R v Donnelly

[2001] NSWCCA 394

CITATION:	R v Donnelly [2001] NSWCCA 394
FILE NUMBER(S):	CCA 60017/00
HEARING DATE(S):	23 March 2001
JUDGMENT DATE:	5 October 2001
PARTIES :	R v Paul James Donnelly
JUDGMENT OF:	Giles JA at 1; Wood CJ at CL at 116; Simpson J at 117

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/51/0037
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

COUNSEL :	R D Ellis - Crown M Thangaraj - Appellant
SOLICITORS:	S E O'Connor - Crown H Schleiger & Associates - Appellant
CATCHWORDS:	Crime - robbery with wounding - fresh evidence - cross-examination about persons to be called by defence - directions as to joint criminal enterprise - directions as to lies - unreasonable verdict. D
CASES CITED:	Azzopardi v The Queen (2000) 75 ALJR 931; Edwards v The Queen (1993) 178 CLR 193; Gallagher v The Queen (1986) 160 CLR 392; M v The Queen (1994) 181 CLR 487; Michelberg v The Queen (1989) 167 CLR 259; Osland v R (1998) 197 CLR 316; R v Ali (2001) NSWCCA 218; R v Clarkson (1971) 1 WLR 1402; R v Coney (1882) 8 QBD 534; R v Dellapatrona (1993) 31 NSWLR 123; R v Heyde (1990) 20 NSWLR 234; R v Kirby (2000) NSWCCA 330; R v Kupferberg (1918) 13 Crim App R 166; R v Sanford (1994) 72 A Crim R 160; R v Stackelroth (CCA, 3 April 1996, unreported); R v Tangye (1997) 92 A Crim R 545; R v Vastag (CCA, 20 June 1997, unreported); RPS v The Queen (2000) 199 CLR 620; Wilcox v Jeffrey (1951) 1 All ER 464; Zoneff v The Queen (2000) 200 CLR 234.
DECISION:	1. So far as leave be necessary, leave be given to enlarge the grounds of appeal against conviction to encompass the grounds the subject of these reasons; 2. Dismiss the appeal against conviction. 3. Grant leave to appeal against sentence. 4. Dismiss the appeal against sentence.

IN THE COURT
OF CRIMINAL APPEAL

CCA 60017/00
DC 99/51/0037

GILES JA

WOOD CJ at CL

SIMPSON J

Friday 5 October 2001

Regina v Paul James DONNELLY

The appellant appealed against his conviction for robbery with wounding and the sentence imposed. The issues were concerned with fresh evidence, inappropriate cross-examination, directions as to joint criminal enterprise, directions as to lies, unreasonable verdict, and error in matters taken into account in sentencing.

As to fresh evidence, the appellant tendered exculpatory evidence of a third party. The evidence was not fresh evidence because it was available at the trial but was not led because the appellant did not want to take the risk that the third party would not give the evidence expected; as well, the evidence was not such that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant.

As to inappropriate cross-examination, the appellant was asked whether some persons with whom he said he had been drinking before the occasion of the robbery were present at court. The questions should not have been asked, but in the circumstances there was no miscarriage of justice.

As to directions as to joint criminal enterprise, the appellant argued that they were deficient in relation to his presence on the occasion of the robbery and the need for preconcert. By majority, the directions were sufficient.

As to directions as to lies, the appellant argued that they were deficient in relation to identification of the lies which could be taken to show consciousness of guilt and the exclusion of any other reasonable hypothesis for telling the lies. By majority, the directions were sufficient.

As to unreasonable verdict, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

By majority, the appeal against conviction was dismissed. Only the majority considered the appeal against sentence. There was no error, and that appeal was dismissed.
IN THE COURT
OF CRIMINAL APPEAL

CCA 60017/00
DC 99/51/0037

GILES JA

WOOD CJ at CL

SIMPSON J

Friday 5 October 2001

Regina v Paul James DONNELLY

JUDGMENT

1    GILES JA: On 7 October 1999 the appellant was indicted jointly with Lindsay Bruce Charles on the charge -
“That he on 4 February 1999 at Coffs Harbour in the State of New South Wales being then armed with an offensive weapon, namely, a wooden club, did rob Alwyn Sharpe of a wallet, a sum of moneys and a wrist watch and at the time of the robbery did wound Alwyn Sharpe.”

2    The appellant entered a plea of not guilty. A plea was not taken from Mr Charles at that time because he was considering changing his plea. The jury was empanelled. Mr Charles then entered a plea of guilty, and his sentencing was deferred. The trial of the appellant proceeded with the same jury.

3    On 14 October 1999 the jury returned a verdict of guilty against the appellant.

4    On 16 December 1999 the appellant was sentenced to imprisonment for a minimum term of five and a half years commencing on 4 February 1999 and expiring on 3 August 2004 and an additional term of two and a half years commencing on 4 August 2004 and expiring on 3 February 2007.

5    The appellant appealed against conviction and sought leave to appeal against sentence.

6    In the notice of appeal one ground was taken as to conviction, namely -
“The Trial Judge erred in failing to direct the Jury they had to be satisfied beyond reasonable doubt that the appellant was present at the time of the act that caused the wounding.”

7    In the appellant’s written submissions a second ground appeared, namely that “[t]he verdict was unreasonable and cannot be supported”, and the submissions themselves went still further in relying on what was said to be fresh evidence from Mr Charles exculpating the appellant and on what was termed “inappropriate cross-examination”. The argument in support of the first ground itself involved considerably more than the ground of appeal indicated.

8    In the notice of appeal one ground was taken as to sentence, namely that “[t]he sentence imposed by the Trial Judge was manifestly excessive”. The appellant’s written submissions did no more than assert that the sentence was manifestly excessive. Anything more was left to oral argument.

9    After judgment in the appeal had been reserved, the parties were informed that some members of the Court were concerned about the directions to the jury on the question of lies, and the parties were invited to make submissions on that subject. Written submissions were received, in which the appellant took up erroneous directions on the question of lies as a further ground of appeal.

10    The non-compliance with proper requirements and the evolving nature of the appeal can not be regarded as satisfactory. The Crown did not object to the expansion, by the appellant and at the instance of the Court, of the matters for consideration. Notwithstanding its unsatisfactory features, in the interests of the appellant I consider that the appeal should be determined on the grounds and submissions taken and made. The contribution of the appellant’s legal advisers to the unsatisfactory features, however, can not be condoned.

The Crown case


11    Mr Sharpe was walking along the Pacific Highway at Coffs Harbour, returning to his accommodation at a back packer hostel in Arthur Street, at about 2 am on 4 February 1999. About 30 or 40 yards from the intersection of Arthur Street and the Pacific Highway he passed Mr Charles, who was walking in the opposite direction. He greeted Mr Charles, saying “How you going?” He walked on. He heard footsteps behind him approaching at a run, turned to the noise of the footsteps, and was hit on the back of his neck at about shoulder level. He fell forward onto the ground.

12    Mr Sharpe immediately got up, and saw Mr Charles standing with what looked like a shortened baseball bat in his hand. Mr Charles was standing about two metres in front of him. Mr Charles demanded Mr Sharpe’s wallet and watch. Mr Sharpe refused.

13    Mr Sharpe then saw the appellant coming from the direction of Arthur Street, about 20 metres from the intersection of Arthur Street and the Pacific Highway and walking towards him. The appellant stood behind Mr Sharpe, so that Mr Sharpe was between the appellant and Mr Charles. The appellant said to Mr Sharpe, “Give it to him or he’ll use it”. According to Mr Sharpe, when he said this the appellant’s speech was relaxed and slurred. Mr Sharpe again refused to hand over his wallet and watch.

14    The appellant then asked Mr Sharpe for a smoke. Mr Sharpe replied that he did not smoke. Mr Charles was still standing in front of the appellant, holding the bat but moving backwards and forwards. The appellant kept repeating his request for a smoke, and eventually Mr Sharpe gave him a packet of cigarettes. While this was occurring the appellant moved to the side of Mr Sharpe.

15    The next thing Mr Sharpe remembered was waking up, lying on his side on the ground. There was blood on his face, coming from his nose, and on the back of his head. It was later ascertained that Mr Sharpe had a broken nose and a laceration on the back of his head.

16    Mr Sharpe went to the hostel and there found that his wallet and his watch were missing. The police were called. Mr Sharpe accompanied the police driving down the Pacific Highway. He saw a group of four men and a woman, and recognised Mr Charles and the appellant as the men he had encountered earlier in the night.

17    The police spoke to both men. The appellant gave his name as Paul Dodds, which he later said was his mother’s name and one he sometimes used. He denied that he had assaulted and robbed Mr Sharpe, saying “What would I want to do that for? I don’t have to do that, I’ve got money.” He was found to be in possession of a $20 note, some coins, and a receipt from a motel at Collarenebri in the name of Mr Sharpe. Mr Sharpe’s wallet had contained, amongst other items, two $50 notes and the receipt. When the receipt was found in the appellant’s possession he professed ignorance of it, saying “What’s that?”

18    The appellant and Mr Charles were taken to the Coffs Harbour police station. The appellant was formally interviewed. He denied any involvement in the assault and robbery of Mr Sharpe, and said that he could not remember where he had met Mr Charles that night, although he did know him. He said that he had found the $20 note outside the RSL Club, and again denied any knowledge of the receipt. The police considered that the appellant was slightly intoxicated, but that he understood the questions he was asked and gave proper answers to them. The account the appellant gave of his movements that night was different from the account he later gave in his evidence.

19    On scientific examination of the appellant’s clothing blood was found on one of his shoelaces, the DNA matching that of Mr Sharpe.

20    A taxi driver gave evidence that he had picked up two men, the descriptions of whom matched descriptions of the appellant and Mr Charles, at about 2.45 am on 4 February 1999. The man answering the description of Mr Charles had attempted to pay the fare of less than $6 with a $50 note. The taxi driver did not have change, and the man went to an establishment in what was described as the Bailey Centre and changed the note, returned, and paid the fare.

The appellant’s evidence


21    The appellant gave evidence and was cross-examined. An aspect of the appeal was that it was said that Mr Charles had been expected to give evidence exculpating the appellant, but in fact he did not do so. It will be necessary to return to that matter.

22    The appellant gave an account of drinking at various locations from mid-afternoon on 3 February 1999 . He was walking home, “not really drunk but drunk”, when he heard someone yelling from behind him, “Get back here you white cunt”. He turned around and walked back to see who was yelling. He saw two people standing together , one being Mr Charles, whom he knew previously, and the other a person whom he did not recognise. The other person was plainly Mr Sharpe, and I will hereafter refer to him by name. The appellant asked the men for a cigarette, and Mr Sharpe handed him a packet of cigarettes from which he took some.

23    As the appellant was about to return the packet of cigarettes, he saw Mr Charles raise something in his hand to hit at Mr Sharpe. He did not know what Mr Charles raised, and said “I’ve seen him swing at him, but I didn’t see him connect.” He did not hear Mr Charles demand Mr Sharpe’s wallet and watch. He was not part of any agreement with Mr Charles to hit Mr Sharpe.

24    The appellant “freaked out over what he just done, because I wasn’t expecting it and I started to run”. Mr Charles called out to the appellant, and the appellant stopped and went back. He saw Mr Sharpe lying on the ground with Mr Charles standing on his neck and blood coming from his face. He said to Mr Sharpe, “Give him what he wants and he’ll leave you alone”, and then ran off again. As he ran he turned and said to Mr Sharpe, “Come on Lindsay, let’s get out of here”, and they both ran off.

25    A little later the appellant and Mr Sharpe took a taxi. He heard the taxi driver say something about “he didn’t have the change for the kind of money Lindsay had”, and Mr Charles went to the Bailey Centre, obtained change, and paid the fare. After they left the taxi Mr Charles gave the appellant some money, about $25, to buy liquor. He did not see a receipt.

26    The appellant was with some other people when the police came to them. He lied to the police, giving an account of his movements different from that given in his evidence. He gave reasons for doing so, to which I will come.

Fresh evidence


27    It is convenient to deal with this matter first, treating it as a ground of appeal. As I have indicated, the appellant relied on what was said to be fresh evidence from Mr Charles exculpating the appellant. Mr Charles gave evidence in this Court and was cross-examined. Mr Hugo Schleiger, the solicitor instructing the appellant’s counsel at the trial, gave evidence intended to establish that Mr Charles’ evidence was relevantly fresh evidence. Mr Schleiger was not cross-examined, but the Crown disputed that Mr Charles’ evidence was relevantly fresh evidence.

28    According to Mr Schleiger -
“6. During the initial proceedings before the District Court at Coffs Harbour there was an allegation that whilst the defendants were waiting to be brought into court, there was an assault between them which delayed proceedings for a short time.
7. As a result of this incident and on instructions, counsel and I took the view that we could not call Mr Charles in evidence because it was thought that he would not be a truthful witness.”
29    In his evidence in this Court Mr Charles said -
“Q. At one stage, while you were in the cells, you and Mr Donnelly had a fight?
A. Yeah.
Q. And as a result of that fight, you instructed your lawyers that you would not speak to Mr Donnelly’s lawyers?
A. Correct.”

30    Whatever occurred in this respect appears to have been behind the explanation given by the appellant’s then counsel to the trial judge for a late application for a separate trial. According to the trial transcript, counsel said -
“The defence for Mr Donnelly had an expectation based on the reasonable premiss [sic] that Mr Charles would give evidence to say that he, Mr Charles, hit the complainant and that Mr Donnelly had no part in the robbery. Because that was our expectation, more than a fanciful expectation, your Honour, we made, as I announced yesterday, a conscious decision not to apply for a separate trial. My understanding is that the accused , Mr Charles, has made two ERISP interviews, the first one effectively saying he didn’t know anything about it, and the second ERISP effectively saying Mr Donnelly did the hitting.”

31    It is not apparent why ERISP interviews as described would found an expectation that Mr Charles would give evidence to say that he, Mr Charles, hit Mr Sharpe and that the appellant had no part in the robbery: quite the reverse. The expectation must have been founded on something else.

32    An affidavit sworn by the appellant was read before the trial judge in support of the application for separate trials. The affidavit was not put before this Court, even as something operating on the minds of the appellant’s legal representatives at the time. The trial judge’s reasons on the application for a separate trial included -
“Finally it is put to me that because Donnelly has sworn in the affidavit of 6 October that Lindsey Charles in Grafton Gaol a short time ago promised to help Donnelly and tell the Court that he had nothing to do with hitting or robbing anyone, that they cannot take advantage of that unless, of course, Charles gives evidence and admits it. If Charles elects not to give evidence I can see no reason why Donnelly cannot give the evidence. It would have a very telling effect if it was not denied.”

33    Towards the end of the cross-examination of the appellant at the trial his counsel said that “A matter has been raised by the questions of the accused as to whether he might have done any hitting, which leads me to contemplate calling another witness … “. There was a discussion in the absence of the jury, not fully recorded in the transcript but, as it developed, involving an application by counsel for the appellant for a ruling on whether he could lead evidence from a third party, Mr Jarrett, of what Mr Charles said to him and in some manner in connection with the evidence from Mr Jarrett evidence from Mr Charles described as evidence on the voir dire.

34    In the course of the discussion counsel agreed that he had interviewed Mr Charles, although when he had done so was not stated, and said that he did not propose to call Mr Charles. It seems that counsel argued that Mr Charles should be regarded as a person who was not available to give evidence about an asserted fact for the purposes of the hearsay rule. The trial judge put to counsel that Mr Charles was available “but you declined to call him because he won’t speak to you and you don’t want to take the risk”, with which counsel agreed. His Honour ruled “That’s not being unavailable, you’re electing not to call him”.

35    Assuming that the transcript and the trial judge’s reasons could be taken as some evidence of the expectation asserted by counsel, there was no other evidence to the effect that, at the time of the trial, Mr Charles’ or his legal representatives had the expectation or that Mr Charles had said he would give evidence exculpating the appellant. That Mr Charles had done so was, however, fundamental to the applications made to the trial judge, and this Court should proceed on the basis that he had done so.

36    Mr Schleiger’s affidavit said -
“5. On 27th July 2000 I received a facsimile letter signed by the co-accused, Mr Charles, the transmission was via the Department of Corrective Services at Lithgow NSW. The content of Mr Charles letter was also consistant [sic] with Mr Donnelly’s instructions on trial. Annexed hereto and marked with ‘A’ is a copy of Mr Charles facsimile letter received by me.”
37    The facsimile letter was in printed script rather than running writing, save for the signature at the end, and read -

“My name is Lindsey Bruce Charles and Im writing this statement because I feel that it is the write thing to do. I would also like to state that this is of my own free will. Well I would like to start by saying on the night of the robbery Paul Donnelly did not have anything to do with it nor did he help me but there is one thing he did do and that was stop [blank] He did not know that I was going to hit [blank] [ot]her person He was pretty drunk when [blank] [ca]me along All he did was ask Mister Sharpe for a smoke which he was given by Mister Sharp Then he started to walk away But just as he did I had hit Mr sharp with a peace of wood which caused him to fall to the ground and when Paul saw what I had done he started to run That’s when I called out to him to come back and when he did I had Mister Sharpe on the ground He was yelling at me to stop hitting Mr Sharpe and then he ran again. Then stopped and he was yelling at me he was saying come on Lindsey leave him alone He then started to run once again so I started to follow him We went to Northside shops and then we went to see if two of our friends we know as John and Penny were home I don’t think they were home I than saw a taxi and waved it down I asked Paul if he would come with me I said I would buy him a drink so he came We caught it to the Baily Centre where I got out to get some change I then came back and paid for the fair We started to walk to town I gave Paul some money so he could get some grog but when we got to town everything was closed so I told Paul to hold the money I don’t know how much it was there but I was sure there was enough to get a carton & smokes We then ran into a couple of my friends who Paul did not know That’s when the police came along so that’s really ho it all happen. So the reason Im writing all of this is because a friend of mine Paul Donnelly is doing a long time for something I did and Im sorry for doing that I realise now that it was wrong so i hope whoever reads this letter will understan whats written here because it’s the truth Thank you for your time in this matter.

Lindsay Charles 22.7.2000”

38    In his evidence in chief in this Court Mr Charles said that the letter was correct.

39    The principles relevant to setting aside a conviction on the ground of fresh evidence were stated in Mickelberg v The Queen (1989) 167 CLR 259 at 301-2 in the joint judgment of Toohey and Gaudron JJ -
“The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see, eg, Gallagher v The Queen [(1986) 160 CLR 392, at pp 395, 402, 410]. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen [(1974) 131 CLR 510, at pp 516-517], per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen [(1979) 142 CLR 659, at pp 666, 675-677].
There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be ‘credible’, ‘cogent’, ‘relevant’, ‘plausible’: see, eg, Gallagher [(1986) 160 CLR, at pp 395-396, 401-402, 408-409]; Craig v The King [(1933) 49 CLR 429, at p 439] ; Ratten [(1974) 131 CLR, at pp 519-520]; Lawless [(1979) 142 CLR, at pp 671, 676-677]. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher [(1986) 160 CLR, at p 410], per Brennan J) or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the [accused]’ ( Gallagher [(1986) 160 CLR, at p 399], per Gibbs CJ and per Mason and Deane JJ [(1986) 160 CLR, at p 402]). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless [(1979) 142 CLR, at pp 676-677], per Mason J, and Gallagher [(1986) 160 CLR, at p 410], per Brennan J, but cf Barwick CJ in Ratten [(1974) 131 CLR, at pp 519-520].”

40    It may be that there is a practical difference between the two formulations of the requisite nature of the fresh evidence, in that a significant possibility is a less stringent criterion than a likelihood. In the same case Mason CJ said at 273 that it is established that the proper question is whether the court considered that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial, saying that this test was endorsed by four of the five justices in Gallagher v The Queen . Brennan J at 275 preferred the “’likely’ formula”. Deane J at 291 appears to have accepted the statement of principles by Toohey and Gaudron JJ.

41    In R v Stackelroth (CCA, 3 April 1996, unreported) Gleeson CJ, with whom Dowd and Hidden JJ agreed, considered Mickelberg v The Queen and set aside a conviction because of fresh evidence giving rise to a significant possibility that, had the fresh evidence been before the jury, it would have acquitted the appellant. The same, arguably less stringent, test was applied by Levine J, with whom Studdert J agreed, in R v Vastag (CCA, 20 June 1997, unreported), and by Badgery-Parker AJ, with whom I and Greg James J agreed, in R v Ali (2001) NSWCCA 218. As will appear, I do not think that in the present case it matters which of the formulations is adopted, and I am content to apply the significant possibility test.

42    The first question is whether the evidence of Mr Charles is fresh evidence. In my opinion, it clearly is not.

43    The appellant’s legal representatives believed that Mr Charles would give evidence exculpating the appellant. The belief came from a conference with Mr Charles, and founded “a conscious decision not to apply for a separate trial”. There was then a disagreement between the appellant and Mr Charles, the occasion for and details of which were not revealed in evidence, which caused the appellant’s legal representatives to doubt that Mr Charles would be “a truthful witness”, that is, give the evidence exculpating the appellant. They did not want to take the risk of calling him. They endeavoured to have admitted hearsay evidence of Mr Charles exculpating the appellant, without success. They made the forensic decision, which it must be assumed was made on instructions, not to take the risk.

44    Such decisions are not uncommonly necessary in civil and criminal proceedings, and it can not afterwards be said, when the outcome has not been to the liking of the party, that the benefit of a different decision should be afforded by regarding the evidence which the witness should have given if a truthful witness as fresh evidence. The evidence was available. The decision was made not to lead it for reasons thought good at the time, and I do not suggest the decision was incorrect. It is not fresh evidence.

45    The second question, which strictly does not arise but should nonetheless be addressed briefly, is whether the evidence of Mr Charles was such that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant. I do not think that it was.

46    Superficially, what Mr Charles said in the facsimile letter did exculpate the appellant. He said that the appellant did not have anything to do with the robbery and wounding of Mr Sharpe and did not help Mr Charles, rather that the appellant stopped Mr Charles. The detail was broadly consistent with the appellant’s evidence at the trial.

47    But closer examination of the letter, and the cross-examination of Mr Charles, lead to the conclusion that his evidence did not satisfy adjectives such as “credible”, “cogent”, “relevant”, “plausible” (see Mickelberg v The Queen at 301) or the significant possibility test, or for that matter the likelihood test if it be different. It is sufficient to summarise the grounds for that conclusion.

48    Mr Charles at first said that he wrote the facsimile letter, it was in his own handwriting, then denied that he did so. He plainly did not. His own name was mis-spelt in the body of the letter.

49    Mr Charles had earlier given differing accounts of the events of 4 February 1999 and the appellant’s involvement. In a first interview with the police he said that he knew nothing of any robbery and wounding of Mr Sharpe. In a second interview with the police he said that he did know something of it and blamed the appellant. These must have been the two ERISP interviews earlier mentioned. In the second interview Mr Charles said that the appellant had threatened him with harm if he (Mr Charles) “put him in”. He then pleaded guilty, and was sentenced on the basis that the appellant was involved in the offence and he (Mr Charles) had been threatened with harm by the appellant unless he told the authorities that the appellant was not involved in the offence. In the face of these changes, little credibility can be given to the account in Mr Charles’ letter.

50    Mr Charles said he was unable to explain how the information about threats by the appellant came to be in his pre-sentence report, but it can only have come from Mr Charles and was consistent with what he had said in the second interview. Further, Mr Charles’ explanation for writing the letter in July 2000 was that he thought it was the right thing to do. It was just as much the right thing to do when he was sentenced. He said he “just wasn’t thinking at the time”. A glimpse of the truth was given when Mr Charles agreed in his evidence in this Court, before effectively retracting his answer, that he wrote the letter because he was at risk of being further assaulted by the appellant.

51    There were many changes and other inabilities to explain in Mr Charles’ evidence in this Court. Examples are that, when giving his account of the robbery and wounding of Mr Sharpe, he had the appellant within a foot of Mr Sharpe and also said that the appellant was never closer than twelve to fifteen metres; that he had the appellant asking Mr Sharpe for a cigarette after Mr Sharpe was hit with the bat when Mr Sharpe must have been lying unconscious, and also when Mr Sharpe had been relieved of his wallet and had stood up. He took refuge in saying that he “couldn’t recall anything on that night that really happened that night because I was heavily intoxicated and under the influence of drugs”.

52    Even without reference to the manner in which Mr Charles gave his evidence, which did not enhance his credibility, I do not think any reliance can be placed on it.

53    In my opinion the fresh evidence ground has no substance, and the appeal on that ground should not succeed.

Inappropriate cross-examination


54    I go then to inappropriate cross-examination, treating it also as a ground of appeal.

55    As I have said, the appellant gave evidence that he had been drinking at various locations from mid-afternoon on 3 February 1999. His cross-examination included -
“Q. You’ve given us an account of your movements on this evening, you said you were having a drink with your cousin, which cousin was that, the first cousin that you drank with?
A. Down The Jetty, yeah my first cousin.
Q. Which cousin, what’s that person’s name?
A. Beryl Mercey.
Q. Is Beryl here today at Court?
A. No.
Q. You were drinking I think with a number of other people, is that so?
A. Yeah.
Q. Who were those people that you were drinking with?
A. My sister, her boyfriend and Beryl’s boyfriend.
Q. Are those people here today to give evidence?
A. No.
Q. The second cousin who --
HIS HONOUR: Did you answer that sir?
A. Yes.
Q. what’s the answer?
A. ‘No’.
CROWN PROSECUTOR: Q. The second cousin whose house you went to next, who was that person?
A. Carol Hoskings.
Q. Is Miss Hoskings here?
A. No.”

56    The appellant submitted that the questions asking whether the persons with whom the appellant had been drinking were at court should not have been asked, referring to R v Kirby (2000) NSWCCA 330 and saying that a question of that kind “may have influenced the jury unfairly because it was an implied criticism of the appellant”.

57    In R v Kirby it was submitted that the trial miscarried because of rather similar questions “and the implied criticism, which [they] carried of the appellant’s failure to call the two witnesses and of his credibility”. Reliance was placed on RPS v The Queen (2000) 199 CLR 620. The Court held that the questions were “inappropriate”, that no doubt being the reason for the framing of this ground, but that there was not any “tangible risk” of a miscarriage of justice because the jury might have been misled into holding against the appellant that he had not called the persons to give evidence. In this connection, as well as RPS v The Queen regard may now be had to Azzopardi v The Queen (2000) 75 ALJR 931. Rather, the Court said, the questions were considered to be unimportant in the atmosphere of the trial and not operating to the potential disadvantage of the appellant.

58    In the present case there was no objection by the appellant’s then counsel to the questions asked by the Crown Prosecutor. The Crown Prosecutor made no more in cross-examination of the presence or absence of the persons with whom the appellant said he had been drinking, and said nothing of that matter in her address to the jury. The trial judge said nothing of it in his summing-up, and was not asked to give any particular direction in relation to it. Indeed, the appellant’s counsel was content that his Honour say nothing of it -
“SEGAL: I’ve added some other matters and I think we can take it there’ll be no Jones v Dunkell [sic] direction about the cousins and not being called.
HIS HONOUR: Quite right, I won’t say anything about the cousins. Indeed Madam Prosecutor didn’t. She touched on it lightly in some of her cross-examination early and then left it alone.
SEGAL: Yes, not in her address.
HIS HONOUR: Quite fairly and I’m not going to say anything about it. It would only highlight it.”
59 Ample directions were given in relation to the Crown’s burden of proof and the presumption of innocence. In my opinion, while it would have been better if the Crown Prosecutor had not asked the questions about the presence at court of the persons with whom the appellant said he had been drinking, her brief venture into that territory was properly seen, including by the appellant’s counsel at the trial, as a matter of no particular significance which was best left alone. In the circumstances, there was no unfairness to the appellant and no potential for a miscarriage of justice in what occurred. Leave is required under r 4 of the Criminal Appeal Rules, and I consider that leave should be refused; if it were to be granted, I would not uphold the ground of appeal.

The directions as to presence at the time of the act that caused the wounding


60    The Crown case was left to the jury as one of joint criminal enterprise. The appellant had not himself been armed with the offensive weapon, the bat: on the Crown case, at all times Mr Charles had held and wielded the bat. There was no direct evidence that the appellant himself had taken Mr Sharpe’s wallet and watch from his person: on the Crown case, while the wallet and watch had been taken it could have been taken either by the appellant or by Mr Charles. The appellant had not himself wounded Mr Sharpe: on the Crown case, Mr Charles was the one who hit him on the back of the neck and so as to cause him to fall to the ground, and was almost certainly the one who hit him again whereby he woke up bleeding from the nose and on the back of his head.

61    Early in his summing-up the trial judge directed the jury as to the elements of the offence with which the appellant was charged. He stated as particular elements “that the accused, being armed with an offensive weapon, did rob Alwyn Sharpe and at the time of such robbery wounded Alwyn Sharpe”. He described what was involved in robbery, in an offensive weapon, and in wounding. There is no doubt that the jury was made aware that wounding was an element of the offence.

62    Shortly thereafter the trial judge said -
“In the present case the prosecution asks you to say in the circumstances that are presented to you that the accused was there; that he was part of this crime; and that he did know that he was taking part. I will come more closely to that in a little while.”

63    By “this crime” the jury must have understood the crime with the elements his Honour had explained. The Crown case was that the appellant was knowingly part of the crime, that is, knowingly part of robbing Mr Sharpe with an offensive weapon and at the time wounding him.

64    At the end of the day’s proceedings the trial judge discussed with counsel, in the absence of the jury, a number of matters which had been raised by counsel for the appellant. They included -
“HIS HONOUR: Right. Now, eight, you said the agreement must precede the assault if joint enterprise.
SEGAL: Your Honour I’ll withdraw that request and your Honour will give the joint enterprise direction tomorrow and I don’t ---
HIS HONOUR: Thank you. Yes, I’ve said circumstantial evidence; I will give the joint enterprise direction which is probably going to be straight out of Tangye. Do you really want me to say that the accused can’t be guilty as an accessory. It’s really got nothing to do with this case.
SEGAL: Not – I wouldn’t ask your Honour to use those words but --
HIS HONOUR: Well I’m going to say he’s got to be seen to be part of this crime, not any other.
SEGAL: More than part of it though your Honour, to have entered the agreement to part of it [sic].
HIS HONOUR: All right, fully into it, yes, all right.”

65    The next morning his Honour gave “the joint enterprise direction”. As foreshadowed, the direction was taken from the decision of this Court in R v Tangye (1997) 92 A Crim R 545 at 556-7.

66    His Honour said -
“I now propose to continue my summing-up by coming to the legal term, joint criminal enterprise. The law is that where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The prosecution must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime, may themselves establish an unspoken understanding or arrangement amounting to an agreement.
A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed and by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid, if required, is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in the enterprise are equally guilty of the crime regardless of the part played by each in its commission.”
67    His Honour then gave examples, one of the driver and the “cockatoo” in a bank robbery being participants with the person who actually goes in with a shotgun and robs the bank before all three get away in the car, and the other of a house robbery where one man is in charge of the getaway car, another breaks into the house, and the third goes inside and takes the valuables. As to the first example, he said that it did not matter whether the prosecution produced evidence as to the plan being concocted, “you can infer that they are all in it together from those circumstances”. As to the second example, he said -
“But the law provides that if the jury is satisfied by all their actions rather than merely by their words, that all three men had reached an understanding or arrangement which amounted to an agreement between them to commit the crime of breaking, entering and stealing. Each of the three is criminally responsible for the acts of the others. All, in those circumstances, are guilty of the crime of break enter and steal.”
68    His Honour then continued -
“The prosecution asks you to consider all of the circumstances of this event. What Mr Alwyn Sharpe told you about the description he gave of each of two men who were there and what they respectively did, what positions they took up in the spot near to Arthur Street, adjacent to the Pacific Highway.

The scientific evidence relating to the matching blood on the accused’s jogger shoes lace with the blood of Alwyn Sharpe is also a matter, asks [sic] to be taken into account as part of the circumstances from which you can draw inferences about this joint criminal enterprises [sic].
The Crown asks you now to take into account that the accused was there and involved in this enterprise. He has given evidence about it and there is no question that he says, ‘I was there’. He continued to be with Lindsay Charles, the prosecution puts to you and he ran away. The prosecution asks you to look at all of this and the whole of the evidence. I was only picking out parts of it, because the prosecution only yesterday put to you submissions as to what you should rely upon, but the prosecution puts all this to you to say it points, overwhelmingly and beyond reasonable doubt, to a conclusion that Lindsay Charles and Paul Donnelly, this accused, reached an understanding to commit a robbery. Each is responsible and therefore guilty of the crime charged regardless of the part played in its commission, that is, the prosecution puts to you, it does not matter that you make a finding in your minds that Lindsay Charles wielded the weapon, so long as the prosecution can show material upon which you can find, beyond reasonable doubt, that there was an understanding between Charles and Donnelly to commit a robbery in these circumstances. It does not matter that one of them and one only wielded the bat. Each are [sic] equally guilty for the acts of the others [sic] in the commission of the crime.”
69    After dealing with the appellant’s case at some length and with some other matters including the question of lies (to which I will come), and after reiteration as to the burden of proof, his Honour said -
“I hope, that by going over what is meant by joint criminal enterprise, I dispel the submission made to you by defence counsel that for your [sic] to be satisfied, beyond reasonable doubt, the hitter has to be armed. That is, in this case, this accused to be guilty of a joint criminal enterprise, he must have been aware of all those details, aware that it is a scheme or plan. I have told you that he can be responsible for the acts of the other, if you are satisfied beyond reasonable doubt, that there was an understanding and it is true that there is no evidence that the accused hit anyone, that he joined in someone else’s hitting. Well that, as I put to you, that is sufficient, as I told you, sufficient under the definition of joint criminal enterprise.”

70    The summation of “the submission made to you by defence counsel” is unclear, and perhaps the transcript is corrupt. However, the positive direction was consistent with the earlier directions.

71    The relevant complaint as to these directions made at the time was brief. Counsel for the appellant referred rather Delphically to “whether there need [sic] to be awareness on the part of the accused, that, in the facts of this case that Lindsay Charles was in possession of an offensive instrument”. The trial judge was not receptive, saying “Yes, well you’ve put it on the record thank you … ”. The transcript then records -
“SEGAL: Your Honour, in my respectful submission in giving directions under the heading of joint enterprise – under the category of joint enterprise, in my respectful submission has intermingled a principle [sic] in the second degree type direction, that is being present rendering assistance which is not part of joint enterprise.
HIS HONOUR: That’s noted too.”

72    This complaint, which perhaps does not sit comfortably with earlier acceptance that there should be a joint enterprise direction in accordance with R vTangye , was not amplified. It is fair to say that amplification was not encouraged by the trial judge. The complaint contrasted being part of a joint enterprise with being present rendering assistance but not part of a joint enterprise. It appears to have had in mind the distinction between the second and third categories of liability explained by McHugh J in Osland v R (1998) 197 CLR 316 at 341-2.

73    The second category of liability is that of persons “who were merely present, encouraging but not participating physically”. They are regarded as principals in the second degree, and their liability is derivative in that they can only be convicted of the crime of which the principal offender has been found guilty. The third category of liability is “where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime”. That person is a principal in the first degree, the liability is not derivative but primary, and “each of the persons acting in concert is equally responsible for the acts of the other or others”.

74    McHugh J approved (at 342) as an accurate and more full statement of the principles pertaining to liability as principal in the first degree the directions established in R v Tangye , of which he cited -
“(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of .the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed,”.
75    The direction in para (3) in R v Tange in fact continued, and was followed by a direction in para (4). The full direction in para (3) and the direction in para (4) were -
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”

76    I do not think that, by stopping at that point he did, his Honour disapproved of the following directions concerning intentional assistance or encouragement. It was sufficient for the distinction with which his Honour was concerned to concentrate on presence at the time the crime was committed, with presence by reason of preconcert distinguished from presence not by reason of preconcert.

77    The material distinction is between liability as principal in the second degree, being a derivative liability where the person was present but not acting in concert with the person who committed the acts alleged to constitute the crime, and liability as principal in the first degree, being a primary liability where the person was not only present but also acting in concert with the person who committed the acts alleged to constitute the crime.

78    In the former category is a person who was “merely present, encouraging but not participating physically”. By “merely” is meant that the person was not present by reason of a pre concert or agreement with the person committing the acts alleged to constitute the crime. The cases to which his Honour referred in footnotes to those phrases were R v Kupferberg (1918) 13 Crim App R 166, R v Clarkson (1971) 1 WLR 1402, R v Coney (1882) 8 QBD 534 and Wilcox v Jeffery (1951) 1 All ER 464. The first two cases found aiding and abetting in furthering an offence and in presence at and encouragement of an offence; the third case held that mere presence as a spectator at a prize fight was not aiding and abetting the offence; the fourth case found aiding and abetting in encouragement of an offence.

79    But the acting in concert may in the circumstances be established by presence and participation, without direct evidence of reaching an understanding or arrangement at an earlier time, and the “unspoken understanding or arrangement” established may be one formed between the persons at the time the crime is committed as distinct from at some earlier time. Encouragement may in the circumstances be part of establishing acting in concert, the critical constituent of liability as principal in the first degree. So in the further words in the direction in para (3) in R v Tangye presence and encouragement by readiness to give aid if required, described as encouragement, may be sufficient to found a joint criminal enterprise to commit the crime. The presence of the accused as a party acting in concert may be shown by encouragement or assistance at the time the crime is committed, and readiness to give aid short of overt assistance may be sufficient.

80    In his written submissions in the appeal the appellant’s complaint was that the trial judge gave no directions to the effect that, in order to find the appellant guilty, the jury must be satisfied beyond reasonable doubt that he was present when the wounding, as opposed to the robbery, was carried out. It was said that the directions were deficient in that they did not recognise the possibility that a joint robbery was committed but that the appellant did not expect or want any violence, and that in fact he was not present when the wounding occurred: that the directions gave no attention to the possibility that the appellant anticipated the possibility of violence but did not want it, discouraged it, and ran away before the wounding occurred. The written submissions to this effect were amplified orally, but their substance remained the same.

81    This submission is not soundly based in the evidence. On the evidence, Mr Sharpe was struck twice. He was first hit on the back of his neck at about shoulder level. That was before the appellant was present. But it was plain that he was not wounded at that time. He did not lose consciousness, he immediately stood up, he gave no evidence from which wounding at that time could be found, and the medical evidence did not include any evidence of injury at the location of the blow. Mr Sharpe was then struck again, on the occasion on which he lost consciousness and awoke bleeding. On the Crown case, the appellant was present at that time; on the appellant’s evidence also, he was present at the time although he “freaked out over what [Mr Charles] just done, because I wasn’t expecting it and I started to run”.

82    Nor is the submission otherwise sound. As I have described , the trial judge directed the jury as to the elements of the offence, including that of wounding. He told them of the Crown case that the appellant was knowingly part of “the crime”, the crime including wounding, and directed them as to a joint enterprise in terms which clearly incorporated wounding as part of the enterprise – see the direction -
“ … it does not matter that you make a finding in your minds that Lindsay Charles wielded the weapon, so long as the prosecution can show material upon which you can find, beyond reasonable doubt that there was an understanding between Charles and Donnelly to commit a robbery in these circumstances. It does not matter that one of them and one only wielded the bat”.



83    There was on the evidence only one occasion of wounding to consider, an occasion on which the appellant was present. There was no occasion to direct the jury that they must be satisfied beyond reasonable doubt that the appellant was present when the wounding, as opposed to the robbery, was carried out, and there was no miscarriage of justice because of the absence of such a direction.

84    The appellant’s written submissions in the appeal then took up the complaint made to the trial judge, although rather indirectly. They noted the complaint, and after returning to submissions concerning wounding relevantly said only that there was no direct evidence that there was any agreement between the appellant and Mr Charles either before or during the robbery, and that the appellant had given evidence that he was not expecting Mr Charles to use a weapon and therefore he ran.

85    This matter was developed in oral submissions, and as developed was closely related to the earlier submission. The thrust of the argument was that, while it may have been open to the jury to find that the appellant had been present at the time of the robbery and wounding, it was necessary that there be more than presence. It was necessary that there be preconcert, and in particular preconcert extending to wounding as part of the crime. The directions were deficient, it was said, in that they did not make clear to the jury that the preconcert, the understanding or arrangement amounting to an agreement between the appellant and Mr Charles that they would commit a crime, had to involve not only robbery but also wounding if that were necessary as part of the robbery.

86    I do not think that the directions were deficient in this respect. As I have said, the trial judge directed the jury as to the elements of the crime, including wounding. He also directed them as to the need for an understanding or arrangement amounting to an agreement to commit the crime. This necessarily included preconcert extending to the element of wounding. It was open to the jury to find from the appellant’s presence when the crime, including wounding, was committed, and from his assistance and encouragement by where he stood and what he said (“Give it to him or he’ll use it”), that the appellant and Mr Charles were acting in concert, including as to wounding.

87    Indeed, on the facts there was really no occasion to distinguish between the element of robbery and the element of wounding. On the appellant’s evidence, he was no more than a bystander in whatever occurred, he participated in neither the robbery nor the wounding, and certainly was not present by preconcert. On the Crown case, the appellant stood behind Mr Sharpe and said “Give it to him or he’ll use it” and then moved beside Mr Sharpe, and Mr Sharpe was then hit. If this were accepted as establishing participation in the commission of the crime and, in the circumstances, an understanding or arrangement amounting to an agreement to commit the crime, it established both elements. What the appellant said, on the evidence of Mr Sharpe, showed an appreciation that Mr Charles was demanding something from Mr Sharpe, including an appreciation that Mr Charles was holding and was prepared to use an offensive weapon, apt to wound, in order to achieve the robbery.
Unreasonable verdict


88    This ground of appeal took up in a different guise much of the submissions concerning directions discussed above. Counsel’s summary of the ground was that “[i]t may have been open to the jury to find that there was a robbery which the appellant benefited from and knew about afterwards but not an offence involving wounding”. Additional matters to which reference was made, apparently in support of this ground, were that that the appellant came to stand beside Mr Sharpe rather than keeping him sandwiched against Mr Charles; that the blow to the back of the neck had been given before the appellant arrived at the scene; that speaking with relaxed and slurred speech was not consistent with participation pursuant to preconcert in the robbery and wounding; and that the money did not appear to have been shared equally. The essence of the submission was that the evidence was insufficient for a finding of a joint criminal enterprise and in particular of a joint criminal enterprise, involving wounding.

89    The question is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence with which he was charged. In answering that question, the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. The Court must pay full regard to those considerations. These matters are taken from M v The Queen (1994) 181 CLR 487 at 493, and reference may also be made to the explanation at 494 of the regard to be had to the jury’s advantage in seeing and hearing the witnesses.

90    I have set out or referred to the central evidence and, in what I have said in connection with the directions to the jury, have exposed the matters on which the jury had to be satisfied beyond reasonable doubt in order to find the appellant guilty of the offence with which he was charged. I have had regard to the whole of the evidence. In my opinion it was well open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

The directions as to lies


91    It is desirable to say more about the differing accounts given by the appellant in the formal interview at the Coffs Harbour police station and in his evidence at the trial. The video of the interview was played to the jury, with some editing, and a transcript was made available to them.

92    At the conclusion of his evidence in chief the appellant gave evidence -
“Q. At the police station did you take part in an electronic interview?
A. Yes I did.
Q. That’s the video that we’ve seen on the television in these Court proceedings?
A. Yeah.
Q. And you understand that that was now on a certain time on Thursday morning?
A. Yeah.
Q. When had you last slept?
A. The night before.
Q. Which night, can you just put a --
A. It would’ve been Tuesday night.
Q. Were you affected by alcohol at the time you were intereviewed by the police officer?
A. Yeah.
Q. Can you say in your own words how you felt when you were affected – when you were interviewed, how did you feel in relation to alcohol when you were interviewed?
A. Oh well I felt charged up but not really drunk.
Q. In the course of the interview you used a number of swear words?
A. Yeah.
Q. Is that the way you normally talk?
A. No.
Q. When you spoke to the police officer you’ve told him some things that are different from what you’ve said to the Court today?
A. Yeah.
Q. Why do you say you said different things than from what you’ve said today?
A. Well I was frightened of getting blamed for something I didn’t do.”
93    The appellant was cross-examined about some of the differences between what he told the police and what he said in his evidence. He said that he was not really tired, but “more charged up than tired”. He meant “just a bit over tipsy, not real drunk, probably in between”. The cross-examination continued -
“Q. But you certainly knew what you were telling the police didn’t you?
A. I knew some of the things yeah.

Q. What, are you saying you didn’t know some of the things you said?
A. Most of the things I just – I didn’t pay attention to really, I just wanted to answer and get out of there.
Q. You were being asked about a fairly serious crime weren’t you?
A. Yeah I know.
Q. And you’re telling us you weren’t paying attention?
A. Yeah.
Q. Is that right?
A. I just wanted to get out of there that’s all.
Q. But weren’t you concerned at that point that you might be blamed for something you hadn’t done.
A. No not really.
Q. But isn’t that what you told us earlier?
A. I knew I would’ve been charged with it probably because of the receipt and that.
Q. But you weren’t concerned about that?
A. Oh yeah.
Q. Well which is it Mr Donnelly, you’ve told us – to Mr Segal that you were frightened of being blamed for something you didn’t do, you told us about twenty seconds ago you weren’t concerned?
A. Yeah I’m just not understanding your questions that’s all a bit --
Q. All right, well if you don’t understand what I ask I ask you just to tell me and I’ll ask it a different way, all right?
A. Yeah.
Q. Were you concerned or not when the police interviewed you that you would be blamed for something you had not done?
A. Yeah.
Q. And you would be very careful about what you told the police in reply?
(No verbal reply)
Q. You’re nodding, is that ‘yes’?
A. Yeah.
Q. So why did you lie to them?
A. Like I told you was frightened of getting blamed for it.
Q. Well wasn’t your best – the best thing you could possibly have done surely Mr Donnelly would have been to tell the police what you knew, wouldn’t it?
A. Yeah suppose so.
Q. To tell them that you had witnessed Lindsay Charles committing this very serious crime?
A. Yeah.
Q. That you had tried to assist this young lad by getting Lindsay to leave him alone?
A. Yeah.
Q. Why didn’t you just do that?
A. Oh I don’t know.
Q. Well you made up a story, didn’t you?
A. What do you mean made up a story.
Q. Well, for example, you told the Police that you found $20 and this receipt at the Ex-Servicemen’s Club on the footpath?
A. Yeah well I, I didn’t want to put him in.
Q. So you were protecting --
HIS HONOUR: Q. Didn’t want to put who in sir?
A. Lindsay.
Q. Why not?
A. It’s just a thing we, you know, must of us people around here, like Aboriginals, that’s a thing we got going. We don’t dob one another in for anything.
CROWN PROSECUTOR: Q. So you were protecting Lindsay Charles is that right?
A. Could say that.
Q. Well, would you say that. That’s what I’m asking you?
A. I didn’t want to go putting him in then being blamed for something you didn’t do.
Q. Which was it?
A. Fearful of being blamed, blamed.
Q. Not to protect Lindsay Charles?
(no verbal reply)
Q. Well why did you just mention that then. Why did you mention about you didn’t want to dob Lindsay Charles in?
A. Dunno.”

94    It was then put to the appellant, and he agreed, that what he told the police “was pretty much all lies”. He agreed that he lied about when he met Mr Charles. He agreed that he lied about having only been with Mr Charles for half an hour before the police came along. He agreed that he lied about where and how he came into possession of the $20 and the receipt.

95    In these circumstances it was necessary that the trial judge direct the jury as to the use they could make of the fact that the appellant had lied to the police. The jury had to be directed that it could merely affect the appellant’s credit or that it could also amount to conduct inconsistent with innocence and therefore as an implied admission of guilt, and as to the circumstances in which it could be used in the latter way, as explained in the joint judgment of Deane, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 at 208-9 -
“Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. ... At one time it was thought that only a lie told out of court could amount to an implied admission [ Tumahole Bereng v The King [1949] AC 253, at p 270; Reg v Chapman , [1973] QB, at pp 783-784], but the distinction is not logically supportable and is no longer drawn [ Eade v The King (1924) 34 CLR 154 at p 158; Reg v Tripodi , [1961] VR 186, at pp 193-194; Reg v Perera , [1982] VR 901 at pp 904-905; Reg v Heyde (1990), 20 NSWLR 234 at pp 236, 241; Director of Public Prosecutions v Boardman [1975] AC 421 at pp 428-429; Reg v Lucas (Ruth) [1981] QB at pp 724-725; Heydon, "Can Lies Corroborate?", Law Quarterly Review , vol 89 (1973) 552]. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to ‘convert what would otherwise have been insufficient into sufficient evidence of guilt’ [ Dearman v Dearman (1908) 7 CLR 549, at p 555, per Griffith CJ] or as corroborative evidence.

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him [ Eade v The King (1924) 34 CLR, at p 158]. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that ‘if he tells the truth, the truth will convict him’ [ Reg v Tripodi [1961] VR, at p 193].”

96    A little later their Honours said (at 210-11)-
“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest [See M v R (unreported; SA Court of Criminal Appeal; 18 August 1993; pp 4-5)]. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it [See, eg, Credland v Knowler (1951) 35 Cr App R 48; Tripodi v The Queen (1961) 104 CLR 1, at p 10; Reg v Buck (1982), 8 A Crim R 208, at p 214; Reg v Preval [1984] 3 NSWLR 647 at pp 650-651; Reg v Evans (1985) 38 SASR at pp 348-349; People v Showers (1968) 440 P 2d 939, at p 942] and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth) , because of ‘a realization of guilt and a fear of the truth’.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt [See, eg, Lonergan v The Queen [1963] Tas SR 158 at p 160; Broadhurst v The Queen [1964] AC at p 457]. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”
97    The trial judge gave extensive directions in relation to lies. He said -
“The prosecution, in this case, asks you to regard what it puts to you are lies by the accused in determining his guilt. In short, the prosecution says that that demonstrates a consciousness of guilt that can be inferred from the lies that the prosecution says the accused told out of Court and in Court. But I must tell you how you look upon lies, before you can rely upon them. The prosecution alleges that the accused has told lies to the investigating police and in the course of his evidence here. The Crown seeks to make use of those lies to corroborate its allegations. It argues that a person who tells lies about one matter cannot be trusted in respect of other matters. In other words, if the accused tells any lies at all, this may affect his credibility all round, but as I would understand the defence, you may still, as I put to you earlier, separate evidence, that is, you can say, ‘Well someone can lie about one thing and be honest about something else’, but the prosecution says that if you accept that he is telling lies, then that may affect his credibility in your eyes. You can accept this argument or not, you may feel that telling of any lies at all is enough to damage a man’s credibility or you may think that it depends, to some extent, on the nature of the lie and the circumstances in which it is made. Here the accused tells you that he had never been in this situation and he freaked out and he was frightened of being blamed for something else. The extent to which you accept or reject the submission by the prosecution is entirely a matter for you as the sole judges of the facts. But the prosecution seeks to gain some affirmative position from the fact that it can convince you that the accused has told particular lies in this case, relevant to the matters that are of concern. The prosecution seeks to rely on the lies as actually constituting evidence in its case and in particular, as corroborating the material it has put before you in support of its proof beyond reasonable doubt and further more, rendering more credible, the evidence of the prosecution witnesses, that is, rendering more credible what Mr Sharpe, the alleged victim, told you about this instance.
It is permissible for you to make use of lies, but only if certain conditions are fulfilled. The first of those ladies and gentlemen is, that he told a deliberate lie or lies. Second, that it or they, related to a matter that is material to this case and three, that he told it because he believed that the truth would implicate him in the offence.
First, you must be satisfied, beyond reasonable doubt that the accused did tell the lies in question. There are three steps involved in reaching that decision. Before you can be satisfied that he has told a lie, you must find first, that he made the statement alleged. You must then find that it was untrue. To put that another way, it must be shown to be a deliberate lie.
Any careless or unintentional misstatement of facts is not really a lie at all. The proof must be that he told a deliberate lie and that proof must, unless he admits it, be found in the evidence of a witness or witnesses other than the complainant. If you simply find that you did not believe some statement made by the accused, that would not be proof that it was a lie. The fact, if it be the fact, that you prefer the evidence of the complainant, to the evidence of the accused, would not satisfy this requirement, or that would simply be allowing the complainant to corroborate himself. It must be a deliberate lie. Even the finding that he deliberately lied is not sufficient to make his false statement into affirmative evidence against him. You can only use the lies in that way if you are also satisfied, beyond reasonable doubt, that they related to the matter that you have before you. The third requirement that I mentioned to you is, that there is no other reason for him to tell it, but his belief that the truth would implicate him in the offence with which he is charged.
To put all that in summary ladies and gentlemen, you must be satisfied, beyond reasonable doubt, that the accused lied deliberately, because he believed that if he were to tell the truth, the truth would convict him. To put that another way, he was unable to account innocently for the facts with which he was confronted.
The prosecution points out to you that not only did he say to his own counsel that he told a story different from what he told the police, but there are some particular and deliberate lies, not all of which I am going to go over again, but he tells the police about finding a twenty dollar note with the receipt wrapped around it. There is no mention of that when he is giving his evidence. There is, indeed, a rendering to you of a totally different story. There are other matters and I do not think it would be wise of me to go over all of those, the prosecution has outlined them to you and what the prosecution says is, they relate to a material issue in this case.
So you are bound to investigate the thought processes of the accused about the lies he told. Sometimes a person may tell a lie, even about a most important matter, for some reason, other than his own guilt. It may be out of panic, it may be to protect some other person, it may be to protect himself, because he is guilty of some misconduct other than the offence with which he is charged here. The defence puts to you in this case that the accused has said, ‘He was freaked out’, that he had never been in a situation like that before and he also says that he was seeking to not be blamed for an offence he had not committed and he also said that he was seeking, because of the relationship between Aboriginal people – you do not dob one another in, he was thereby protecting Lindsay Charles. It is only his knowledge of his guilt of the offence with which he is charged here that is relevant. A person may lie about his possession of a firearm, not because he has murdered anybody, but because he fears prosecution because he had not got the appropriate licence. A man might lie about his whereabouts at a crucial time, simply because he does not wish his wife to know he is having some liaison with another lady. I am not being sexist gentlemen, that of course applies on both sides of the slate dos it not. But I go through that process because we are inclined sometimes when a little child, your own child say comes in and they have got like in that ad, paint all over them or crayon and there on the wall are all the drawings, ‘Who did this’ and there is a great roar of silence from the two kids. Well that in itself, or if they give some false story or one of them says, ‘Mary did it’, ‘No, Jane did it’. We all know from that instance, we infer that they are telling lies, because there is material there. There has got to be more than that here. What the prosecution says to you, this is not just a matter of making an inference, the prosecution says, you have got this accused himself turning turtle in his own evidence, back peddling on a number of occasions and telling deliberate lies and the defence seeks to say to you, there are reasons for why he gave, not lies, but different versions of what happened on this night. Again, these are matters for you.”

98    These may not have been model directions, but the question is whether they were adequate. The appellant submitted that the directions were deficient in two respects.

99    The first respect was that the trial judge should have identified in detail the lies on which the Crown relied. It was said that when the lies were relied upon for consciousness of guilt, specificity was critical so that the jury did not misuse the lies. The appellant relied in particular on the reference in Edwards v The Queen to the need for precise identification of the lie and the circumstances and events said to indicate that it constitutes an admission against interest. It was said that the need was particularly important when the appellant had admitted that the whole story he gave to the police was pretty much all lies, because not every lie to the police could have gone to consciousness of guilt. In the absence of the identification of the lies and the circumstances and events, the jury could misuse the evidence as to lies, resulting in a miscarriage of justice.

100    It is correct that the trial judge did not precisely identify each of the lies told by the appellant. However, in the course of directions generally in conformity with Edwards v The Queen his Honour reminded the jury that the Crown had “outlined them”, and the Crown Prosecutor’s closing address must have been still well in the minds of the jury and the lies on which the Crown relied had been gone over. The interview at the Coffs Harbour police station was directly concerned with the events at the time of the assault and robbery, and it was not a case of some lies not relating to a material issue or lying in circumstances other than circumstances capable of supporting consciousness of guilt. It was a case of comprehensive lying about the offence itself, said by the appellant to have been, variously, because he was frightened of getting blamed for something he didn’t do; because he didn’t pay attention and just wanted to answer and get out of there; and possibly to protect Mr Charles.

101    Taking the directions as to lies as a whole, in my opinion in the circumstances they were not flawed by failure to detail and deal with each lie in explaining to the jury the permissible use of the lies to prove guilt. All directions must be tailored to the particular circumstances, and although a transcript of the Crown Prosecutor’s address to the jury was not available the recency of that identification of the lies, and their ready availability as relating to material issues and evidencing consciousness of guilt, made it appropriate for the trial judge to deal with them as he did. He clearly instructed the jury as to lying deliberately in relation to a material issue for fear that telling the truth would convict, and the way the trial judge dealt with the matter was in the interests of the appellant because reiteration of the series of lies and the wholesale lying would have risked emphasising, to the detriment of the appellant, the lies and their importance: cf Zoneff v The Queen (2000) 200 CLR 234 at 261 per Kirby J.

102    This, I infer, was what the trial judge had in mind when he said that he did not think it would be wise of him to go over all the matters involved in the appellant “rendering to you … a totally different story”. It would appear that the appellant’s counsel at the trial saw the matter the same way. He was highly experienced, had been vigilant in the interests of the appellant throughout the trial, but did not seek a redirection or further directions. In the circumstances of this trial, the directions were adequate.

103    The second respect was that the trial judge did not instruct the jury that they could not use lies as demonstrating a consciousness of guilt if the jury accepted that there was no other reasonable hypothesis for telling the lies. It was first said that “[l]ies should not have been left to the jury”, because the innocent explanation for the lies was “so plausible”, namely that the appellant knew that an offence had been committed but did not want to be blamed for something he did not do and also did not want to “dob in” Mr Charles because that was not the Aboriginal way. Alternatively, it was said -

“However, there is a third category where the person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King [No.2] [ [1972] VR 560 at 560] by Smith J who directed the jury in the following terms:
‘The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.’
In that case, his Honour directed the jury that ‘they are all equally guilty of that crime’. But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8th edition of their work on Criminal Law :
‘[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert.’ (emphasis added.)” (emphasis in original: some internal references omitted).

142    It will be seen that (i) presence; (ii) pursuant to pre-concert, are the twin aspects of this category of liability.

143    What made the present case complex and called for particular care with directions was the late arrival of the appellant at the scene of the crime.

144    The particular point made on behalf of the appellant was that the directions failed to draw attention to the necessity for the Crown to prove that the appellant was present when Charles did the acts that made up the crime. There were a number of such acts necessary to constitute the offence of armed robbery with wounding. That crime has a number of elements, of which, for present purposes, it is necessary to mention only one, wounding. As to the meaning of wounding, the judge appropriately directed the jury in a manner not subject to challenge. This included a reference to the need for a breaking of the skin. Although there appears never to have been any precise delineation as to which of the injuries - the laceration to the scalp, or the broken nose - was the injury relied upon by the Crown, that is of no significance. There was no dispute that Mr Sharpe suffered an injury amounting to a wounding. The question was whether or not the wounding had been shown to have been inflicted at a time when the appellant was present; more accurately, given the way in which the ground was framed, whether the jury’s attention had adequately been drawn to the need for the Crown to establish that to the requisite standard.

145    The question is, theoretically at least, of some significance. If the wounding had been inflicted before the appellant’s arrival at the scene, then he could not have been found guilty on the basis alleged by the Crown. Presence at the time of the wounding was essential to that category of liability. (The appellant might, if other relevant circumstances had adequately been proved, have been liable as an accessory before the fact, but this is not the basis on which the Crown case was conducted.)

146    Counsel for the appellant argued that there were a number of possibilities, on the evidence, as to the timing of the wounding, and that the Crown had not discharged the onus of proving that the appellant had been present at all of those times.

147    The evidence clearly shows that there were at least two blows inflicted on Mr Sharpe. The first was when he was hit on the base of the neck, near the shoulder, something which, on his evidence, occurred before the appellant’s arrival. The second, which Mr Sharpe was unable to describe in any detail, plainly occurred in the moment before he lost consciousness. This was after the appellant’s arrival. The trial judge did not include any directions to the effect that the jury could not convict unless satisfied beyond reasonable doubt that the appellant was present at the time the wounding was inflicted. Nor did he draw attention to any doubts or uncertainties arising from the evidence about the point during the encounter at which Mr Sharpe was wounded. On behalf of the appellant it was argued that this was a significant omission because of the diverse possibilities as to when the wounding occurred.

148    However, when the evidence is properly analysed, there is no reasonable possibility that the jury could have concluded that the first blow was the cause of the wounding. It did not cause Mr Sharpe to lose consciousness; he said that he stood up immediately. He gave no evidence of bleeding at that time. There was no medical evidence of injury to the base of the neck or shoulder, the parts of the body Mr Sharpe identified as the location of that blow. By contrast, Mr Sharpe’s evidence clearly suggests that he was struck again after the appellant’s arrival; he lost consciousness for a time thereafter; and, on regaining consciousness, he was bleeding. The inference from the medical evidence is that he was hit in the face, causing him to fall backwards and strike his head. On the appellant’s own evidence, he was present at the time Charles raised his hand to Sharpe for the second time.

149    Accordingly, although it was necessary for the jury to be satisfied beyond reasonable doubt that the appellant was present when the wounding took place, the absence of a specific direction to that effect caused no miscarriage of justice. If the appellant’s argument in relation to the first ground of appeal had been so narrowly confined, I would reject it.

150    However, the written and oral argument went further. In order to consider the ground as it was ultimately put, it is necessary to set out extensive passages from the summing up. The transcript records that his Honour said:
“I now propose to continue my summing up by coming to the legal term, joint criminal enterprise. The law is that where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The prosecution must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime, may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them, then and there, to commit the crime.
A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed and by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and the readiness to give aid, if required, is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in the enterprise are equally guilty of the crime regardless of the part paid by each in its commission …
[His Honour then illustrated the principle by reference to examples]
The prosecution asks you to consider all of the circumstances of this event. What Mr Alwyn Sharpe told you about the descriptions he gave of each of the two men who were there and what they respectively did, what positions they took up in the spot near to Arthur Street, adjacent to the Pacific Highway.
The scientific evidence relating to the matching blood on the accused’s jogger shoes lace (sic) with the blood of Alwyn Sharpe is also a matter, asks (sic) to be taken into account as part of the circumstances from which you can draw inferences about this joint criminal enterprise. The Crown asks you now to take into account that the accused was there and involved in this enterprise. He has given evidence about it and there is no question that he says, ‘I was there.’ He continued to be with Lindsay Charles, the prosecution puts to you and he ran away. The prosecution asks you to look at all of this and the whole of the evidence. I was only picking out parts of it, because the prosecution only yesterday put to you submissions as to what you should rely upon, but the prosecution puts all this to you to say it points, overwhelming and beyond reasonable doubt, to a conclusion that Lindsay Charles and Paul Donnelly, this accused, reached an understanding to commit a robbery. Each is responsible and therefore guilty of the crime charged regardless of the part played in its commission, that is, the prosecution puts to you, it does not matter that you make a finding in your minds that Lindsay Charles wielded the weapon, so long as the prosecution can show material upon which you can find, beyond reasonable doubt, that there was an understanding between Charles and Donnelly to commit a robbery in these circumstances. It does not matter that one of them and one only wielded the bat. Each are equally guilty for the acts of the others in the commission of the crime.”

151    His Honour then turned to other matters, to some of which it will be necessary shortly to refer, and returned to the concept of joint criminal enterprise. The transcript records the following:
“I hope, that by going over what is meant by joint criminal enterprise, I dispel the submission made to you by defence counsel that for your (sic) to be satisfied, beyond reasonable doubt, the hitter has to be armed. That is, in this case, this accused to be guilty of joint criminal enterprise, he must have been aware of all those details, aware that it is a scheme or plan. I have told you that he can be responsible for the acts of the other, if you are satisfied beyond reasonable doubt, that there was an understanding and it is true that there is no evidence that the accused hit anyone, that he joined in someone else’s hitting. Well that, as I put to you, that is sufficient, as I told you, sufficient under the definition of joint criminal enterprise.”

152    A number of specific criticisms were made about the form of the directions. Firstly, it was contended that the directions given as set out in paragraph 34 above were those appropriate to a case in which the Crown sought to establish liability as a principal in the second degree (that is, as a person who is present at the scene, encouraging and willing to assist if necessary: see Osland para 71, Tangye , pp 556-7).

153    This was not the basis on which the Crown here sought to make the appellant liable. The directions appropriate to the basis on which the Crown relied (principal in the first degree - Osland , para 72) would have focussed the jury’s attention on the question of just what the appellant had agreed to participate in, as distinct from his willingness to assist.

154    At the conclusion of the summing-up counsel for the appellant sought a re-direction, arguing that his Honour had “intermingled” the two concepts. His Honour declined to re-direct the jury.

155    I have concluded that there is merit, both in what was put by counsel to the trial judge, and what has here been argued. The various bases on which criminal complicity can be established has some complexity. What is important is that the jury be directed in such a way as to make clear the legal basis on which liability is put by the Crown, and as to the facts and the evidence (and the arguments of counsel) relevant to that issue; and, particularly, relevant to the issue or issues as it or they emerge at the trial. Here, as the trial was conducted by the Crown, the issue was not whether the appellant was present, offering encouragement and willing to offer assistant, but whether he was there by reason of a prior agreement to commit a crime, and, if so, what came within that agreement - that is, what crime had he been shown to have agreed to participate in.

156    The direction about assistance and encouragement that was given had the potential positively to deflect the jury’s attention from the critical question, that is, the existence and boundaries of any agreement between the appellant and Charles; and the jury were not given the necessary guidance as to the factual matters relevant to the determination.

157    To add to the confusion, his Honour also endorsed a submission apparently made by the Crown, that the blood on the appellant’s shoelaces was a matter “from which you can draw inferences about this joint criminal enterprise”.

158    This was, in my opinion, in the circumstances quite misleading. What the evidence of blood on the shoelaces tended to establish was that the appellant had been present at the scene at some time after Mr Sharpe had been wounded. Once the appellant had given evidence, and had acknowledged having been so present, the evidence of the blood did little, if anything, to advance the Crown case. It was misleading to direct the jury that it was something from which inferences could be drawn, without specifying what relevant inferences were available. In the circumstances of this case, the existence of blood on the shoelaces was not a matter capable of contributing to the resolution of the real issues.

159    That issue was whether the Crown had proved that the appellant was present as a result of preconcert and if so, what was encompassed in the preconcert. There being no admissions made by the appellant, and no evidence from Charles, the Crown case on these important matters was entirely circumstantial. An important part of the Crown case lay in the words attributed by Mr Sharpe to the appellant:
“Give it to him or he’ll use it”.

160    These words (assuming that Mr Sharpe’s evidence in this respect was accepted by the jury) were capable of being construed alternatively as threatening or advisory. Mr Sharpe did not describe the tone of voice in which they were uttered as anything other than “casual”. If the jury accepted that the words were spoken, then the appellant’s denial may have gone someway towards assisting the jury in the resolution of their proper interpretation. Again, this called for a clear direction.

161    There are other matters of concern in the summing-up. I have quoted the passage in which in which his Honour purported to “dispel the submission” made by defence counsel. It is difficult to see how this passage in any way could have assisted the jury.

162    Further, although it is not a matter that has been raised on behalf of the appellant, the trial judge gave an extensive direction on lies upon which, it seems, the Crown had relied as part of a circumstantial case. It is well established that lies told by an accused person may be used by a jury to support an inference of consciousness of guilt: see, eg R v Dellapatrona (1993) 31 NSWLR 123; Edwards v R (1993) 178 CLR 193; R v Zoneff [2000] HCA 28; 112 A Crim R 114; R v Sandford (1994) 72 A Crim R 160. However, a direction in this respect must be given with great care. Most importantly, it is essential that the alleged lie or lies be identified in the summing-up. Further, the jury must be told that they could not act upon a lie or lies told by an accused unless satisfied that it was or they were deliberate, related to an issue material to the offence charged, and was or were told by the accused out of fear of being found guilty of the offence charged if he or she told the truth, or because he or she was unable to give an innocent explanation or account for the conduct which was the subject of the lie.

163    The direction given was deficient in a number of respects. It was in the following terms:
“The prosecution, in this case, asks you to regard what it puts to you are lies by the accused in determining guilt. In short, the prosecution says that that demonstrates a consciousness of guilt that can be inferred from the lies that the prosecution says the accused told out of Court and in Court. But I must tell you how you look upon lies, before you can rely upon them. The prosecution alleges that the accused has told lies to the investigating police and in the course of his evidence here. The Crown seeks to make use of those lies to corroborate its allegations. It argues that a person who tells lies about one matter cannot be trusted in respect of other matters. In other words, if the accused tells any lies at all, this may affect his credibility all round, but as I would understand the defence, you may still, as I put to you earlier, separate evidence, that is, you can say, ‘well someone can lie about one thing and be honest about something else’, but the prosecution says that if you accept that he is telling lies, then that may affect his credibility in your eyes. You can accept this argument or not, you may feel that telling any of the lies is enough to damage a man’s credibility or you may think that it depends, to some extent, on the nature of the lies and the circumstances in which it is made. Here the accused tells you that he had never been in this situation and he freaked out and he was frightened of being blamed for something else. The extent to which you accept or reject the submission by the prosecution is entirely a matter for you as the sole judges of the facts. But the prosecution seeks to gain some affirmative position from the fact that it can convince you that the accused has told particular lies in this case, relevant to the matters that are of concern. The prosecution seeks to rely on the lies as actually constituting evidence in its case and in particular, as corroborating the material it has put before you in support of its proof beyond reasonable doubt and further more, rendering more credible, the evidence of the prosecution witnesses, that is, rendering more credible what Mr Sharpe, the alleged victim, told you about this instance.
It is permissible for you to make use of lies, but only if certain conditions are fulfilled. The first of those ladies and gentlemen is, that he told a deliberate lie or lies. Second, that it or they, related to a matter that is material to this case and three, that he told it because he believed that the truth would implicate him in the offence.
First, you must be satisfied, beyond reasonable doubt that the accused did tell the lies in question. There are three steps involved in reaching that decision. Before you can be satisfied that he has told a lie, you must find first, that he made the statement alleged. You must then find that it was untrue and you must then find that at the time he made it, he knew that it was untrue. To put that another way, it must be shown to be a deliberate lie..”
164    There followed a passage in which his Honour expanded on what was meant by the reference to “a deliberate lie”, and some repetition of other matters, and went on to say:

“The prosecution points out to you that not only did he say to his own counsel that he told a story different from what he told the police, but there are some particular and deliberate lies, not all of which I am going to go over again, but he tells the police about finding a twenty dollar note with the receipt wrapped around it. There is no mention of that when he is giving his evidence. There is, indeed, a rendering to you of a totally different story. There are other matters and I do not think it would be wise of me to go over all of those, the prosecution has outlined them to you and what the prosecution says is, they relate to a material issue in this case.”
165    This was followed by a direction to the effect that there may be explanations other than consciousness of guilt of the offence charged for an accused person to tell a lie, and that:
“It is only his knowledge of his guilt of the offence with which he is charged here that is relevant.”

166    A fundamental flaw in the direction was the failure to identify the lie or lies on which the Crown relied. Moreover, the appellant in fact explained the attitude he had originally taken. When he gave evidence he acknowledged that he had been in possession of money the proceeds of Charles’ assault on Mr Sharpe. This was a classic case in which the jury should have been clearly warned that, to the extent they were satisfied that the appellant had told material lies, they could not act on that unless they were also satisfied beyond reasonable doubt that the explanation for the lie or lies lay in his consciousness of guilt of the offence of armed robbery with wounding - not an offence of being in possession of goods in custody, for example. Such a possibility was alluded to, but only tangentially.

167    I have observed that no re-direction was sought in this respect, and, indeed, the direction on lies was not raised as an issue in the appeal. Nevertheless, in my opinion the direction was so flawed that a conviction based upon it cannot be allowed to stand.

168    In my opinion, having regard to the deficiencies in the directions on joint criminal enterprise and on lies, the conviction must be quashed and a new trial ordered.

169    The second ground of appeal is a ground that, if successful, would entitle the appellant to an acquittal. I will deal shortly with the two remaining grounds of appeal before returning to that question.

Cross-examination of the appellant


170    The fourth ground concerns a series of questions asked by the Crown prosecutor at the opening of cross-examination of the appellant. The appellant’s evidence included an assertion that, earlier in the evening of 3 February, he had been in the company of a number of other people. In cross-examination he named some of those people. The Crown Prosecutor asked if any of them was present to give evidence to which the appellant replied in the negative.

171    It is a dangerous and inappropriate practice for a Crown Prosecutor to ask an accused person questions of this character: see the discussion in R v Kirby [2000] NSWCCA 330, 13 September 2000, unreported. However, like the court in Kirby , I do not think that this cross-examination, alone, would have occasioned any miscarriage of justice.

Fresh evidence


172    The ground that fresh evidence is available is a rather curious one. The evidence now sought to be called is that of the principal offender, Lindsay Charles.

173    An explanation for the decision not to call him in the trial was provided in an affidavit sworn by the appellant’s solicitor, Hugo Schleiger. Mr Schleiger recorded briefly what had taken place in relation to Charles at the commencement of the trial. He deposed:
“6. During the initial proceedings before the District Court at Coffs Harbour there was an allegation that whilst the defendants were waiting to be brought into court, there was an assault between them which delayed proceedings for a short time.
7. As a result of this incident and on instructions, counsel and I took the view that we would not call Mr Charles in evidence because it was thought that he would not be a truthful witness.”

174    Annexed to Mr Schleiger’s affidavit was a copy of a letter dated 22 July 2000 signed by Charles. The essence of the letter was that the appellant was uninvolved in the offence to which Charles had pleaded guilty.

175    Charles gave evidence in this court and was extensively cross examined.

176    Since it is my view that there should, in any event, be a new trial, I shall confine myself, with respect to this ground, to observing that the decision not to call Charles was plainly a practical and sensible one at the time. His evidence does not qualify as fresh evidence within any of the conventional tests.

Unreasonable verdict


177    I have outlined in considerable detail above the facts and circumstances relied upon by the Crown to establish the appellant’s guilt. The ground of appeal now advanced requires a consideration of whether it was open to the jury, if properly instructed, on the basis of those facts and circumstances to conclude beyond reasonable doubt that the appellant was guilty: M v R (1994) 181 CLR 487 . Having considered all of the evidence, I am in no doubt that it would have been open to the jury, properly directed, to return a verdict of guilty. This ground of appeal should be rejected.

178    I propose that the appeal be allowed, the conviction quashed and a new trial ordered.

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