R v Coe

[2002] NSWCCA 385

CITATION:	R v Coe [2002] NSWCCA 385
FILE NUMBER(S):	CCA 60686/01
HEARING DATE(S):	24 June 2002
JUDGMENT DATE:	25 September 2002
PARTIES :	Regina (NSW) Mathew Leslie COE (Appellant)
JUDGMENT OF:	Giles JA at 1; Dunford J at 2; Greg James J at 124

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0757
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	PJ Power (Crown) PJ Pearsall (Appellant)
SOLICITORS:	SE O'Connor (Crown) Sydney Regional Aboriginal Corporation Legal Service (Appellant)
CATCHWORDS:	CRIMINAL LAW - identification - witness recognises previous acquaintance as offender - nominates offender to police - subsequent photographic array - whether admissable - summing-up - adequacy of directions - CRIMINAL LAW - evidence - right to silence - cross-examination of accused - failure to inform police of alibi when arrested - CRIMINAL LAW - evidence - witness identifies accused as offender - not sure at trial - witness cross-examined as unfavourable witness - previous statements evidence of facts asserted therein - CRIMINAL LAW & PROCEDURE - questions by trial judge - whether constituted a miscarriage of justice - CRIMINAL LAW & PROCEDURE - summing-up - judge summarising Crown submissions on fact - submission not available in law - failure of judge to correct.
LEGISLATION CITED:	Crimes Act 1900, s 96 Evidence Act 1995, ss 38, 89, 116, 137, 165
CASES CITED:	R v Blick [2000] NSWCCA 61 Festa v The Queen [2001] HCA 72, 76 ALJR 291 R v Nguyen [2002] NSWCCA 342 Petty v The Queen (1991) 173 CLR 95 R v Anderson [2002] NSWCCA 141 R v Barbaro [2000] NSWCCA 192 R v Gee [2000] NSWCCA 198 Gilbert Adam v The Queen [2001] HCA 57, 123 A Crim R 280 Domican v The Queen (1992) 173 CLR 555 R v KA Clarke (1997) 97 A Crim R 414 R v Eldridge [2002] NSWCCA 205 R v Zammit [1999] NSWCCA 65 R v Cook (CCA - unreported - 24 August 1998) R v Esposito (1998) 45 NSWLR 442 M v The Queen (1994) 181 CLR 487 R v Markuleski [2001] NSWCCA 290
DECISION:	Leave to appeal out of time granted, appeal dismissed and conviction confirmed.

60686/01

GILES JA
DUNFORD J
GREG JAMES J

Wednesday, 25 SEPTEMBER 2002

R v Mathew Leslie COE

Judgment

1 Giles JA: I agree with Dunford J.

2 Dunford J: This is an appeal by Mathew Leslie Coe against his conviction for robbery with violence contrary to s 96 of the Crimes Act 1900 following his trial by a jury before his Honour Judge Kinchington QC in the District Court at Sydney for which he was subsequently sentenced to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 3 months. He also pleaded guilty to a charge of supply a prohibited drug, namely cannabis for which he was sentenced to a concurrent term of imprisonment for a fixed term of 15 months.

3 The Crown case was that the appellant attacked and robbed Vorapat Sithirtn of his scooter at about 11.15pm on 3 May 2000 in King Street, Newtown.

4 The principal Crown witness was Clifford Cusack. He said that after finishing work at about 11pm that evening he was walking along King Street, when he saw a man running across to the opposite side of the road. The man hit an Asian man who had a scooter and then rode off on the scooter. He described the man as wearing a grey shirt and black shorts. He saw him side on and had an idea who the man was as he had played some basketball with the man a couple of months earlier and had seen him four or five times over the previous two years. He then had a few beers after which he went to the police station and made a statement where he said he clearly saw the offender, recognised him as an acquaintance and nominated him as the appellant. He also clearly identified the appellant as the offender when shown a photographic array on 6 June 2000.

5 When Mr Cusack gave evidence he initially said he did not really recognise the assailant although he was thinking about it. He agreed that he knew his name on the night of the robbery, but said his conclusion was reached only after having the beers and that the trees diffused the normal street lighting. He arrived at the police station about one and a half hours after the incident, and had problems recalling what he had told police.

6 He said in the two years prior to the incident he had seen the appellant four or five times, and when asked to refresh his memory from his statement he agreed he told police that the man he saw was “around 6 foot, chubby build, Aboriginal, shaved head …”. He also agreed that he later made an identification of the appellant when shown a collection of photographs at the police station and agreed that when he made his identification on this latter occasion “I was pretty sure it was him”.

7 He was taken through the relevant passages in his statement and agreed, inter alia, that he had said, “I could clearly see (the assailant) and immediately recognised him as an acquaintance of mine. His name is Matt Coe”.

8 When cross-examined by defence counsel he said he was not sure that the appellant was the person who had committed the crime and that he could not see his face. In earlier evidence at the committal he admitted to “not getting too good a glimpse of his face”, and that, he “recognised his face”, that the events all took place in something like five seconds and he wasn’t sure why he had told the police officer in such positive terms that it was the appellant.

9 As a result of the evidence given by Mr Cusack in cross-examination, leave was given to the Crown for him to be declared unfavourable pursuant to s 38, Evidence Act 1995. The Crown prosecutor and also the learned trial judge then asked him various questions about the statements he had previously made and the witness agreed that whilst he now had doubts about the recognition, this was not the case previously.

10 Michael Byrne gave evidence that around 11.30pm he was walking near the Newton Theatre on King Street when he heard a crack and, on the opposite side of the road, saw a man and an Asian man hit the ground. The larger man picked the Asian man off the ground, took his scooter and left. He said there were no obstructions and the lighting was good. The large man had dark skin, was big, muscular, bald, wearing a grey shirt and black shorts. He went over and helped the Asian man and later went to the police for a photographic identification array but was unable to identify anyone in those photos.

11 Constable Justin Marks was present when Mr Cusack's initial statement was taken by police early on the morning of 4 May and he noticed no indications of him being under the influence of alcohol. Inspector Christopher Lewis conducted the photographic identification arrays with Cusack and Byrne around 6 June 2002. Mr Cusack identified the accused as the offender, saying, “That’s the one, he’s an acquaintance“, whilst Mr Byrne did not identify anyone.

12 Constable Scott Danswan said that he was familiar with the area and at the time of the incident there would have been reasonable visibility. He and Det Sen Cons Gorman conducted a search of the accused’s premises on 4 May 2000 and found two grey t-shirts, (although one was too small to fit the accused), but the victim’s scooter was not located although another scooter was, but not seized. His evidence was confirmed by Det Sen Cons Gorman who also said that the area around the incident was well lit. She compiled the photographic array shown to Cusack and Byrne.

13 The victim, Vorapat Sithirtn, also gave evidence. He said that on the night in question he was riding his scooter along King Street when he heard someone running behind him, when he turned to look he fainted. When he awoke he was taken to hospital where his injuries were found to include a broken jaw. His scooter had been taken.

14 The appellant gave evidence and denied committing the offence. He said that on the evening in question he played a game of Oztag from about 7 or 7.30pm. The game lasted 30-40 minutes. After the game he drove to Elizabeth Street, Waterloo, then after chatting with his friends, drove home, arriving around 10.00pm. Brad Welsh, Raymond Deguchi, Bodine Reti and Willie Coe accompanied him. At home were his mother June, younger brother John, and younger cousin David. The appellant, Bodine and Raymond started to smoke marijuana. At this time ‘Sports Tonight’ was on television, with Anthony Mundine (a relative of the accused) announcing his retirement from football. The show finished around 11.30pm or midnight. That night he was wearing a cream Nike shirt, blue shorts, and fluorescent Nike sneakers.

15 When arrested, he denied the offence to the police. He said there was no need for him to steal a scooter, as his brother had one, that the grey T-shirts seized by the police did not belong to him, and that before 3 May 2000 it had been 8-9 months since he had seen Cusack.

16 June Coe (the appellant’s mother) said that on 3 May 2000 she was watching ‘Providence’ on television (from 9.30–10.30pm) when the accused came home with friends around 10.00pm. The accused and his friends smoked marijuana in the dining room. After ‘Providence’ finished she switched to ‘Sports Tonight’, which went from approximately 11.15-11.45pm, where Anthony Mundine announced his retirement from football. The accused was still at home when some of his friends left around 2.00am. The witness made handwritten notes on 4 May 2000, which she typed up a month before the trial (Ex. 5), then tore up the original.

17 The appellant’s case relied largely on the cross-examination of Clifford Cusack, who admitted he was not sure it was the accused who committed the offence, and only provided the police with a statement that it was the appellant after having consumed some alcohol. He had also expressed a doubt as to the offender’s identity at the committal hearing and said he even had a doubt when being shown the photographic array.

18 The appeal was instituted out of time but the Crown had no objection to leave being granted to appeal out of time.

19 A number of grounds were set out in the Notice of Appeal or added by leave at the hearing, and I shall deal with them in order.

20 Ground 1 – The trial judge erred in not excluding the evidence of identification.

21 This ground was not pressed.

22 Ground 1A – The trial judge erred in admitting the evidence of the identification of the appellant from photographs.

23 After he made his statement to police early on the morning of 4 May 2000 in which he identified the victim’s assailant as “Matt Coe”, an acquaintance of his, the witness Clifford Cusack returned to Newtown Police Station on 6 June 2000 when he was shown an array of photographs and when he came to the photograph of the appellant he remarked, “That’s him”. It was submitted that the evidence of this photographic identification should have been excluded on the ground that its probative value was outweighed by the danger of unfair prejudice to the appellant: Evidence Act s 137.

24 It was submitted that the evidence had little probative value because:

(a) The witness had already named the appellant as the offender and would have been likely to expect him to be in the array of photographs;
(b) The appellant was a person who had very full features and for that reason stood out from the faces of other persons in the array;
(c) The witness had already, on the Crown case, recognised the appellant as the offender at the scene of the offence and so, it was said, the further identification was only an identification of the appellant as an acquaintance of the witness, and not an identification of the offender; and
(d) A month had passed since the offence and the image of the offender in the mind of the witness was likely to have been displaced by the recollection of the face of the witness’s acquaintance, the appellant,
whereas the prejudicial value of the photograph identification lay in the jury overestimating the probative value of the evidence and misusing it.

25 We were referred to R v Blick [2000] NSWCCA 61, where Sheller JA, giving the judgment of the Court pointed out (at para [19]) that when an application is made to exclude evidence pursuant to s 137, the judge must first undertake the balancing process of the evidence’s probative value against the danger of unfair prejudice to the defendant based on a variety of circumstances, the evidence, the particulars of the case and the judge’s own trial experience. Then, if the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant, unlike at common law, there is no residual discretion, and the evidence must be excluded: para [20].

26 It was suggested that the phrase “That’s him” was a reference to the person Mathew Coe whom he had known previously rather than to the robber, but in the context I am satisfied that the statement “That’s him” was a reference to the robber and amounted to a positive identification.

27 True it is he had previously nominated the robber as “Matt Coe”, but I consider it was proper for the police to show him an array of photographs (the appellant having declined an identification parade) to ensure that his nomination of the robber as Matt Coe did not involve confusing the person of that name with someone else. If he had picked out someone else’s photograph, or not picked out any in the array, it would have been highly significant.

28 It may be that having nominated the appellant by name as the robber, the witness would have expected his photograph to be included; but I do not consider this feature as being of particular significance in the present case. In any event, it was a feature which was unavoidable in the circumstances.

29 As to the complaint that the appellant had very full features and consequently stood out from the other persons whose photos were in the array, we have had made available to us the original photographs used (Ex. 5 in the trial), and in my view the photographs present a reasonable group of persons of roughly similar appearance suitable for identification purposes, and the appellant is not a stand-out or obviously distinctive.

30 Finally, complaint was made that a month had passed, the image of the offender in the mind of the witness was likely to have been displaced by the recollection of the face of the witness’s acquaintance, the appellant. Whilst the image of the offender can be displaced by subsequent contamination e.g. if a witness is shown a photograph before attending an identification parade, it is difficult to see how there could have been any similar displacement in this case. There was no suggestion that the witness had seen the appellant between the time of the offence and the photographic array, and so when he attended the array the only relevant matter or impression that could have been operating on his mind would have been his sight of the appellant at the scene of the robbery.

31 On the other hand, the evidence had considerable probative value, particularly as the witness had, to a degree, resiled in his evidence at committal from his positive identification of the appellant as the robber in his statement to police on 4 May; and as appears from his Honour’s judgment of 28 February 2001, extracts from such evidence were before his Honour when considering this application. The probative value of this evidence was to become even greater when Mr Cusack attempted to resile even further from his positive identification of 4 May, when giving his evidence in the trial.

32 In view of the witness’s vacillating evidence in the trial (and at committal) it was open to the Crown to prove that on not one, but two, previous occasions close to the events in question he had positively identified the appellant as the offender.

33 Evidence is not unfairly prejudicial merely because it strengthens the prosecution case, but only when the jury are likely to give the evidence more weight than it deserves, or where its nature or content may inflame the jury or divert the jurors from theirs tasks: Festa v The Queen [2001] HCA 72, 76 ALJR 291 at [51], R v Nguyen [2002] NSWCCA 342 at [18].

34 In my opinion this evidence was highly probative and not unfairly prejudicial, and no ground has been shown for its exclusion under s 137 or otherwise.

35 Ground 2 – The trial judge erred in refusing the appellant’s application for the discharge of the jury sought in relation to the Crown’s cross-examination of the appellant as to his failure to inform investigating police of his alibi on the night of his arrest.

36 After the appellant’s arrest on 4 May 2000, Detective Gorman in the presence of Constable Danswan informed him of the reasons for his arrest, to which the appellant replied, “It wasn’t me”. Detective Gorman asked him - had his rights been explained to him by the custody officer, to which he replied in the affirmative and the detective then said, “you understand that you are not required to say or do anything unless you wish but whatever you say or do may be used in evidence. Do you understand that?” to which the appellant replied, “yeah, what’s it got to do with me?” Detective Gorman told the appellant that she would like to interview him about the robbery to which he replied, “I’m not saying anything”, although he agreed to have such refusal to be interviewed recorded on video and tape. He also declined an invitation to take part in an identification parade or line-up.

37 When the evidence was first given by Constable Danswan, his Honour (at T 02/03/01 p 23) directed the jury in the usual way to the effect that in exercising his right not to say anything and not to take part in an identification parade, the appellant was exercising rights to which he was entitled under the law, and that they must not draw any adverse inference because a person exercises such rights. The direction was repeated during the evidence of Det Gorman (T 02/03/01, p 51).

38 The appellant gave evidence in which he said that he was at home on the evening in question, arriving some time between 10 and 11pm. He said he arrived home with Willie Coe, Bodine Reti, Raymond Deguchi and Brad Welsh and his mother, June Coe, together with his young brother and a cousin were at home. He said that after being home for about 10 to 15 minutes he smoked marijuana with Bodine Reti, and Raymond Deguchi and then his mother told him that a relative, Anthony Mundine, was being featured on ‘Sports Tonight’ so he and Raymond Deguchi stayed there to watch that and the basketball results on the television which finished at about 11.30pm or 12 midnight. Later Brad Welsh and Raymond Deguchi left his house whilst Willie Coe and Bodine Reti stayed (T 5/3/01, pp 13-15).

39 The following day he was arrested and when spoken to by police he said that he was not there and that he had not committed the offence. In cross-examination the following exchange took place (T 5/3/01, p 29):

Q. You didn’t tell the police at the time that you had all these friends who could tell the police where you were, did you? You did not tell the police on the day you were arrested?
A. No it didn’t cross my mind, no.

Q. Indeed you didn’t tell anybody about it until relatively recently before the trial of course, but relatively recently?
A. I’ve been inside for a while, six months, yeah.

Q. Well I don’t want to know where you’ve been, I just want to know you didn’t tell anybody did you?
A. No.

And later (T 5/3/01, p 32)

Q. So on the day that you were arrested on the 4th, the day following the event that you’ve heard the witnesses talk about, you never at any stage of that day told police that you had an innocent explanation of where you were did you?
A. I told them it wasn’t me.

Q. I’m not disputing that. You told them it wasn’t you, yah, but you didn’t tell them that you had an innocent explanation and that you had witnesses who could give evidence or tell the police?
A. Because as soon as I said it wasn’t me the constable said “well you fit the description and you are going to be charged”, and then after that I’ve been bail refused so everything just went before my eyes you know.

40 These questions were not objected to, but on the following day (T 6/3/01, pp 1-2) counsel for the appellant informed the Court that he should have objected to the questions about the appellant’s opportunity to tell police of the alibi evidence and sought a discharge of the jury. Alternatively he sought directions to the effect that the appellant was not obliged to say anything to the police. His Honour refused the application to discharge the jury and in the course of his judgment said, “I would have to give the jury a direction that an accused has a right to remain silent”. The jury then returned to Court and the trial proceeded without any further direction being given at that time.

41 It was submitted that these questions should not have been asked as they invited the jury to disregard the appellant’s alibi defence because he had not told the police about it on the night of his arrest, and that in this way the questions constituted a denial of the appellant’s right to silence as explained in Petty v The Queen (1991) 173 CLR 95 and were contrary to s 89 of the Evidence Act 1995.

42 The Crown concedes that the questions should not have been asked, but submitted that having regard to the directions that were given when the police gave evidence of the appellant declining to be interviewed and the further warnings given in the summing-up, together with the fact that the questions were not objected to when asked, the discharge of the jury was not warranted or necessary, and no miscarriage of justice has occurred.

43 His Honour did give appropriate directions in the summing-up. In particular (at SU 46-7), after reminding the jury that when the police were giving evidence he had told them that any person who is being interviewed by police in regard to criminal matters has a right to remain silent, he told them that it was a right that was given to everyone in this country and they must draw no adverse inference from the fact that he exercised that right to remain silent in the course of these proceedings and that they must not draw any inference adverse to the accused from the fact that he took note of the caution administered to him by the police and chose to remain silent.

44 His Honour went on:

“You will remember that in the course of his cross-examination he was questioned why did he not say something to the police, the fact is, he had the right to say nothing to the police at that time or at any time. He has the right to remain silent in these proceedings. He did not, he went into the witness box and I will give you a direction in that regard shortly.”

45 Then when summarising the evidence given by the appellant, he specifically observed that the appellant agreed that when arrested on 4 May he did not make any mention of what he was doing the previous evening, but he went on, “Remember what I said to you in regard to his right to remain silent” (SU 56); and when he came to deal with the alibi evidence his Honour said (SU 77):

“When an accused person puts forward an alibi he does not at law assume any burden of proving that claim. The burden of proving his guilt continues to rest on the Crown. In other words the Crown must satisfy you that you should reject the claim and reject it beyond reasonable doubt. The question is, whether, as a result of that evidence, you can still be satisfied beyond reasonable doubt that the accused is guilty of the offence.”

46 In all the circumstances, although the questions should not have been asked, I am not satisfied that his Honour erred in refusing to discharge the jury or that his failure to do so led to any miscarriage of justice.

47 Although when seeking the discharge of the jury, defence counsel asked in the alternative for a further direction, it is not clear whether at that stage he was seeking a further direction immediately or in the summing-up. When the jury returned to Court after the discharge application was refused, he did not specifically ask for the redirection at that stage and appears to have accepted that the only redirection would be in the summing-up. It may have been preferable for the earlier direction to the effect that no adverse inference could be drawn against the appellant because he exercised his right not to say anything about the alibi when first spoken to by police to be repeated at that stage but as I say, no further direction was then sought, possibly because defence counsel did not want the jury reminded at that stage of the appellant’s failure to respond in more positive terms and considered the matter was best left to the general directions which would come in the summing-up.

48 It was also submitted that the questioning was in breach of s 89 of the Evidence Act and that a further reason why the jury should have been discharged was because some of the answers disclosed that the appellant had been in gaol.

49 Section 89, which provides that in criminal proceedings an inference unfavourable to a party must not be drawn from evidence that the party or another person failed to answer questions or respond to a representation in the course of official questioning, is largely reflective of the common law position set out in Petty, although the section only applies during “official questioning” as defined by the Dictionary to the Act, whereas the principle in Petty is of general application: R v Anderson [2002] NSWCCA 141 at [20]-[23], [34]. The questions involved here were directed not to answers given during official questioning as such, but to the failure of the appellant when notified of the charge against him to make an assertion that he was at home with his mother and a number of friends at the relevant time, or words to that effect. It is not necessary in this case to determine the precise extent of the application of the section as if it did apply, it would take the matter no further than Petty.

50 The references to the appellant having been in gaol in the interim arose; not from any questions asked by the prosecutor, but from the answers he gave. They seemed to have been conveniently and properly ignored by all parties thereafter; this was obviously the best way to deal with that aspect, and I would not regard the answers as having any effect on the jury whatsoever.

51 This case is distinguishable from R v Anderson because of the number of warnings given by the trial judge, particularly a specific direction to what he had said about the right to silence when he referred to the fact that he did not mention it when arrested on 4 May (SU 56 referred to above) and the fact that similar questions could be, and were, legitimately asked of his mother and his friend, Brad Welsh.

52 Anderson is also distinguishable because in that case the trial judge did not link the right to silence with the impermissible questioning, whereas here specific reference was made to it (SU 47 & 56 referred to above: see Anderson at [30]).

53 Ground 3 – The trial judge erred in that his directions to the jury as to the exercise of the appellant’s right to silence were inadequate in the circumstances.

54 It was submitted that notwithstanding the various references to the appellant’s right to remain silent quoted in reference to the previous ground, it was necessary for the trial judge to tell the jury that they could not draw any inference that the appellant’s alibi defence was an invention because it had not been advanced on the night of the arrest, and reference was made to Anderson. The issues arising under this ground have already been discussed in relation to ground 2. No objection was taken to the terms of the summing-up so Rule 4 applies. I am not satisfied that any miscarriage of justice has been shown, and I would refuse leave.

55 Ground 4 – The trial judge erred in his directions to the jury as to how they could use the out of court statements of the witness Cusack.

56 On 1 March 2000 his Honour received a note from the jury (MFI 8) asking:

“I wonder if you would care to advise the jury regarding the relative evidential weight applicable to Mr Cusack’s police statement when it conflicts markedly with his oral testimony in court or is such a question best kept for deliberation?”
His Honour left the matter to be dealt with later.

57 On 8 March 2000 his Honour received a note from the jury (MFI 20) containing a number of questions. Question 2 part (i) read as follows:

“During his summary, Counsel for the accused differentiated between the relative value of Mr Cusack’s statements to police (of 3 May 2000 and 6 June 2000) and his recent testimony to the jury on the basis of oaths taken. Counsel suggested that Mr Cusack's statements in this courtroom – given under oath before the accused, your Honour, and the jury – were of a higher standing than those given to police on previous occasions. Such an argument gives rise to an impression that Mr Cusack’s oral testimony of 2 March 2001 should be granted a greater evidentiary weight than his prior statements.
(i) Is this so?”

58 His Honour answered the jury (T 8/3/01, pp 6,7) as follows:

“The answer to that, in simple terms, is no. Certainly Mr Cusack gave evidence on his oath, but what he said in his statements is also evidence before you in these proceedings, such as a document that might be tendered. For example, you have document exhibit G, which is the statement made by Dr Clare Crabtree in the matter. That doesn’t have any less weight because it’s an exhibit, than the sworn testimony of a witness.

A witness who you have seen and who has given sworn testimony, you have had a chance to look at, observe and see. So in this case, you have seen Mr Cusack, you have heard his evidence, you’ve heard what he said to the police and you’ve heard what he said to you. You’ve got to assess whether that evidence is reliable in whole or in part, and I will give you further directions as to that. So there is no difference really in this case, once material is placed before you and becomes evidence in the proceedings between (sic) it. It’s for you to determine what you make of that evidence, so I just illustrate it by oral testimony as opposed to an exhibit that’s been placed before you. They are both evidence, you make of them what you think. You are the judges of the facts.”

59 It was submitted that to properly assist the jury to assess the out of court assertions of identification by Mr Cusack, it was necessary for his Honour to have warned the jury that the out of court assertions were hearsay and may be unreliable and to have explained to them that this was because they were not made on oath in the solemn context of proceedings in court, the maker could not be cross-examined at the time they were made, that the jury were not able to observe the maker or the surrounding circumstances when they were made and there might have been other factors that influenced the reliability of the statement that the court and the accused could not know about; and that his Honour should then have warned the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it: s 165, Evidence Act 1995.

60 No objection was taken to the answer given by his Honour which was given just before the commencement of the summing-up (T 8/3/01, pp 6-7). Accordingly, Rule 4 applies and leave is required to argue the point. It was submitted that the point was so important that the failure to warn the jury as claimed would have resulted in a miscarriage of justice.

61 In my view, the answer given by his Honour was correct and there was no miscarriage of justice. Although evidence of what Mr Cusack had previously said in his statement to police on 4 May and at the photographic array on 6 June was hearsay: s 59, R v Barbaro [2000] NSWCCA 192, R v Gee [2000] NSWCCA 198, the hearsay rule as such did not apply because leave had been given to cross-examine him as an unfavourable witness pursuant to s 38, and the evidence of his prior inconsistent statements was evidence of the truth of the matters contained therein: Gilbert Adam v The Queen [2001] HCA 57, 123 A Crim R 280 at [37].

62 The evidence of his previous representations, what he said at the committal and his evidence-in chief at the trial were all before the jury. He was cross-examined in front of the jury, on oath, in relation to all those pieces of evidence and it was for the jury to determine which parts, if any, of each of those pieces of evidence they accepted, as this involved a general assessment of Mr Cusack as a witness.

63 It is not uncommon for witnesses who shortly after the events in question have made a positive identification to attempt to resile at trial from such positive identification. There may be a number of reasons why this is so, and no reason was proved or suggested in the present case. In such cases it is for the jury as the tribunal of fact to assess the statements made shortly after the events in question as well as what the witness says in court at a later stage. In making such assessment it is appropriate for them to take into account that the evidence in court is on oath, whereas the earlier one was not, but that is not necessarily decisive, and each police statement these days contains at its beginning a paragraph to the effect that the maker of the statement is aware that he or she is liable to prosecution if he or she states anything which he or she knows to be false or does not believe to be true.

64 It is true that no warning pursuant to s 165(1)(a) was given to the effect of the evidence being hearsay and therefore possibly unreliable, but the requirement to give such a warning only arises if the party requests a warning pursuant to s 165(2) and no such request was made.

65 Not only was there no objection to the answer given by his Honour but, contrary to what appears in para 86 of the Appellant’s Written Submissions, defence counsel appears to have agreed in advance with the answer given to the jury – see T 08/03/01, p 1, and no further direction was subsequently sought. I would refuse leave to argue the point.

66 Ground 5 – The trial judge erred in that his directions to the jury regarding identification evidence were inadequate in the circumstances.

67 Section 116(1) of the Evidence Act 1995 requires the trial judge to inform the jury of a special need for caution before accepting identification evidence and of the reasons for such need, both generally and in the circumstances of the case, whilst s 165 requires the trial judge, if requested, to warn the jury that such evidence may be unreliable, inform the jury of matters which may cause it to be unreliable, and warn the jury of the need for caution before accepting such evidence or giving weight to it. Both sections expressly state that no particular form of words are necessary. The sections are largely reflective of, though not identical to, the requirements of the common law as discussed by the High Court in Domican v The Queen (1992) 173 CLR 555 at 561-2 and more recently in Festa v The Queen [2001] HCA 72, 76 ALJR 291 at [172]-[176]; and see also R v KA Clarke (1997) 97 A Crim R 414 at 427, R v Eldridge [2002] NSWCCA 205 at [43]-[44]. What is required is a warning that there is a special need for caution, explanation of the reasons for such caution and an application of the warning to the facts of the case: R v Zammit [1999] NSWCCA 65 at [117].

68 No objection was taken to the directions on identification given in the summing-up and no further direction was sought. Accordingly, Rule 4 applies.

69 I do not consider it surprising that no further directions were sought as in my view his Honour’s directions were substantial, detailed, fair and complied with the requirements of the relevant sections.

70 Firstly, his Honour reminded the jury that Cusack was the only person who had identified the accused as the person who committed the robbery, that his evidence must be approached with special caution before they accepted it as reliable and this was so even if they were satisfied the witness was completely honest (SU 64).

71 He then explained the reasons for such caution by telling them that completely honest witnesses may be mistaken in their identification, that common experience of criminal courts both here and overseas have demonstrated that identification evidence, honestly given, may be unreliable, that there have been some notorious cases where such evidence has led to wrong identification, that in their own experiences they may have mistaken another person for someone they knew and that reliability of identification depends upon the circumstances in which the person identified was observed, and that any one of such circumstances may lead to error (SU 65-6).

72 Finally, his Honour applied the warning to the facts of the case making particular reference to the length of time the person was under observation, the lighting, the fact that they were previous acquaintances but not close friends, the distance from which the observation was made, whether the witness had any special reason for remembering the person identified, how long after the observation was he asked for a description, and how such description compared with the appellant’s appearance (SU 66-69).

73 He then (at SU 72-3) said he would draw their attention to a number of matters relevant to the reliability of the identification evidence and told them that they were “bound to consider such matters” in determining whether to accept such evidence as reliable (thereby stamping on the directions his authority as judge, as required by Domican).

74 He then referred again to the previous acquaintance between the witness and the appellant, the possibility of mistake, that fact that the witness was now not definite, that he spoke to police within a couple of hours, the lighting, the period of time for observation and the nature and extent of the view he had (SU 73-5).

75 Finally, he dealt with whether the witness’s earlier statements should be accepted rather than his evidence in Court that he was no longer sure, and that as there was only one person who made a positive identification they needed to be satisfied beyond reasonable doubt that it was reliable (SU 75-6).

76 The appellant however now contends that these directions were deficient and insufficient in the following respects:

(a) his Honour should have told the jury that there have been proven miscarriages of justice in criminal trials because of mistakes in identification and innocent people have been convicted;
(b) he failed to remind the jury that Mr Cusack estimated the whole incident to have taken “something like 5 seconds” ;
(c) his Honour failed to remind the jury that Mr Cusack had attended the police station approximately three hours after the offence and said that he had been drinking before he attended;
(d) he failed to inform the jury that Mr Cusack’s drinking may have affected the reliability of his assertion of identification to police on 4 May;
(e) his Honour failed to warn them specifically of the need for particular caution with regard to photographic identification, a photograph being a two dimensional depiction;
(f) his Honour erred in referring to the selection of the appellant’s photograph on 6 June 2000 in terms of being an identification of the person who committed the robbery;
(g) his Honour should have warned the jury
(i) that the selection of the photograph may have amounted to nothing other than a selection of a photograph of a person whom the witness already knew and had previously identified as the offender;
(ii) that the photograph of the accused was of a man with a much fuller face than the rest of the array and may have stood out;
(iii) that the witness may have expected to see a photograph of the appellant included in the array because he had already nominated him as the offender;
(h) his Honour should have directed the jury that if they regarded it as reasonably possible that the witness Cusack had honestly come to a considered opinion that he was no longer certain that the appellant was the offender, they were obliged to acquit;

(i) the jury were not reminded that they should not assume from the picture identification of the appellant that he had a criminal record or had previously been charged with an offence.

77 Most of these matters can in my view be regarded as ‘nit-picking’ and demonstrate the reason why Rule 4 exists. A large number of them (b), (c) and g(iii) were details on factual matters which may well have justified a reminder to the jury if either counsel at the trial had considered them significant; and the fact that neither counsel who had been there for the addresses and heard the whole of the summing-up sought fit to ask for further directions is, I would have thought, a clear indication that in the context of the trial and of the summing-up they were not regarded as significant. They certainly could not have led to a miscarriage of justice such as would justify the grant of leave, notwithstanding Rule 4.

78 In relation to (a) we were referred to R v KA Clarke (1997) 97 A Crim R 414 at 428 where Hunt CJ at CL said:-

“The reference to the lesson of experience that “people can often make mistakes” did not draw to the jury’s attention that such mistakes have been made in criminal trials and have been shown to be wrong after innocent people have been convicted.”
His Honour went on to say:-
“I acknowledge that no particular form of words is to be used but I do suggest that it would be prudent for trial judges to refer to innocent people having been convicted upon honestly mistaken evidence.”

79 I already referred to his Honour’s direction that the common experience of the criminal courts over the years, both here in Australia, and overseas, has demonstrated that identification evidence, however honestly given, may turn out to be unreliable and that there have been some notorious cases over the years in which such evidence has led to wrong identification of a person being connected with a particular event. In my view these words contain the same meaning and effect as Hunt CJ at CL suggested it would be “prudent” for trial judges to refer to. His Honour did not say it was “essential”.

80 His Honour referred a number of times to the amount of time Mr Cusack had the accused under observation, describing it as “not a very long time” (SU 67) and later “it certainly was not hours, it certainly was not minutes, it must have been some portion of a minute” (SU 74).

81 His Honour referred in his summing-up to the evidence that Mr Cusack had been drinking between the time he observed the offence and the time he went to the police station, but the evidence of Constable Marks was that when Mr Cusack made his statement earlier on 4 May he noticed no indication of him being under the influence of alcohol, and there was no evidence that the amount of alcohol he had drunk would have affected his powers of observation or identification.

82 In any event the jury were alive to the issue and asked his Honour about it. It was submitted that his Honour’s answer to the effect that they use their common sense was inadequate, but the answer continued (T 08/03/01, p 9):

“What is your experience in regard to these matters? But of course again you come back to the evidence. Two or three beers, how would that have affected a person, whether they were schooners or not. Even a 17 year old person who told you, I think, that he was used to going to the pub every night after work, how would that have affected him, certainly an hour to an hour and a half after the incident and probably some time after he’d ingested the first of those beers. Use your common sense in regard to that one I think is the answer to that, but you are the judges of the facts. There are twelve of you there and I think you’ll be able to answer that question when you discuss it among yourselves.”

83 The effect, if any, of the witness’s intake of alcohol between observing the robbery and going to the police on the reliability of the witness’s identification of the appellant was essentially a matter of fact, and I regard his Honour’s answer as proper and adequate.

84 In relation to the photographic array on 6 June 2000 it seems to have been treated by everyone at the trial as a separate identification, not of the person that the appellant knew from basketball, but as the person whom he had seen committing the offence, and I can see no reason why it should not have been so regarded. The fact that all those involved in the trial regarded it as evidence of identification is demonstrated by the fact that no further direction was asked for.

85 In relation to (g)(ii), as noted above in relation to ground 1A, we have examined the original photographs used in the array and in my view it cannot be said that the photograph of the appellant was of a man with a much fuller face than the rest of the array or that his photograph may have stood out. The photographs appear to me to be a fair cross-section of persons of comparatively similar appearance. The fact that the photograph of the accused is the only one which is of a different reproduction style does not appear to have attracted anyone’s attention at the trial, and although his Honour did not refer to it in relation to the warning regarding identification evidence there was evidence that Inspector Lewis had told the witness that he should not assume that anyone depicted in the photographs had a criminal record or had previously been charged with an offence.

86 As to (h), I have already referred to his Honour’s direction at SU 75-6 that Mr Cusack’s evidence in Court was that he was no longer sure, and that as he was the only person who made a positive identification, they needed to be satisfied beyond reasonable doubt that it was reliable. In view of the directions given to them at different stages in the summing-up of the need to be satisfied beyond reasonable doubt before they convicted the appellant, this was a clear direction that if they were not satisfied beyond reasonable doubt of the earlier identification they were obliged to acquit. Once again no precise formula of words was required, the relevant consideration being the effect of what was said.

87 It is important to bear in mind that, although the judge must stamp his authority on the directions, the judge is not required to lend his or her judicial authority to every argument reasonably open to defence counsel on the evidence: R v Cook (CCA - unreported - 24 August 1998 at 13) citing R v Domican at 178-9; see also Eldridge at [56]. In my view the directions in relation to identification were adequate and sufficient, and I would not give leave to argue otherwise.

88 Ground 5A – The repeated interventions of the learned trial judge in the trial denied the appellant a fair trial according to law and constituted a miscarriage of justice.

89 A number of references were given in the written submissions to passages where the trial judge asked questions, but most concern was expressed in relation to four particular passages described as follows:

(a) At T 1/3/01 (3) p 10 his Honour interrupted defence counsel and questioned the witness in the nature of cross-examination.
(b) On the following page, T 1/3/01 (3) p 11, immediately after Mr Cusack had agreed with defence counsel that he was not definite the appellant had committed the offence, his Honour interrupted cross-examination and questioned Mr Cusack in a challenging manner which highlighted the positive manner of his previous assertions to the police.
(c) At T 1/3/01 (3) p 12, immediately after Mr Cusack conceded to defence counsel that he “most possibly” had a doubt about the identification before going to the police on the first occasion, his Honour interrupted defence counsel and asked further questions in the manner of cross-examination during which he emphasised the positive nature of a prior assertion to the police and twice said he was concerned by it.
(d) At T 1/3/01 (3) pp 20, 21 his Honour interrupted the Crown and again in the nature of cross-examination questioned Mr Cusack about his first statement on 4 May 2000. In the questioning his Honour repeated a quotation from the witness’s first statement where he claimed to have had a clear view of the offender and to have immediately recognised him. This was the second time his Honour had referred to the same quotation and it served to unnecessarily highlight the prior positive assertion. At p 21 his Honour’s questions, … , would have been interpreted by the jury as a challenge to the witness’s claims to have held doubts about the appellant’s identity.

90 The entirety of the Crown case rested on the evidence of identification by Mr Cusack. This involved a consideration of the doubts he expressed in evidence about his prior positive assertions as to the identity of the appellant and it was submitted that the jury would have at least formed a view that his Honour preferred Mr Cusack’s out of Court assertions to his evidence on oath; and that the trial did not conform to the requirements of being conducted as an adversarial process with an impartial judge not involved in the proceeding.

91 In R v Esposito (1998) 45 NSWLR 442 at 472 after reviewing the authorities, Wood CJ at CL said:

“The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in uncertain or equivocal state, or directed to establishing a point that is favourable or adverse to one or other of the parties.”
See also R v Lewis [2001] NSWCCA 345 at [25]-[30] and [101]-[102].

92 Whilst it is true that it is not the number of the questions but the nature, tone and circumstances of the questions that is important, particularly if they tend to show that the judge is not impartial and is siding with the prosecution, I do not consider that the questions complained of in the present case had that effect or rendered the trial unfair.

93 What emerged very early in the trial was that Mr Cusack had of his own volition gone to the police station, reported the incident and positively identified the offender as an acquaintance of his and had a month later attended a photographic array where he had picked out a photo of the accused as the offender, on both occasions without any qualification, reservation or equivocation. Then at the trial he resiled from the statements he had made at the time of these two identifications, as he had also done to a degree at the committal. He said he “first wasn’t quite sure who it was”, “wasn’t pretty sure”, “didn’t get to see his full face,” “wasn’t completely positive but from side on I sort of had an idea but not complete, I wasn’t sure at all” (T 1/3/01(2), pp 2-4).

94 His Honour first tried to clarify what the witness was trying to say (at T 1/3/01(2), p 7). This was a natural reaction, it was something that would incite the interest of any judge or any tribunal of fact such as the jury as to why his evidence was so different to what had been contained in his original statement.

95 Later on, (at T 1/3/01(3), p 10) is the first of the passages said to be “of most concern”. There is nothing in the transcript to indicate that his Honour “interrupted defence counsel”. He did question the witness as to what it was that he had said in his previous answer and the next few questions naturally followed. The passage involved a total of four questions. It could not in my view be classified as in the nature of cross-examination.

96 Similar considerations apply to the next passage at p 11. In view of the discrepancy between what he was saying and what he had previously said, the questions (and there were only three of them) flowed naturally and sought to clarify what the witness was saying and I can see nothing to suggest a challenging manner.

97 The passage at T 1/3/01 (3), p 12 needs to be looked at in its entirety. It is as follows:

(Defence Counsel) Q. Did you have a doubt on the night because you didn’t go to the police straight away did you?
A. No.

Q. You have answered “no”, no to what?
A. Going straight to the police.

Q. So, did you have a doubt on the night of the 3 May, the morning of 3 May 2000 before you went to the police?
A. Most possibly yes.

His Honour: Q. What about when you went to the police?
A. As I said before, could have been the alcohol I am not sure.

Q. I don’t understand what you mean could have been the alcohol I am not sure?
A. I got a bit tipsy. Felt a bit tipsy, gone, “yes I should go”.

Q. What concerns me: You have agreed with the Crown that you made a statement to the police and you said to the police officer “I could clearly see him and immediately recognised him as an acquaintance of mine. His name is Matt Coe”. That is fairly positive isn’t it? I am just concerned? That is fairly positive isn’t it?
A. Then, it was but now just.

Q. Then it was. Now you have thought about the matter?
A. Yes.

98 The first question asked by his Honour in that passage followed on from his answer to defence counsel. His Honour did not understand his answer and so naturally asked about it. He then asked the longer question expressing concern, and rightly so in view of what the witness had said in his statement to police, anyone, including presumably the jury would have been concerned at the witness’s about-face and I can see no impropriety in the question. That his Honour was not taking sides is apparent from the last question in the sequence when he gave the witness a way out of his conflicting statements. Once again I would not describe the questions as being “in the manner of cross-examination”.

99 Finally, the passage complained of at T 1/3/01(3), pp 20-21 once again consisted of only nine questions. It was after the Crown had cross-examined Mr Cusack as an unfavourable witness pursuant to leave granted under s 38 of the Evidence Act. There was nothing new that emerged from the questions but I cannot see that the questions would have indicated to the jury that his Honour disbelieved the witness. After clarifying what he said in the statement his Honour asked “And you have now expressed some doubt as to that in your evidence here?”, and after a reference to him expressing some doubt as to him pointing out the photograph of the appellant on 6 June his Honour asked “Why on either of those occasions didn’t you tell the police you had expressed that doubt or didn’t you have a doubt at that time?” His answer was, “I had a doubt – but I don’t know - I didn’t tell them”. After another question the witness was asked “what are you saying is now you are having doubt and before you didn’t?” To which he answered, “Correct, yes”.

100 In my opinion these questions at this stage of the re-examination were such as to give the witness an opportunity to clarify his position and explain himself. It was not extensive and, although the questions were leading, I would not describe them as aggressive.

101 In considering a ground of appeal such as this, it is necessary to read the passage objected to as part of the flow of the evidence as a whole to determine whether the overall effect of the judge’s questions was to clarify the evidence of the witness or directed to establishing a point which is favourable or adverse to one or other of the parties. In my view, not only did his Honour not indicate any view he may have held, but in his summing-up he directed the jury on a number of occasions that they were the ultimate triers of fact and they were bound to ignore any opinion they perceived that he held regarding the case (e.g. SU at 87).

102 Moreover, although Mr Cusack was a pivotal witness he was not the accused, and the questioning of a witness by the judge must be much more circumspect when it is the accused, as in Esposito, who is being questioned.

103 The questions were not objected to at the trial so apparently no one considered at that stage that they were creating the wrong impression in front of a jury. Rule 4 applies. There is no evidence that they led to any possible miscarriage of justice and I would refuse leave.

104 Ground 6 – His Honour erred in reminding the jury of a Crown argument that was prejudicial to the appellant and was not available in law, namely, that if the jury did not accept the evidence of Mrs Coe concerning exhibit 5 (a typed copy of her statement), it reflected adversely on the evidence of both the appellant and his witness Brad Welsh.

105 Exhibit 5 was a typed copy of a previously destroyed note purportedly made by Mrs Coe on the night of 4 May 2000. It was tendered by the defence to rebut an allegation of recent invention. It had irregularities which on the Crown case cast doubt on Mrs Coe’s evidence as to when the original handwritten note had come into existence.

106 In reminding the jury of Crown submissions his Honour said (SU pp 79-80):

“The Crown says that if you do not accept that document, and it affects Mrs Coe’s evidence, of course it reflects upon the evidence of the accused and the evidence of the man Brad Welsh. The accused through his counsel on the other hand, says that you will be satisfied that that document was made up on 4 May and that it supports Mrs Coe’s evidence and establishes that what she has said related to the events of the night of 3 May as she has stated, and of course it inferentially then supports what her son and then what the man Brad Welsh have said. So there is an issue between the parties in regard to that document and what it shows. The Crown says it establishes that you cannot rely upon the alibi evidence. The defence says it establishes that you can rely on the alibi evidence.”

107 It was submitted this was not an available course of reasoning. It was open for the jury to doubt the validity of the document, but it could not affect the evidence of the appellant. Mrs Coe may have been untruthful about the document but it did not follow that the others were untruthful in their evidence as to the alibi. The repetition of the argument was not objected to by defence counsel and once again Rule 4 applies.

108 At this point in the summing-up his Honour was not giving directions of law, but summarising counsel’s arguments to the jury. Counsel for the Crown had apparently put the argument but in his subsequent address defence counsel had not challenged it.

109 Although the Crown now concedes that the line of reasoning complained of is open to question, it would seem that what the Crown was endeavouring to put to the jury was that if the appellant’s mother had manufactured evidence to support his alibi this did reflect on the totality of the alibi evidence in the appellant’s case. The fact that defence counsel did not respond at the time suggests that this is how everyone at the trial understood it.

110 Trial judges cannot be expected at the end of a trial during counsel’s final addresses, when finalising the details of their summing-up, to carefully analyse everything that has been put to the jury by either counsel and to consider whether each and every one of the arguments has a logical basis or requires some comment by him or her. Trial judges simply do not have that sort of time, which is available as a luxury to appellant’s counsel, months later, when preparing an appeal for this Court.

111 If trial judges were to consider the logic of every argument put to juries, they would, in my experience, spend most of their time commenting on the lack of logic to be found in many of the arguments put to juries by defence counsel, and they would then be criticised for giving unbalanced summings-up favouring the Crown.

112 If defence counsel (who addresses after the Crown: Criminal Procedure Act 1986, s 98) considers that any of the Crown’s arguments or the facts are fallacious or illogical, he or she has the opportunity to expose the supposed flaw in their final address. Such matters do not give rise to a question of law and, even apart from Rule 4, require leave to appeal: Criminal Appeal Act 1912, 5(1)(b). I would refuse leave to argue this ground.

113 Ground 7 – Both individually and in aggregate the above rendered the appellant’s trial an unfair process.

114 For the reasons I have given in relation to the individual grounds, I do not consider that, whether examined individually or in aggregate, the appellant’s trial became an unfair process.

115 Ground 8 – The verdict was unreasonable in that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

116 In support of this ground counsel for the appellant relied on a number of matters, particularly the fact that in the witness box Mr Cusack resiled from his earlier positive identification. He also relied on the fact that their prior association had been somewhat limited, that his observation was made at night, across a road of four traffic lanes in width, and that he was viewing the offender at an angle and did not see his full face, that at the trial Mr Cusack assessed the lighting of the scene as bad and that the period that he had the offender under observation was brief (at one stage Mr Cusack said “something like 5 seconds”). He also relied on the fact that Mr Cusack did not go to Newtown police station and nominate the appellant until sometime after the observation and after he had been to a hotel and drunk some alcohol, that Mr Byrne, who also saw the attack, did not identify the appellant when shown the photo array and the evidence of the appellant’s alibi.

117 On the other hand, the issue of identification and whether in the light of the evidence of alibi the jury could be satisfied beyond reasonable doubt that the appellant was the offender were quintessential questions of fact for the jury. The jury had before it evidence of what Mr Cusack had said on the night of the robbery and at the photographic array a month later, they had parts of his evidence at the committal and they had his evidence at the trial. Most importantly, they had the opportunity, which this Court does not have, of observing the demeanour of Mr Cusack and the manner in which he gave his evidence.

118 The jury no doubt considered it relevant that Mr Cusack, a person with apparently no axe to grind in relation to the appellant, having seen the attack, later that night went to Newtown Police Station and told the police what he had seen and whom he had seen. It was open to the jury to take the view that no one would do that unless they were firmly of the view at the time that they were nominating the correct person. This nomination or identification was supported by his picking out of the photograph a month later. The jury were fully aware of the association between Mr Cusack and the appellant, but in my view this, if anything, strengthened the reliability of his original identification.

119 Although in his evidence Mr Cusack asserted that the lighting was bad, police officers who attended the scene that evening assessed it as good, as did Mr Byrne who also observed the incident and gave a description of the offender which was consistent with the appearance of the appellant, although he was unable to identify him in the photographic array. The jury were well aware that the witness had had a few drinks before going to the police but it was open to them to take the view that this would not have affected his identification of the appellant as the offender.

120 They also had evidence of the appellant’s alibi, from himself, his mother and Mr Welsh, but it was open to them to take the view that the note of which the mother gave evidence had no original, but only the typed version produced in Court, or was otherwise fabricated.

121 They were clearly instructed that it was not for the appellant to prove the alibi but for the Crown to prove his guilt beyond reasonable doubt notwithstanding the evidence of alibi (SU 77-78). In respect of the alibi witnesses that were called, the jury had the opportunity of observing their demeanour and the manner in which they gave their evidence and, although they were not entitled to draw any inference adverse to the appellant from his failure to refer to his alibi when arrested, they could take into account the fact that his mother did not say anything when first told of him being charged, and Brett Walsh did not notify the police that his friend was really innocent as he was with him at the relevant time.

122 Having regard to the principles on which this Court acts in dealing with grounds of this nature as set out in M v The Queen (1994) 181 CLR 487 and more recently in R v Markuleski [2001] NSWCCA 290, I consider this ground has not been established.

123 I would therefore grant leave to appeal out of time but dismiss the appeal and confirm the conviction.

124 Greg James J: I agree with Dunford J.

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