R v Fowler

[2000] NSWCCA 142

CITATION:	R v FOWLER [2000] NSWCCA 142 revised - 26/05/2000
FILE NUMBER(S):	CCA 60351/97
HEARING DATE(S):	2/2/2000
JUDGMENT DATE:	23 May 2000
PARTIES :	Regina Geoffrey Warwick Fowler
JUDGMENT OF:	Wood CJ at CL at 1; Hulme J at 170; Barr J at 173

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70137/91
LOWER COURT JUDICIAL OFFICER :	Dowd J

COUNSEL :	M. C. RAMAGE QC C. K. MAXWELL QC
SOLICITORS:	MARK RUMORE S.E. O'CONNOR
CATCHWORDS:	CRIMINAL LAW - appeals - appeal against conviction - murder - rejection of defence evidence - directions to jury - sufficiency of directions on motive - whether McKinney direction or warning required - providing the jury with transcript of trial - sufficiency of directions concerning lies - leave to cross examine witnesses under s38 Evidence Act - use of the term "dock statement" - whether Weissensteiner direction appropriate.
CASES CITED:	Evidence Act 1995 (NSW) s 20, 20(2), 38, 38(1)(a,b,c), 38(6), 60, 90, 128 128(5), 135, 137, 165, 165(1)(f), 192(2) Crimes Act 1900 (NSW) s 407 Jury Act 1977 (NSW) s 55C Criminal Appeal Act 1912 (NSW) s 6(1)
DECISION:	(1) Appeal allowed; (2) Conviction and sentence quashed; (3) New trial ordered

IN THE COURT OF
CRIMINAL APPEAL

No: 60351 of 1997

WOOD CJ AT CL
HULME J
BARR J

TUESDAY 23 MAY 2000

Regina v Geoffrey Warwick FOWLER

The appellant was convicted of the murder of his brother in law, following a retrial.

He appealed against the conviction (but not against sentence) on the grounds that the trial judge had erred; (1) in rejecting certain defence evidence; (2) in the direction concerning witness, Bradley Walsh; (3) in failing to give sufficient directions concerning (a) the identification of the various firearms, (b) motive, (c) the need for a McKinney direction or warning under s165 Evidence Act 1995, (d) accessory after the fact; (4) in refusing to provide the jury with a transcript of the trial; (5) in the directions concerning lies (6) in granting leave to cross examine two witnesses under s38 of the Evidence Act 1995; (7) in giving the Weissensteiner direction.

HELD (allowing the appeal) :
Ground 1: rejection of defence evidence
(1) The trial judge was correct in rejecting the photographic evidence. There was no probative value in the evidence, and the tender was likely to lead to a false issue.
(2) Evidence that the appellant had seen the deceased in a distressed state several months prior to his death and that the distressed state may have resulted from evidence of bullet holes in the car lacked probative value and was correctly rejected.

Ground 2: directions concerning Bradley Walsh
The direction given by the trial judge was sufficient in that it brought to the jury’s attention, the need to treat Bradley Walsh’s evidence with care because of his conviction for interfering with a witness in another matter and his concession that he had lied to a detective. Rule 4 applied.

Ground 3: omissions in the summing up
(a) The identification of various firearms was only of peripheral relevance.
(b) Although the direction concerning motive was correct in law, it was preferable to explain that motive was a matter relied upon by the Crown as a strand in a circumstantial case, which would be supportive if made out, or if not made out, would be neutral. In this case, it was not necessary to establish motive beyond reasonable doubt.
However, the further direction which referred to essential and non-essential circumstances, once given, should either have been followed by further explanation or withdrawn.
Penney (1998) 155 ALR 605; Plevac (1999) NSW CCA 351 applied
(c) The Crown case did not depend upon the record of interview to provide a confession of guilt, and so no McKinney direction or warning under s165 Evidence Act was required.
(d) The direction given in regard to accessory after the fact was appropriate.

Ground 4: refusal to provide the jury with a transcript of the trial
Caution should be taken when allowing the jury access to the trial transcript pursuant to s 55C of the Jury Act 1977. It is preferable, especially in long trials, for the relevant evidence to be adequately identified in the summing up, or read, or the relevant pages provided ensuring that any matter not received in their presence is removed.

Ground 5: Directions concerning lies
The direction in the instant case was erroneous in that it failed to sufficiently reproduce what was said in Edwards v The Queen (1993) 178 CLR 193, it did not adequately explain that the Crown is required to show that the lie was a deliberate falsehood, it did not identify what was the material issue to which the lies were said to relate, it risked reversing the onus of proof, and it concluded with the erroneous direction that any lie told by the accused may be taken as a consciousness of guilt.
Heyde (1990) 20 NSWLR 234 and Qian Li Zhen (1995) 83 A Crim R 575 applied.

Ground 6: Leave to cross examine witnesses under s38 of the Evidence Act
(1) Section 38 should be given its full effect, and should not be limited to situations where a party calling a witness is confronted unexpectedly by unfavourable evidence, where the witness unexpectedly gives evidence that is inconsistent with prior statements or where the witness unexpectedly appears not to be making a genuine attempt to give evidence.
Souleyman (1996) 40 NSWLR 712 Gilbert Adam 47 NSWLR 267 applied
(2) The case of Blewitt is no longer applicable in cases like the present, being a case decided prior to the Evidence Act 1995
(3) There was no error in granting leave, however, once leave is granted pursuant to s38, and assessment is made that the witness’s evidence is likely to be neutral, ss135 and 137 of the Evidence Act should be taken into account. If the witnesses are called at a retrial, it will then be incumbent on the trial judge to direct the jury that any lies told by witnesses go only to the issue of credibility, and cannot be used to support the Crown case. The absence of such a direction risked a miscarriage of justice.
Blewwit (1988) 62 ALJR 503, Jones v Dunkel (1958) 75 WN (NSW) 358 , Apostilides (1984) 154 CLR 563, Whitehorn (1983) 152 CLR 657, Kneebone (1999) NSWCCA 279 considered.

Ground 7: The Weissensteiner direction
(1) This was not a case in which a Weissensteiner direction was appropriate. Such a direction should be confined to exceptional cases, where the chain of reasoning is of the kind there involved. In the instant case, the appellant had provided answers to at least some of the matters in his unsworn statement, to other matters his evidence could not have risen above a denial, and there were tactical reasons, such as fear of self incrimination, as to why the appellant would not have given evidence.
(2) Even if this were a case where a Weissensteiner direction was appropriate, the directions were deficient in that the appellant had not been silent on each matter and the trial judge did not sufficiently identify what it was that the appellant had said in relation to each matter. This was compounded by the reference to the absence of a denial on oath or in the “dock statement” which should be avoided.
Bell (CCA NSW 31 May 1985), RPS 2000 HCA 3, OGD (1997) 45 NSWLR 744, Bargwanna (CCA NSW 15 June 1998) considered

Ground 8: Unsafe and unsatisfactory verdict
The evidence amounted to a powerful circumstantial case, and it could not be said that the jury would have entertained a reasonable doubt, so as to support a quashing of the conviction.

ORDERS PROPOSED:
(1) Appeal allowed
(2) Conviction and sentence quashed
(3) New trial ordered

- 52 -

IN THE COURT OF
CRIMINAL APPEAL

No. 60351 of 1997

WOOD CJ at CL
HULME J
BARR J

TUESDAY 23 MAY 2000

Regina v Geoffrey Warwick FOWLER

JUDGMENT

1   WOOD CJ at CL: The appellant was convicted on 4 June 1997, following a retrial, of the murder of his brother in law, Trevor John Climpson. He now appeals against that conviction, but not against the sentence that was imposed.

FACTS

2   The deceased was shot and killed during the evening of 8 January 1988, outside a house at Lot 2, Villiers Road, Cecil Park, premises at which he had been living with his wife, Vikki Climpson, a sister of the appellant, until a date about six weeks before his death. 3   When police arrived at the Cecil Park premises shortly before 11pm, they found the deceased face down on the ground in a crouched position, beside his motor vehicle. He had been struck by three bullets. One bullet consistent with a .357 or .38 projectile passed through the left side of his chest. Another shot consistent with a .22 projectile passed through his left loin, and a third shot, also consistent with a .357 or .38 projectile, struck him in the back of the skull. 4   A fired .22 calibre cartridge case with the marking “H”, was located near an aluminium shed a few metres from his body. Upon the Crown case it was the source of the .22 projectile that passed through the loin of the deceased. A spent .38 calibre bullet was found on the ground near the position of his head. Another .38 calibre bullet, the cause of the chest wound, was extracted from his body during a post mortem examination. The remaining .22 projectile was not found, despite a careful sweep of the area by army officers with metal detectors on 18 January. 5   Dr. Oettle came to the conclusion that the evidence suggested that the first shot had been fired from the passenger side of the car, that the body of the deceased had been moved artificially into the position in which it was found by police, and that he had been shot in the head after he had died from the earlier wounds. Dr. Malouf, however, was of the opinion that the first shot struck the deceased in his chest, causing him to fall, that the second shot struck him in the head, and that the other shot struck him in the loin. 6   When the Cecil park premises were searched, a .22 calibre Stirling rifle (Ex R) and a .22 calibre magazine, were found inside the house. Additionally, a .22 calibre Ruger pistol, in a pouch (Ex A), which was normally carried by the deceased, was found hidden in a washing basket in the main bedroom. 7   At the Westmead mortuary, a .22 calibre Bartram pistol (Ex U) containing four .22 calibre rounds, and two empty cartridge cases, was removed from the pocket of the shirt that the deceased had been wearing. A number of other firearms owned by him were later found by police at the Plough & Harrow, the stock feed, saddlery and riding school business where he had been working and living. 8   At the time of the shooting, the appellant, who was normally resident at Moree, was visiting his parents at Wallacia. His son, Adam Fowler, who had accompanied him to Sydney, gave evidence that the appellant went out during the storm and power failure that occurred during the evening of 8 January, events which it was agreed occurred between 8.15pm. and 9.30pm. The appellant returned, he said, some time after a Sherlock Holmes movie screened that night on television, had concluded. It was established that this movie was screened between 8.30pm. and 11.08pm. 9   Another witness, Debra Dickson gave evidence of seeing the appellant arrive at the Cecil Park premises where she kept some horses, some time after 9.30pm. This occurred as she was leaving. Beyond saying “Hi” to him, there was no conversation between them. The appellant, she agreed, made no attempt to conceal himself. She made no mention of seeing anyone else in his company. 10   Vicki Climpson, who was given a certificate under S 128 Evidence Act, said in chief that the deceased had moved out of their home about six weeks before his death, because of arguments about building a home on her parent’s property. She added, however, that he had returned to the house nightly, and had stayed over on some nights, including the night before his murder, but he was not living there permanently. She had last seen him at the house alive at 10.30pm on 7 January, and had last spoken to him by telephone at about 7.00pm. on the night of his death. 11 Pursuant to the leave granted under S 38 of the Evidence Act, she was cross examined by the Crown Prosecutor as to whether the evidence she had given concerning the deceased staying over, and spending the night before his death, at her home, was untrue, in the light of the statements she had made to police and in her record of interview. In the course of this cross examination it became obvious that these prior statements were, to various extents, inconsistent with her evidence at the trial. She agreed, in the course of this cross examination, that she had asked Kevin Bell to lie to police about the movements of the deceased on the afternoon and evening of the shooting, and about the phone call said to have been made by the deceased at about 7.00pm. 12 When giving evidence in chief, she said that, on 7 January, the deceased had placed the .22 calibre pistol (Ex A) in the clothes basket in her bedroom because he wanted her and the children to be safe. This he said he had done, according to her, because Bradley Walsh was causing trouble, following an altercation with him when he had allegedly molested her daughter. 13 Pursuant to leave given under S 38, the Crown Prosecutor put to her that this was untrue, and that the weapon was placed in the basket after the deceased was shot. In the course of the cross examination that ensued, she acknowledged that she had not mentioned the placing of the pistol in the basket to police. Rather, she had said to them that, on 8 January, the deceased had told her “They can try all they like, they won’t get me, I’ve got Percy with me”. She had added in this statement, “I knew what he meant … (it) .. was that he had his revolvers with him. He used to carry an automatic .22 calibre pistol with him”. She denied, however, that in this passage she had been referring to the weapon found in the clothes basket. 14   In chief, she identified the Bartram pistol found in the shirt pocket as his, and said that the deceased also kept a Browning pistol and another pistol in his maroon bag. Additionally, she said that he had been accustomed to carrying another pistol strapped to his leg, which he called “Percy”. She said that he carried large sums of money in the sports bag. She was cross examined by the Crown concerning this evidence, and concerning the answers previously given as to the various weapons the deceased had owned, and in particular as to whether they were carried on his person or kept locked away. The obvious intent was to point out inconsistencies in her accounts and to place in issue her evidence that the deceased was carrying a pistol on his leg at the time of his death, and that he had two concealed weapons in his sports bag. It was the fact that no weapon was found strapped to the leg of the deceased when his body was examined, and his brother said that he did not have the practice of carrying a weapon this way. 15   The witness Anita Usope said, because she had been “stoned” she was unable to remember anything about the night of 8 February 1988, apart from being taken to the hospital and to the police station. This witness was similarly given a certificate under S 128 of the Evidence Act. Leave was sought by the Crown to cross examine her under S 38(1)(b) of the Act, upon the basis that she was not making a genuine attempt to give evidence, but that was refused. 16 She said she had no recollection of Vikki Climpson complaining to her about being mistreated by the deceased. She said that she had seen a handgun in a pouch, lying on top of washing in a clothes basket, a couple of days before the shooting. That weapon, she added, she had seen in that position on a few prior occasions. She recognised it, and the pistol found in the deceased’s pocket, as his. 17 Kathleen Lancaster (nee Van-Derzyden) with whom the deceased had been having an affair, agreed, after cross examination by the Crown, pursuant to leave given under S 38(1)(c) of the Evidence Act, that their association had continued for nine years or so, and that she had been visited by him most evenings. She said that he had come to her home at about 7.30 pm and had left there about 10.30pm on the night that he was shot. She said that the excuse which the deceased had given to his wife for his evening absences, while he visited her, was that he had been going “to the dogs”. 18 She said that shortly after his death she had discovered $17,000 in a toiletry bag that belonged to the deceased. It emerged from her cross examination, and from the evidence of Virginia Amore, that a brother of the deceased Robert Climpson, subsequently accused her of stealing this money from a safe kept at the premises of the Plough & Harrow, of which he, Robert Climpson was the owner and the deceased was the manager. 19   Robert Climpson said that, in 1987, the deceased had asked him if he could move a caravan onto the site of the Plough & Harrow because he and his wife were “blueing”. He confirmed that the deceased was accustomed to carry on his person or behind the seat squab of his utility, the .22 Ruger pistol (Ex A), and that he had kept other weapons in a safe and gun cupboard at the Plough & Harrow. 20   He said that he and the deceased had counted the day’s takings, amounting to $19,800 which were placed in the safe, during the afternoon on the day on which he was shot. He said that when the deceased left those premises later that day, he was carrying the Ruger pistol (Ex A) with him. 21   When he looked in the safe, after the shooting, he found that the $19,800 was missing. He said that when he confronted Kathleen Lancaster, with the allegation that she had taken the money, she replied that it was the deceased’s money but that she would split it with him (a matter which she denied when it was put to her). He later estimated that approximately $300,000 had gone missing from the business. He was suspicious that she had taken the money but did not believe that the deceased had done so. He acknowledged, however, that he had made a contrary suggestion to the police in January 1990. 22   He recognised the Bartram revolver, which he thought was used for shooting rats, as having belonged to the deceased, but said that he had never seen him with a Browning pistol, nor with a pistol strapped to his leg. He had seen him with a red bag, but did not know if he used it to carry money. He was unaware of what the deceased had been doing in the evenings, or of his affair with Ms Lancaster. 23   The appellant’s brother, Gregory Fowler, who was called in the defence case, said that the appellant came to his home early in the morning following the shooting, with his son. He appeared to be “his normal jocular self.” When a telephone call came through with the news that the deceased had been killed, the appellant’s reaction, he said, appeared to have been one of absolute shock. This witness said that, on the afternoon of 8 January, he had seen the deceased place a small firearm in his maroon sports bag. When he asked him about it the deceased said, “don’t ask, don’t get involved”. He said that he had never seen any signs of injuries to Vikki Climpson during the period over which she had lived with the deceased. 24   Between six and twelve months earlier he said that he had seen bullet holes in one of the vehicles owned by the deceased. He did not, however, speak to him about those holes. 25   A friend of the deceased Jeffrey Williams who was also called in the defence case, similarly gave evidence of having seen bullet holes in a vehicle of the deceased. Williams advised the deceased to report it to police, but he said that he could take care of it himself. In 1985, the deceased had informed him that he was in fear for his life and asked if he could obtain a pistol or gun for him. He refused. Later the deceased said that he had joined a gun club and had obtained a small handgun. 26   The deceased’s daughter Lila Climpson, who was similarly called in the defence case, said that she had not seen any violence between her parents. Her father, she said, was accustomed to carrying a pistol. He also kept a rifle in the house. She also gave evidence of her mother arguing physically with Bradley Walsh at a time when it was alleged that he had behaved inappropriately in the presence of some children. 27   When the appellant was interviewed by police on 21 January 1988, he said that he had not seen the deceased since the previous November or December. He had not discussed with his sister their separation, and she had never expressed any concerns to him about her own safety. He said that he had never had a disagreement or falling out with the deceased, and described their relationship as good. 28   He said to police, in this interview, that he had never owned a pistol but acknowledged that he had once owned a .22 calibre Lithgow rifle, and a .222 rifle which he had sold at the beginning of 1987. 29   He said that he had been to Vikki Climpson’s house during the day of 8 January, but had left those premises at about 6pm to have dinner with his parents. He had returned to Cecil Park a little later that night, but had left when a woman named Debbie, said that Vikki was asleep. It was his account, in this interview, that he had arrived back at his parents’ home shortly after 10.00pm. 30   Following this interview police searched his home at Moree, but found no firearms in those premises. 31   On 19 September 1990, police returned to Moree for the purpose of making a further search of the appellant’s home. The appellant and Bradley Walsh were present. 32   The appellant waited in the lounge room while police searched that room. When he stood up and walked away, Detective Keen searched the chair on which he had been sitting. He found a shortened .357 calibre magnum Armi-Jager carbine (Ex Z) hidden under a cushion. The appellant, when questioned about this weapon, said that a truck driver had left it there two or three months earlier, saying that he would pick it upon his way back from Brisbane. He added that he had not seen or spoken to that person since. 33   When Walsh’s bedroom was searched, a .22 calibre Stirling automatic rifle with a telescopic sight (Ex H) was found concealed between the mattress and bed base. Walsh informed police that he had purchased the weapon about 8 weeks earlier from someone at an hotel. When he was asked about the weapon, in the course of an interview that day, the appellant said that it belonged to Bradley Walsh, although he did not know where he had obtained it. At the trial he admitted that he now knew this to be incorrect. 34   On 12 October 1990, the appellant’s home was searched again by police. On this occasion a small box containing a number of .38 and .357 calibre bullets was located inside a freezer. Unlike other items in the freezer, the box was free of frost. Police involved in the search, however, rejected the proposition put in cross examination, that it had been “planted” by them to assist the Crown case. 35   On 22 September 1993, the Moree premises which were no longer owned by the appellant, were searched yet again by police. On this occasion, police found a hole in the floor and carpet, and also the remains of a spent copper jacketed projectile (Ex KK) underneath a damaged floorboard in the dining room. This evidence was pressed upon the basis that it tended to negate any suggestion by the appellant (as was made in an intercepted telephone conversation with his wife) that the weapon found at Moree had been ‘planted’ by police, and upon the further basis that it was available to prove a lie, on the part of the appellant, as to the manner in which the .357 magnum found at Moree came to be there. 36   Ian Climpson, the son of the deceased, gave evidence that they had been living together in a caravan on the Plough & Harrow property for about five weeks before the killing. The deceased had informed him that he had moved out of his home because of constant arguments with his wife. However, he had never himself seen bruises on Vikki Climpson and she had not complained to him about being mistreated by the deceased. His father, he said, had spent the night of 7 January in the caravan (and not with his wife). On the night of the shooting he had last seen him at about 8pm. 37   He confirmed that the deceased had owned some rifles as well as the pistol that was found in the clothes basket. This weapon he said was normally carried by his father in a pouch but was also, on occasions, kept in a pull down section of the bench seat in the utility. He was unaware of the deceased owning any other pistols, and specifically said that he had not seen the Bartram pistol before. 38   The .22 calibre Stirling rifle found hidden under the mattress at the appellant’s Moree home, on 19 September 1990, he said had been purchased by the deceased about two months before his death, and had been used by the deceased, by himself and by Bradley Walsh to shoot rabbits. 39   He said that the deceased had told him that there had been a dispute between Vikki Climpson and Bradley Walsh, but had made no mention of leaving his pistol with her for protection. He had been unaware of any relationship between his father and Ms Lancaster. 40   Michael Clarke said that the appellant often visited the property at which he worked from mid 1987, at Weemala, to go shooting with him. It was his recollection that the appellant had a .223 mini Ruger semi automatic rifle, and a .222 bolt action rifle. Around June 1989 he had also seen him with two .357 Magnum pistols. In about July 1989, the appellant had asked him if he could leave his weapons locked up on his property because his boys were starting to play with them. The appellant had also instructed him not to show them to anyone. 41   The two pistols, he said, remained on his property until February 1990 when he returned them to the appellant. One he identified as the pistol found in the lounge chair. In October 1990, he handed police a number of cartridges cases (Ex BB) that had been fired with this weapon. He also identified the box of ammunition that had been found in the freezer, as one that had been brought to his property by the appellant. The appellant, he said, had often visited his property with relatives, including Gus Harb, to go shooting. 42   The appellant’s former wife, Noella Harb, gave evidence that she had lived with the appellant from 1985 to 1990 at Moree, where they operated the Disco Donuts business. During that period she said he had kept a number of rifles in the house. Although she said that the .22 Stirling with the telescopic sight found under the bed, was “very” similar to one owned by the appellant, it was conceded that she had previously informed police that she had never seen the appellant with such a weapon. 43 It was her evidence that, in 1986 or 1987, the appellant had purchased two pistols, one of which was the .357 Magnum found in the lounge chair, after driving to Newcastle or Singleton one night. She agreed that she had previously informed police that she did not know where the appellant had acquired this weapon. 44 She also gave evidence that three to four months before the shooting, Vikki Climpson rang their house one night. Following a conversation with the appellant, he told her that the deceased was mistreating his sister, drugging her tea and injecting her with drugs. She said that he had appeared to be quite distraught after this conversation. 45 Following the shooting she said that the appellant returned to Moree and removed the guns from the house, “just in case the police turn up”. At the earlier trial she gave a somewhat different account, her evidence, it was conceded, then being that she thought that the appellant had said that he wanted the firearms out of the house, because he did not have a licence. Some of the weapons she said the appellant had placed in a car they kept in a storage shed away from the property. When police came to speak to the appellant she said that he had quietly instructed her not to ”tell them about the shed”. 46 An intercepted telephone conversation between the appellant and this witness on 24 September 1990, was placed into evidence. In it, the appellant remarked that the police had raided his house and were trying to pin the murder on him “because they’ve turned up some weapons in the house that I have never seen before in my life”. When the conversation turned to the Magnum, and whether he had got rid of “those,” the appellant cautioned his wife that “telephones have ears”. Later in the conversation he suggested that the police had planted the pistol and rifle in his house. 47 In cross examination she agreed, after having been given a certificate under S 128 of the Evidence Act, that before leaving the appellant, she had falsified the books of their business, Disco Donuts, and had extracted money from it. She conceded that she had been arguing with him over her proper entitlement to a wage, and over her fair share of profits from the business. She denied, however, that she had been filled by bitterness towards him in July 1990, the time at which she left him, and the time at which she was interviewed by police. She denied inventing her evidence to ensure that the appellant did not have access to their children. 48 Ronald Doran, a former friend of the appellant, said that, in late 1986, the appellant had informed him that his sister Vikki was having a hard time with her husband and that he would have to do something about him. Doran asked if he would belt the man up? The appellant replied that something more serious was needed, and that he “should be done in”. The appellant offered him $10,000 to accompany him to Sydney, for that purpose. Doran refused. The appellant, he said, brought the subject up again a little later, when he said that he was going to Sydney to “sort (his) brother in law out”. Doran again refused to assist. 49   He agreed in cross examination that he had not mentioned the offer of money when giving evidence at the first trial. He explained that he had feared for his safety. He denied making the evidence up. 50   Bradley Walsh was called by the Crown. A certificate was given to this witness under S 128 of the Evidence Act, at the Crown’s request, in anticipation of the possibility that he might give evidence incriminatory of himself in relation to a variety of offences including perjury, accessory after the fact to murder, conspiracy to pervert the course of justice, concealment of serious offences, indecent assault, and firearms offences. When asked about the matter, he claimed to have no recollection of the events at Moree, or of the events of which he had given evidence at the first trial, or even of having given evidence on that occasion. 51 Leave was sought and given to the Crown to cross examine him under S 38(1)(b)of the Evidence Act concerning that evidence. In the course of that cross examination, it was conceded that he had said at the first trial that, a week before the police search on 19 September 1990, he had seen a .22 calibre rifle under a wooden pallet in the backyard of the appellant’s home in Moree; that the appellant had said that he did not have a shooter’s licence, and that he had then hidden the weapon under his bed. 52 It was also conceded that he had given evidence of a “man from the pub” leaving a .357 Magnum handgun at the premises a few days before 19 September 1990, which had been accidentally discharged by him towards the floor, after which the appellant had taken it to his bedroom. 53 It was further conceded that Walsh had said that, prior to the police search, the appellant had been “running around” panicking, and had placed the handgun under the lounge chair, and that he (Walsh) had offered to cover the rifle with his own shooter’s licence, and had later produced that licence to police. It was also conceded that he had said, at the first trial, that his assertion as to ownership of the rifle, to the police, had been an attempt to help the appellant. 54 During his cross examination by Dr Woods QC (as he then was), this witness attributed his memory problems to a series of open heart operations. 55 The appellant made an unsworn statement in which he denied having been responsible for the killing, and also denied having been told by his sister that the deceased had been ill treating her. He repeated the account given in his earlier police interview, to the effect that he had driven to his sister’s home during the blackout that followed the storm, but had left when informed that she was asleep. It was his account that he arrived back at his parent’s home at 10.30pm. 56   He said that when he returned to Moree he placed the rifles, that he had kept in his house, in the boot of his car because he did not hold a shooters’ licence, and feared being charged for possession of illegal weapons if he was interviewed by police, or if his home was searched. He agreed in this statement that he had lied to police, when they had asked him whether he had any guns, but then gave the explanation mentioned. 57   He also said that some of the relatives of his former wife had brought two pistols and rifles to his house in Moree. The handgun shown to him by police, when they searched his home, he said was similar to one of those pistols. So far as he knew, however, those pistols and rifles had been returned to the relatives. He did not know who owned the Stirling rifle that was found by police underneath Bradley Walsh’s bed. He also said that he knew nothing of the box of bullets found in the freezer. 58   He said that he had fallen out with Mr. Doran in late 1986 when he suspected him of having had an affair with his wife. He denied asking him to assist in harming the deceased or discussing any mistreatment of his sister. His relationship with the deceased, he said, was normal for brothers in law and one in which they “got on extremely well”. 59   In a separate admission, made on the advice of his counsel, he acknowledged that the .22 Stirling rifle had never been owned by Bradley Walsh. 60   There was a good deal of ballistics evidence concerning the array of weapons, cartridge cases and projectiles, that found their way into the case. In summary, the evidence showed that:

(a) the .22 calibre Ruger pistol, found in the clothes basket at lot 2 Villiers Road, was in working order and contained nine .22 calibre Winchester cartridges which were also capable of being used in the .22 calibre Stirling rifle found at the same premises;

(b) the .22 cartridge case found near the aluminium shed could not have been fired by either of those weapons;

(c) the two spent .38 calibre bullets (one found on the grass near the deceased‘s head, and the other recovered from his body) had been discharged from weapons with identical characteristics, most probably a revolver because of the presence of skid marks; it was not possible, however, to determine whether the same weapon had been used;

(d) the Bartram revolver, found in the shirt pocket of the deceased, and the six rifles removed from the Plough & Harrow, were eliminated as having been used to fire the cartridge case found near the shed, and the two .38 calibre spent bullets;

(e) the .357 Magnum shortened carbine found in the lounge chair at Moree was suitable for use with the .357 and .38 ammunition found in the box in the freezer. The two spent .38 calibre bullets located in the grass, and in the deceased’s body, were engraved with similar characteristics as test bullets fired from this weapon, but because they were deformed, it was impossible to reach a positive conclusion whether they had in fact been fired from it;

(f) the fired cartridge case, with the marking “H”, that was found near the shed, had been fired from the .22 calibre Stirling rifle (Ex H) that had been hidden under the bed at the appellant’s home in Moree.

61   Although, as noted earlier, a good deal of evidence was adduced from Doctors Malouf and Oettle as to the likely sequence of shots, as to whether the shot fired from the .22 was fired from the vicinity of the passenger side of the vehicle of the deceased, as to whether his body had been moved, and as to whether the shot to the back of the head was a post death execution shot. In the end, the various scenarios canvassed involved a degree of speculation and reconstruction of events that could not be determined with any accuracy, and were unlikely to be of much assistance to the Crown or the defence.

THE PROSECUTION AND DEFENCE CASES

62   It was the Prosecution case that the appellant had murdered the deceased by way of pay back for having mistreated his sister. The Crown recognised that it was unable to say whether he had acted alone, or with the assistance of others - a possibility opened up by the evidence that at least two weapons had been used in the shooting, and by the possibility that the deceased had been disarmed by someone who had placed his .22 calibre pistol in the clothes basket, before he was shot. 63   Its case was circumstantial, being based upon:

(a) opportunity, dependent upon the evidence of Debra Dickson, (and the accused’s own admission) to show his presence outside the Cecil Park premises on the evening of the shooting, and upon the evidence of his son as to his absence from the premises where he was staying until after 11pm;

(b) the finding at the appellant’s home in Moree, in September 1990, of the .22 rifle which was positively linked to the fired cartridge case recovered from a position near the shed, and of a .357 Magnum handgun which could have been used to inflict the chest and head wounds;

(c) the fact that each of these weapons was found in a concealed position;

(d) lies told by the appellant about his ownership of weapons;

(e) evidence from some, but not all, witnesses who may have been in a position to know that there was at least an allegation abroad that the deceased had been mistreating the appellant’s sister;

(f) the evidence of Ronald Doran to the effect that the appellant had expressed a desire or intention to do away with the deceased for mistreating his sister;

(g) the evidence of Noella Harb that he had hidden his guns immediately after the killing, and had expressed a concern lest he be interviewed by the police and his home searched;

(h) the evidence of Michael Clarke to the effect that in 1989 the appellant had asked him to look after two .357 Magnum pistols, and had instructed him not to show them to anyone;

(i) the intercepted telephone conversation between the appellant and Noella Harb.

64   It was accepted that there was no rational possibility of the fatal wounds having been self inflicted. The defence case was one of denial of any responsibility for the shooting. 65   The appearance of bullet holes in the deceased’s vehicle, his nocturnal absences, his association with the racing industry, the circumstance that he was accustomed to carrying large sums of money around in his sports bag, the fact that he was always armed, the fears he had expressed and the request he had made to his wife to record the registration numbers of vehicles in the street outside their property, were relied upon to suggest that he had been involved in activities that were not entirely above board, and that one or other of those circumstances, or several in combination, invited the possibility of him having been shot by some person unknown who had a grievance towards him associated with those activities. 66   The defence submitted that additional alternative reasonable hypotheses as to persons other than the appellant being the killer had not been, and could not be, excluded. They related inter alia to the circumstances that:

a) Bradley Walsh had been warned off the Cecil Park premises by the deceased following an alleged act of indecency, and had thereafter been causing trouble;

b) moneys had been stolen from the Plough & Harrow business allegedly by the deceased and/or by his mistress; and that

c) the deceased had been engaged in an adulterous relationship at the time of his murder;

67   By reason of the manner in which the defence put its case it became necessary for consideration to also be given to the possibility that some of the evidence, which might have seemed to be incriminatory of him, could have been explicable upon the basis that he had been merely helping to get rid of weapons to protect his sister, and hence was guilty of some offence or offences other than that charged. 68   His Honour ultimately left the case to the jury upon the basis that the Crown had to prove that the appellant was personally involved in the act that brought about death, or was present as a principal in the second degree, aiding and abetting the shooter. If, however, the facts as found were consistent with him being an accessory after the fact, who had assisted his sister or the shooter in removing the weapons, or was otherwise guilty of an offence of harbouring, then the jury was to acquit him of murder.

GROUNDS OF APPEAL

REJECTION OF DEFENCE EVIDENCE

Two matters were relied upon.

69   First, it was submitted that his Honour erred in rejecting the tender by the defence of a photograph of a .22 right hand bolt Lithgow rifle in the hands of the son of the appellant. The purpose of the tender apparently was to show that the appellant from time to time used weapons in a benign and family context (ie without any malignant predisposition), and to eliminate that weapon as having been used in the killing. 70   There was no evidence or suggestion by the Crown that the weapon in this photograph had been the murder weapon, or that it was the semi automatic .22 rifle (Ex H) found at Moree. Nor was there any issue that the appellant and his friends used rifles, and other weapons, for shooting rabbits and targets in a non criminal way (ie subject to the holding of any relevant licence) both at Cecil Park and on various country properties. 71   The photograph had in my view no probative value. Its tender was only likely to lead to a false issue, and was rightly rejected. 72   Secondly, it was submitted that his Honour erred in not allowing Gregory Fowler to give evidence of the deceased having been in a distressed state when he saw him on several occasions over the period of 6 to 12 months before his death, and of rejecting inquiries directed towards him, as to the reasons for his distress. It was put that linked with the evidence of bullet holes in his car, this evidence would support the defence contention that the deceased had been involved in activities consistent with him being placed in danger by some person or persons unknown. 73   The evidence of the sighting of the bullet holes was allowed. His Honour, however, rejected the evidence of distress upon the basis that there was no evidence to suggest that the appellant’s distressed state had anything to do with the bullet holes. 74   In the absence of the deceased having offered some explanation for the bullet holes, and of his distress being related to that occurrence or to fear at the hands of others, the evidence had, in my view, no probative value. It would be entirely equivocal and not add to the alternative hypothesis, which the appellant wished to pursue. No error has been shown in this respect.

DIRECTIONS CONCERNING BRADLEY WALSH

75 It was submitted that in circumstances where this witness purported to have no recollection of any relevant events, but was given a certificate under S128 of the Evidence Act, and cross examined by the Crown pursuant to leave under S38 of that Act to establish, following concession, what it was that he had said at the previous trial, there was a need for a special caution. 76 Like Vikki Climpson, he was in a peculiar position in so far as there had been a falling out between him and the deceased, and insofar as he had accepted, in his evidence at the first trial, that he was not the owner of the .22 Stirling rifle, and had lied to police in that regard when it was found at the home of the appellant in Moree. On one possible view, he was an accomplice or person with a possible motive to kill the deceased. On another view he was an accessory after the fact, or a person attempting to pervert the course of justice to assist the appellant. 77 A direction was given in relation to this witness in the following terms:

“My direction is that the evidence of Bradley Walsh may be unreliable because of the criminal matter I have told you, of which he has been convicted and because of his statement that I have just reminded you of, at page 685, that he had said that what he told Det Prentice was false.
He denied his evidence during the course of his statements and you must take into account the way he gave evidence in proceedings before you, and in addition to the interfering with a witness conviction, all of those matters should be taken into account in assessing his reliability; that is, in relation to the evidence in these proceedings and in the previous proceedings.”

His Honour later added:…

“I want to remind you concerning the evidence of Bradley Walsh, that is, in relation to a direction I gave as to his unreliability. That in fact I did not give you specifically. I now specifically remind you he was convicted of the offence of interfering in other proceedings. That is a matter you should take into account in assessing the reliability of his evidence, as it goes to improper conduct in relation to court proceedings. I want to also remind you that Bradley Walsh told the court that he told lies on 25 January 1988 and 29 January 1988.

78   No additional direction was sought at the trial. Although the direction was very much a shorthand caution, it sufficed in my view, to bring to the attention of the jury the need to treat this witness’s evidence with care because of his conviction for an offence of interfering in another matter, because of his concession that he had told a lie to Detective Prentice, and because of the manner in which he gave evidence. Rule 4 applies, and the ground is not made out.

SUGGESTED OMISSIONS IN THE SUMMING UP

79   It was submitted that, in several respects, his Honour failed to give relevant or sufficient directions, concerning:

(a) the identification of the various firearms

80   This related to the firearms mentioned by the witnesses Clarke, Doran and Harb on the various occasions when they were alleged to have been seen by them. No such directions were sought, and in any event their identification was of peripheral relevance.

(b) Motive

81   This related to the suggested need for the Crown to prove beyond reasonable doubt that the appellant had a motive to kill the deceased because of his belief that the latter was mistreating his sister. 82   In response to a question from the jury: “How important is the question of motive and proving motive in this case?” his Honour gave the following direction:

“My direction of law is this: as a matter of law it is not necessary for the prosecution to prove motive as part of its case. However, in this case the Crown alleges a motive, that motive being a belief by the accused that Trevor Climpson had been mistreating Vikki.
The duty of the Crown is to prove the elements of the offence. The evaluation of the matter of motive is a matter for you as judges of the facts, so that it is not necessary for the prosecution to prove motive as part of its case. That is a matter of evaluation for you. The duty on the Crown is to prove the elements of the offence which I gave you on the last occasion.

83   This was not a particularly helpful direction, although so far as it went it was correct in law. Preferably, his Honour should have explained that motive was a matter relied upon by the Crown as a strand in a circumstantial case, which if made out would support that case, but if not made out would be neutral. It was not an intermediate fact and the reasoning in Shepherd (1990) 97 ALR 161 applied. It was accordingly not necessary that motive be established in this case beyond reasonable doubt: Penney (1998) 155 ALR 605; Plevac (1999) NSW CCA 351. This ground is not made good. 84   It does, however, need to be considered in relation to an allied complaint concerning the following direction:

“Some of the circumstances relied upon by the Crown are essential to prove the Crown case. Some are non-essential matters that merely support and add strength to the Crown case. In fact, although it is not essential you find those circumstances proved beyond reasonable doubt , however, if you find circumstances, that is not essential circumstances, or any of them, probably existed, that finding may assist you in your main task; that is, to decide on the whole of the evidence whether you are satisfied beyond reasonable doubt that the accused was guilty.”


This was not followed by any attempt to identify into which category the various matters relied upon as constituting circumstantial proof, fell. Having introduced the distinction it was incumbent upon his Honour to complete the direction, or to have withdrawn it and explained what is required by way of proof in a strands circumstantial case.

(c) The need for a McKinney direction or warning under S165 Evidence Act.

85 It was submitted that an issue arose in the light of the cross examination of various police witnesses, and of the unsworn statement of the appellant, as to whether the record of interview was, in those respects that dealt with firearms, fabricated, and was signed only after threats had been made to rip up the carpet in his house, to knock holes in the walls, and to dig up the yard. In those circumstances, there was, so it was submitted, a need for a special warning. 86 No such direction was sought at the trial, nor was the admissibility of the record canvassed under SS 90 or 138 of the Evidence Act. The record of interview was signed, and S 165(1)(f) did not apply. In the absence of any request, and having regard to the circumstance that the Crown case did not depend upon the record of interview as providing a confession of guilt or otherwise than peripherally, the case was not one, in my view, which called for the warnings suggested.

(d) Accessory after the Fact

87   This related to the suggested need to inform the jury that there was no evidence that the appellant had given the rifle, or handgun, found by police at Moree to some person prior to the killing, in the light of a possible scenario that he had done this and had then left the scene before someone else had shot the deceased; and that they were not free to speculate (presumably about this). 88   The Crown case was not conducted upon the basis of the possible scenario suggested, it having been its case that the appellant had been present either as a principal in the first or in the second degree when the deceased was shot, and had then removed the weapons used in the shooting. 89   Earlier, directions had been given in response to a jury question “does supplying the murder weapons constitute aiding and abetting?”. The direction then given was appropriate and approved by Counsel. To have given the further direction requested was only likely to cause confusion. The ground is not made good.

REFUSAL TO PROVIDE THE JURY WITH A TRANSCRIPT OF THE TRIAL

90 It was submitted that, since the first time that the jury learned they would not have a transcript of the trial, was at the end of summing up, and that almost immediately afterwards they made to a request to have it, there was a possibility that they had refrained from taking notes during the trial. Further, it was submitted that the complexity of the trial was such that, notwithstanding the usual practice, the request was reasonable. 91 This submission is not made good. Although it is now possible for the jury to be allowed to have the transcript, or selected portions of it,(S 55C Jury Act 1977) that is a discretionary decision. There are dangers in following this course, without good reason, particularly in a lengthy trial. Most obviously there is a risk of the jury reading only part of the evidence and not having the benefit of reading the balance of the evidence, in the course of which a witness may well contradict, qualify or correct something said earlier, or of reading the evidence of some other witness who may have given a contrary version. 92 It is preferable in most cases, and this was certainly one of them, for the relevant evidence to be sufficiently identified in the summing up, and for the jury to be reminded that, if they wish to have assistance in specific respects, for the evidence touching upon those matters to be read, or if it can be conveniently done and contained within reasonable limits, for the relevant pages of transcript to be provided, with editing of any matter not received in the presence of the jury. 93 His Honour comprehensively summarised the evidence during the summing up, and appropriately reminded the jury that any further assistance needed concerning the evidence would be accommodated. The ground is not made good.

DIRECTIONS CONCERNING LIES

94   The learned trial Judge gave a number of directions concerning lies said to have been told by the appellant in relation to his ownership of firearms arising out of his record of interview of 21 January 1988 as follows:

“Q.66 Do you own any firearms? A. I used to.
Q. 67 What type of firearms are they? A. A .22 calibre Lithgow and a .22 what my wife bought me but I sold it at the beginning of this year.
Q.68 Have you ever owned any pistols. A. No.”

95   The initial directions given included an observation by his Honour to the effect that the appellant has admitted telling lies in relations to questions 66 and 67. His Honour continued:

“I want to direct you that, unless you are satisfied in relation to that third question, question 68, beyond reasonable doubt, that the accused did what is alleged, that is that he lied, that you cannot use the allegation against him.
If you are satisfied, you may draw an inference against him that he acted in this way because he was guilty of the crime. Before you draw an inference in relation to question 68, that he lied, you must be satisfied not only that the conduct has been proved beyond reasonable doubt, you must also be satisfied beyond reasonable doubt there is no other reasonable explanation for it in the circumstances. You must remember that people do not always act rationally and that conduct of this sort may sometimes be caused in other ways, for example panic, fear, a desire to protect others, weakness of mind and other reasons that will no doubt occur to you.
Further, even if you are satisfied that he was motivated by consciousness of guilt, before this can support the Crown case you must further be satisfied that what was in his mind was guilt of the offence charged, not some other offence.
If you are so satisfied then you are entitled to use the finding in aid of the other evidence in the Crown case, as pointing to the guilt of the accused. Standing by itself, it is not proof of guilt. The other two questions of course are relied on by the Crown in support of the crown case: they are admitted by the accused in this case.”

96   This direction was clearly inadequate, and erroneous in law so far as it omitted any reference to the need for the lie to relate to a material circumstance, and so far as it dealt insufficiently, with the answers to questions 66 and 67. It was later withdrawn. His Honour at that point instructed the jury in the following terms:

“I wish to withdraw the specific wording I used in relation to the direction on lies and I now give you a new direction in relation to that. A lie can constitute an admission against interest only if it is concerned with some circumstances or an event connected with the offence, that is, it relates to a material issue. If it was told by an accused in circumstances in which the explanation for the lie is that he knew the truth would implicate him in an offence, that is, in any case where a lie is relied upon to prove the lie should be identified. I have given you question 68. I instruct you that you may take the lie into account only if you are satisfied, having regard to the circumstances of the events, in relation to question 68 that reveals knowledge of the offence or some aspect of it and that it was told because the accused knew the truth of the matter about which he lied would implicate him in the offence, and because of a realisation of guilt and a fear of the truth.
You should understand there may be reasons for the telling of the lie apart from the realisation of guilt. A lie can be told out of panic, to escape an unjust accusation, to protect some other person, or often a conclusion extraneous to the offence. I wish to tell you that if you accept there is another explanation for the lie, it cannot be regarded as an admission. In this particular case you remember the accused gave, as a reason for not making admissions in relation to the guns, that he was concerned about the loss of the guns and was concerned about not having a shooter’s licence. You will remember that evidence. That is a possible reason you should take into account before finding that the lies may be taken into account. Any lies told by the accused may be taken into account as consciousness of guilt.”


This direction did not, to my mind, overcome the problem. It was deficient or erroneous in several respects:

a) so far as it purported to reproduce what was said by Deane, Dawson and Gaudron JJ, in Edwards v The Queen (1993) 178 CLR 193, it did not on its face do so, particularly in relation to the first two sentences, although that possibly may be the result of an error in transcription or punctuation, which was overlooked when the summing up was revised.

b) it did not sufficiently explain the need for the Crown to show that the lie was a deliberate falsehood.

c) it did not sufficiently identify what was the material issue to which the lies were said to relate, an important aspect of the direction since it is very easy for a jury to place unwarranted significance upon a peripheral lie told by the accused.

d) so far as the direction instructed the jury “… if you accept there is another explanation for the lie, it cannot be regarded as an admission” that risked reversing the onus of proof - it being for the Crown to satisfy the jury that there was no other reasonable possibility open in that regard; it does not fall upon the appellant to establish an alternative explanation;

e) the directions again not deal with the answers to questions 66 and 67, the materiality of which is not readily apparent having regard to the present tense in which those questions were put.

f) the direction concluded with the wholly misleading and erroneous instruction that “ any lie told by the accused may be taken as a consciousness of guilt”; and

g) on this occasion the direction seemingly moved from a matter relied upon as a fact in a circumstantial case to an admission of guilt.

97   Very great care is required in relation to lies (Heyde (1990) 20 NSWLR 234 and Qian Li Zhen (1995) 83 A Crim R 575), and in particular, in identifying whether they are relied upon as an admission of guilt, or as one of a number of circumstances from which an inference of guilt is to be drawn, or as support for the evidence of another witness, or simply as a matter going to credibility of the accused. 98 In my view this ground has been made good, and having regard to the problems associated with the Weissensteiner direction to which I will come, provide further reason for ordering a new trial.

LEAVE TO CROSS EXAMINE VIKKI CLIMPSON AND BRADLEY WALSH UNDER S 38 EVIDENCE ACT

99 At the outset of the trial, the Crown Prosecutor foreshadowed an intention to seek leave to cross examine Vikki Climpson under S 38(1)(c) of the Evidence Act, because it was inevitable, in view of the various statements that she had made, that there would be a prior statement inconsistent with her evidence, whichever way it came out. This application was allowed, as was the enlarged application brought under S 38(1)(a) of the Act, upon the basis that she had given evidence unfavourable to the Prosecution. 100 The grant of leave was accompanied by the issue of a certificate under S 128 of the Evidence Act, so as to protect the witness from the consequences of self incrimination, in the event that she found it necessary to admit that information provided, or evidence led from her on a prior occasion had been knowingly untrue. 101 A similar situation arose in relation to Bradley Walsh when it became apparent that he claimed to have lost all memory in relation to any matters relevant to the murder. 102 The broad submission addressed was that his Honour fell into error in granting leave, and in allowing the Prosecution, in each instance, to call a witness who was known to be hostile or unfavourable, in the expectation of using S 38, so as to place before the jury otherwise impermissible, i.e. inadmissible statements, contrary to the principles established in Blewitt (1988) 62 ALJR 503. 103 The position in relation to Vikki Climpson was somewhat complicated by the circumstance that she had provided a number of statements to the police that were contradictory, in relevant respects - for example, as to the precise nature of her relationship with the deceased at the time of his death, how it was that his .22 pistol had found its way into the washing basket, and as to the movements of the deceased on the day of his death; by the circumstance that at the time she had initially spoken to police she was in a state of depression, was possibly suicidal, and had overdosed on drugs; and also by the fact that, although she had been initially charged with the murder, and had stood trial with the appellant, those proceedings had been no billed, so far as she was concerned. 104 In the course of foreshadowing the application, at which the witness was represented by Counsel, the Crown Prosecutor made it clear that she wished to cross examine this witness generally as to her credit; and to explore circumstances which could have been capable of linking her to a scenario in which she had either directly, or indirectly (through her complaints of mistreatment), encouraged the appellant to kill the deceased, or had assisted him subsequently in deflecting police investigations - inter alia by inciting Kevin Bell to tell lies to the police, and by suggesting the deceased’s involvement in criminal activities. 105 Although the Crown Prosecutor, at one point, disavowed any intention of asserting that she was an accomplice on the night of the shooting, the tenor of the cross examination was clearly such as to invite her participation in it, although not in any particularly well defined way. 106 The debate in this respect arose first in the context of S 128 of the Evidence Act, the Crown Prosecutor, defence counsel and her own counsel being appreciative of the circumstance that she may well object to giving any evidence that may incriminate her; and the Crown Prosecutor, in any event, being uncertain as to what she would say if called as a witness. Dr. Woods QC (as he then was), did not concede the Crown’s entitlement to cross examine her in the ways foreshadowed, but placed on the record that he would not be inviting any Jones v Dunkel inference, if she was not called as a witness. In that regard, it was submitted that cross examination, on her prior inconsistent statements, would have the effect of weakening her credibility to the point where her evidence had little, if any, probative value. 107 In all those circumstances it was submitted, both by Dr. Woods QC and by her own counsel, that she should not be required under S 128(5) to give evidence, a submission which if accepted would have made the need for leave, under S 38, to cross examine her, academic. 108 The approach which the Crown Prosecutor took was that she was the person best placed to inform the jury of the true nature of the relationship between the appellant and the deceased and between herself and the deceased; of anything that she had conveyed to the appellant or some third party concerning any mistreatment of her by the deceased; of the circumstances in which the killing occurred (as she was present at the house when the deceased was shot); of anything that had been done that night in relation to any weapon owned or customarily carried by the deceased, in particular the .22 Ruger that was found in the clothes basket; and whether prior to his shooting the deceased had been disarmed. 109 As such it was put that she was a witness who had information potentially going to the heart of the case, particularly motive, and that it was incumbent upon the prosecution to offer her to the jury, and then to test the evidence she could give, leaving it to the jury to assess her credibility. Accordingly, it was submitted that a certificate should be given under S 128 of the Act, and leave granted under S 38, so as to allow this to occur. 110 This proposition found favour with the learned trial Judge, who observed:

“… it seems to me the Crown is obliged to call the witness, Vikki Climpson, and having called that witness, is obliged in terms of S 38 of the Act, to endeavour to cross examine the witness, at least because of the conflicts which have been made in her statements”.

111   The problem now addressed on appeal was, however, foreshadowed by his Honour in his judgment of 5 May 1997, so far as he observed:

“…..the evidence of the witness may, in part, be of assistance to the accused, so far as she may present as a Crown witness of lowered credibility. It may be, on the other hand, that her association with the accused would make any attempts by her to prevaricate or to give evidence favourable to the accused in the end against his interests”.

112 Having given a certificate under S 128 of the Act, the debate turned to S 38(1) (c) of the Act, in the course of which it was made clear that the Crown sought also to rely on S 38 (1)(a), so as to cross examine the witness inter alia, in relation to whether she had ever complained to anyone else about the deceased mistreating her; in relation to the presence of the appellant at her home during the night of 7 January and for part of 8 January, including the time of the shooting, and in relation to her account to the effect that the deceased had placed the .22 Ruger pistol in its pouch, in the washing basket, on the night of 7th January for her protection (in contrast with the evidence of Robert Climpson that the appellant had kept it in a safe that night and had only taken it with him the next day). 113 A number of other areas for possible cross examination were canvassed, to not all of which the defence objected. The argument was principally directed to cross examination concerning the Ruger; the events on the night of 7 January; the use by the deceased of the large number of guns with which he appeared to have some connection - and their location at the relevant times; the telephone conversation in 1999 between her and Kevin Bell, in which, so it was suggested, she had encouraged him to supply untrue evidence to the police that would corroborate her evidence; and whether or not she had made allegations to Anita Usope of mistreatment at the hands of the deceased. 114 Although his Honour recognised that all this evidence was potentially detrimental to the interests of the accused, it was his conclusion that it was “nonetheless not unfair” that it be called, it being “clearly a matter of importance, in terms of the prosecution case, being relevant evidence that ought to be placed before the jury for their consideration and evaluation.” 115 Upon that basis, and for the reasons outlined in two separate judgments delivered on 6 May 1997, leave was granted under S 38. 116 Although the reasons given for allowing cross examination in relation to specific matters did to a degree overlap, and were in some respects, but not all, confined to issues of credit, it does appear that leave was eventually given under S 38(1)(a) so far as the witness’ evidence in chief was in conflict with that expected to be called from other witnesses; under S 38(1)(b) so far as his Honour assessed the witness as not making a genuine attempt to give evidence; and also under S 38(1) (c) so far as her evidence in chief was in conflict with prior statements that she had made to police. 117 The cross examination by the Crown Prosecutor that occurred once leave was given, was extensive and critical of the witness’s veracity - it being made abundantly clear that the Crown challenged many of her answers and suggested, by implication if not expressly, that she had some involvement in the killing, or was, at least, endeavouring to assist the appellant in relation to any prosecution brought against him. 118 The Crown Prosecutor was similarly permitted to cross examine Bradley Walsh when he claimed to have lack of memory of the relevant events, to show, in particular, what it was that he had said, at the first trial, concerning the events at Moree, when the police found the .22 Stirling rifle and the .357 Magnum shortened weapon. 119 Arising out of this evidence the Crown was able to float the possibility that this witness had tried to protect the appellant in relation to the matters under investigation, and to garner support for the proposition that the weapons found belonged to the appellant. So far as he might have appeared to prevaricate, or to have told lies in the past, there was a similar risk of his evidence rebounding to the discredit of the accused. Conversely there was the same possibility, as that identified by his Honour in relation to Vikki Climpson, that the jury would have regarded his evidence as unreliable. 120 Blewitt, upon which the appellant relied, was decided prior to the Evidence Act, being a decision concerned with the position at common law so far as witnesses reasonably anticipated as being hostile were concerned, and with the common law principle that cross examination on a prior inconsistent statement was relevant only to the issue of credibility. Section 38 of the Evidence Act now permits a party, by leave, to cross examine a witness who meets any of the criteria identified in sub section (1). Its exercise is, however, subject to a number of discretionary considerations, so as to prevent its abuse, and is a section that needs to be applied with some care in criminal trials. So it is that before leave is granted, the trial Judge must give consideration to the matters specified in SS 38(6), 135 to 137, and 192 of the Act. 121 What is now clear is that it is to be given its full effect, and that it is not to be confined to the situation where a party calling a witness is confronted unexpectedly by evidence that is “unfavourable” as that expression has been explained in Souleyman (1996) 40 NSWLR 712 (Gilbert Adam 47 NSWLR 267); or, I would add, where such a party is confronted with the situation where the witness unexpectedly gives evidence that is inconsistent with prior statements or unexpectedly appears not to be making a genuine attempt to give evidence. 122   Gilbert Adam was a case where the terms of previous inconsistent representations were adduced in the course of cross examination, after the Crown was able to show that the relevant witnesses, although present at the scene of the killing, claimed to have no knowledge of what had occurred, or gave accounts that were wholly inconsistent with their earlier statements. 123 Once received the evidence of the prior representations was allowed to go to the jury as proof of the truth of the facts asserted by them (under S 60 of the Evidence Act), being matters of which the witnesses had direct knowledge - ie once admitted their use was not confined to the question of credibility. (Gilbert Adam at paras 102 to 107) 124   The appellant’s submission so far as it was based upon Blewitt is not made good, since the Evidence Act has led to a marked change in the law. That does not exhaust the argument, however, since further questions arise as to whether leave should have been given, consistently with the matters that needed to be taken into account under S 38(6) and S 192(2) of the Act, as well as those affecting the possible exclusion of the evidence under SS 135 and 137. 125 It is almost certainly the case that, absent an entitlement to cross examine them, the Crown Prosecutor would not have called either Vikki Climpson or Bradley Walsh as a witness. It is equally certain that the appellant would not have required either to be called by the Crown, nor offered them in its case. Indeed, in the case of Vikki Climpson, Dr Woods QC expressly offered to refrain from inviting a Jones v Dunkel inference, or seeking any such direction. Presumably the same would have been the case with Bradley Walsh had that been canvassed. 126   The question that now arises needs to be considered in the light of the concession, made in the Crown submissions on appeal, that the “overall impact of both witnesses … would have been slight”, and that their evidence in the end would have been “fairly neutral”. If that is a correct analysis of the position, then it would follow that the probative value of the evidence each had to offer was slight, and that all the learned Crown Prosecutor had achieved, in substance, was to put them up and knock them down. 127   The point is not, in my view, to be dismissed quite so easily, having regard to the considerations which the learned trial judge identified. Each was a witness who, either on the Crown case (in relation to Vikki Climpson) or the defence case (in relation to Bradley Walsh) was a person who was possibly implicated in the killing or who was the occasion of a motive for it. Each was a person who, on the Crown case, had attempted to protect the appellant. Each was a witness who, by reason of the cross examination, was shown to be unreliable and to have told lies. Inevitably there was a risk of some of this rubbing off on the appellant, since their separate interests almost inevitably would have been seen by the jury to have coincided with his own interests. 128   Moreover, so far as evidence was led from police concerning the answers given to them by Bradley Walsh when he was interviewed, and upon the basis of which his cross examination was pursued to show that he had lied, attention seems not to have been given to the inadmissibility, in a case brought against the appellant, of any conversation that he had with police, that was not adopted by the appellant, or of the circumstance that, if he was shown to have lied, that was not a matter that could be used against the appellant. 129   Having regard to these considerations, and in the light of the circumstances that the Crown did not risk a Jones v Dunkel inference, that the appellant made no request for either witness to be called in accordance with the principles in Apostilides (1984) 154 CLR 563, Whitehorn (1983) 152 CLR 657, and Kneebone (1999) NSWCCA 279 AND that the appellant was prepared to acknowledge that Bradley Walsh was not the owner of the .22 Stirling rifle found at Moree, it seems to me that the preferable course would have been for the Crown to have avoided calling either as a witness. 130 I am not persuaded that there was an appellable error in the grant of leave under S 38 of the Act, once a decision was made to call these witnesses. Rather, it appears to me that, in all the circumstances, once objection was taken, and once an assessment was made that their evidence, after cross examination, would be most likely to be neutral, then consideration should have been given to SS 135 and 137 of the Evidence Act, provisions to which no one at the trial appears to have directed their attention, at least in this context. 131 Whether the same result should occur at a retrial will depend upon an assessment of the position that each witness is likely to take at the time and of their reliability (a matter possibly capable of being tested on the voir dire), upon whether the defence requires either to be called, and upon its willingness to forego seeking against the Crown any Jones v Dunkel inference in the event that they are not called. 132   If in fact they are called at any further trial, then consideration will need to be given to the time at which the Crown seeks, and is given, leave to cross examine them; and if it is permitted to do so after they have first been cross examined by the defence, whether the defence should have further leave to cross examine them - the course approved in Milat, Hunt CJ at CL 23 April 1996 unreported. It will also be incumbent upon the trial judge to direct the jury that any lies told by them, or any attempt by Vikki Climpson to persuade Kevin Bell to tell lies, go only to the issue of their credibility as witnesses and cannot be used as a circumstance in support of the Crown case against the appellant, unless it is shown that he adopted what they did or encouraged them to that end. 133   This appears to have been entirely overlooked, and it reinforces the risk that their potentially unreliable and conflicting evidence was used to the disadvantage of the appellant. The absence of such a direction, in the context of the matters identified, in relation to this ground, risked a miscarriage of justice.

The Weissensteiner direction

134   Over the objection of the appellant, his Honour gave the jury a direction in accordance with the decision of the High Court in Weissensteiner (1993) 178 CLR 217. 135 The case was one in which the appellant (having been charged with the offence prior to 10 June 1994) had the choice of remaining silent, or giving evidence on oath, or giving an unworn statement. He chose the latter, but in his unsworn statement he did not canvass all of the matters that had been ventilated by witnesses in the Crown case. 136 In deciding to give a Weissensteiner direction, his Honour took as the ratio for that decision the proposition that, where facts are peculiarly within the knowledge of the accused, and he or she does not give evidence as to those facts, then the jury may be instructed that they might more comfortably accept the specific evidence tendered by the Crown in relation to those facts. 137   His Honour also had regard to the decision of Hunt CJ at CL In Milat 9 April 1996 unreported, to the effect that S 20(2) of the Evidence Act did not apply to a case where the accused had the right to make an unsworn statement, and that in such a case the nature of the comment that might be made was determined by the common law, unaffected by the section. 138 After a review of the authorities, and the particular circumstances of the present case, his Honour decided to give a Weissensteiner direction which he indicated would relate to those areas where, on his assessment, the appellant had not, in his unsworn statement, given a denial or explanation. They related to the following matters:

i) the time of his return home on the night of the shooting, a matter in respect of which his son had given evidence to the effect that he had not returned before the movie finished (at 11.08pm) - this was the subject of a contrary version by the appellant in his unsworn statement, it being his suggestion there that he had returned at 10.30pm, and had chatted to his mother for a while, although he made no mention of seeing the film or his son.

ii) the evidence Bradley Walsh had given in the first trial, concerning the presence of a .22 rifle which he had seen hidden under the pallet in the yard of the Moree premises about a week before the search on 19 September 1990, which was then moved into the house, and discovered by police under his bed - a matter which his Honour concluded had not been dealt with in the statement of the appellant (although its discovery by police was expressly acknowledged, being the subject of a specific comment by the appellant “I’ve never owned it, I’ve never fired it and I don’t know who owns it”), and which had been the subject of an assertion to police in the record of interview that it was owned by Bradley Walsh - a matter that was qualified by the admission during the trial that the appellant now knew that it was not owned by and never had been owned by that witness;

(iii) the evidence of Bradley Walsh, similarly led at the first trial, concerning the .357 Magnum that he had also seen at the house prior to the search, and which on his account had been brought there a few days before by “some bloke from the pub” - a weapon which was also the subject of evidence from Michael Clarke, Noella Harb and Detective Keen (the latter in relation to its discovery during the 19th September search). In this regard the appellant made some reference to this weapon in his statement (including an acknowledgment that it was found by police and a suggestion that one similar to it had been initially brought there by Lebanese relatives of his wife and later returned to them). On his Honour’s assessment, the appellant had not traversed or explained the specific evidence of those witnesses (the only explanation offered in the statement, concerning the two weapons, being that the appellant was “pretty dumb-founded by their discovery”).

(iv) the evidence of Mr. Clarke and of Inspector Parsons concerning the yellow cartridge box found in the freezer - a matter which was in fact the subject of an observation by the appellant in his statement to the effect that he did not recall having seen the box before, and that between the committal and trial there seemed to have been some change in its contents.

(v) the taped telephone conversation between the appellant and Noella Harb - as to which it is the fact that there was no mention in the statement of the appellant, or explanation, as to “what he meant” (ie why) he had endeavoured to stop any discussion about weapons and had suggested that the weapons had been “planted” by police when, in his interview, he had suggested that the .357 Magnum had been given to him by a truck driver.

139   In respect of each of these matters, his Honour concluded that a Weissensteiner direction should be given, despite having earlier acknowledged that there may well be circumstances where it would not be reasonable to expect an accused to offer an answer or explanation. Those he identified included situations where the defence was one of absolute denial; or where the Crown case was very weak and evidence led by it was lacking in cogency, or where an answer had been provided in an ERISP or statement made out of court. His Honour also acknowledged that the present may be a case where the appellant would have a legitimate reason to avoid giving evidence, and facing cross examination, because of the possibility that he was protecting his sister, or because of the possibility that he personally had been guilty of some other offence including hindering police or accessory after the fact. 140   The directions which were given in relation to these items immediately followed upon a direction as to the way the jury might approach the unsworn statement:

“There are a number of particular circumstances flowing from the election by the accused to make an unsworn statement in this case, to which I should draw your attention.”

The five items mentioned above were identified, and the relevant evidence of the witnesses in the Crown case concerning each was noted or read.

141   In relation to the first of those, ie the time of the appellant’s return home on the night of the shooting, his Honour observed:

“In determining whether the evidence of Adam Fowler should be accepted you may do so more readily, if you think it is appropriate, because the denial of that evidence by the accused has not been given on oath and has not been tested by cross-examination”.

142   As to the second, ie the evidence of Bradley Walsh concerning the .22 Stirling rifle, the direction given was somewhat different, namely:

“Now in relation to that evidence of Bradley Walsh, in determining whether the evidence of Bradley Walsh on that aspect should be accepted, you may do so more readily, if you think it is appropriate, because the denial of that evidence by the accused has not been made in his statement or in the case .”

143   As to the third, ie the evidence of Bradley Walsh, Michael Clarke and Noella Harb, the direction given differed yet again, namely:

“That evidence was attacked on behalf of the accused, when the witnesses who gave it were cross examined. In determining whether the evidence of those witnesses should be accepted, you may do so more readily if you think it is appropriate, because there has been no denial in the unsworn statement of the accused in relation to that matter. There is a denial of some of that evidence, but not all of that evidence.”

144   At this point, objection was taken to the directions, following which his Honour said to the jury:

“Members of the jury, after I told you about making an unsworn statement I reminded you of the specific evidence that you may take into account that has not been answered in the dock statement . I did not intend by that to emphasise or give specific importance to that evidence and I therefore propose to withdraw the direction that I was giving to you about that evidence in specific terms and specifically withdraw the direction I gave you after referring to the last three areas of evidence, Adam, Clarke, Harb and Keen, because the direction I gave did not correctly put to you the answer the accused gave to you in his unsworn statement .
I want you to look at the areas of evidence that I am now referring you to and I want you to look at it, however, in the light of the whole of the context of that witness’s evidence. I also want you to look at it in the light of the other evidence of that witness and in the light of the whole of the evidence, because it is on the whole of the evidence that you should rely.
Therefore, I have withdrawn the specific evidence I have read out and I want to now direct you that evidence by Adam Fowler of what happened on the night and the accused’s reply and the agreed facts. That evidence was attacked by the accused and, determining whether that evidence may be accepted, you may do so, if you think it is appropriate, because the denial of the accused has not been given on oath and not tested under cross-examination.
The evidence of the finding of the Stirling .22 calibre rifle, the evidence of Bradley Walsh should be accepted, you may do so if you think it is appropriate, because the denial of the evidence by the accused has not been given on oath and has not been tested in cross-examination, and in that respect I remind you of Bradley Walsh’s evidence.”
…
“I remind you then of the evidence given by Mr. Clarke, Noella Harb and Detective Keen concerning the Armi Jager, Ex Z and I want to say to you in respect of that evidence, there was no evidence given by the accused in his unsworn statement about the evidence of Walsh, but that he did agree, in part of his statement, about the weapons going out onto his property ... So he answered that in part in his statement .
… But I want to say in respect of three areas: that is Clarke, Harb and Keen, as I have qualified it, you may take into account the way in which the accused answered that in his unsworn statement in evaluating that evidence.”

145   His Honour then turned to the fourth item, the finding of the box of cartridges, and gave a direction as follows:

“….when determining whether the evidence of those witnesses should be accepted you may do so more readily, if you think it is appropriate, because the denial of that evidence by the accused have not been given on oath and has not been tested by cross-examination”

146   As to the fifth and final matter, the interrupted telephone conversation, his Honour directed the jury:

“In determining whether the evidence of the witness in relation to that evidence should be accepted, you may do so more readily, if you think it appropriate, because the denial of that evidence by the accused has not been given on oath and has not been tested in cross-examination”.

147   The directions given in relation to those matters were inconsistent; they were in my view confusing, as a result of the withdrawal and redirection that occurred after the first three items; and additionally they seemed to go beyond the objective sought to be achieved by his Honour, which was to invite the equivalent of a Weissensteiner direction in relation to those matters that had not been addressed in the unsworn statement, since in some instances (ie items (i) (iv) and (v) the direction was based upon the circumstance that the appellant had not given evidence on oath, whereas in other instances (ie items (ii) and (iii)), it was based upon the circumstance that the relevant matter had not been dealt with in the statement. 148   A further difficulty arose in that his Honour did not sufficiently identify what it was that the appellant had, in fact, said in relation to each item, it not having been the case (contrary to the underlying assumption), that the appellant had remained silent in his unsworn statement as to each matter. 149   The difficulty thus arising was compounded by the circumstance that when his Honour returned to the matter, he observed:

I … want to put to you, in relation to the direction I gave you about the areas that were not answered, or were only partly answered in his statement from the dock - and this was put to you by Dr Woods. I put it to you quite independently of that, that you should take into account the possible reason, the stress and the pressure that he has been under in the intervening nine years and four months, or seven months since the charge, and the fact of the length of time since the commencement of the proceedings and the number of proceedings involved as a possible reason. Those are matters you should take into account, in relation to the directions I gave you about those areas of the main case which, as I have said, you may more readily accept if you think appropriate, because the denial of the evidence by the accused has not been given on oath and has not been tested by cross-examination and has not been answered in any dock statement.”

150   This in my view risked adding even more confusion in view of the contrast between the opening and closing words of the direction, and by the combined reference in the closing words to the absence of a denial on oath or in the “dock statement” - the latter being itself an expression which would have been better avoided: Bell CCA NSW 31 May 1985 (although it may be noted that was a case decided in the context of the now repealed S 407 of the Crimes Act). 151 Moreover, it seems to me the directions given at this point fell into error so far as reasons were offered for the absence of a denial or explanation, none of which found support in the evidence. To have offered the specific reasons identified in this passage may have headed off other legitimate possibilities, including those which had been identified by his Honour, namely the possibility that the appellant would have wished to avoid cross examination because he was covering up for his sister or was guilty of some other offence. The proper direction would have been to advise the jury that there may be reasons why the appellant took the course he did, as to which they should not speculate. 152 Accordingly, even if the case were properly the subject of a Weissensteiner direction, concerning the selected matters, I would be of the view that the directions were confusing and deficient to the point where there was a risk of a miscarriage of justice. 153   Independently of these matters, I am not persuaded, upon the state of the law as it now has been declared by the High Court in RPS (2000) 168 ALR 729, and as it had been earlier declared by the Court of Criminal Appeal in OGD (1997) 45 NSWLR 744, and Bargwanna CCA NSW 15 June 1998 unreported, ie in the light of the special need for caution that had been noted by Gleeson CJ in OGD (at 752), that this was a case which was appropriate for a Weissensteiner direction. 154   Although RPS was a case which turned upon the proviso to S 20(2) of the Evidence Act, it is evident from para 22 of the joint judgment of Gaudron ACJ and Gummow, Kirby and Hayne JJ, that the striking down of the directions that had been given at trial, in that case, rested also upon “fundamental principles of the common law”, that were independent of S 20. 155 In their joint judgment attention was drawn to the mode of reasoning which had been identified in Burdett (1820) 4 B & Ald 95 (106 ER 873) and described by Windeyer J, in Jones v Dunkel (1959) 101 CLR 298 at 321, as “plain commonsense”. In relation to this their Honours observed (paras 25-28):

“25. It is necessary to keep at the forefront of consideration that the mode of reasoning which is described proceeds from the premise that the person who has not given evidence not only could shed light on the subject but also would ordinarily be expected to do so. That premise reflects a view of the kind held by Bentham that ‘between delinquency on the one hand, and silence under inquiry on the other, there is a manifest connection; a connection too natural not to be constant and inseparable’. (Bowring The Works of Jeremy Bentham (1838-1843) Vol 7 at 446) This view may now be open to some doubt or challenge, for example, in cases where someone of little confidence or experience is suddenly confronted by an accusation made by a person in authority. (Bagaric “The Diminishing ‘Right’ of Silence” 1997) 19 Sydney Law Review 366 at381-382) It is, however, not necessary to examine in this case whether the premise is an accurate reflection of human behaviour in some or all circumstances.
26. In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case ( Jones v Dunkel (1959) 101 CLR 298 at 321 per Windeyer J, and that ( Jones v Dunkel at 312 per Menzies J):
‘where an inference is open from facts proved by direct evidence and the question is whether it should be drawn the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.’
27. By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228 per Mason CJ, Deane and Dawson JJ) :
‘In a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.’
28. In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.”

156   It was made clear by the joint judgment that the premise for the direction, namely that it may be “reasonable … to expect some denial or contradiction to be forthcoming from the (appellant) if such a denial or contradiction is available” was wrong, and was contradictory to the “fundamental features of a criminal trial” (paras 32 to 34). In particular, it was noted there are many reasons, some cogent and some not, why an accused may not wish to give evidence, including the assessment that the evidence adduced by the prosecution does not prove the offence to the requisite standard. 157   Their Honours distinguished such a case from that considered in Weissensteiner, where guilt of the accused was to be inferred from the unexplained disappearance of the victims from their boat on a voyage which they had commenced with him, and from his possession of their boat and equipment. In those special circumstances, it was held that there was no error in a direction that the jury could more safely draw the inference invited by the prosecution “when the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge” (at 224). 158   Their Honours noted that Mason CJ, Deane and Dawson JJ had pointed out in Weissensteiner (at 228):

“Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused’s knowledge. Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.”

159   It remains possibly open to argument that a Weissensteiner direction should only ever be contemplated in a “smoking gun” case, or to a circumstantial case dependent on inference from proved facts, the innocent explanation for which might only reasonably lie in the mouth of the appellant. Whether that be correct or not it is difficult to see how the joint judgment would authorise such a direction in relation to the failure of an accused to answer, on oath, the testimony of a prosecution witness as to the specific facts, from which an inference is drawn. 160   So far as the decision in RPS turned upon considerations other than those related to the prohibition in S 20(2) of the Evidence Act, Callinan J, said (at para 111) in a passage which leaves little, if any life, in the Weissensteiner direction:

“There is no doubt that a direction in accordance with Jones v Dunkel may be given in respect of a failure by the Crown to call a material witness without acceptable and admissible explanation. The need for such a direction will usually be heightened by the Crown’s responsibility to present its case in a way which is fair to an accused. (see R v Apostilides (1984) 154 CLR 563) However, such a direction may not be given in relation to an accused person or an accused person’s witnesses who, if the matter were a civil trial, might be expected to be called. A direction with respect to a defence case, based upon Jones v Dunkel would not only infringe s 20(2) but also would erode the basic principle of the presumption of innocence. The principles stated in Jones v Dunkel by their very nature presuppose that there is a need, or an occasion, for evidence to be called by a party, or an expectation that evidence could and should be called by a party. An accused person in criminal proceedings labours under no such need, occasion or expectation.”

161   The conclusion of McHugh J concerning the permissibility of a jury being entitled, but not bound, to take into consideration that the accused has given no evidence denying or explaining a fact which is within his or her knowledge and which reasonably calls for an answer (at para 50), did not find favour with the other members of the Court, as a general proposition. 162   Similarly, his Honour’s observations that the existence of tactical reasons for not denying or explaining facts, provided an insufficient basis for a direction negating the significance of silence (at para 57), or that the “good reasons” for such a direction were likely to be few, were not ones which found favour with the remaining members of the Court. 163   In my view, it follows from the reasons of Gaudron ACJ, Gummow, Kirby and Hayne JJ and from the separate reasons of Callinan J, that his Honour was in error in regarding the case as appropriate for a Weissensteiner direction. The occasion for such a direction in my view must hereafter be confined to an exceptional case of the kind there involved, where the line of reasoning in question is compelling. 164   The present case was not to my assessment of that kind, particularly having regard to the circumstances that answers had been provided by the appellant in relation to at least some of the matters in his unsworn statement, that as to others his evidence could not have risen above a denial, and that tactical reasons were apparent to all as to why the appellant may have wished not to give evidence that were unassociated with fear of incriminating himself for the offence of murder for which he was on trial.

Unsafe and unsatisfactory verdict

165 In summary, it was put that the jury had obvious difficulty, as had the jury at the first trial, in coming to a decision. In each trial the verdict was returned after several days of deliberation, and after a number of questions had been asked by the jury. Otherwise the submission turned upon the time that had elapsed since the killing, the inability of the Crown to positively link any of the firearms, that had been identified as having been in the possession of the appellant, to the projectile or projectiles which caused the death of the deceased, the fact that the Crown relied to some extent on evidence adduced through cross examination of its own witnesses, pursuant to leave given under S 38 of the Evidence Act, and the fact that a number of witnesses appeared either to have had an interest to serve, or to have given inconsistent versions. 166 To some extent these matters overlap with the other grounds of appeal dealt with above. It was, however, fairly conceded by Counsel, on the appeal, that it could not be said that the verdict was one that could not be supported on the evidence received, even if that of Vikki Climpson and Bradley Walsh were to be ignored. 167 Upon my assessment of the evidence there was in fact a strong circumstantial case, despite the unusual circumstances relating to the nocturnal activities of the deceased, and relating to whatever it was that caused him to carry arms. It could not be said, in my view, that the jury ought to have entertained a reasonable doubt, so as to support a quashing of the conviction and the entry of a verdict of acquittal, in accordance with S 6(1) Criminal Appeal Act 1912, as that provision has been explained in Fleming (1998) 158 ALR 379 and Giam (1999) NSW CCA 53. The case is however, suitable for a new trial, by reason of the errors otherwise shown to have occurred.

CONCLUSION

168   Having regard to the Weissensteiner direction, and the manner in which lies were dealt with, the case is one where there was in my view a miscarriage of justice such as to attract S 6(1) of the Criminal Appeal Act 1912. 169 The orders I would propose accordingly, are:

1. Appeal allowed

2. Conviction and sentence quashed

3. New trial ordered.

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IN THE COURT OF
CRIMINAL APPEAL
No: 60351 OF 1997

WOOD CJ AT CJ
HULME J
BARR J

TUESDAY 23 MAY 2000

REGINA -v- FOWLER
JUDGMENT

170   HULME J: I agree with the orders proposed by Wood CJ at CL and, subject to what appears below, with His Honour’s Reasons. 171   I do not find it necessary to consider whether the instant case was one appropriate for a Weissensteiner direction (Weissensteiner v R (1993) 178 CLR 217) ought to embark on a consideration of what the High Court decided in that case or in RPS v R (2000) 74 ALJR 449. 172 The faults adverted to by Wood CJ at CL in the terms of the Weissensteiner direction made by the trial judge and in His Honour’s directions concerning lies are sufficient to persuade me that there has been a miscarriage of justice.
IN THE COURT OF
CRIMINAL APPEAL

60351/97

WOOD CJ at CL
HULME J
BARR J

Tuesday, 23 May 2000

REGINA v Geoffrey Warwick FOWLER

JUDGMENT

173   BARR J: I agree with Wood CJ at CL.

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