room.
Mrs. Thorley saw the male and female enter the store, and the female went to the fridge and placed a strawberry Moove carton on the counter. The male asked for lollies and Mrs Thorley bent down behind the counter to collect the lollies. The male then moved to the side of the counter and pointed a 30 cm black serrated knife (exhibit A) from around a metre away. He said, “pop the till”. Mrs Thorley tried to open the till and the female went to the edge of the counter and also demanded that she open the till (T 15). The till was opened and the male took $100 to $150. He looked at Mrs. Thorley and headed into the residence at the rear of the store. Mrs Thorley went to follow him but she was blocked by the female (T 16). She saw the male walk past her daughter through the lounge room and she screamed to her husband, “Russell, robbery, knife” and then at the male to get away from her baby and get out (T 16). At that time Russell Thorley (Mrs. Thorley’s husband) woke up and saw two people in the hallway. When the female saw him she called out to the male, “Get the knife, get out” (T 17). The male and female ran from the store.
Mrs. Thorley described the male as being Aboriginal with short hair and 175 cm tall. He was wearing dark trousers, a lighter-coloured zip top, white joggers with tan markings on the sides and a dark close-knit cap. The female was also in dark clothes and she appeared to have bruises on her face (T 13-14). Mrs. Thorley recognised the clothes as clothes subsequently seen by police as having been worn by the appellant when he was arrested later that day (T 65, 67-68): exhibits C and D, and she also recognised the shoes (exhibit E), although these did not have any tan-coloured markings. The clothes and shoes were subsequently photographed by police (exhibit K). When Mrs Thorley had called the police she had said that the male had been wearing dark pants, perhaps coloured dark brown (T 53).
Mrs. Thorley was shown a series of photos of various males by police (exhibit F) but she was unable to identify anyone as having been the male robber.
Audrey Knox resided at 9 Algona Crescent, Orange with Simon Borton. Sometime between 9 am and 10 am on 14 November 2000 the appellant arrived at the house with Lana Ryan. The appellant was wearing dark track pants, a black and white jumper, and white joggers. Ryan had a black eye. They showed Knox between $80 to $90. When asked where they had obtained the money from, one of them said that they had “done a shop over” on the other side of town (T 28-29). Borton was in his bedroom at the time, and he overheard the appellant mention that he had robbed a corner shop (T 38). Knox and Borton left and returned an hour or two later. The police then arrived at the house and Borton let them in. They found the appellant and Ryan hiding in the kitchen beside the fridge (T 39).
In cross-examination Knox said that she had made a statement to police after she had been told that her refusal to do so would lead her to being charged as an accessory. Borton gave similar evidence.
Knox said that she and Borton were under the influence of drugs on 14 November 2000 and she could not be sure of what the appellant had said to her (T 31-32,34). She agreed that her memory was vague and that in earlier proceedings she had said that the appellant had been wearing a white shirt (T 33). In cross-examination Borton said that he had not been under the influence of any drugs on 14 November 2000, but that he and Knox had taken drugs the day before (T 39-40).
Both Knox and Borton denied in cross-examination that they had ever seen the knife (exhibit A) before.
Senior Constable David Price was one of the police officers who attended 9 Algona Crescent, Orange on 14 November 2000. After coming in the house Price went into the kitchen and saw the appellant and Lana Ryan crouched near the fridge, adjusting their clothing and opening the lower kitchen cupboards (T 42). Price went with the appellant into the lounge room. He later heard Ryan (who was in the kitchen with other police) yell out, “Don’t worry babe, I did the cunt” (T 43). The appellant yelled out, “Don’t say nothing babe, I’ll take the rap for it” (T 43).
The appellant was subsequently escorted to Orange Police Station and he was asked about what he could say about the robbery. He said, “nothing”. He said he had been to his brother’s house and then came to 9 Algona Crescent, Organge. Lana Ryan had not been with him all day (T 44). The appellant declined to be interviewed and to take part in an identification parade.
Senior Constable Brendan Gray also attended 9 Algona Crescent, Orange and he saw the appellant and Lana Ryan in the lounge room. The appellant was described as being 165 to 170 cm tall, with short dark hair, wearing white joggers with tan markings on the side, black track pants and a tan coloured wind jacket. The appellant was searched but nothing of relevance was located. Gray went into the kitchen, where Ryan had been escorted, and he saw her attempting to secrete a knife (exhibit A) in the sink (T 49). She started yelling, “Don’t worry babe, I did the cunt” and shortly thereafter she yelled, “Don’t say anything babe, I’ll take the rap for it”. Ryan also yelled out, “I did the cunt, he did nothing” and the appellant then said, “Just shut up and don’t say anything” (T 50). This evidence was corroborated by Plain Clothes Senior Constable Stephen Pack (T 63-64) and Detective Senior Constable Scott Rayner (T 68), although Rayner said that the appellant’s shoes did not have a tan colour on them. (T 69)
Gray subsequently interviewed Ryan, who confessed to having committed the robbery with a Koori man named Peter Smith, who had spiky hair and blue eyes (T 51). Senior Constable Pack located a man named Peter Smith in Redfern, but he was Caucasian (T 66).
Senior Constable Gregory Simpson conducted fingerprint tests in the store that was robbed, and found no prints matching the prints of the appellant. A fingerprint matching Lana Ryan was located on the strawberry Moove carton (T 72).”

9 The defence case at trial, as thus summarised, was:

“The appellant did not give evidence and no evidence was called on his behalf in the trial.
Through the cross-examination of Audrey Knox and Simon Borton the appellant sought to suggest that the appellant had not confessed to committing any robbery and that their memory was affected by drug use.
The appellant also relied on the statements he had made to police when arrested, namely, that he knew nothing about the robbery and that he had not been with Lana Ryan for the whole of 14 November 2000.”

10 The addresses of counsel were transcribed and a copy of that transcription was made available to this Court. A reading of the closing address of the appellant’s counsel at trial makes plain, in my opinion, that the trial was fought out on two fundamental issues:

[1] The reliability of a body of evidence descriptive of the male robber; and the reliability of an inference that such description was in fact a description of the appellant; and

[2] The reliability of the evidence of Simon Borton and of Audrey Knox as to admissions allegedly made to them by the appellant.

11 That analysis of the issues at trial is strengthened, in my opinion, by the following submission with which the appellant’s counsel at trial concluded his address:

“What evidence is there to link this man with this charge? When you analyse it there’s the word of Simon Vautin [sic, but read Borton], maybe the evidence of Audrey Knox but she’s not sure who of said [sic, but read who said] who robbed the shop. That’s all there is. Surely that’s not the proof beyond reasonable doubt. ………………….”

Ground 1

12 It is relevant for present purposes that the appellant’s counsel at trial did not put in terms to the jury that the appellant, when interviewed by the investigating police, had asserted, simply, that he knew nothing about the particular crime. The Crown Prosecutor, also, made no specific reference in his closing address to this point.

13 The learned trial Judge, when giving the jury that “collected resume” of the evidence which the law required his Honour to give: - Reg v Zorad (1990) 19 NSWLR 91, - did not in terms remind the jury of the particular exchange between the appellant and the interviewing police.

14 It is now submitted that this omission manifests a miscarriage of justice. I do not agree.

15 First, the appellant’s counsel at trial was experienced in the conduct of criminal trials. At the conclusion of the summing up, counsel asked for only one re-direction, being a re-direction touching upon an aspect of the descriptive, or, expressed loosely, the identification, evidence. It is abstractly possible, but not realistically likely, that experienced counsel simply overlooked the present point, if the point was, in truth, one fundamental to the defence case.

16 Secondly, the relevant evidence was given clearly, and without controversy, before the jury, and by Senior Constable Price. The precise evidence went no further than a question: “What can you tell me about the incident?”, and an answer: “Nothing”. It is, in my opinion, fair to approach the appellant’s present submission upon the basis that the evidence was fresh in the minds of the jurors.

17 It is now further submitted by the appellant that the trial Judge failed to sum up fairly the defence case. This Court can only deal with that submission upon the basis of its own impressions and inferences drawn, - after the trial, and divorced from any contact with, or appreciation of, the atmosphere of the trial, - from the written record of what happened at the trial.

18 Approached in that way, I am unpersuaded that there was any miscarriage of the kind now suggested. The summing up seems to me to have done what various Benches of this Court have repeatedly told trial Judges to do: that is, to sum up in a clear, uncomplicated, and practical way, having due regard to the way in which, and the basis upon which, the trial has been fought out. In my opinion the summing up left clearly to the jury the fundamental question for decision, namely: could the Crown prove beyond reasonable doubt that the appellant was the male robber on the particular occasion?

19 I am strengthened in the foregoing conclusion by the fact that the appellant’s counsel at trial sought no re-direction appropriate to the present submission on appeal.

20 I would not uphold Ground 1.

Ground 2

21 It is not now contended that the learned trial Judge gave no warning about the potential unreliability of the evidence, given by the witnesses Borton and Knox, of inculpating admissions allegedly made to them by the appellant. The contention is, rather, that the warning, as given, was inadequate.

22 The substance of the appellant’s argument is put as follows in the appellant’s written submissions:

“30. The warning given by the trial judge drew the jury’s attention to the admissions made by Knox and Borton as to the consumption of drugs. This was a matter which may have made their evidence [seem] to be unreliable. However, it was a matter entirely separate to the need for caution arising from the fact that the evidence was of an alleged admission. As such it was necessary to warn the jury that it was evidence that was easy to fabricate but difficult to test through cross-examination. It is submitted that the jury should also have been told that, even if they were satisfied the admission was made they could not necessarily assume that it was true – it had not been made on oath, or in the formal setting of a courtroom, and there may be many reasons why, not only the witnesses may have given a false account, but also, assuming the witnesses to be accurate and reliable, why the appellant might have given a false account to the witnesses.
31. The warning given by the trial judge failed to address the above matters. Without the giving of an appropriate caution or warning, tailored to the circumstances of the case, these matters may not have been appreciated by the jury.”

23 In my opinion this argument should not be upheld.

24 It was not the duty of the learned trial Judge to give an artificially detailed and complex, multi-faceted direction, of the kind suggested. The duty of his Honour was to give a direction that was sound in law; and that was fair in fact, having regard to the conduct of the trial. I see no defect in the warning in fact given.

25 I am strengthened in that conclusion by the fact that experienced trial counsel sought no appropriate re-direction.

26 I would not uphold Ground 2.

Ground 3

27 It is, once again, convenient to put, in the words of the appellant’s submissions, the essence of the argument advanced in support of this ground:

“35. It is apparent from the above that the most significant aspect of the “identification evidence” was its capacity to exculpate the appellant. The case against the appellant consisted of the appellant’s alleged admission which was said to be supported by some circumstantial evidence. Insofar as some of the circumstantial evidence was exculpatory, what was important was not the danger that such evidence might be unreliable, but the possibility that it might be right. As was observed in Hodge (1838) 168 ER 1136 at 1137, “a single circumstance which is inconsistent [with guilt] is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt”.
36. Warnings in relation to the unreliability of evidence should be restricted to that part of the evidence which supports the Crown case – Jamieson, Elliot & Blessington (1992) 60 A Crim R 68, per Gleeson CJ at 76, R v Baker [2001] NSWCCA 151. This was not observed in the present case. The result was that evidence which contradicted the Crown case was undermined. It is submitted that this resulted in a miscarriage of justice.”

28 In Baker (supra), Ipp AJA said, (Handley JA and Greg James J concurring):

“27. In Jamieson, Elliott and Blessington (1992) 60 A Crim R 68 Gleeson CJ observed that where an accomplice gives evidence partly supportive of the case of an accused person it is technically correct that any accomplice warning that is given should be confined to the care to be taken in relation to those parts of the accomplice’s evidence that support the Crown case.”

29 The present case cannot be regarded sensibly as, or as analogous to, a case involving accomplice evidence.

30 The present case really came down to two questions:

[1] Could the Crown establish that the description evidence in its case gave rise to an inference that, beyond reasonable doubt, the person thus described was the appellant?

[2] Could the Crown establish beyond reasonable doubt that the evidence of the witnesses Borton and Knox as to inculpating admissions allegedly made to them by the appellant, was both truthful and accurate?

31 The description evidence was weak. It became, thereupon, the duty of the trial Judge to give an appropriate warning to the jury. That entailed reminding the jury of what the evidence actually was; and drawing the attention of the jury to the need to be appropriately careful and cautious about drawing an inference of guilt beyond reasonable doubt from that evidence.

32 The learned trial Judge did in fact sum up the essential matters to which the relevant witnesses had deposed; and then gave this direction:

“Now that is the identification evidence, members of the jury. That is the evidence that goes to identification. Looking at that evidence alone, the only part of it which attaches to the accused, and this is for you to decide but you might think this is the case, is the fact that he was wearing a brown coloured weather cheater type jacket, that he was wearing track pants and he was wearing joggers when police arrested him at about 3.45 pm that day. The other evidence could not describe the accused. Mr. Towns saw whoever it was for a brief period of time. Ms Johns saw whoever it was for a brief period of time and, as I have said, you do not know whether the accused has brown eyes, whether he is cross-eyed, whether his right eye turns in a bit. Mrs. Thorley’s description relies, you might think, upon the description of the clothing being worn by the person.”

33 At the very end of the summing-up his Honour said:

“I have said to you, members of the jury, that, when you consider the evidence of identification, really it is evidence of a description, and particularly of clothing, bear in mind the other evidence.”

34 It is timely to repeat that the duty of the learned trial Judge was to help the jury by directions that were as simple and practical as possible, having regard to the conduct and atmosphere of the trial. It seems to me that what his Honour told the jury conveyed clearly to the jury for its consideration the weaknesses in the description evidence, and the need to be careful in deciding what, if any, inference the jury ought to be persuaded to draw beyond reasonable doubt.

35 I am strengthened in those conclusions by the absence of any application by counsel at trial for relevant re-directions.

36 I would not uphold Ground 3.

Ground 4

37 The written submissions of the appellant put as follows the essence of this ground:

“40. The accused, of course, had a right of silence – see s89 Evidence Act, Petty v The Queen (1991) 173 CLR 95, R v Anderson [2002] NSWCCA 141. No inference adverse to him could be drawn from the exercise of this right. No inference could be drawn against Ryan in her exercise of that right. It is submitted that, in the circumstances of this case, no ….(inference)…. could be drawn against the accused advising Ryan to exercise her right to silence.”

38 The relevant passages of the summing-up are:

“Members of the jury, there is other evidence upon which the Crown relies. Now you know that at about 3.45 pm police went to the residence of Ms Knox and Mr. Borton where they were staying with Mr. Trudgett. A number of police went and you heard evidence from a number of them. Mr. Borton let police into the residence. As he was doing so, police saw the accused and Ms Lana Ryan leave the lounge-room and go into the kitchen. Police followed them and brought them from the kitchen into the lounge-room. They were with police in the lounge-room for a time and then police took Ms Lana Ryan back into the kitchen for the purpose of being searched. The accused was searched in the lounge-room. Police found that Ms Lana Ryan had the knife which is Exhibit A. That is the knife described by Mrs. Thorley as having been the knife held by the male robber. You knowthat that fingerprint examination of the knife did not reveal the accused’s fingerprints. There may be an explanation for that, if it was the accused who was holding it when Mrs. Thorley was robbed, but you have not been told of any explanation by anybody, and, members of the jury, you must not speculate and I have told you that already.
Now when police had Ms Lana Ryan in the kitchen and the accused in the lounge-room police have said that there was some yelling between them, and the Crown Prosecutor relies upon this yelling as indicating a knowledge in the accused of the robbery of Mrs. Thorley. Police say that Ms Lana Ryan called out “Don’t worry babe, I did the cunt” and there is no dispute about that apparently, all police say that Ms Lana Ryan said that. Then Constable Price says that the accused said “Don’t say anything babe I’ll take the rap for it”. However, Constables Grey and Pack say that it was Ms Lana Ryan who said “Don’t say anything babe I’ll take the rap for it”. I referred yesterday to that difference between those police in relation to that piece of evidence. Police say that the accused yelled “Just shut up and don’t say anything”, and he said that or something like that four times.
Now, members of the jury, the Crown relies upon the fact that the accused and Ms Lana Ryan arrived at the residence of Ms Knox and Mr. Borton sometime in the morning. Whether it was about nine, as Ms Knox has said, or between 9.30 and 10, as Mr. Borton said, the Crown relies on their being there together. The Crown relies upon the fact that the knife used in the robbery was found in the possession of Ms Lana Ryan. The Crown relies on the fact that, irrespective of who said “Don’t say anything babe I’ll take the rap for it”, the Crown relies upon the accused saying “Just shut up and don’t say anything” and something like that another three times. The Crown Prosecutor says that that shows that the accused knew about the robbery at the time of his arrest at about 3.45 pm.”

39 It seems to me that it was open to the jury to draw the inference that what the appellant had called out to Miss Ryan showed that they both knew about the robbery; and that she should not, so to speak, give the game away by making any admissions. Such an inference, if drawn, was not important because of any connection with either the existence, or the exercise, of anybody’s right to silence. It was important because it gave the lie direct to the appellant’s statement to the investigating police that he could tell them nothing about the robbery.

40 I can see no reason why the trial Judge should not have left that clear issue of fact to the jury; and I see nothing wrong with the terms in which his Honour did so.

41 I am, once again, strengthened in those views by the absence of any application by counsel at trial for relevant re-directions.

42 I would not uphold Ground 4.

Ground 5

43 The written submissions accept that the relevant, and lengthy, directions given in fact by the learned trial Judge were correct; but they advance the following argument:

“42. While the above directions are, of themselves, correct, the appellant in this matter did not exercise his right to remain silent. He put his case when first questioned, clearly and succinctly. That is, as noted above, he told Constable Price that he could tell him “nothing” about the offence, he had not been with Ms Ryan the entire day and he had not been to the victim’s shop that day. The repeated and forceful directions ignored the appellant’s case. This was exacerbated by the failure to make any reference to what was said by the appellant on his arrest.
43. Further, while the jury were told that they must not speculate as to why the appellant had decided not to give evidence, they were never told that there may be many reasons why an accused person may choose not to give evidence.
44. In R v OGD (1997) 45 NSWLR 744, Gleeson CJ said, at 751:
“….. it is ordinarily necessary to warn a jury that there may be reasons, unknown to them why an accused person, even if in a position to contradict or explain evidence remains silent.”
45. In the context of the present case it is submitted that, not only should a direction in accordance with the above have been given, the jury should have been directed that one possible explanation was that the accused may choose to rely on his denials made immediately upon his arrest.”

44 The relevant law is now stated definitively in the majority decision of the High Court of Australia, (Gaudron, Gummow, Kirby, Hayne and Callinan JJ; Gleeson CJ dissenting), in Azzopardi v The Queen (2001) 205 CLR 50. The general thrust of the majority opinion can be gathered, relevantly, from paragraphs 51 and 52 of the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ:

“51, In the course of argument of the present matters it was suggested that if a Judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused’s silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.
52. As will later appear, there may be cases where the failure of an accused to offer an explanation by reference to some matter peculiarly within his or her knowledge will permit comment to be made as to that failure. However, as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties. Unnecessary or extensive comments on the facts carry well-recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury.”

45 The emphases in the quoted passage have been added by way of indicating some of the nice practical judgments that a trial Judge must now make on the particular topic.

46 In the present case, the learned trial Judge gave the following directions:

“So, members of the jury, the accused was entitled to decline to answer Senior Constable Price’s questions, he was told he need not do so, he exercised his right not to do so, albeit that he did answer some questions and I will refer your attention to those tomorrow. The right that he had to decline to answer questions continues through into this trial, it is a right the law gives him and the right continues into this trial and continues until your foreman gives your verdict in this trial. You see, members of the jury, the accused did not have to give evidence in his trial, our law does not require an accused person to give evidence on his or her trial. The accused decided not to give evidence in his trial. He was entitled to decline to give evidence in his trial. And, members of the jury, you must not ask yourselves why did the accused decide not to give evidence in his trial, because asking yourselves that question is to ask an improper question. I want you to understand, members of the jury, that the accused had the right not to give evidence in his trial and his exercising his right must not suggest to you that he did so because he is or believes himself to be guilty. It would be quite improper for you to speculate as to why the accused decided not to give evidence in his trial. He was entitled not to give evidence in his trial and his deciding not to give evidence must not suggest to you that he is or believes himself to be guilty of the offence with which he stands charged.”

47 An application, as follows, was made for a re-direction:

“HIS HONOUR: Right anything I’ve said so far that either of you want to say that I?
COUNSEL: Just your Honour in relation to the right to silence that no adverse inference can be drawn from it.
HIS HONOUR: I’ll mention that yes, you’re quite right.”

48 The following re-direction was thereupon given:

“Members of the jury, I told you yesterday that the accused has, as everyone has, the right to remain silent when asked questions by a police officer about anything at all, other than a few limited statutory circumstances, none of which applied in this case, and that his right to remain silent continues throughout the trial until your foreman gives your verdict in the trial. I wish to add to what I said yesterday concerning the accused’s right to remain silent, this the law gives to everyone the right to remain silent and the law says that if you do remain silent then no one can draw an adverse inference from your exercising a right given to you by law. That is what lawyers say. What it means is that in this trial you cannot hold it against the accused that he declined to answer the questions that the police wanted to put to him, although some were put to him and some he did answer, and, members of the jury, that is what drawing an adverse inference means. So in this trial, as I have just said, you cannot hold it against the accused that he exercised a right that the law gave to him, as it gives to everybody.”

49 No further re-directions were requested.

50 As has been previously, and repeatedly, noted herein, the appellant’s trial was short, and was clearly and simply focused. It was, certainly, necessary to warn the jury against the natural temptation for the lay mind to reason that an accused person who gives no evidence at his trial is conveying by that election that he is in truth guilty as charged. The way in which that was required to be done did not depend, however, upon taking such statements as have been quoted from Azzopardi, and using them as some kind of routine check-list to be intoned mantra-like to the jury. What had to be done was to ensure that the jury understood:

[1] that the Crown case depended upon proving guilt beyond reasonable doubt from a combination of circumstantial description evidence; and of alleged inculpating admissions;

[2] that the defence case was that the circumstantial description evidence was so weak that an inference of guilt beyond reasonable doubt was not safely open; and that the evidence of admissions came from witnesses who could not be accepted beyond reasonable doubt as both truthful and reliable;

[3] that the absence of evidence at trial from the accused himself did not justify the drawing against him of any adverse inference.

51 In my opinion, the totality of the relevant directions, read fairly and with a sensible regard to the issues at trial, was sufficient.

52 I am, once again, strengthened in those conclusions by the absence of any application by counsel at trial for relevant re-directions.

53 I would not uphold Ground 5.

Grounds 6, 7 and 8

54 The witnesses Borton and Knox gave evidence which, if accepted, establishes that the appellant had made to them incriminating admissions in connection with the particular robbery.

55 Under cross-examination the witness Knox said that the police told her and Borton before they made their respective formal written statements, that if they did not give the police such statements, they would be charged with “accessory to the fact”. She was asked: “So you made a statement because the police said that you’d be charged?”; and she replied: “Yep”.

56 The cross-examination then moved onto the matter of the effect of the witness’s drug abuse upon the reliability of her alleged recollection about the potentially incriminating statements of the appellant. The relevant evidence was:

“COUNSEL: Q. You see on this day in the morning you and Simon were under the influence of drugs weren’t you?
A. Yes at the time we was.
Q. Beg your pardon?
A. Yes at the time we was.
Q. And what time were you – this is about nine or 10 o’clock in the morning is that right?
A. Yeah.
Q. And you were still under the influence of drugs later in the day is that right?
A. Yes.
Q. So you’re not really sure what was said by Bradley Burns are you?
A. At the time.
Q. Yeah at the time, you’re not sure are you?
A. No.
Q. Because you were affected by drugs weren’t you that day?
A. Yes.
Q. And so was Simon?
A. Yes.”
Q. And I think the situation is that because you were on drugs on this day you can’t remember what happened on that day can you very well?
A. Not very well.
Q. You were asked this question when you gave evidence back at the Orange Court House in March of this year. Question, this is at 12.39, “Because you were using drugs did you at times get confused” and you said “No not really just because I think because we were – drugs too – just can’t remember hardly anything”. And is that the situation you can’t remember hardly anything about what happened on this day on 14 November?
A. Some parts I can remember.
Q. Well you told the Court back in March “Just can’t remember hardly anything”, isn’t that true today?
A. Yeah.
Q. You can’t remember hardly anything can you?
A. Yes.
Q. Is that right?
A. Yep.
Q. Because on this day, on 14 November last year, you and Simon were on the drugs weren’t you?
A. Yes.”
Q. You see between the date of 14 November and when you made your statement on 4 December you had been using illegal drugs hadn’t you?
A. Yes.
Q. In that period of time?
A. Yes.
Q. And so when you made your statement on 4 December I put it to you that what you told the police wasn’t that accurate or reliable because you’d been affected by drugs for two weeks or so is that right?
A. Yes.”

57 The total effect of this evidence was apt, at least, to raise a real doubt about the reliability of Miss Knox’s recall of both the fact and the content of any potentially incriminating statements of the appellant. There was no re-examination.

58 The witness Borton was the next witness called in the Crown case. He, too, gave very brief, but clear, evidence of potentially incriminating statements made by the appellant. His cross-examination, too, was brief, and there was no re-examination.

59 Under cross-examination Mr. Borton gave this evidence:

“WALSH: Q. Of course this day that the police came to your home and the day that you saw Bradley Burns and Lana Ryan there which was 14 November 2000 you were well affected by illegal drugs that day weren’t you?
A. No not that day.
Q. Not that day?
A. Beg you pardon
Q. Not that day?
A. No but I did use drugs at the time but I wasn’t stoned at the time that happened.
Q. But you were affected to some degree by drugs that day weren’t you?
A. I would say yeah probably a little bit.
Q. Because you and Audrey had been taking drugs that day is that right?

A. Not that day.
Q. Not that day?
A. The day before that yeah.
Q. Had a pretty big dose the day before didn’t you?
A. Can’t really require how much.
Q. See your memory of 14 November is not that good is it?
A. Just remember what I seen that’s about it.
Q. And I put it to you that at no time on that day, 14 November 2000, did Bradley Burns say that he’d robbed the corner shop?
A. Yeah he did.”

60 This evidence, if accepted by the jury, left substantially intact Mr. Borton’s evidence-in-chief about the alleged statements of the appellant.

61 The remainder of the evidence in the Crown case was then led. Before the formal closing of the Crown case, there was discussion about two topics, one of which concerned a suggestion that Mr. Borton had “done a deal with the Crown”. The trial transcript contains a summary, rather than a transcription, of what was said. The summary reads:

“(Discussion as to confirmation as to whether Simon Borton has done a deal with the Crown. Discussion ensued. Crown Prosecutor has indicated so far as he is aware no deal has been done with Mr. Borton. [Counsel] indicates he can take it no further other than asking for Mr. Borton to be brought back and ask him under oath in the absence of the jury, and if he says there has been.[counsel] will be asking him in the presence of the jury what the deal was. His Honour makes an order that a Section 77 order be issued to have Simon Borton brought back to Court.)”

62 The learned trial Judge permitted the recall of Mr. Borton for examination on the voir dire as to any “deal” done with him in connection with his giving evidence for the Crown at the appellant’s trial.

63 A voir dire hearing was thereupon conducted. Mr. Borton’s voir dire evidence established that he had an appeal pending in the District Court, and a number of other pending charges. He denied that there had been any arrangement whereby, in return for his giving evidence against the appellant, he would be treated with special leniency, or would be assisted by the watering down by the police of any statement of facts that the police might tender in connection with the matters outstanding against him.

64 After the voir dire hearing had concluded, the appellant’s counsel at trial told the Judge that he did not require Mr. Borton for any further cross-examination. All of the foregoing proceedings occupied the Court up to the normal luncheon adjournment, which was then taken. When the Court reassembled after that adjournment, the appellant’s counsel applied for leave to cross-examine Mr. Borton further. The course of that application is recorded as follows:

“DEFENCE COUNSEL: Your Honour as I left the Court building my instructing solicitor reminded me of something of the evidence of Mr. Borton which was that he said about he’d made a statement to the police and if he didn’t make a statement he’d be charged with accessory after the fact, and your Honour asked did I wish to ask anything further in front of the jury and I said no but I’d forgotten about that aspect and it turns out that Mr. Borton is still here. I would be asking your Honour for leave to cross-examine him on that aspect, that he made a statement on 4 December, and that when he made that statement he was told he either made a statement or be charged accessory after the fact. And also, now that he’s still here, seek your Honour’s leave to cross-examine him in respect of his criminal history. Your Honour no doubt may well decide against me on that but I’ll seek to do that.
HIS HONOUR: Mr. Crown?
CROWN PROSECUTOR: I oppose the cross-examination in relation to the criminal history and --
HIS HONOUR: Yes well I won’t allow that.
CROWN PROSECUTOR: And in relation to having him recalled to ask those questions, I mean he has already given, he’s been thoroughly cross-examined and I would submit that it doesn’t take the matter any further.
HIS HONOUR: I won’t let you cross-examine him as to his criminal record because it goes only to credibility ---
DEFENCE COUNSEL: Yes your Honour I understand ---
HIS HONOUR: --- and it can’t be of substantial probative value in this case.
DEFENCE COUNSEL: Yes I understand that and I – yes your Honour.
HIS HONOUR: I’ll let you cross-examine him about what he says the police said to him.”

65 Mr. Borton was then recalled and was further cross-examined. He was asked in all ten questions. Those now relevant, and the answers to them, were:

“Q. Mr. Borton you made a statement to police on 4 December 2000 in relation to the matter now before the Court is that right?
A. Yeah.
Q. And when you made that statement on 4 December 2000 was there some discussion by police with you about you being possibly charged in relation to the matter?
A. All was said was that there could be a possibility that I could be charged if I didn’t make a statement.
Q. If you didn’t make a statement?
A. Yeah if ---
Q. So you decided to make a statement?
A. Yeah.
Q. And as a result you weren’t charged?
A. No.”

66 There was no re-examination.

67 The foregoing evidence, if accepted by the jury, was plainly capable of damaging significantly the reliability of the evidence which Mr. Borton had previously given in the trial.

68 When the jury eventually retired to consider its verdicts, the relevant evidence in hand for the jury’s reasonable evaluation in accordance with the Judge’s directions of law, was:

[1] Two witnesses had given sworn oral evidence of having heard the appellant inculpate himself in the relevant robbery.

[2] Both had given pre-trial statements to the police, the statements including references to the alleged admissions of the appellant.

[3] Both had been told by the police that, should they refuse to make, respectively, a pre-trial statement, then there was, at least, the prospect that they would themselves be charged in connection with the robbery.

[4] Both had been influenced by that threatened prospect to make, respectively, a pre-trial statement.

[5] One of the two witnesses, Miss Knox, admitted to the real possibility that her recall of what the appellant had allegedly said was unreliable because of the influence upon her at the material times of recently used drugs.

[6] The other witness, Mr. Borton, conceded no such impairment of his recollection, either in terms of its truthfulness or in terms of its accuracy.

[7] The Crown case included a body of description evidence, but it was weak, and any identification from it of the appellant could only be made by the drawing of an inference, reached beyond reasonable doubt, as the only rational conclusion to be drawn from that weak evidence. There were obvious difficulties in drawing such an inference from such a base.

[8] There was, also, in the Crown case some evidence, not completely consistent, of things said by the appellant at the time of his arrest; and capable, if accepted at its highest point in favour of the Crown, of being construed as an inculpating statement by the appellant.

69 In that state of affairs, the evidence of Mr. Borton was of the greatest potential significance. If what he said were to be accepted by the jury as both honest and accurate, then the statements of the appellant, as given in evidence by Mr. Borton, were, without more, seriously damaging to the appellant’s case, and correspondingly supportive of the Crown case. The converse was equally true.

70 There was, in addition to the foregoing evidence, material which the jury did not have before it. Specifically, the jury did not have before it evidence of the criminal antecedents of both Miss Knox and Mr. Borton.

71 As of 6 August 2001, the date on which Miss Knox gave evidence, her criminal antecedents, commencing with an arrest on 20 November 1993, were:

1. Stealing: 4 matters

2. Break enter and steal, or accessorial offences: 4 matters

3. Unlawful entry: 2 matters

4. Receiving or goods in custody: 4 matters

5. Offences connected with false instruments: 10 matters

72 There were other matters, but they were not offences of dishonesty. Miss Knox’s most recent arrest had been on 5 July 2000. Her most recent Court appearance had been 17 August 2000.

73 Mr. Borton, too, gave evidence on 6 August 2001. His then antecedents, commencing with an arrest on 9 July 1993, were:

1. Larceny: 3 matters

2. Stealing: 1 matter

3. Goods in custody: 1 matter

4. Break enter and steal: 1 matter

74 These were the only matters involving dishonesty. There were other entries for assault, malicious damage, driving offences, and summary street offences; and for breaches of community service orders and a recognisance. Mr. Borton’s most recent arrest had been on 24 July 2000. His most recent Court appearance had been on 27 April 2001. On that occasion he had been sentenced to concurrent fixed terms of imprisonment for six months in connection with a number offences of larceny and of common assault. He had lodged a severity appeal to the District Court against each such sentence. The appeals were heard at Bathurst, (or Orange, the record is not clear as to which it actually was), on 15 August 2001. I infer that, as of 6 August 2001, the appeals were listed for hearing, and were known by Mr. Borton to be so listed, on or about 15 August 2001.

75 It is convenient to deal now with Ground 7.

76 In my opinion there was no miscarriage as propounded in that ground. The appellant’s counsel at trial had cross-examined out of Miss Knox admissions which, uncorrected by any re-examination, effectively undermined the reliability of her evidence of what she had supposedly heard the appellant say about his connection with the robbery. It is a truism that a good barrister is always astute to avoid the temptation to ask the one question too many. It is in my opinion wholly understandable, and forensically justifiable, that counsel, so to speak, quit while he was ahead, as he clearly was with Miss Knox.

77 I would not uphold Ground 7.

78 Ground 6, as I understand the reasoning upon which it is based, entails the proposition that it should have been made apparent to the jury that the trial Judge was the very Judge who would be dealing, as soon as during the following week or thereabouts, with appeals then pending against the sentences earlier herein noted.

79 Let it be supposed that counsel had in fact asked Mr. Borton whether he was expecting his pending appeals to be adjudicated with added favour because of his giving of evidence in aid of the appellant’s prosecution. There were, speaking realistically, only three possible answers: first: “yes”; secondly: “no”; thirdly: “I haven’t really thought about it”, or something else to the same essential effect. What is it to be supposed that the Crown would thereupon have done? The first possible answer would have entitled the Crown Prosecutor, to say nothing of the trial Judge, to tell the jury in very clear terms that, whatever the perceptions of the witness, the appeals would be dealt with on their individual merits. The second possible answer could not have been positively contradicted; and nothing was put before this Court from which a contrary inference could properly be drawn. The third answer would either have been accepted; or would have ignited a forensic clash between witness and counsel from which it might well have been counsel who had the worse part of the engagement.

80 That the particular point was not pursued at trial does not seem to me to justify a rational conclusion, as distinct from a forensic hypothesis, that the appellant lost thereby the fair chance of an acquittal. There was in my opinion no evident miscarriage. I would not uphold Ground 6.

81 Ground 8 is properly dealt with, in my opinion, by the following process of reasoning:

[1] The ultimate fact in issue was whether the appellant had been one of two armed robbers on the particular occasion.

[2] The disputed allegation that the appellant had actually made an out-of-Court admission that he had been one of the robbers gave rise to another fact in issue. It was not the ultimate fact in issue; but, rather, a subsidiary fact in issue.

[3] Evidence capable of proving the alleged admission was admissible as being relevant, in the sense defined by section 55 of the Evidence Act 1995 (NSW) , to the proof of the subsidiary issue of fact; and by rational extension, to the proof of the ultimate issue of fact. This consideration made the evidence of Mr. Borton admissible at all.

[4] The fact that Mr. Borton had criminal antecedents embracing offences of dishonesty was not relevant, in the section 55 sense, to either of the facts in issue, as noted in [1] and [2] above. The fact that Mr. Borton had a record of criminal dishonesty went to the issue, not of whether the appellant had made the admissions, but of whether Mr. Borton could safely be accepted as both honest and accurate when he alleged on oath that the appellant had indeed made the admissions.

[5] Evidence of the particular antecedents was relevant, therefore, only to the credibility of the witness, and the Judge correctly so held.

[6] In that event, the evidence was not admissible unless it came within section 103 of the Evidence Act : that is to say, unless it had “substantial probative value” .

[7] The Evidence Act does not define the expression “substantial probative value” . The Act’s Dictionary does define the expression “probative value of evidence” as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” .

Section 103(2) gives the following additional guidance:

“(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.”


[8] The question for the trial Judge, respecting “substantial probative value” came down to this: if the witness admitted his antecedent offences of dishonesty; and admitted, further, that on those particular occasions his dishonesty had disadvantaged others and advantaged himself; did this add in a substantive way to the discredit that had already been established by evidence that the witness was:

(a) a drug abuser;

(b) a person who had been threatened with possible prosecution if he did not make a pre-trial statement, and who had thereupon provided such a statement?


[9] The trial Judge thought not. I am not persuaded that his Honour fell thereby into error.

The particular antecedents do not seem to me to fall within section 103(2)(a). The respective dates of the offences are not established by the evidence available to this Court; that evidence establishing only the charge dates, and the Court hearing dates. The relevant charge dates are: 25 November 1995 (steal motor vehicle); 26 June 1998 (larceny); 24 July 2000 (larceny – 2 charges); 5 December 2000 (break enter and steal – 1 charge). The corresponding penalties were: 300 hours of community service and an order to pay $3,000 compensation; a fine of $1,000 and Court costs; and, for the July and December 2000 matters, concurrent fixed terms of imprisonment of 6 months commencing on 27 April 2001 and concluding on 26 October 2001. It is not possible to apply strictly section 103(2)(b). I am not persuaded that it was not open to the Judge to regard that given sequence of offences as not having, in the requisite statutory sense, “substantial probative value” .

82 I would not uphold Ground 8.

Sentence

83 The appellant’s case is simple. His co-offender was sentenced to imprisonment for 5 years with a non-parole period of 3 years 9 months. She appealed successfully to a differently constituted Bench of this Court, her sentence being reduced to one of 4 years with a non-parole period of 2 years 6 months. The resulting disparity between that adjusted sentence and the appellant’s own sentence is such, it is submitted, as to engender a justified sense of grievance, the proper amelioration of which warrants the intervention of this Court.

84 The Court intervened in the co-offender’s case because of its view that sufficient allowance had not been made for her subjective features. The Court felt that the co-offender should have had, but had not in fact received, the benefit of the considerations that are discussed in Fernando (1992) 72 A Crim R 58; and Fernando (2002) NSWCCA 28.

85 It was conceded at the appellant’s sentencing proceedings that the special Fernando considerations did not apply to him. The appellant’s subjective features, otherwise, were not favourable. The details are fully canvassed in the primary Judge’s remarks on sentence and need not now be repeated.

86 The primary Judge addressed the question of parity, distinguishing between the two cases in terms which are, in my opinion, sound and need not now be repeated in detail.

87 The armed robbery of November 2000 was a very serious criminal offence. It was open to the primary Judge to take the view, as his Honour did, that the appellant had played the greater, and the more objectively blameworthy, part in the carrying out of the robbery.

88 It was undoubtedly a serious, and a seriously distinguishing feature of the appellant’s case that in November 2000 he was at liberty on parole, current to 24 May 2002, after having served a minimum term of imprisonment of 28 months for an offence of robbery with striking; together with five concurrent fixed terms of imprisonment for 2 years. The concurrent fixed terms had been imposed in connection with three offences of assault occasioning actual bodily harm; and one offence each of robbery with striking, using a weapon to resist arrest, larceny, and stealing from the person.

89 In my opinion the disparity, now existing, to which the appellant points is not such as to justify the intervention of this Court.

Orders

90 For the whole of the foregoing reasons, I am of the opinion that the Court should order:

[1] That the appeal against conviction be dismissed;

[2] That leave to appeal against sentence be granted;

[3] That the appeal against sentence be dismissed.

91 BUDDIN J: I have had the advantage of reading in draft form the judgment of Sully J. I respectfully agree with what his Honour has said in relation to Grounds 1 – 7.

92 I have however arrived at a different conclusion in relation to Ground 8, which I would uphold. It becomes necessary for me then to state my reasons for having arrived at that conclusion.

93 The trial at which the appellant was convicted was of short duration. The issues to be determined by the jury were quite straightforward. As Sully J has said there were two bodies of evidence that were primarily relied upon by the Crown – the “description evidence” which was, as his Honour observed “weak”, and the evidence of the witnesses Mr Borton and Ms Knox concerning the admissions allegedly made to them by the appellant. I agree with what Sully J has had to say about Ms Knox’s evidence. In my view her reliability as a witness had been significantly undermined. That left Mr Borton. Although his evidence was in a short compass, occupying only five or six pages of transcript, it was common ground on the hearing of this appeal that his evidence was crucial to the Crown case. Without it, it would appear that the Crown case must fail. I accordingly agree with Sully J’s assessment that his evidence “was of the greatest potential significance.” Sully J has set out the relevant parts of the cross-examination of him. As his Honour pointed out, it demonstrated that he was a drug user and that he was threatened with possible prosecution if he did not make a statement in relation to the appellant.

94 Sully J sets out the circumstances which gave rise to the trial judge’s ruling that the appellant’s counsel could not cross-examine Mr Borton upon his previous convictions. His Honour is not persuaded that the trial judge fell into error in concluding that an admission by Mr Borton as to his convictions for offences of dishonesty would have added “in a substantive way to the discredit that had already been established by [the] evidence” to which I have just made reference.

95 The operation of the provisions of Part 3-7 of the Evidence Act, which contains the credibility rule, has been the subject of some consideration by this Court. In several cases this Court has dealt with complaints that counsel have been prevented from putting to a police witness material, arising from evidence in the Wood Royal Commission, suggesting that the witness was engaged in corrupt conduct.

96 In R v Beattie (1996) 40 NSWLR 155 this Court ordered a new trial because of the trial judge’s refusal to allow such questions. James J, with whom Grove J and Hamilton AJ agree, said:

The trial judge appears to have rejected the questions on the ground that they were irrelevant and did not relate to the present case. However, in my opinion, an affirmative answer to either of the questions would have related to the credibility of the witness. Under s 55(2) of the Evidence Act , evidence is not taken to be irrelevant only because it relates only to the credibility of a witness. There is no need for evidence which is capable of affecting the credibility of a witness to be evidence about the facts in issue in the proceeding in which the witness is giving evidence. Under Pt 3.7 of the Evidence Act , there is a general rule that evidence which is relevant only to a witness’ credibility is not admissible but this rule does not apply to evidence adduced in cross-examination, if the evidence has substantial probative value. In my opinion, an admission made by the witness in an answer to either of the questions I am now dealing with would have had substantial probative value on the question of the witness’ credibility and the fact that the witness might have been unlikely to make any such admission did not affect the admissibility of the questions. ( at 163)

97 To similar effect are R v Hasenkamp (CCA unreported, 24 February 1998) and R v McGoldrick (CCA unreported 28 April 1998).

98 In R v RPS (CCA unreported 13 August 1997) this Court said:

S 103 of the Evidence Act limits cross-examination as to credit to adducing evidence which has “substantial probative value.” The “probative value” of evidence is defined in the s3 Dictionary as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”, but both the context in which that phrase appears and the subject matter of s103 indicate that that definition does not apply. That is made clear by the terms of subs (2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. Such an interpretation accords with the intention of the Law Reform Commission . The addition of the word “substantial” nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one (at 29) (emphasis added).

99 To similar effect the High Court in Stanoevski v The Queen (2001) 202 CLR 115 said that “[i]t is not necessary in this case to attempt to distinguish between probative value and substantial probative value, the expression used in s 103, although presumably the adjective “substantial” calls for something more than mere probative value.” (at 124)

100 Before departing from a consideration of the relevant authorities, it is instructive to recall what McHugh J said in Palmer v The Queen (1998) 193 CLR 1. His Honour said:

The line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent. Zuckerman has correctly described the distinction between evidence as to the credibility of witnesses and evidence as to facts-in-issue as productive of absurdity. Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them.
…
If evidence going to credibility has real probative value with respect to the facts-in-issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts-in-issue.
The rigid distinction between credit and facts-in-issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts-in-issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of the proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts-in-issue. (at 22-4)

101 Of course his Honour was not dealing with the provisions of the Evidence Act. However in V (1998) 100 A Crim R 448 Smart J, in the context of a consideration of the operation of ss 102 and 103 of the Evidence Act, said that he found his Honour’s analysis to have been “very helpful and persuasive” (at 494). I also respectfully adopt the views of McHugh J in the passages to which reference has just been made.

102 Questions concerning Mr Borton’s prior convictions, at least those which were for matters of dishonesty, were clearly capable of producing replies which in turn were capable of affecting the assessment, in important respects, of his credibility. Given the significance of his evidence to the Crown case an assessment of his credibility was also bound, directly or indirectly, to affect the assessment of the probability of the existence of the very facts in issue in the case.

103 In my opinion the jury may very well have taken a different view of Mr Borton’s evidence, (which they must have accepted), had they had been aware of his convictions for dishonesty. Furthermore, that material, particularly when considered together with the matters which had already emerged in cross-examination, may also have cast his evidence in a different light. In particular, the contention that he was motivated to provide a statement falsely inculpating the appellant for fear of the consequences if he did not assist the police, may well have been strengthened in the minds of the jury had they also been made aware of his criminal history and his unfavourable contact with the police.

104 Notwithstanding the unsatisfactory way in which this issue was raised and debated at trial and allowing for the need to give proper effect to the word “substantial”, I have nevertheless come to the view that the evidence, which was disallowed, did have “substantial probative value” in the sense discussed in the authorities to which I have referred. Accordingly in being prevented from using this material, the appellant “may thereby have lost a chance which was fairly open to him of being acquitted.” See Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514. It follows that there has been a miscarriage of justice. It was not contended, in those circumstances, that there is any scope for the operation of the proviso to s 6(1) of the Criminal Appeal Act 1912.

105 I propose that the appeal against conviction be allowed, that the conviction and sentence be quashed and that there be a new trial.

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Last Modified: 02/26/2003