R v Glastonbury - [2012] SASCFC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GLASTONBURY
[2012] SASCFC 141
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Stanley)
20 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IRREGULARITIES IN RELATION TO JURY - OTHER CASES
Appeal against conviction - appellant convicted of three counts of aggravated robbery and one count of attempted aggravated robbery.
Juror alleged that an interaction between a Sheriff's officer and another juror, in respect of the appellant's height, took place - whether the Court can be satisfied that the jury would have returned the same verdict in the absence of the irregularity.
No logical conclusion could have been drawn as to the appellant's guilt from the assumed interaction - the jury would not have reached a different verdict had the interaction not occurred - this ground of appeal is dismissed.

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - ACCOMPLICES - GENERALLY
The trial Judge erred by failing to warn the jury that they should scrutinise the evidence of the witness, Evans, with care should they consider her to be an accomplice - it was a further error to direct the jury that her evidence was capable of corroborating the evidence of Howell, an accomplice - the evidence of one accomplice is not able to corroborate the evidence of another - this ground of appeal is allowed.

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - MISCELLANEOUS MATTERS - ALIBI
Whether the trial Judge erred in allowing the tender of an alibi notice by the Crown - on the premise that the notice was not admissible to prove a consciousness of guilt, the notice should not have been tendered, and the jury should have been directed to ignore the evidence of the Crown witness called to rebut the alibi - this ground of appeal is allowed.
Held: The proviso is not applicable in this case - the appeal is allowed, the convictions are quashed, the matter is remitted to the District Court for a retrial.
Criminal Law Consolidation Act 1935 (SA) s 246, s 285C, s 353, referred to.
R v K (2003) 59 NSWLR 431; R v Skaf and Anor (2004) 60 NSWLR 86; Davies v Director of Public Prosecutions [1954] AC 378; R v Turnbull (1985) 17 A Crim R 370; The King v Baskerville [1916] 2 KB 658; R v Webbe and Brown [1926] SASR 108; The Queen v Rigney (1975) 12 SASR 30, applied.
Tan Seng Kiah (1999) 106 A Crim R 276; Vaise v Delaval (1785) 99 ER 944; R v Minarowska and Koziol (2004) 60 NSWLR 86; R v Bates [1985] 1 NZLR 326; R v Gillespie New Zealand, Court of Criminal Appeal, 7 February 1989, unreported; R v Softley (1999) 206 LSJS 48; R v Emmett; R v Masland (1988) 14 NSWLR 327; Khan v R [1971] WAR 44; R v Edwards [2007] SASC 202; R v Parsons; R v Stocker (2004) 145 A Crim R 519; R v Cox (1986) 24 A Crim R 434; The Queen v Jacquier [1979] 20 SASR 543; Kelleher v The Queen [1974] 131 CLR 534; Killick v The Queen [1981] 147 CLR 565; R v Bartels (1986) 44 SASR 260; R v Henstridge & Ors (1998) 198 LSJS 147; Weiss v The Queen [2005] 224 CLR 200; Wilde v The Queen [1987-1988] 164 CLR 365, considered.

R v GLASTONBURY
[2012] SASCFC 141
Court of Criminal Appeal: Kourakis CJ, Sulan and Stanley JJ

KOURAKIS CJ: I agree with the reasons of Sulan J. I would quash the convictions and order a retrial.
SULAN J: This is an appeal against conviction. On 27 April 2012 the appellant, Luke Glastonbury, was convicted by a jury of three counts of aggravated robbery and one count of attempted aggravated robbery. The appellant appeals the convictions on the basis that the trial miscarried due to an alleged interaction between a sheriff’s officer and a juror. Further, that the trial Judge erred by failing to warn the jury that they should scrutinise the evidence of a witness, Sarah Evans, with care. Finally, that the trial Judge erred by failing to direct the jury that the alibi notice ought to be ignored.
Background to offending
Count 1
The appellant was jointly charged with a co-accused, Shane Howell, with one count of aggravated robbery. Howell pleaded guilty to this count. He gave evidence at the trial.
The offending the subject of count 1 related to a robbery occurring at the Elizabeth Vale Post Office on 8 November 2010. One offender was in possession of a firearm, the other in possession of a crossbow. Discussions as to the appellant and Howell’s intent to undertake the robbery were said to have occurred in the presence of Sarah Evans, the ex-girlfriend of Howell, and Jasmine Yeates, the girlfriend of the appellant. This took place at a residence leased by Yeates and Evans at Wilkins Road, Elizabeth Downs (‘the Wilkins Road premises’).
Howell described the clothes allegedly worn by him and the appellant. He said the appellant loaded a crossbow into the car before leaving. He said they then went to Howell’s home where Howell picked up a green jumper, a balaclava, a glove and a firearm. He described the robbery at the Elizabeth Vale Post Office, and identified himself and the appellant in the CCTV footage shown to the jury. Howell gave evidence that they drove back to the Wilkins Road premises where in the presence of Yeates and Evans they tipped the money onto the kitchen table and divided it. Howell said he then sold the firearm to Glastonbury.
Evans’ evidence largely supported that of Howell. She said she saw the appellant producing the crossbow before leaving. She recounted their return and the emptying of the green shopping bag onto the table.
Circumstantial evidence relied upon included the discovery of a grey billabong jumper seen on the CCTV footage and seized by police at the Wilkins Road premises. This revealed a DNA profile of Talbot, an associate of the appellant. Secondly, a crossbow, baseball cap and Foodland carry bag all seen on the CCTV footage matched similar items recovered by police at the Wilkins Road premises. Further, items seized from the room occupied by Yeates and the appellant at a house in Red Cliffs, Victoria, included a firearm in a sock, said to be similar to the one seen on the CCTV footage, a similar red and green shopping bag seen in the footage, and ammunition in a box fitting the description of what was said to have transferred from Howell to the appellant.
The appellant was convicted on this count.
Count 2
The appellant was jointly charged with Howell of attempted aggravated robbery. Howell pleaded guilty to this count also. The offending related to the attempted robbery of the Elizabeth East Post Office at 1pm on Tuesday 9 November 2010, one day after the offending the subject of count 1. The intent to rob was frustrated by the owner and employee retreating into a locked room and raising the alarm. Howell gave evidence detailing the offence.
Evans gave evidence in respect of preparatory conduct she observed, and discussions overheard in respect of the Elizabeth East Post Office by the appellant and Howell. She further detailed the return of the co-accused and the appellant, their expressions of disappointment at their failed efforts, and the appellant’s determination to carry out another robbery immediately.
Circumstantial evidence adduced by the prosecution included the observation of a grey hooded top on the CCTV footage, similar to that seized by police, observation of the similar firearm from the footage, and the discovery of an extendable baton and Foodland shopping bag at the Wilkins Road premises. Further, testimony from a witness who said she saw a man running past her shop in a balaclava carrying a bright green and red shopping bag.
The appellant was convicted on this count.
Count 3
In respect of count 3, the appellant was jointly charged with Jasmine Yeates of aggravated robbery of the Blockbuster Video Store on Philip Highway at 8pm on Tuesday 9 November 2010.
It was alleged that a disguised man with a gun entered the video store, robbing the operator of $300 or $400, in a ‘Monsters Inc’ DVD cover.
The trial Judge outlined the circumstantial evidence in respect of this count in great detail, which need not be repeated here.
The appellant was convicted. The co-accused, Yeates, was acquitted.
Count 4
In respect of count 4 the appellant was charged with aggravated robbery of the Greenwith Post Office on 10 November 2010, when a disguised man with a firearm entered the post office and robbed Peter Pellone and his wife of approximately $1,000.
The police were unable to locate the appellant at addresses associated with him from 10 November 2010. On 9 December 2010 the appellant and Yeates were apprehended by Victorian Police at premises in Red Cliffs. Police located a red and green shopping bag, firearm, ammunition and balaclava, in the bedroom occupied by the appellant and Yeates. The balaclava, firearm and shopping bag all matched items used by the alleged offenders in the robberies. Further evidence included observation on the CCTV footage of a red and green shopping bag, as well as the getaway car found to have papers in the vehicle, addressed to the appellant with his palm prints. This car was registered to Yeates.
The appellant was convicted of this count.
The alleged conduct of a Sheriff’s Officer
Counsel for the appellant submits that the trial miscarried due to an interaction between a juror and a Sheriff’s Officer, said to have occurred in the jury room. The detail of the alleged interaction became known to the Senior Sheriff some days after the verdict had been given. An application to appeal alleging improper contact with the jury was granted. At the hearing of the application, the Judge directed the Senior Sheriff to make a number of enquiries of jurors.
Upon the appeal hearing, a juror who shall be referred to as RS, was called by this Court. RS gave evidence that she had a conversation with a Sheriff’s Officer about the appellant, Glastonbury, during an adjournment between the end of closing submissions and prior to the commencement of the summing up. She says that this had occurred whilst two or three of the other jurors were in close proximity. She says she asked the Sheriff’s Officer how tall the offender was. The Sheriff’s Officer then responded:
‘I really should not be saying this…he was this tall.’
RS indicated that the Sheriff’s Officer gestured by raising her hand just a bit higher than her own head. There was also suggestion that the Sheriff’s Officer may have indicated that the height of the accused was approximately 6 foot.
The Senior Sheriff then spoke to two of the jurors said to be in close proximity to the interaction. As far as they both could recall, they did not observe any comments, actions or interactions by any of the sheriff officers with them at any time, regarding identification of the accused, or anything to do with the trial.
On appeal, the Director of Public Prosecutions concedes that it was possible, if not probable that such a conversation took place. He does not seek to dispute the evidence. The Court determined to consider the appeal on the assumption that contact took place, as stated by the witness. The Court decided it was unnecessary to embark on a detailed enquiry about the communication, as alleged.
Section 246 of the Criminal Law Consolidation Act 1935 (SA) makes it an offence to publish, solicit or obtain protected information. ‘Protected information’ is defined as follows:[1]
(a)Particulars of statements made, opinions expressed, arguments advanced and votes cast by members of the jury in the course of their deliberations, other than anything said or done in open court; or
(b)Information that identifies, or is likely to identify, a person as, or as having been, a juror in particular proceedings.
[1] Criminal Law Consolidation Act 1935 (SA) s 246(11).
‘Publish’ is defined as:[2]
Communicate or disseminate the information in such a way or to such an extent that it is available to, or likely to come to the notice of, the public or a section of the public.
[2] Criminal Law Consolidation Act 1935 (SA) s 246(11).
There is an exception in the case of disclosure of protected information to a Court.[3] The absence of any prohibition enables the matter to be investigated by this Court.
[3] Criminal Law Consolidation Act 1935 (SA) s 246(5).
The question in this case is whether there has been a sufficient irregularity resulting from the assumed interaction to render the trial unfair to the accused. The question is whether the Court can be satisfied that the irregularity has not affected the verdict, and that the jury would have returned the same verdict if the irregularity had not occurred.[4] In Tan Seng Kiah Riley J remarked:[5]
The test which will ultimately be applied by the court to determine whether the conviction ought be quashed and a new trial held, is whether the incident was of such a character that, if the verdict is allowed to stand, justice would not appear to be done or that the incident was likely to give rise to a reasonable suspicion concerning the fairness of the trial.
[Citations omitted].
[4] R v K (2003) 59 NSWLR 431, R v Skaf and Anor (2004) 60 NSWLR 86, [242].
[5] (1999) 106 A Crim R 276, [19].
It is well established that a court will not receive evidence from former jurors as to their deliberations in the jury room. In Vaise v Delaval,[6] affidavits of two jurors were sought to be tendered before the court alleging the jury had been divided in their opinion, and thus ‘tossed up’ to determine who ought to win. Mansfield CJ observed:[7]
The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanour; but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some other means.
[6] (1785) 99 ER 944.
[7] (1785) 99 ER 944, 944.
This rule is based on considerations of public policy. It seeks to promote the full and frank discussion amongst jurors, ensures the finality of the verdict, protects jurors from harassment, pressure, censure and reprisals, and further, maintains public confidence in juries.[8]
[8] R v Skafand Anor (2004) 60 NSWLR 86, [211].
There is, however, no blanket exclusion of evidence of matters extrinsic to jury deliberations directed at establishing a miscarriage based on jury misconduct or the consideration of material not admitted into evidence. In R v Minarowska and Koziol Gleeson CJ summarised the position:[9]
A distinction has been drawn between evidence, first-hand or hearsay, as to the deliberations of a jury, and evidence, sometimes described as relating to “extrinsic matters”, which proves a material irregularity in the proceedings. Thus, for example, it is permissible to lead evidence to show that inadmissible and prejudicial material of an evidentiary nature was sent into a jury room and was available to be considered by the jury, or that a sheriff’s officer wrongly intruded into the jury’s deliberations and expressed a view that the accused were guilty, or that a jury bailiff suggested to a jury that an accused had previous convictions, or that a juror was drunk, or could not speak English, or refused to participate in deliberations.
[Citations omitted].
[9] (1995) 83 A Crim R 78, 85. See also R v Emmett; R v Masland (1988) 14 NSWLR 327.
The evidence of RS is admissible. The evidence neither touches on, nor reveals, a positive or negative impact of the extraneous material upon the jury’s deliberative process. It is within the ambit of extraneous material considered to be admissible that is contemplated by the authorities.
Fundamental to a criminal trial by jury is the notion that a jury is to determine guilt or innocence only on the basis of evidence properly presented to them in the course of the trial. In R v Skaf and Anor[10] the appellants appealed their convictions on the basis that the trial had miscarried by reason of an irregularity in the conduct of two jurors prior to the verdict. Whilst the jury were considering their verdict and had retired for the day, the foreperson of the jury, along with one other juror, visited the park where the alleged offending was said to have occurred. The two jurors assessed lighting and visibility by conducting tests with each other for approximately 15-20 minutes.
[10] (2004) 60 NSWLR 86.
An issue arising in the case was whether the complainant had correctly identified one of the accused as the man who had first sexually assaulted her at the park, and who was present assisting when the second unidentified man did so. The adequacy of the lighting where the alleged assaults took place was clearly relevant.
The Court admitted the evidence of the foreperson on appeal, as the evidence was extrinsic to the jury’s deliberations. The Court observed:[11]
Rather, the characterisation of the proven incident is that some (at least) of the jury had regard to information that was not evidence in the trial, or otherwise properly put before them by the judge to the knowledge of the parties. Such information as the jurors obtained was not evidence and it was obtained in circumstances amounting to a want of procedural fairness (denial of natural justice) in that the accused were unable to test the material, comment upon it or call evidence to rebut or qualify it. The Court needs to weigh the possible prejudicial impact of this extrinsic information upon the minds and deliberations of (at least) the two jurors directly involved.
[11] (2004) 60 NSWLR 86, [241].
In R v Bates,[12] the New Zealand Court of Appeal considered that the test for a miscarriage depended upon whether there were reasonable grounds for suspecting that the verdict may have been affected by an extraneous influence. Eichelbaum J said:[13]
On the present facts the yardstick of reasonable suspicion is amply satisfied. The jurors concerned would not have made the inquiries they did had they not thought the matter important; and having obtained the information there is we think at least reasonable suspicion that they acted upon it, notwithstanding the usual direction that they were to reach their verdict only upon evidence given in Court.
[12] [1985] 1 NZLR 326.
[13] [1985] 1 NZLR 326, 329.
This decision was followed in R v Gillespie[14] where the foreman of the jury had visited the relevant scene of the alleged offence. The Court of Appeal was satisfied that the foreman’s enquiries may have influenced the verdict.
[14] New Zealand, Court of Criminal Appeal, 7 February 1989, unreported.
The Court in Skaf considered that the impact of the juror’s visit to the park had to be weighed against the issues fought at trial and the evidence led in relation to them. After considering the evidence as to identification, the Court could not be satisfied that the irregularity did not affect the verdict or that the jury would have returned the same verdict if the irregularity had not occurred. In the Court’s view, the juror had treated what was seen and done at the park as information that he took into account at arriving at or confirming his conclusion that guilt had been established beyond reasonable doubt.
A similar issue arose in R v Softley,[15] where an appellant successfully overturned his conviction for taking part in the manufacture of amphetamine. A field receipt outlining an amount of money found as well as the finding of four chemicals was marked for identification but never tendered. The document was inadvertently sent into the jury room with the tendered exhibit.
[15] (1999) 206 LSJS 48.

Doyle CJ concluded that the jury might well have reasoned that the white powder in the bag was amphetamine, and that it was relevant and significant evidence against the accused, Softley. He noted that the jury had material before them likely to be used adversely to the accused Softley which had never been put in evidence, and was not the subject of a direction as to the manner in which it might be used. It followed, therefore, that an error of law or substantial irregularity had occurred. He considered that the verdict must be set aside unless the court was satisfied that even if this material had not been put before the jury, the jury would have returned a verdict of guilty, and that the irregularity could not have affected the verdict. Doyle CJ was of the view that the demanding test could not be met, setting aside the verdict on this basis.
Turning now to the circumstances of this case, one must consider the nature of this irregularity.
At trial, other than with respect to count three, witnesses to each of the incidents the subject of the charge were asked about the height of the offenders. Unsurprisingly the estimates varied, ranging from approximately five foot eight inches, to six foot three inches. The evidence as to height from various witnesses in respect of count 1 is as follows:
·Vladimir Stupovski (victim) – Unable to estimate the height of either offenders.
·Joshua Worden (customer) – Describes the offender carrying the crossbow as between 5’8’’ and 5’11’’, and the other as 6’.
·Patricia Shaw (bystander) – Describes both offenders as roughly 5’10’’.
·Damien Norton (bystander) – Unable to recall heights and unable to recall telling police that they were exactly the same height. He agrees, however that this is in his statement.
·Timothy Crook (observed car drive away) – Describes observing that the stockier man was shorter than the other one.
·Brendan Furey (bystander) – Describes the height of the offender with crossbow as approximately 5’8’’ and other offender as being shorter.
·Katrina Pearce (saw males in car) – Unable to recall height.
The evidence as to height from various witnesses in respect of count 2 is as follows:
·Dawn Hosking (victim) – Describes offenders as being around the same height, approximately 5’9’’ or 5’10’’.
·Michael Falkenberg (bystander) – Estimates the height of offenders to be just under 6’, with one being slightly shorter than the other.
·Joanne Gospel (nearby shop owner) – Estimates that one offender was 6’3’’ and the other around 5’10’’.
·Nick Stavrides (delivery driver) – Describes man wearing balaclava to be 5’10’’ to 5’11’’. He later describes the other offender as two or three inches shorter.
No evidence as to height was given in relation to count 3. In relation to count 4, the following evidence was given as to height:
·Stacey Johnson (customer) – Estimated the height of the offender to be approximately 5’8’’.
·Vanessa Dymott (bystander) – Estimates height to be 6’ at a stab.
Additionally, Shane Howell, the accomplice, gave evidence that the appellant is a few inches shorter than himself, and slimmer. He said that to his knowledge, his own height is approximately 180cm.
The issue of height was not canvassed in any great detail in the closing address of the prosecutor, other than to say the following:
You might think that questions about height, build, 5'10'', 5'6'', stocky, medium, you might think those descriptions elicited from witnesses are also in the category of very limited assistance to you, because when all is said and done, you might consider that the images that you are looking at and the descriptions of the offenders that you are considering don't contain any distinctive descriptor about height or build, so picking through descriptions about height and build are of very limited assistance to you because this is not a case in which you are looking at footage of a person or people who have obviously distinctive heights, relative heights, to one another and builds. It's just in the category of neutral, not all that helpful to you, and certainly way less helpful as an objective fact than comparing firearms you see, bags that you see, clothing that you see, which are exhibits in this trial.
Counsel for the appellant referred to aspects of the height of the offender or offenders when summarising the evidence. Further, the following was said:
There was variation in the ranges of ages given by the witnesses, and in the height of the two robbers. This is no criticism of the witnesses. I encourage you all to view very carefully the CCTV footage of the incident.
It was never suggested that any description was inconsistent with the appellant’s height, or that any reasonable doubt was created in respect of the prosecution case, as a consequence of this aspect of the evidence.
Further, the issue of height was not referred to by the Judge in summing up the case to the jury. No reference was made to any of the evidence that had been given as to the height of either of the offenders. No complaint has been made about the absence of any reference to height in respect of the summing up.
Counsel for the appellant submits that the communication made by the Sheriff’s Officer in respect of height had the potential to influence the jury to arrive at verdicts against the appellant. It is contended that a reasonable suspicion about the fairness of the trial has been raised. It is submitted that in light of the issue of identification of the appellant from CCTV footage being central to the trial, the interaction about height impinges upon the appellant’s right to a fair trial. Counsel argues that this interaction ought not to be classified as minor or trivial in nature.
Counsel for the appellant referred the Court to R v Emmett; R v Masland,[16] a case in which positive findings were made that two jurors were influenced by communications from a sheriff’s officer. Enderby J relevantly observed: [17]
The only influence permitted is that which flows from the evidence given in open court, the addresses of counsel given in open court and the summing-up of the judge given in open court. It is the antithesis of our jury system that covert extraneous influence be presented to a jury or be seen to be presented to a jury. ...
[16] (1988) 14 NSWLR 327.
[17] (1988) 14 NSWLR 327, 338.
In Emmett, evidence suggested that a sheriff’s officer wrongly intruded into the jury’s deliberations, took part therein, put pressure upon the jury to arrive at a verdict, and further, expressed a view as to the guilt of the accused. The court found that the fundamental consideration was that it had been shown that the sheriff’s officer did interfere directly in the jury’s deliberations, and that that conduct did influence the resulting verdict.
Counsel for the appellant further relies on the decision of this Court in R v Edwards[18] where an appeal against a manslaughter conviction was upheld. The jury in Edwards had viewed CCTV footage containing an incorrect display as to time, resulting in the jury labouring under an incorrect factual matrix, crucial to the accused’s self-defence claim. The Court found that material which had been received by the jury was revealed to be factually incorrect only at a later stage. The situation was not rectified. The Court considered that the case was left to the jury in an unsatisfactory manner. It therefore followed that the appeal ought to be allowed.
[18] [2007] SASC 202.
It is the submission of counsel for the appellant that likewise to the cases of Softley and Edwards, the jury proceeded on factually incorrect material. That is, a material irregularity arose by reason of the misinformation provided by the Sheriff’s Officer as to the accused’s height; his height being a significant question in determining his identity from the CCTV footage. The co-accused, who is said to be five foot 11 inches tall, gave evidence that the appellant was a few inches shorter than he was. The CCTV footage shows the offenders to be approximately the same height. Further the Sheriff Officer’s indication of the accused’s height was six foot. The suggestion is, therefore, that the Sheriff’s Officer’s statement would have tended to suggest that the appellant was about the same height as the co-accused, in accordance with the CCTV footage, not a few inches shorter as suggested by the co-accused. No evidence as to the appellant’s height was before the jury. His height is said to be approximately five foot eight inches, to five foot nine inches. Counsel suggests that the opinion of the Sheriff’s Officer was more favourable to the Crown Case than the evidence of the co-accused himself.
It is to be accepted that the interaction between the Sheriff’s Officer and the juror in the jury room ought to be considered a material irregularity. The question that then arises is whether despite this irregularity, the Court can be satisfied that the same verdict would have been returned.
In Softley[19] the evidence allowed into the jury room was capable of suggesting that the accused person had been in possession of methylamphetamine in relation to a trial relating to the manufacture of methylamphetamine for sale. Other evidence that the accused had been in possession of amphetamine had previously been excluded by the trial Judge. Further, the trial Judge in his summing up had indicated that though they should discount the evidence of the amphetamine as supporting evidence in the case against Softley, if the co-accused had not pleaded guilty, the evidence would have been strong evidence of his involvement. It could therefore be considered to be a significant piece of evidence in the mind of the jury.
[19] (1999) 206 LSJS 48.
Furthermore, in Emmett,[20] the sheriff officers’ involvement said to have occurred can be characterised as far more direct, and intrusive, than the alleged interaction here.
[20] R v Emmett; R v Masland (1988) 14 NSWLR 327.
When one considers the circumstances of the appellant in this case, the extent to which the interaction had the potential to influence the deliberations of the jury in any meaningful way is questionable. The issue of height must be relevant, generally, to being able to identify the offender, a central issue in the trial. Nevertheless, the trial Judge’s summing up did not contain any reference to the height of the offenders, notwithstanding the evidence given by various witnesses on this point. The absence of any reference is not complained of. The evidence as to height varied between witnesses, with some unable to identify height, others suggesting that the appellant was shorter than the co-accused, and vice versa. Some witnesses gave evidence consistent with the evidence of the co‑accused.
No suggestion was put that the co-accused, Howell, was wrong in terms of the appellant’s height being slightly shorter than his, nor was a suggestion put that either the CCTV footage or the evidence of the witnesses as to height excluded the appellant from their considerations. In a sense, counsel for the appellant suggests that the evidence of the co-accused as to the appellant’s height should be accepted, but his evidence of the appellant’s involvement ought not to be.
Consideration must also be given to the issue of height in light of the nature of the Crown case as a whole. I have already outlined the direct and circumstantial evidence relied on, in respect of each count at paragraphs [7], [11] and [38].
The interaction between the Sheriff’s Officer and juror was unfortunate. As has already been observed, the jury is to proceed only on evidence they hear inside the Courtroom. Nevertheless, the description of the alleged offenders varied to such an extent that no logical conclusion could have been drawn as to the appellant’s guilt from the evidence given as to height. Assuming that the description of ‘6 foot’ was given by the Sheriff’s Officer, this would only continue to place the appellant in a range of estimated heights of the offenders, given by the various witnesses.
It is a tenuous inference to draw to say that the prosecution case received strength from the interaction. I am satisfied that the jury would not have reached a different verdict, had the interaction not occurred. Further, it is neither helpful nor relevant in these circumstances to invite any discussion into whether the interaction might have in some way influenced the actual deliberations of the jury. No miscarriage of justice has arisen sufficient to warrant the setting aside of the verdict.
I would dismiss this ground of appeal.
An accomplice warning
Counsel for the appellant submits that the trial Judge erred by failing to direct the jury that Sarah Evans might be considered to be an accomplice. If the jury so decided, then the Judge failed to warn the jury that they should scrutinise the evidence of the witness, Sarah Evans, with care.
Evans was present during discussions between Howell and the appellant in respect of the first robbery, and observed the appellant producing a crossbow from under the bed. She was present when they returned from this offending and divided the money. She gave evidence that upon returning home Howell threw the firearm into her lap, and then took it back, wiped it, and put it into a sock.
Furthermore, Evans was present prior to the second lot of offending where she overheard discussions in relation to the Elizabeth East Post Office. She spoke of their return after the failed robbery and of the appellant expressing a desire to commit a further one.
These interactions all took place in the house of Evans and Yeates which they shared together.
The question that then arises is whether an accomplice direction and consequent warning ought to have been given. It should be noted, however, that in some circumstances those who fall short of being an accomplice might still attract a warning.
It is well established that the question as to whether a witness is an accomplice or not is a question of fact and one that should be left to the jury.[21] In some cases, it will be clear that a witness is an accomplice by reason of their own confession to participation, a plea of guilty, or conviction. Where it is unclear, a judge may rule that there is no evidence that the witness was a participant. Alternatively, there may be evidence on which a jury may find that a witness was a participant. In Davies v Director of Public Prosecutions Lord Simonds observed:[22]
In such a case the issue of “accomplice vel non” is for the jury’s decision: and a judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so.
[21] Davies v Director of Public Prosecutions [1954] AC 378, 387; R v Turnbull (1985) 17 A Crim R 370, 374-5, 377.
[22] [1954] AC 378, 402.
An accomplice warning is mandatory where there is evidence on which a reasonable jury could, on the balance of probabilities, hold that a witness was an accomplice. There is some controversy as to the question of who holds the onus, if any exists, where there is doubt as to whether a particular witness is an accomplice.
In R v Turnbull[23] the appellant submitted that the Crown has the onus to establish beyond reasonable doubt that the relevant person is not an accomplice. Support for this proposition was drawn from an article by Heydon J in [1973] Crim L R 264, 268 where he observed:
In English law the rule is that the Crown has the burden of proving beyond a reasonable doubt that the witness is not an accomplice. If he is being jointly tried with the accused, the Crown can hardly maintain that he is not an accomplice. If he is a prosecution witness, the jury should be warned of the appropriate dangers unless they are satisfied beyond a reasonable doubt that the witness is not an accomplice. Some jurisdictions put the onus on the accused, but this seems unsatisfactory as an anomalous exception to the general common law rule that the burden of proof rests on the prosecution.
[23] (1985) 17 A Crim R 370.
Kelly SPJ in Turnbull, referred to the observations of Burt J in Khan v R[24] where it was noted that when a question arises as to whether a particular witness is or is not an accomplice, it is to be decided by the jury in the affirmative if they so find on the balance of probabilities. Further, that the burden of proving the witness to be an accomplice is upon the party alleging it for the purpose of invoking the rule, namely, the accused and that the jury need only believe this by the preponderance of evidence. Kelly SPJ agreed with these propositions. Williams J considered that the onus was also on the accused to prove that a witness was an accomplice, with the jury having to be satisfied of this on the balance of probabilities. Despite this finding, Williams J went on to observe the following, which I consider apposite to this case:[25]
Innumerable cases support the proposition that it is a sufficient direction for the judge to say to the jury that the question whether or not the witness is an accomplice is a question for them, to be decided to their satisfaction on the evidence, or words to that general effect. In my view, it would be adding unnecessarily to the complexity of a summing up if a judge was required to direct a jury in any greater detail of this particular case.
[24] [1971] WAR 44.
[25] (1985) 17 A Crim R 370, 394.
In R v Parsons; R v Stocker[26] Buchanan JA noted the tension existing between the two schools of thought. He observed that it was not the practice of trial Judges in Victoria to direct juries that there is an onus lying on a party to prove or disprove that a witness is an accomplice or that such an issue is to be resolved by the application of a particular standard of proof. He went onto remark that there was academic support for the proposition that where the question arises, the Crown is obliged to prove beyond reasonable doubt that a witness is not an accomplice, and on the other hand, there are judicial statements that it is for the accused to prove on the balance of probabilities that a witness is an accomplice.[27]
[26] (2004) 145 A Crim R 519, [22].
[27] Khan v The Queen [1971] WAR 44; R v Cox (1986) 24 A Crim R 434; R v Turnbull (1985) 17 A Crim R 370.
In my view, a jury need not be concerned with who bears the onus of proof. It is enough for them to be satisfied that there are reasonable grounds to believe that the witness is an accomplice.
The question that ensues is whether there was or was not evidence on which a reasonable jury could have found that the witness, Sarah Evans, was a participant in the crimes with which the appellant was charged. If so, the trial Judge was required to have given an accomplice warning.
The need for an accomplice direction is founded in the danger that an accomplice will minimise his or her own role in a crime, and falsely inculpate or exaggerate the role of the accused. Before such a direction is required, it must be shown that the jury could conclude that the person alleged to be an accomplice possibly participated in a criminal sense in either the crime charged against the accused or some other crime alleged to have been committed by the accused which is admissible in proof of the crime charged.[28]
[28] Davies v DPP [1954] AC 378, 400.
In determining who is to be deemed an accomplice, this Court has referred to the test formulated in Davies[29] where the House of Lords defined accomplices to be persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours). The term was extended to include two further categories which are not relevant for our purposes.
[29] [1954] AC 378, 400.

In The Queen v Jacquier Walters and Wells JJ considered further the circumstances in which a witness may fall within the category of an accomplice:[30]
Admittedly, a witness who has not been put on trial in respect of the offence charged may fall within the category of an accomplice, if by actions and gestures intended to signify approval, he has given assistance and active encouragement to the principal offender though he has taken no positive or active step in the commission of the offence. Nevertheless, as Jacobs J. observed in Reg. v. Rigney, mere presence as a spectator, or “even an inferred intention to encourage the conduct is not sufficient” to make a person an accomplice, in the absence of evidence of actual encouragement. … Mere inaction of a spectator to prevent an offence from occurring would not constitute him an accomplice.
[Citations omitted].
[30] [1979] 20 SASR 543, 551.
I turn now to whether there was sufficient evidence for the trial Judge to direct the jury as to whether Evans’ evidence needed to be approached with care.
Evans gave evidence that she was in a relationship with Howell from 2008 to 2010. Evans and Howell had previously resided together, and have a three-year-old daughter together. At approximately the end of September 2010 after the relationship broke down, Evans moved to a residence with Yeates. This is the Wilkins Road premises. Evans had known Yeates through Howell and another acquaintance, and had been friends with her for approximately three years.
Evans said she first met the appellant when he came over to their house. Approximately one week after this first meeting she observed him and Yeates to be in a relationship.
Evans gave evidence that approximately three weeks after she had moved into the house with Yeates, an acquaintance of the appellant, Jason Talbot, brought to the house a crossbow. The crossbow was then placed by Talbot under Yeates’ bed. Evans said she never touched the crossbow.
Evans gave evidence that on 8 November 2010, Howell appeared at the Wilkins Road premises wanting to speak with the appellant. After speaking with each other outside, Evans said that the appellant told her and Yeates that they were ‘going to do over the Vale post office’. They searched for clothes in the bedroom, and the appellant then came out wearing a grey Billabong hooded jumper. This was a jumper belonging to Talbot. They then obtained a green shopping bag, and retrieved the crossbow from underneath Yeates’ bed.
Evans gave evidence that before leaving the house, she overheard conversations between Howell and the appellant as to the selling of a gun from Howell to the appellant. At that time, the gun was said to be in Howell’s car.
Evans said that half an hour later Howell and the appellant returned home. The appellant emptied the green shopping bag that he was carrying on the table, from which money fell out. They counted the money and divided it, with Howell given his share, as he had sold the gun to the appellant. Following this, Evans said Howell pulled the gun out of his pants and threw it in Evans’ lap. This was the first time Evans had seen the gun. Howell then took it back from Evans, wiped it with a sock, and placed it into the sock. This was then put in Yeates’ room.
Evans gave evidence that later that afternoon or evening she went with the appellant, her baby and Yeates in Yeates’ car to the appellant’s uncle’s house, and then to the appellant’s mother’s house, where he gave them both money.
Evans gave evidence that the following day Howell returned to the house again, where he and the appellant discussed the Elizabeth East Post Office. After again looking for clothes, they left the house with the appellant carrying the green shopping bag, and crossbow. Evans said half an hour later they returned. She observed that Howell appeared upset, and the green shopping bag was empty. She said that following this the appellant suggested that they could go to the Greenwich Post Office, but Howell viewed this as too risky.
Evans gave further evidence of police attendance at her house, whilst she was at home with her child and Yeates, on 10 November 2010. Two days later, she said that she had come home to find that Yeates had packed up her belongings in order to leave. Yeates told Evans that she had to leave to be with the appellant, that she would return ‘when the heat dies down,’ and that she was leaving to go interstate.
Some days later, Yeates called Evans to inform her that she would be putting money in her account so that Evans could maintain her car payments. This never eventuated.
In cross-examination it was put to Evans that the crossbow was given to her by Jason Talbot. She said that the crossbow was given to both her and Yeates by Talbot, for their protection. Further, in evidence in chief she had said that she had never touched the crossbow. It was then put to her that she had told police in her statement on 10 November 2010 that she had touched the crossbow only a few days earlier. She then agreed that she may have touched it, it having been in her statement, though she had no independent memory of it.
Evans did not directly participate in the commission of any criminal offences. Nevertheless, she assisted Howell and the appellant by her acquiescence in the use of her shared residence, from which preparation and planning took place. Further, she allowed her premises to be used for the storage of weapons, and at some stage, she herself had handled the firearm, albeit briefly. She was the girlfriend of Howell and, therefore, had a motive to assist him to minimise his involvement, and to support his evidence against the appellant. The jury were also entitled to reject Evans’ explanation for the delivery of the crossbow and to infer that it was knowingly secreted in her home for use in the robbery. In my view, there was sufficient evidence from which the trial Judge should have directed the jury that they ought to consider whether Evans could be characterised as an accomplice, and if they so found, to heed the accomplice warning. The requirement to warn a jury of the danger of convicting an accused on the uncorroborated evidence of an accomplice should be treated as a rule of law, and not just a rule of practice until that issue is authoritatively decided.[31] It follows that the Judge made an error at law in failing to also apply the accomplice warning, which had been given about Howell’s testimony, to Evans.
[31] Kelleher v The Queen [1974] 131 CLR 534, 542-3 per Barwick CJ, at 555-6 per Gibbs J and contra at 560 per Hansen J.
The trial Judge in summing up described Evans’ evidence as capable of corroborating the evidence of Howell. It has long been established that the evidence of one accomplice is not able to corroborate the evidence of another. In The King v Baskerville[32] Lord Reading CJ observed that corroboration must be by some evidence other than that of an accomplice; one accomplice’s evidence is not corroboration of the testimony of another accomplice. This notion has been followed by this Court in R v Webbe and Brown[33] and The Queen v Rigney.[34] In Rigney, this rule was also accorded the rigidity of a rule of law.[35] Further, as I have indicated, Evans had good reason to support Howell.
[32] [1916] 2 KB 658, 664.
[33] [1926] SASR 108, 117.
[34] (1975) 12 SASR 30, 36.
[35] (1975) 12 SASR 30, 36.
It follows that the trial Judge erred in law in failing to direct the jury that they should consider whether Evans might be characterised as an accomplice. Further, he should have directed the jury to treat her evidence with care, even if she was not an accomplice, as she was closely connected to Howell.
I would allow this ground of appeal.
The alibi notice
Section 285C of the Criminal Law Consolidation Act 1935 (SA) provides that a defendant who proposes to introduce evidence of alibi at the trial of an indictable offence in the Supreme Court or the District Court must give prior notice of the proposed evidence.
The purpose of the provision was explained by the Attorney-General at the time he introduced the section. He said:[36]
The Bill furthers this trend by dealing with a situation which can arise in the course of a criminal trial, that is, the introduction by the defendant of evidence of an alibi of which the Crown had no notice. In such a case, the Crown is left with only two options: to let the evidence stand without attempting to rebut it, or to seek an adjournment for the purpose of investigating the alibi. Clearly, the first of these alternatives is not in the interests of justice; the second produces undesirable delay and forces those responsible for investigating the alibi to do so hastily. There is also the possibility that, had the Crown had the opportunity to investigate the alibi, it may not have proceeded with the prosecution, thus saving a considerable amount of public time and money.
This Bill provides that a defendant must notify the prosecution if he proposes to rely on an alibi by way of defence to the charge with which he is to be tried thus obviating the delay and inconvenience that could otherwise result from the sudden and unexpected introduction of such a defence.
[36] Parliamentary Debates S.A. 1984-85 Vol 1 Forty-Fifth Parliament Third Session, 16 August 1984, 537.
The Bill was modelled on a similar provision in the United Kingdom, which relied on a report from the Criminal Law Revision Committee which stated in the report:[37]
In our opinion there is a strong case for amending the law so as to deprive accused persons of the privilege of keeping back a defence of alibi until the last moment. A rule which enables the accused to deprive the prosecution of the opportunity of investigating the truth about a defence clearly calls for some justification if it is to be kept. The rule has been defended on the ground that there is no substantial need for any change, that in any event the prosecution and the court can comment on the failure of the accused to mention an alibi, and that there is nothing so special about alibi defences as to justify making an exception in respect of them to the general rule that the defence are not obliged to disclose their case to the prosecution.
It is also said that the accused, especially if he is in custody, may have difficulty in finding a witness to a good alibi in time to comply with the requirement to give notice and that in any event there are practical difficulties about the police interviewing alibi witnesses in order to investigate their story. But for reasons which will appear below we are satisfied that, whatever should be the law as to disclosure of the defence in general, alibi defences at least are a special case, that provision ought to be made for giving notice of those defences and that the practical difficulties, if they exist, can be overcome.
We believe that it will contribute substantially to the breaking down of false alibis if notice of an alibi has to be given in advance. The present law gives two particular advantages to the defence. First ... the police may be unable to investigate the alibi before evidence of it is given. It will therefore be of help to them if particulars have to be given before the trial. Secondly, if an alibi witness is kept out of sight till the moment when he is called, the prosecution are deprived of the possibility of finding out something about him which can be put to him in cross-examination and may lessen the value of his evidence. For this reason elaborate precautions are sometimes taken to prevent the police from finding out who the witness is to be until his name is called and he comes into the witness box.
[37] Parliamentary Debates S.A. 1984-85 Vol 1 Forty-Fifth Parliament Third Session, 16 August 1984, 335.
Evidence of alibi means evidence given or adduced, or ought to be given or adduced by the defendant tending to show that he was in a particular place, or in a particular area at a particular time and, thus, tending to rebut an allegation made against him.
The notice must be given within seven days after a defendant is committed for trial to the Director of Public Prosecutions. It must be in writing and contain a summary setting out with reasonable particularity the facts sought to be established by the evidence, and the name and address of the witness by whom the evidence is to be given. The section provides that evidence in rebuttal of an alibi shall not be adduced after the close of the case for the prosecution. Permission is to be granted in circumstances where no notice was given, or insufficient particularity was given, or if the Judge, in his or her discretion, grants permission for evidence to be given in rebuttal.
The relevant alibi notice which was given was as follows:
LUKE ROBERT GLASTONBURY, The Defendant, hereby gives notice that he may lead evidence of an alibi at Trial.
This evidence would be to the effect that at the time of the alleged offences, he was living with Jason Talbot at 20 Dayman Street Elizabeth Park, caring for Mr Talbot’s (now 4 year old) child, James whilst Mr Talbot was at work, and during a period of time when Mr Talbot was in hospital with Pneumonia at the Lyell McEwin Hospital.
Mr Glastonbury was permitted to reside with Mr Talbot rent free on the proviso that he cared for James, and cleaned the house. Aside from Mr Glastonbury, there was no other person available to care for James, nor could Mr Talbot afford a babysitter.
Due to the passage of time, Mr Glastonbury has no memory of the specific dates, however, he is certain that he was never away from Mr Talbot’s premises as he was required to be home with James when Mr Talbot returned home from work, which was typically 3 or 4 pm.
Mr Glastonbury instructs that there was never a night that he was absent from Mr Talbot’s premises at the time of the alleged offending.
The only witness to this is Mr Jason Talbot. Mr Talbot’s evidence will be to the same effect.
The Director of Public Prosecutions filed a notice pursuant to s 285C(7) that he had received the attached notice.
Near the conclusion of the prosecution case, the prosecutor informed the trial Judge that there were some matters which had been agreed, one being the contents of a statement of Maree Janet Pollard, which had not yet been filed. The prosecutor referred to the certificate filed under s 285C of the Act, and informed the Court that the statement of Maree Janet Pollard, the risk manager at the Lyell McEwin Hospital, would be read to the jury. That statement was to the effect that Jason Edward Talbot was admitted to the hospital on 31 October 2010 and remained in hospital until he was discharged on 3 November 2010. The prosecutor told the Judge that the evidence was in purported rebuttal of some matter certified in the certificate which had, as part of it, the attached alibi notice. No objection was taken to the statement being read to the jury as an agreed fact.
Further evidence was led by the prosecution, and some additional agreed facts were tendered on behalf of the prosecution.
The prosecutor then sought to tender the certificate of the Director of Public Prosecutions which attached to it the notice of alibi. In seeking to tender that document, counsel submitted to the Judge that the prosecution had conducted its case in a way that purports to rebut the alibi that is contained within that notice. She submitted that the certificate and the attached notice can, therefore, be placed before the jury.
The trial Judge responded, “I am with you there, so unless there is something unusual that you want to put to me I’d like to hear how that could be opposed”.
Counsel for the prosecution submitted that the alibi had been proffered and contains a demonstrable lie, specifically the lie is demonstrated by the records of the Lyell McEwin Hospital and the lie itself may be probative of a consciousness of guilt.
Counsel for the appellant objected to the tendering of the notice. She did so on the following grounds. First, she submitted that this was not properly characterised as a case of alibi. She submitted that the terms of the notice are general and very vague. She submitted that the statement of Ms Pollard does not contradict evidence in the alibi notice. She submitted that, if tendered, the jury might use the notice in an impermissible manner. She informed the Court that the appellant was not giving evidence, has never asserted that he would, and that Mr Talbot was not to be called. She made it clear that the defence would not be relying on any of the material contained in the notice. She submitted that the trial Judge should, therefore, preclude admission of the document.
The trial Judge did not give reasons. He simply indicated that he declined to rule that the Crown cannot tender the notice.
Later, when the Judge considered the directions that he would give in respect of the notice, he ruled against the Crown’s application to use the notice and the evidence of Ms Pollard to demonstrate that the appellant had proposed to call a false alibi and, therefore, the alibi notice demonstrated a consciousness of guilt on the defendant’s part.
Having so ruled, the evidence of Ms Pollard and the tendering of the notice then became irrelevant.
When the Director is put on notice of a possible alibi, the Director is required to call evidence as part of the prosecution case to rebut that alibi. In Killick v The Queen,[38] the question considered by the High Court was whether a trial Judge may permit the Crown to adduce evidence after the close of the case for the defence, to rebut an alibi sworn to by the accused in the course of his evidence, not previously the subject of evidence at trial, but which the Crown ought reasonably to have foreseen would be raised by the accused at the trial. Gibbs, Murphy and Aiken JJ considered that the principle that the prosecution must present its case completely, before the defendant’s answer is made applies to a case in which an accused has raised an alibi. They said:[39]
When the details of the alibi were disclosed before the trial, it cannot be said that the occasion for the giving of evidence to rebut it is unforeseeable. Although an alibi is not uncommonly referred to as a defence, no onus of proving an alibi rests on the accused; the prosecution must negative an alibi if one is put forward as it must negative a claim that the accused acted in self-defence or as a result of provocation: see Reg. v. Johnson (16); Reg. v. Taylor (17). It is therefore difficult to see why the Crown should be allowed to take the exceptional course of calling evidence in rebuttal to refute an alibi, if details of the alibi were known and the refuting evidence could have been called in chief. In a number of cases a distinction has been drawn between alibis previously known to the Crown, and those which became known for the first time at the trial. ...
[38] [1981] 147 CLR 565.
[39] [1981] 147 CLR 565, 569-70.
Wilson and Brennan JJ dissented. They expressed the view that the Crown is at liberty to call evidence in rebuttal of an alibi first set up by the defence in its case if the evidence does not confirm the prosecution case, even in circumstances where the Crown had been put on notice of possible alibi evidence. In Killick’s case, the dissenting Justices considered that, as part of the Crown case, no issue of false alibi had been raised, and the only issue of alibi raised for the jury’s consideration was raised in the defence case. The evidence called in rebuttal was relevant to disprove an alleged fact that the appellant had been interstate at the time of the alleged offence, a matter which had not been raised prior to the defence case. In the circumstances, the dissenting Justices considered that the Crown was not splitting its case.
Killick’s case was considered in R v Bartels,[40] in which O’Loughlin J summarised the position that, if the Crown knew in advance that an alibi would be presented by the defence at the trial, but had no knowledge of the details of the alibi then, in those circumstances, the Crown could lead evidence in rebuttal but, if it did have such knowledge, then it could not.
[40] (1986) 44 SASR 260, 287.

In R v Henstridge & Ors,[41] Millhouse J, with whom Doyle CJ and Nyland J agreed, considered whether it was appropriate to tender an alibi notice as part of the Crown case. In that case, the alibi evidence, of which notice had been given, was not finally given at trial. In the case of the alibi witness, that witness did not come up to proof, and the accused did not give evidence. Millhouse J observed:[42]
It may be noted that because Karen Benfell did not come up to proof and no accused gave evidence, the notices became irrelevant but that could not have been known by the Crown at the time of tender.
Mr Brebner (the prosecutor) told us that it is usual for the notices to be tendered as they were at this trial. He justified the tender by arguing that the notice is a statement against interest made by a solicitor on behalf of an accused and, it may be assumed, with the authority of the accused. To tender a certificate without notice would be meaningless.
That, I think, is sufficient justification for the Crown practice of tendering a notice of alibi attached to the Director of Public Prosecution’s certificate. I can see nothing wrong with what was done. The ground fails.
[41] (1998) 198 LSJS 147.
[42] (1998) 198 LSJS 147, 165.
Millhouse J observed that, in the circumstances of the case, the notices became irrelevant, but that fact could not have been known by the Crown.
In the present case, it became known at the time that counsel objected to the tender of the notice, that the defence did not intend to rely on the material in the notice, nor did the defence intend to call evidence from the appellant. The Judge finally determined, as he should have at the time of the objection, that the notice could not be used as part of the Crown case to establish consciousness of guilt on the part of the appellant. In the circumstances, the tender of the notice became irrelevant.
It is unfortunate that the Court was not told prior to the tender of the statement of Ms Pollard that her statement was not relevant because the defence did not rely on the received alibi. Nevertheless, on the premise that the notice was not admissible to prove a consciousness of guilt in the circumstances of this case, the alibi notice should not have been tendered, and the jury should have been directed to ignore the evidence of Ms Pollard, as it was not relevant. To admit the alibi notice to explain why Ms Pollard’s statement had been permitted to be tendered was not a basis upon which to permit the alibi notice to be tendered.
In my view, the Judge was in error in allowing the tender of the alibi notice. The Judge directed the jury that, beyond explaining Ms Pollard’s statement, the alibi notice had no evidentiary value and cannot assist the jury. The Judge directed the jury that there is no evidence of alibi before them from the appellant or Mr Talbot, and that the appellant was under no obligation to follow up the notice and put evidence before them. He directed the jury that they do not have to consider whether the notice was false. The prosecutor had addressed the jury that the alibi notice was relevant, as it was evidence of a lie told by the appellant and was evidence of consciousness of the appellant’s guilt.
Even though the jury had been directed to ignore counsel’s submission, the fact is that counsel had addressed the jury suggesting to them that the appellant had lied. That submission was highly prejudicial.
The alibi notice was in evidence as an exhibit. Despite the direction to the jury, the prejudicial effect of the notice together with counsel’s address to the jury would, in my view, have been difficult to ignore when considering the case against the appellant.
It would have been prudent for the prosecutor to have sought a ruling from the trial Judge before addressing the jury. If that had been done, the suggestion that the notice was evidence of a lie which supported a submission that the lie was told and of a consciousness of guilt, would not have been made. It is desirable that potentially contentious matters be resolved with the Judge prior to addresses of counsel.
In argument before us, counsel for the appellant, in answer to a question whether counsel for the appellant at trial had ever informed the Judge that the appellant did not intend to rely on the notice, informed this Court that the trial Judge had not been told. That statement was an error. As I have observed, counsel made it clear to the Judge, when objecting to the tender of the alibi notice, that no reliance was to be placed upon the notice.
Counsel for the appellant submits that the trial Judge ought to have directed the jury to ignore the entirety of the Alibi Notice, and the statement relating to Talbot’s hospital admission. It is contended that the direction did not inform the jury as to how the statement of Ms Pollard was relevant, or could be used in assessing the prosecution case against the appellant. Further, that Ms Pollard’s evidence had no value absent any alibi evidence.
The trial Judge explained the purpose of an Alibi Notice. He then directed the jury as follows:
The Notice itself is not evidence of the alibi. It is an indication of intent. In this case the Prosecution invite you to conclude that in so far as the notice attempts to link Luke Glastonbury’s whereabouts on 8, 9 and 10 November to Jason Talbot’s hospital admission, it is false and something you might regard as evidence of the Accused Glastonbury’s, guilt. However, I instruct you to use it only to explain the evidence of Ms Pollard. There is no evidence of alibi before you from either the accused or Mr Talbot. Mr Glastonbury bears no obligation to follow up his notice and put evidence before you. It remains for the Prosecution to prove his guilt beyond reasonable doubt.
So members of the jury, you have before you the Alibi Notice and the attached indication of alibi, and you have before you the statement of Ms Pollard. The Notice is before you so that you can understand why you have the evidence of Ms Pollard before you, and that is the limit of it. The Alibi Notice is not evidence of alibi and so you do not have to consider whether or not it is false.
In reference to the submission in closing addresses made by the prosecutor, he later said:
My direction to you has the effect of negating that submission, so you are to treat that as being withdrawn. You are to treat the alibi notice in the way which I directed. So too as to that, Ms Henson, probably on more than one occasion, made the comment that Glastonbury’s instructions ‘as per the notice’, that is she said words to the effect that the notice accorded with Glastonbury’s instructions to her. You are to ignore that also and proceed on the basis that I have directed you on, mainly, beyond explaining Ms Pollard’s statement it has no evidentiary value at all and cannot assist you.
The Director contends that in light of the evidence of Ms Pollard having been led, it was appropriate to explain to the jury why this was so. I do not agree. The Judge should simply have directed the jury to ignore Ms Pollard’s evidence, as it was not relevant to any issue in the case, and that they should not speculate as to the reason it was admitted.
I would allow this ground of appeal.
The proviso
Section 353 of the Criminal Law Consolidation Act 1935 (SA) provides:
1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[Emphasis mine].
The High Court has stated that when considering whether the proviso might be appropriately applied, a court must look to the precise words of the proviso itself. In Weiss v The Queen, the Court remarked:[43]
This Court has repeatedly emphasised the need, when applying a statutory provision, to look to the language of the statute rather than secondary sources or materials. In Fleming v The Queen, the court said that “[t]he fundamental point is that close attention must be paid to the language” of the relevant criminal appeal statute because “[t]here is no substitute for giving attention to the precise terms” in which the relevant provision is expressed.
Many statements are to be found in the decided cases that describe the task presented by the proviso as being to decide whether conviction was “inevitable”. Other cases ask whether the accused was deprived of a “chance which was fairly open … of being acquitted” or a “real chance” of acquittal.
These expressions attempt to describe the operation of the statutory language in other words. They must not be taken as substitutes for that language. They are expressions which may mask the nature of the appellate court’s task in considering the application of the proviso.
[Citations omitted].
[43] Weiss v The Queen [2005] 224 CLR 300, [31] – [33].
The High Court then proceeded to discuss the correct approach of an appellate court to the proviso:[44]
... First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.
[44] Weiss v The Queen [2005] 224 CLR 300, [39].
In addition, it has been noted that the proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. In Wilde v The Queen Brennan, Dawson and Toohey JJ said: [45]
However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J in Quartermaine v The Queen:
Ordinarily, when there has been a misdirection of law, the proviso to s. 689 [Criminal Code (W.A.)] will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J, who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established ‘there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that “there had been a serious departure from the essential requirements of the law”.’ The Court of Criminal Appeal was right in taking that view of the law …
This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outworn technicality” (the phrase of Barwick C.J. in Driscoll v. The Queen; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt; Reg. v. Henderson; Reg. v. Couper.
[Footnotes omitted].
[45] [1987-1988] 164 CLR 365, 372-3.
When considering the witness, Sarah Evans, it is clear that the trial Judge erred in not directing the jury that they should scrutinise her evidence with care. Furthermore, should they make this finding, it was an added error to direct that the evidence of Evans could corroborate the evidence of the accomplice, Howell. These errors, as well as the error with respect to the alibi notice, are of such a nature that I cannot conclude that no substantial miscarriage of justice has occurred. They affect the weight which can be accorded to the jury’s verdict, and the implicit acceptance of the disputed testimony of Howell and Evans. The jury’s assessment was made in the absence of the warning which the law requires. The proviso cannot be applied in this case.
I would quash the convictions and order a retrial.
STANLEY J: I agree with the reasons of Sulan J. I would quash the convictions and order a retrial.