R v Dennis Leon Thornbury R v Brett Stuart Williams Nos. SCCRM 92/585, SCCRM 92/455 Judgment No. 3781 Number of Pages 13 Criminal Law and Procedure Evidence

[1992] SASC 3781

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PRIOR(2) AND MILLHOUSE(3) JJ

CWDS
Criminal law and procedure - evidence - evidentiary matters relating to witnesses and accused persons, their character and credibility - Accomplices - adequacy of corroboration warning - adequacy of summing up in relation to weaknesses in accomplice's evidence - failure of prosecution to call witness - adequacy of direction as to such failure - general descriptive evidence of offenders not involving identification of accused - no identification warning required.

HRNG ADELAIDE, 9-10 December 1992 #DATE 23:12:1992
Counsel for appellant Thornbury:    Mrs M E Shaw
Solicitors for appellant:         Caldicott and Co
Counsel for appellant Williams:     Mr D F Stokes
Solicitors for appellant:         David Stokes and
   Associates

ORDER
Appeals dismissed.

JUDGE1 KING CJ The appellants were tried by judge and jury in the Supreme Court on two charges of armed robbery. The first count in the Information on which they were tried alleged that on 10th January 1991 being armed with an offensive weapon namely a knife, they robbed an employee of the Hindmarsh Building Society at Morphett Vale of about $8,150. The second count alleged that on 24th January 1991, being armed with an offensive weapon namely a knife, they robbed the same employee of $9,730. They were found guilty on both charges and have appealed to this court against their convictions. 2. The premises of the Hindmarsh Building Society at Morphett Vale are situated on the southwest corner of Main South Road and Conington Crescent. Conington Crescent runs to the west and the first street running off it is Barbara Avenue which runs to the south. There is a carpark on the western side of the Society's premises with an entrance from Barbara Avenue. 3. At six minutes past four on the afternoon of the 10th January 1991, a man with a stocking covering his head and holding a knife entered the premises. He was carrying a plastic bag. He demanded of Miss Batten, an employee of the Society, that she fill the bag with money. She took three or four bundles of banknotes from each of two drawers and placed them in the bag. While demanding the money the man waved the knife at her. The robber left the bank by means of the exit into Conington Crescent. He was seen to run down Conington Crescent, to cross Barbara Avenue and to run in a southerly direction on the western side of Barbara Avenue. He disappeared into the driveway of a house on the western side of Barbara Avenue. That house is next to a house occupied by a man named Jenkins. As the robber was running along Barbara Avenue a man was standing near a fire hydrant on the western side of Barbara Avenue near the Conington Crescent corner. An eyewitness described that man as "a stockily built fellow, about five foot eight or five foot nine I suppose." He had a beard. 4. The incident in the Building Society's premises was captured on video tape. From the tape and the description of witnesses, it appears that the robber was about five foot six or five foot seven in height with a thin face and of slim build. 5. On 24th January 1991, there was another robbery at the premises and Miss Batten was again the victim. This was also captured on tape. On this occasion the robber entered the premises at two minutes past three o'clock in the afternoon. The modus operandi was the same as on the first occasion and on this occasion the robber escaped with bundles of banknotes in a plastic bag to the amount of $9,730. He had a stocking over his head and was wearing overalls. He ran down Conington Crescent and into Barbara Avenue. There was a man standing in Barbara Avenue in a position which was similar to that occupied by the man on the 10th January. The robber ran past that man and disappeared behind an iron fence into the premises next to Jenkins' house. The two employees of the Building Society who were most directly concerned in both incidents were convinced that the robber on the second occasion was identical with the robber on the first occasion. They judged this from the shape of his face, his build, his voice, and his movements. 6. On the 24th January at about 3.40 pm police officers went to Mr Jenkins' house at 27 Barbara Avenue Morphett Vale. That house is about 200 metres from the Building Society premises. There were five persons present in the house. They were Jenkins, the appellants, and two other men named Hart and Moriarty. Just before the police went into the premises the appellants made an attempt to leave the premises by the front door but were sent back inside by the police. In Jenkins' bedroom, hidden under the cushion of a chair, the police located a pair of overalls and a knife which resembled those used by the robber. In a container which had held a whisky bottle, the police found five bundles of five dollar notes, each bundle containing ten notes. The appellant Williams had in his possession two bundles of ten dollar notes, each bundle containing ten notes, and also five fifty dollar notes. The ten dollar notes were in his right sock and the fifty dollar notes in the pocket of his jeans. The appellant Thornbury had five fifty dollar notes. Three days later Jenkins produced to the police a pair of tracksuit pants and a windcheater which was similar to the clothing worn by the robber on the 10th January and Jenkins also produced a pair of sandshoes. The appellants live at Hackham West and had both stayed at Williams' house on the night of the 23rd January. When the appellant Williams was questioned by the police, he said that he arrived at Jenkins' house about an half an hour before "the commotion". He said that he left the house to go to his mother's home and that the other four men were still at the house when he left. On the way he realised that he had lost part of a ring which he was wearing on his finger and he stopped in Barbara Avenue to look for the missing piece of the ring. At that time the man ran passed him and into the house next to Jenkins' house. Instead of going to his mother's house he went back to Jenkins' house. His explanation for doing so was that he was looking for the missing part of the ring. He explained the money in his possession by saying that he had won it through a bet at the TAB. 7. The appellant Thornbury, when questioned by the police, said that he arrived at Jenkins' house between 2.30 pm and 3.00 pm and that Williams arrived after him. He said that Williams left the house saying that he was going to his mother's home. He returned shortly after saying that there had been a robbery and that he had seen a man wearing a black Balaclava and overalls run into the house next door. Thornbury said that realising that the police were outside, he flushed half an ounce of pot which he was carrying down the toilet. Thornbury denied all knowledge of the overalls or knife or of a white plastic bag which was located on top of a wardrobe next to the chair that concealed the overalls and knife. He denied that he had been to the Society's premises or that he had been involved in a hold-up. He said that he did not know whether he had been at Jenkins' house on the 10th January, but said that he knew nothing about any robbery on that day. 8. Jenkins gave evidence for the prosecution at the trial under an immunity from prosecution. He said that on the day of the first robbery, the appellants had come to his house, unexpectedly, between 2.30 pm and 3.00 pm. The witness said that he and his father were in the loungeroom watching television at the time. Jenkins said that he went with the appellants to his bedroom. Thornbury had a plastic bag and a stocking packet with him. Thornbury asked whether he could put on some old clothes of Jenkins'. Jenkins provided old tracksuit pants and an old jumper. Thornbury left the house wearing the clothes which Jenkins had provided. Williams also left the house. Thornbury returned to the house about ten or fifteen minutes later and Jenkins subsequently saw Williams back at the house. Thornbury took off the clothes and threw a bag down on the bed. The bag contained a few bundles of five dollar notes and Thornbury gave Jenkins those bundles. The amount was about $200. Jenkins asked what the money was for but did not recall whether there was any response to the question. Williams left the house. Thornbury and Jenkins went to a nearby hardware store and bought a sheet of chipboard. The two men then went to the Morphett Vale Hotel. Jenkins said that the tracksuit pants and jumper which he handed to the police were those worn by Thornbury on that occasion. Jenkins' evidence as to the 24th January was to the following effect. He was in his lounge watching television with Hart. Thornbury arrived on his motorcycle in the afternoon. He knew that he was about to arrive as a result of a phone call. Williams arrived after Thornbury and Moriarty arrived later still. After a time Thornbury left the house and Williams left a couple of minutes later. After about ten minutes, both Thornbury and Williams returned separately. Thornbury went into the bedroom. He took off the pair of overalls which he was wearing and gave them to Jenkins "and told me to get rid of them." Jenkins put them under the cushions of a chair. Thornbury gave Jenkins the knife to get rid of and Jenkins also put that under the cushions of the chair. Thornbury gave Jenkins the $250 which was found by the police in the whisky bottle container. Jenkins could not recall whether anything was said why he was getting that money. Jenkins identified the tracksuit pants and windcheater which he had handed to the police as the clothing which he had provided to Thornbury on the first occasion, but said that he could not recall handing a pair of sandshoes to the police nor recall anything about those sandshoes. He said they were not his sandshoes and would not fit his foot. He said that he was about five foot seven in height and had put on some weight since the material time. 9. The case for the prosecution was circumstantial. There was no direct evidence identifying Thornbury as the robber or implicating Williams in the crime. His Honour gave the jury a direction which was appropriate to a case based upon circumstantial evidence. Vital links in the chain of circumstantial evidence, however, were provided by the evidence of Jenkins. Without his evidence, the case for the prosecution could not be proved. In those circumstances, the learned judge embarked upon an accomplice corroboration direction. 10. Jenkins at no time expressly admitted that he knew that a robbery was about to be committed or had been committed. His Honour therefore directed the jury that the corroboration warning would only apply if they thought it was a reasonable possibility that Jenkins was an accomplice in the crimes charged against the accused. He pointed out to the jury, however, that the prosecution had effectively relieved them of that task by conceding that Jenkins was to be treated as an accomplice for the purpose of the warning. He therefore directed the jury that the warning applied to the evidence of Jenkins. 11. It was argued on the appeal that the accomplice warning was inadequate and misleading. The learned judge introduced the topic of the accomplice warning with some general directions as to what constituted an accomplice. He referred to the conduct of accessories and then added "by virtue of doing so, they are to be regarded as accomplices of the accused if they have given evidence upon their trial." It was argued that this direction was misleading because it would make the warning apply only if the accused were guilty and is therefore meaningless. It was pointed out that the real question is not whether the witness is an accomplice of the accused but whether he is a participant in the crime which is charged against the accused. It is to be noticed, however, that in the passage in question His Honour was speaking in general terms and was not directing attention to the present case or the present accused. The expression used was unfortunate but its true meaning was obvious. In the end, as I have already said, the judge pointed out that it was conceded that Jenkins was an accomplice for the purpose of the rule and that the warning applied to him. The loose expression used in the general part of the summing up as to what constitutes an accomplice would have done no harm in the context of the summing up as a whole. 12. A further criticism of the direction was that His Honour insufficiently explained the reason for the warning. It is clear from the authorities that no particular formula or form of words is required; R v Price 1969 1 QB 541; Longman v The Queen (1989) 168 CLR 79 at p.86; R v Spencer 1987 AC 128 per Lord Hailsham at p.135. The nature and extent of the warning must depend upon the circumstances of the case. Generally speaking, it is desirable that there be some explanation of why the law gives the warning; R v Button 1992 1 QdR
552. 13. After discussing Jenkins' status as an accomplice, the learned judge referred to the fact that he was given an immunity from prosecution. He then dealt with the reasons for the warning in the following terms:
    "In the light of this immunity it is also important,
    perhaps you might say the more important, that you should
    approach Jenkins' evidence with considerable precaution.
    Jenkins has good reason, you might think, to be grateful to the
    Crown. He might think he owes them something. Many a person in
    Jenkins' position would be tempted to minimise his own role in
    what happened, with a corresponding temptation to exaggerate or
    distort the part played by others. This may give him an
    additional reason for seeking to minimise his own involvement.
    That is another reason why you should therefore scrutinise his
    evidence with special care." 14. Counsel criticised this direction on the ground that it understated the reasons why caution was necessary with respect to the evidence of Jenkins. Counsel pointed out that it omitted reference to the possibility that Jenkins, faced with the discovery of the incriminating articles in his house, may have decided to place blame on innocent persons. This possibility was not mentioned in so many words by the learned judge, but I think that it is implicit in what he said and that his direction would be so understood in light of the circumstances of the case. The entire thrust of the attack on Jenkins' credibility at trial was that he was the culprit and was endeavouring to transfer the blame to the appellants. There was no doubt that Jenkins had some role in the matter and any attempt to transfer blame to others would amount to a minimising of his role. I think that the judge's reference to exaggeration and distortion would be understood as a reference to placing blame for the actual robbery on the appellants. 15. The charge to the jury was also criticised on the ground that it insufficiently drew attention to the weaknesses in Jenkins' evidence. Counsel placed particular emphasis upon the fact that when first interviewed by the police at the house on 24th January, he made no mention of providing clothing for Thornbury or of hiding the overalls and knife. It is clear, of course, that at that point Jenkins was endeavouring to conceal his own complicity in whatever had occurred. The learned judge, however, canvassed with the jury at considerable length defence counsel's criticisms of Jenkins' evidence. The important weaknesses were drawn to their attention in that way. The extent to which a trial judge identifies himself with counsel's criticisms of evidence is a matter entirely for his own judgment. 16. The learned judge directed the jury that there was no evidence capable in law of amounting to corroboration. He followed that direction with the following sentence:
    "But having said that as I said to you yesterday, you may
    nevertheless convict if - bearing in mind the warning which I
    gave you yesterday and which I've just repeated, and having
    scrutinised the evidence with great care, that is to say, the
    evidence of Jenkins with great care and the other evidence - you
    are quite satisfied that the evidence of Jenkins is reliable,
    notwithstanding its source and the lack of corroboration and you
    are also satisfied that each crime has been proved against both
accused beyond reasonable doubt." 17. Counsel contended that the reference to "the other evidence" obscured the direction that there was no corroborative evidence. I do not think that it would have that effect. The jury was clearly told what was meant by corroboration and that there was no such corroboration. The evidence of Jenkins had, of course, to be assessed in the context of the evidence as a whole and in the factual setting established by the other evidence. I do not think that the reference to "the other evidence" in the sentence to which I have referred conveyed any more than that or qualified in any way the direction that there was no corroboration. In my opinion when the learned judge's directions are considered as a whole, they amount to a proper and adequate warning as to the danger of convicting upon the evidence of Jenkins. In my opinion the attack on the convictions on this ground must fail. 18. A further point argued on the appeal was that the learned judge's direction to the jury as to the effect of the failure of the prosecution to call as a witness Jenkins' father, was inadequate. During the course of his evidence, Jenkins said that his father was watching cricket on the television in the lounge when the appellants arrived on the 10th January. Mr Jenkins senior was not called as a witness. The learned judge directed the jury as follows: "You will recall that Jenkins said in his evidence that his father was there in the house on 10 January 1991. There is no explanation given for the failure by the Crown to call Mr Jenkins senior. We do not know whether he was available to be called. We do not even know whether he has been interviewed by the police. We do not know what he would have said if he were called. Had he been called, you might have had evidence which confirmed or denied whether Thornbury and Williams were in the Jenkins' house on 10 January 1991. Where a witness is available to the Crown and the Crown does not call that witness or offer an adequate explanation for the failure to call the witness, then you might well conclude, if that inference is capable of being drawn, that the Crown does not consider that the evidence of that witness is likely to assist its case. But when such a witness has not been called what you cannot do is speculate about what that witness might have said. The fact is that you do not know what he might have said. It is your task to determine the issues on the evidence which is before you. You must not try to guess what evidence might have been given had Mr Jenkins senior been called. As I say, all that you can do is conclude that perhaps the Crown does not consider that the evidence is not likely to assist its case." The prosecution did not offer any evidence by way of explanation of the failure to call Mr Jenkins senior and counsel for the appellants contended that His Honour's comment should have been much stronger. Reference was made to Jones v Dunkel (1958-1959) 101 CLR 298 esp. at pp.321-322 and R v Buckland 1977 2 NSWLR 452 esp. at pp. 458-459. The nature of any comment which a judge feels disposed to make upon an evidentiary matter of this kind is a matter for his judgment and discretion. An appellate court will rarely substitute its own view as to the comment which should have been made, for that of the trial judge. The inference to be drawn from the failure to call a witness depends very much on the circumstances. Mr Jenkins senior was of an older generation than his son. He was interested in the cricket on the television. He may have taken very little interest in the comings and goings of his son's friends. There is no suggestion that there was anything in their behaviour in the loungeroom which would have excited attention, if indeed they went into the loungeroom. The activities which might have excited suspicion, if they occurred, occurred in the bedroom. There is really no reason to suppose that Mr Jenkins senior would have been aware of the identity of his son's visitors, their purpose in visiting the house or their activities while there. It probably would have been better if the Crown had called Mr Jenkins senior or had called evidence explaining his absence, but I do not think that in the circumstances his absence from the witness box could be made the basis for any inference adverse to the case for the prosecution. I think that the learned judge's direction was quite adequate in the circumstances. 19. Counsel argued that the learned judge ought to have directed the jury as to the dangers of identification evidence. I can see no substance in this argument. There was no evidence identifying Thornbury as the person who committed the robbery. There were only general descriptions of height build and facial shape. Neither was there any identification of Williams. He admitted to being the person at the fire hydrant on the 24th January. There was no identification of him as the person in that vicinity on the 10th January. There was no occasion for an identification warning. 20. It was argued that the learned judge should have drawn attention to weaknesses in the evidence identifying the robber on the two occasions as the same person. Thornbury's evidence at trial was that he was never at Jenkins' house or in the vicinity of the Building Society's premises on the 10th January. His evidence as to the 24th January was to the same general effect as his statement to the police except that he gave detail as to what occurred at the house which tended to implicate Jenkins as the robber. He said that he brought about half an ounce of cannabis to the house in a plastic bag to sell to Jenkins. He said that he did not see Williams leave the house to go to his mother's home because he, Thornbury was in the toilet. He was using the toilet but also packing and smoking a cone of cannabis. He said that he emerged from the toilet after about 5 minutes but saw and heard nobody. He called out to Jenkins but received no response. In just under a minute or so Jenkins appeared in the loungeroom. He denied that he was anywhere near the Building Society's premises. 21. Williams also gave evidence to similar effect to his statement to the police. He admitted that he was the person at the fire hydrant on the 24th January and said that he saw no other person in that vicinity who could be the person noticed by the eyewitness. He denied that he was at Jenkins' house or in its vicinity on the 10th January. It is true that there are some divergencies in the descriptions of the witnesses who were present in the Building Society on the two occasions as to the description of the robber. If it were necessary to rely solely on their evidence, it would be difficult to conclude beyond reasonable doubt that the robber on each occasion was the same person. There is, however, a good deal more evidence pointing in that direction. The modus operandi was identical. There was the same use of the stocking and the knife and the same general approach to the tellers. The robber took the same route after leaving the premises and disappeared into the same premises in Barbara Avenue. The second man was located in the same position on both occasion. I think that the circumstances point very strongly, quite apart from Jenkins' evidence, to the identity of the two persons involved on the first occasion with those involved on the second occasion. 22. In my opinion all grounds of appeal fail and the appeals must be dismissed.

JUDGE2 PRIOR J I agree that these appeals should be dismissed for the reasons published by the Chief Justice.

JUDGE3 MILLHOUSE J The two appellants were convicted on two counts of armed robbery. There were two robberies at the same premises, a building society branch at Morphett Vale, a fortnight apart. 2. The Chief Justice has already set out the facts and I shall not repeat them. 3. Thornbury was convicted by majority on the first count and unanimously on the second: the verdicts on Williams were both by majority. 4. The grounds of appeal upon which leave was granted to Thornbury (they were also the grounds argued by Mr David Stokes for the appellant Williams) are:-
    "3. The Learned Trial Judge erred in failing to give
    adequate warnings as to the danger of relying on the evidence
    given by the Crown witness Craig Jenkins. ...
    7. The Learned Trial Judge erred in failing to adequately
    direct the Jury as to the inference to be drawn from the
    Prosecution's failure to call Mr. Jenkins Senior as a witness.
    8. The Learned Trial Judge erred in that he failed to give
    the Jury a proper accomplice warning with respect to the Crown
    witness Craig Jenkins.
    ...
    15. The Learned Trial Judge erred in not proposing additional
    reasons as to why the Crown witness Craig Jenkins might have
    lied as to:-
    (a) Him being a principal as opposed to an accessory to the
    Armed Robberies.
    (b) Another person may have been the robber as opposed to the
    appellant Thornbury.
    16. The Learned Trial Judge erred in that he failed to give
    the Jury an identification warning with respect to the appellant
    Thornbury." 5. When Mrs Marie Shaw for Thornbury began her argument she grouped the grounds into three headings - complaint about the accomplice direction given in relation to Jenkins, complaint about the direction concerning the failure of the Crown, without explanation, to call Jenkins Senior and the learned Trial Judge's failure to give an identification warning. Mr Stokes addressed succinctly on the first and second matters, adding to Mrs Shaw's arguments. 6. I shall deal with the arguments under Mrs Shaw's three headings. THE ACCOMPLICE DIRECTION
7. Mrs Shaw submitted that Debelle J should have given more than a general warning: that, having given the general warning, he should have linked it to the evidence and to the arguments put in their addresses by defence counsel. 8. She also complained that the learned Trial Judge had not sufficiently explained what an accomplice is. In my view the explanation of accomplice was entirely accurate and sufficient, especially given that the Crown had conceded Jenkins was an accomplice. 9. Mrs Shaw complained about the warning given regarding an accomplice's evidence. These are the most significant parts of the direction:-
    "If he is an accomplice, if you find he is an accomplice,
    it is necessary in law for me to warn you that where the
    evidence of an accomplice is relied upon it is considered
    dangerous to convict upon that evidence in the absence of some
    corroborative evidence.
    You have also heard that the Crown Prosecutor has given an
    immunity from prosecution to Jenkins. You have been told the
    immunity is on certain terms. I will remind you now of the
    terms of that immunity, ... (He then read out the letter
    to Jenkins setting out the terms of immunity.) ...
    As was stressed by Mr Whittle for the Crown, the condition
    (as to immunity, in the letter) goes to the truthfulness of the
    evidence, it does not depend upon the content of the evidence
    and I remind you of what Mr Whittle said in that connection.
    In the light of this immunity it is also important, perhaps
    you might say the more important, that you should approach
    Jenkins' evidence with considerable precaution. Jenkins has
    good reason, you might think, to be grateful to the Crown. He
    might think he owes them something. Many a person in Jenkins'
    position would be tempted to minimise his own role in what
    happened, with a corresponding temptation to exaggerate or
    distort the part played by others. This may give him an
    additional reason for seeking to minimise his own involvement.
    That is another reason why you should therefore scrutinise his
    evidence with special care.
    It is, however, open to you to act upon his evidence if you
    are convinced of its accuracy, but you should not do so without
    first giving careful heed to the warning I am now giving you.
    I remind you that my warning as to the evidence of an
    accomplice is that it is dangerous to act upon it in the absence
    of some corroborative evidence." His Honour then gave an explanation of corroboration evidence but later directed that there was no corroboration in this case. 10. With respect, I am not sure that there wasn't corroboration of Jenkins' evidence. As the Chief Justice pointed out during argument there was evidence that the build of the robber corresponded to that of Thornbury, that the robber came from and returned to Jenkins' house and that Thornbury was at Jenkins' house before and after the robbery. Be that as it may, the learned Judge directed that there was no corroboration. Of itself, I should have thought that was a bonus for the appellants. The warning against convicting upon uncorroborated evidence stood the more starkly, unqualified by a direction that there was no evidence which could be corroborative for the jury to consider. 11. However later in the summing up, indeed on the next morning the learned Judge came back to the point and said:-
    " I warned you yesterday that in the case of the evidence
    of an accomplice and, as here, where someone has been given
    immunity, it is dangerous to act on the uncorroborated evidence
    of an accomplice. ... I said it would be dangerous to
    act on that evidence unless it was corroborated and I said that
    I would let you know whether there is any corroborative
    evidence. There is, in fact, no corroborative evidence, so the
    warning stands that it is dangerous to convict upon the evidence
    of an accomplice unless there is corroboration. But having said
    that as I said to you yesterday, you may nevertheless convict if
    - bearing in mind the warning which I gave you yesterday and
    which I have just repeated, and having scrutinised the evidence
    with great care, that is to say, the evidence of Jenkins with
    great care and the other evidence - you are quite satisfied that
    the evidence of Jenkins is reliable, notwithstanding its source
    and the lack of corroboration and you are also satisfied that
    each crime has been proved against both accused beyond
    reasonable doubt." 12. There is a problem in that passage, in the words I have underlined. The words "and the other evidence" could mean that the jury should consider not only Jenkins' evidence standing alone but also "the other evidence" as though that were corroborative evidence. It was, I suggest with respect, unfortunate that the learned judge included that phrase in the sentence. The sentence standing on its own may give the impression that notwithstanding the jury had been told there was no corroborative evidence to consider, yet there was. 13. However taken in context there is, I suggest, no problem because the Judge immediately went on to say:-
    " As to that evidence," (that must be "the other evidence")
    "I remind you essentially what it is the evidence (sic) as to
    10 January 1991. You have the evidence of the tellers Gaskell
    and Batten. You have the video tape. You have the evidence of
    Mr Jordan, who I just referred to a moment ago. You have all
    that on the one hand and you have got the evidence of Jenkins on
    the other.
    As to 24 January, you have the evidence of the bank tellers,
    the evidence of the people in the bank." 14. From those two paragraphs it should have been clear to the jury that by the phrase "and the other evidence" the learned judge was referring to evidence quite apart from that of Jenkins' and of evidence which could be within the explanation they had been given of corroborative evidence. 15. I simply cannot believe that the jury made up, as we assume, of 12 reasonable adults of average intelligence, not, as I said during argument of kindergarten children, could have been confused or misled. 16. Mrs Shaw also complained of other slips but I shall mention only one. His Honour referred to "accomplices of the accused" when, she said, he ought to have referred to "accomplices in the crime". The complaint, if it has any substance at all which I doubt, could only stand if one sentence in the summing up is taken out of context. The sentence is in fact the last in the paragraph and the paragraph taken as a whole is entirely appropriate. I set it out to shew that the Judge had referred right through it to the "crime".
    "An accomplice is not only a person who is party to the
    actual crime committed, but is also a person who might be
    considered as an accessory before or after the fact to that
    offence. In other words, it includes a person who is a
    participant in the crime in the broader sense. It includes
    persons who have deliberately and intentionally encouraged or
    helped to plan or prepare for the crime or who may have
    deliberately and knowingly assisted in executing or preparing
    for it. All of such persons are, by their actions, accessories
    to the crime and are also guilty of the offences. By virtue of
    doing so, they are to be regarded as accomplices of the accused
    if they have given evidence upon their trial." 17. The last of Mrs Shaw's complaints which I mention is that His Honour failed to draw attention to the apparent weaknesses in Jenkins' evidence. There are two answers to that. The first is that he did draw attention to them. The second is that a judge in a criminal trial must avoid being partisan or appearing to be partisan. Most of us when charging a jury say something like this:-
    "I emphasise - that it's entirely for you what you decide
    about the facts. The decision on the facts is yours and not
    mine or counsel's. You may disregard, indeed, you should
    disregard any opinions which I may express or, more likely, may
    seem to express about the facts. I shall try not to express an
    opinion but you may get the impression that I have. Disregard
    it, because it is entirely for you what you may think of the
facts which have been put before you." It is not for a judge to influence the jury on matters of fact. 18. That moves me to make a plea which I think I have made before or if I have not I have often thought of making it and should have made it before. 19. It is absurd for a Court of Criminal Appeal, made up, one hopes, of reasonably intelligent as well as experienced lawyers, to be invited, as it so often is, to read and re-read, to scrutinise, to analyse word by word, a summing up with the aim of finding mistakes in it, of putting the most unfavourable interpretation on it. 20. A summing up is after all delivered only once, orally, to twelve lay people. Not only are laymen and women unlikely to appreciate the finer shades of meaning (which may or may not be immediately obvious to a lawyer) in what they hear but the average person's ability to comprehend the spoken word is really quite limited. It is unreal to expect any jury to take in and to appreciate and to understand every word which is said to them in a summing up. Realistically all we can hope is that they get an accurate general idea of what is being said to them. Yet judges are all too often urged by counsel for appellants, to consider, at length, every word in the summing up to see whether a small error can be found. Of course it is a matter of degree, of balance, but often judges on appeal are asked to go deeply into the analysis of what has been said (or not said) to a jury. 21. Mrs Shaw referred us to a recent decision of the Court of Criminal Appeal in Queensland, R v Button (1992) 1 QdR 552. Macrossan CJ (at 533) puts better than I have what I mean:-
    "... there is now considerable support for the view that
    some explanation of the reason for the warning of the danger (of
    acting on the uncorroborated evidence of an accomplice) should
    be incorporated since otherwise the point of the warning may be
    missed by the lay jury who may not in consequence give
    appropriate consideration to the danger which is involved ...
    While this is the approach which should be adopted, I should say
    that I am not in any way intending to suggest that it is
    necessary for a trial judge to go to the opposite extreme of
    undue length." 22. Finally, in making this plea, I notice that at the end of his summing up Debelle J asked counsel the usual question, whether there was anything they wished to correct. The answer from all three counsel was, "No". In my view there is a heavy responsibility on counsel at the end of the summing up to invite a judge to correct or add to what he, or she, has said. The failure to raise a point which is subsequently taken on appeal should be viewed by an appellate court as most significant, especially a point which has to do with the atmosphere of the trial, and should incline the appellate court against accepting it. My brother Prior several times in argument on this appeal said that a summing up must be taken as a whole. Having heard Mrs Shaw, briefly reinforced by Mr Stokes and having read the whole of the summing up I am satisfied that it was, on this first (and I must admit I have found it the most difficult) point entirely sufficient. FAILURE TO CALL JENKINS SENIOR
23. The second point is more easily despatched. Mrs Shaw complained that the learned Judge had "watered down" his direction on the unexplained failure of the Crown to call Jenkins Senior. This is what he said:-
    "I turn - to the question of the failure to call
    Mr Jenkins Senior.
    You will recall that Jenkins said in his evidence that his
    father was there in the house on 10 January 1991. There is no
    explanation given for the failure by the Crown to call Mr
    Jenkins senior. We do not know whether he was available to be
    called. We do not even know whether he has been interviewed by
    the police. We do not know what he would have said if he were
    called. Had he been called, you might have had evidence which
    confirmed or denied whether Thornbury and Williams were in the
    Jenkins' house on 10 January 1991. Where a witness is available
    to the Crown and the Crown does not call that witness or offer
    an adequate explanation for the failure to call the witness,
    then you might well conclude, if that inference is capable of
    being drawn, that the Crown does not consider that the evidence
    is likely to assist its case. But when such a witness has not
    been called what you cannot do is speculate about what that
    witness might have said. The fact is that you do not know what
    he might have said.
    It is your task to determine the issues on the evidence which
    is before you. You must not try to guess what evidence might
    have been given had Mr Jenkins Senior been called. As I say,
    all that you can do is conclude that perhaps the Crown does not
    consider that the evidence is not likely to assist its case." (It is unfortunate that a double negative crept into that last sentence. Obviously the Judge meant "perhaps the Crown does not consider that the evidence is likely to assist its case." I use the word "obviously" because of the context in which the slip occurred.) 24. In my view the appellants could not have expected any more favourable direction than this one. I do not accept the second point. IDENTIFICATION
25. As to the third point, identification, there is nothing in it. As the Chief Justice said, this is not an identification case. No warning was required. 26. I suggest that the appeals be dismissed.