R v Gover

[2000] NSWCCA 303

Reported Decision: [2000] 118 A Crim R 8

New South Wales

Court of Criminal Appeal

CITATION:	R v Gover [2000] NSWCCA 303
FILE NUMBER(S):	CCA 60798/99
HEARING DATE(S):	19 April 2000
JUDGMENT DATE:	17 August 2000
PARTIES :	Walter Gover (Appellant) Crown (Resdpondent)
JUDGMENT OF:	Stein JA at 1; Dunford J at 2; Simpson J at 46

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0336
LOWER COURT JUDICIAL OFFICER :	Backhouse DCJ

COUNSEL :	CT Loukas (Appellant) DC Frearson (Respondent)
SOLICITORS:	Marsdens (Appellant) SE O'Connor (Respondent)
CATCHWORDS:	CRIMINAL LAW - dishonesty offences - appeal against conviction - CRIMINAL LAW & PROCEDURE - inadvertent and potentially prejudicial event - no application for discharge of jury - whether direction overcame prejudice - EVIDENCE - statements of deceased witness - paper committal - notice for attendance of witnesses - non appearance by accused at committal - whether statements admissible at trial
LEGISLATION CITED:	Crimes Act 1900, ss 65, 67, 409(7) (repealed) Criminal Procedure Act 1986, ss 112 - 116 Justices Act 1902 , ss 48-48I Evidence Act 1995, ss 8, 65, 67,137
CASES CITED:	R v Adamiczka (1993) 33 NSWLR 68 R v Stackelroth (1996) 86 A Crim R 438 R v Hallocoglu (1992) 29 NSWLR 67 R v Abrahams (1895) 21 VLR 343 R v Jones (No.2) [1972] 1 WLR 887, 56 Cr App R 413 R v Sullivan (CCA - 22 August 1995) R v McIntyre [2000] NSWCCA 6
DECISION:	Appeal dismissed; convictions affirmed.

IN THE COURT OF
CRIMINAL APPEAL

60798/99

STEIN JA
DUNFORD J
SIMPSON J

Thursday, 17 AUGUST 2000

R v Walter GOVER
JUDGMENT

1    STEIN JA: I agree with Dunford J. 2    DUNFORD J: This is an appeal by Walter Gover against his conviction for a number of offences following his trial before her Honour Judge Backhouse QC and a jury in the District Court at Sydney. 3    The Crown case was that in April - May 1995 the appellant came into possession of an American Express card in the name of Adrian Chenhall and subsequently used that card to purchase an oil drip tray from K-Mart at Bondi Junction on 25 May 1995, and that on 8 June by representing himself to be Adrian Chenhall, the holder of the card, he purchased a Jeep Cherokee motor vehicle from Sanderson Motors for a price of $52,000 but, as he was unable to produce a passport or other identification in a name corresponding with that on the card, at the suggestion of the car salesman, he purchased a shelf company so that the vehicle could be registered in the company name, and for the purchase of the company he again used Mr Chenhall's American Express card. 4    After Mr Chenhall had complained to American Express about debits appearing on his statement, enquiries were made, the car salesman identified the appellant from a group of photographs shown to him, and on 23 June the vehicle was located by police being driven into the driveway of the appellant's premises in Blackheath. 5    Later that evening, after obtaining a statement from Mr Chenhall, the police obtained a search warrant and returned to the appellant's premises. They told him that they believed that the Jeep had been obtained through the fraudulent use of a credit card and asked how he came to be in possession of the vehicle, to which the appellant replied that Mr Chenhall had given it to him to drive two days previously. A search of his premises located two mobile telephones whose numbers corresponded with those used or referred to in conversations involved in acquiring the vehicle, the certificate of registration and third party insurance certificate for the vehicle as well as the keys of the vehicle, and in the basement they found an oil drip tray and a receipt showing that the tray had been purchased on 25 May using the relevant American Express Card. 6    As a result of these events the appellant was indicted on the following charges:

1. That between 1 April 1995 and 7 May 1995 at Sydney, he did steal one American Express Gold Card No. 3760 300440 72000, the property of Adrian Chenhall.

2. That on 25 May 1995 at Bondi Junction, by a deception, namely by purporting to be Adrian Chenhall and presenting American Express Gold Card No. 3760 300440 72000 in the name of Adrian Chenhall, he dishonestly obtained for himself a valuable thing, namely, an oil drip pan.

3. That between 3 June 1995 and 9 June 1995 at Rose Bay, by a deception, namely by purporting to be Adrian Chenhall, the holder of American Express Gold Card No. 3760 300440 72000, he dishonestly obtained for himself a valuable thing, namely, a 1995 Jeep Cherokee motor vehicle.

4. That on 8 June 1995 at Wentworth Falls, he made a false instrument, namely, a document showing both sides of a stolen American Express Gold Card No. 3760 300440 72000 in the name of Adrian Chenhall, with intent that he use the false instrument to induce Sandersons Eastern Suburbs Pty. Limited, trading as Sandersons Motors, to accept the said false instrument as genuine and thereby sell a 1995 Jeep Cherokee motor vehicle to the prejudice of Adrian Chenhall.

5. That on 8 June 1995 at Wentworth Falls, he used a copy of a false instrument, namely, a document showing both sides of a stolen American Express Gold Card No. 3760 300440 72000 in the name of Adrian Chenhall, with intent that he use the false instrument to induce Sandersons Eastern Suburbs Pty. Limited, trading as Sandersons Motors, to accept the said false instrument as genuine and thereby sell a 1995 Jeep Cherokee Motor vehicle to the prejudice of Adrian Chenhall.

6. That on 8 June 1995 at Wentworth Falls, he used a copy of a false instrument, namely, a document purporting to be an authorisation under the name of Adrian Nicholas Chenhall, Company Director, ACN 069 731 540 Pty Limited with intent that he use the false instrument to induce Sandersons Eastern Suburbs Pty Limited, trading as Sandersons Motors, to accept the said false instrument as genuine and thereby sell a 1995 Jeep Cherokee motor vehicle to the prejudice of Adrian Chenhall.

7    Following his trial the jury found him not guilty on count 1 and guilty on counts 2 to 6. He was subsequently sentenced as follows:

Counts 2 & 3: Fixed Term: 6 months imprisonment to commence 10 September 1999 and to expire 9 March 2000.
Counts 4-6: Minimum Term: 9 months imprisonment to commence 10 September 1999 and to expire 9 June 2000.
Additional Term: 9 months to commence 10 June 2000 and to expire 9 March 2001.

8    The appellant's defence in substance was that he assisted with the purchase and taking delivery of the vehicle at the request of Mr Chenhall, who wanted to pay for the vehicle with his American Express card so as to earn Frequent Flyer points, and because he had lost his drivers licence; and the vehicle was generally kept at Mr Chenhall's place, but on 23 June after they had both been drinking at a local hotel, Mr Chenhall gave him the keys and he drove himself home in the Jeep, which is how he came to have it when the police called that evening.

Ground 1: Her Honour the learned trial Judge erred in admitting into evidence the written statements of the deceased Adrian Chenhall.

9 During the investigation the owner of the relevant card Adrian Chenell made two statements to police dated respectively 23 June and 12 August 1995, in which inter alia he denied himself purchasing the vehicle with the card and denied giving any person permission to use such card. His second statement also identified and annexed a number of relevant documents and denied that the signatures on them were his. Mr Chenhall died in 1997 and at the trial his two statements were admitted into evidence pursuant to s 409(7) Crimes Act 1900, since repealed and re-enacted as s 116 Criminal Procedure Act 1986. 10 The committal proceedings took the form of a "paper committal" pursuant to Part 4 Subdivision 7A, of the Justices Act 1902 (ss 48-48I) as it stood at the time of the appellant's arrest (24 June 1995) and the committal proceedings (16 February 1996). 11 Section 48AA(1) provided that (subject to other provisions of the section, none of which are presently relevant) evidence for the prosecution in any committal proceedings was to be given by means of written statements which were admissible as evidence under s 48A.

Section 48A(1) was as follows:
Notwithstanding any other provision of this Act, but subject to this Subdivision, a written statement by any person is, if tendered by the informant, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by that person.


Section 48B provided for service on the defendant of the statements and proposed exhibits and s 48C required the statement to contain endorsements attesting to its truth and the knowledge of the maker of the statement that he or she would be liable to prosecution if wilfully stating in it anything known to be false or not believed to be true while, s 48D required service of a notice explaining the effect of the subdivision and the rights of the defendant in relation thereto.

Section 48E(1) was as follows:
Where in any committal proceedings:
(a) the defendant has been served with a copy of a written statement, as referred to in section 48B, and serves on the informant, within such period as the Justice or Justices may direct, a notice to the effect that the defendant desires the attendance at those proceedings of the person who made the statement; or
(b) the Justice or Justices (if satisfied that it is in the interests of justice to do so), on his, her or their own motion, or on the application of the defendant, gives or give a direction requiring the attendance at those proceedings of the person who made a written statement tendered as evidence under this Subdivision,
the statement, if not already admitted as evidence in those proceedings, is not admissible as evidence under section 48A in those proceedings if:

(c) in a case to which paragraph (a) applies - the defendant, after serving the notice referred to in that paragraph, does not consent to the admission in evidence of the statement; or

(d) in the case to which paragraph (b) applies - the Justice or Justices, after giving the direction referred to in that paragraph, does not or do not withdraw the direction.

Section 409(7) Crimes Act 1900 was as follows:
Except in so far as the Judge otherwise orders, a prescribed statement may be read as evidence for the prosecution at the trial of the accused upon proof on oath that the person who made the statement is dead, or so ill as not to be able to travel or to give evidence, or so ill as not to be able to travel or to give evidence without a risk of endangering the life of the person, or is absent from Australia.

and subsection (11) provided:

In this section, "prescribed statement" means:
(a) a written statement the whole or a part of which was admitted as evidence under section 48A of the Justices Act 1902 and includes a part of any such statement rejected under section 48F of that Act; or
(b) a written statement the whole or a part of which was tendered as evidence on a plea of guilty under section 51A of the Justices Act 1902.

12 Following the arrest of the appellant on 24 June 1995, the various statements and other documents to be relied on by the prosecution at the committal, together with the statement required by s 48D, were served on the appellant's then solicitors and subsequently notice was given pursuant to s 48E(1)(a) that all witnesses were required to attend for the purpose of giving evidence. The committal proceedings were adjourned and ultimately came on for hearing on 16 February 1996 when there was no attendance by the defendant nor by any barrister or solicitor on his behalf. The magistrate heard evidence on oath from Sergeant Gaspert to the effect that the appellant although aware of the adjournment had not appeared; of service of the statements of witnesses upon his solicitors; that it had been notified to him that all witnesses were required to attend court for the purposes of giving evidence; and that he had taken steps to have those witnesses attend in court on that day. The magistrate being satisfied of these matters, he admitted the statements, including those of Mr Chenhall, into evidence and having read them formally committed the appellant for trial. 13 The matter first came before her Honour, the learned trial judge, on 2 August 1999 by which time Mr Chenhall had died on 28 December 1997, as a result of myo- cardial infarction and alcoholic cirrhosis, and it was indicated to her Honour that there was a preliminary issue to be determined, namely the admissibility of Mr Chenhall's two statements, the appellant's counsel submitting, as was the case before this Court, that the statements were not admissible because, notice having been given for the witnesses to attend for cross-examination and the appellant not having consented to them not being present, the statements of the deceased were not admissible in the committal proceedings, and therefore were not admissible at the trial pursuant to s 409(7) of the Crimes Act. 14 Although no evidence was led on this occasion, the matter being confined to legal argument on assumed facts, the proceedings on 2 August are conveniently referred to as "the first voir dire". The argument appears to have centred entirely around s 409(7) and a reference to s 65 of the Evidence Act 1995, was a remark in passing by her Honour. At the end of the argument, her Honour reserved her decision overnight, and the following day ruled that both statements were admissible but gave no reasons. 15 The trial was further adjourned and came on again on 5 October 1999 when the appellant was arraigned and pleaded not guilty. In the absence of the jury an application was made by counsel then appearing for the appellant for the two statements of Mr Chenhall to be excluded on discretionary grounds pursuant to the discretion said to be contained in s 409 itself, or alternatively pursuant to s 137 Evidence Act 1995. The basis of the application as stated by counsel was that the maker of the statements was a person who was not particularly reliable as he had a significant alcohol problem, was prone to psychotic episodes and to making false accusations against other persons. The Court thereupon embarked on a further voir dire ("the second voir dire") during which evidence was called on behalf of both the appellant and the Crown. 16    Her Honour gave judgment on that application the following day, 6 October 1999, with detailed reasons. In those reasons she reviewed the evidence of the witnesses that had been called. She noted that one of the witnesses called on behalf of the Crown, a Ms Reed, had not seen the appellant since 1990, that Dr Penny was unable to assist as to the deceased's mental condition and capacity to make the statements in June and August 1995, and that Ms Egan, with whom the deceased lived, although giving evidence of his drinking habits and other health problems, had a number of problems of her own and was unable to shed any light or any particular observation as to the deceased's ability or his capacity to make the statements. On the other hand, the police officer, the former Sergeant Gaspert, who had taken the statements, noticed nothing suggesting incapacity on the deceased's part to recall or make the statements. There was also evidence that the deceased had looked after his own financial affairs. In these circumstances her Honour was not satisfied that the prejudicial effect outweighed the probative value of the evidence contained in the two statements, although she noted that it would be necessary for there to be an appropriate direction, presumably to the effect that the deceased was not available for cross-examination before the jury. 17    The trial then proceeded. Mr Gaspert who had been in charge of the investigation at the time was cross-examined about taking the statements and agreed that when he visited the deceased's house to take the second statement, the interior was somewhat dilapidated and ramshackled, but he noticed nothing unusual about the deceased's manner of speech and found him quite easy to communicate with, and in particular that he did not have very slurred speech or anything of that nature. 18    Detective Sergeant Bayley, who by the trial had become the officer in charge of the matter, gave evidence that he had become aware of the death of the deceased, and the death certificate and the two statements with the annexures to the second one were tendered and admitted without objection. I regard the fact that they were admitted without objection at that stage to mean that no objection was taken to the formalities of the tender, but that the earlier objection to the admissibility was not withdrawn. After being tendered as exhibits, the statements were read to the jury, but as exhibits they subsequently went to the jury room whilst the jury considered its deliberations. 19    The first objection to admissibility under s 409 was the submission that that section was impliedly repealed by the provisions of the Evidence Act 1995 particularly s 65 dealing with the admissibility of representations by persons who are not available to be called as witnesses, and we were referred to a number of cases, including Goodwin v Phillips (1908) 7 CLR 1, Mitchell v Scale (1907) 5 CLR 405, and R v Chalak (1983) 47 ALR 600 at 602, Rose v Hvric (1963) 108 CLR 353 at 360 and Jennings Industries Limited v The Commonwealth (1984) 57 ACTR5 at 21, and to Pearce on Statutory Interpretation 4th ed. at p 198. 20 The two provisions deal with different subject matters even though there may be some overlapping, s 409 deals with admissibility of depositions and statements by witnesses at committal who have died by the time of trial, and s 65 deals with exceptions to the hearsay rule, and renders prior representations admissible in criminal proceedings where the maker of the representation is not available to give evidence. But in none of the cases referred to above did the later Act contain an express provision such as s 8 of the Evidence Act which expressly provides that that Act does not affect the operation of the provisions of any other Act. 21 There is no room for implied repeal where there is an express provision such as s 8 to the effect that there shall not be any such implied repeal. The effect of that section is that the Evidence Act is not intended to, and does not affect other mechanisms which are provided in state or federal legislation for the admission of evidence: cf Commissioner of Taxation v Karageorge (1996) 22 ACSR 119. In any event, the Parliament regarded s 409 as still applicable because it was repealed and re-enacted as ss 112 to 116, Criminal Procedure Act 1986, by the Crimes Legislation Amendment (Sentencing) Act 1999, see Act No. 94 of 1999. 22 Alternatively, if the appellant's argument was correct in this regard it might raise questions of whether s 65 was impliedly repealed by ss 112-116 Criminal Procedure Act, an argument which would obviously be untenable because s 65 covers a much wider field than the other provision. But even prior to Act No. 94 of 1999 the Evidence (Consequential and Other Provisions) Act 1995 which was enacted contemporaneously with, and was complementary to, the Evidence Act effected substantial amendments to the Crimes Act including the repeal of ss 408 and 410, but there was no amendment to or repeal of s 409, which was a long standing provision. I am therefore satisfied that s 409 was not impliedly repealed by any section of the Evidence Act, and was in force at the time of the appellant's trial. 23 The next submission was that the only statements of a deceased person admissible under s 409 were statements that were properly admissible at the committal and that, as notice had been given for the attendance of all the witnesses pursuant to s 48E(1) and the appellant did not consent to the admission of evidence of any of the statements, those statements, including the statement of Mr Chenhall, were not admissible as evidence under s 48A, and R v Adamiczka (1993) 33 NSWLR 68 and R v Stackelroth (1996) 86 A Crim R 438 were referred to. 24 Adamiczka was a case where s 48D(2), which requires the magistrate to address the defendant who is unrepresented in a prescribed form of words which includes the opportunity to ask for an adjournment, had not been complied with; and it was held that in the light of such non-compliance the relevant statement was not "properly admitted" pursuant to s 48A, and therefore was not a "prescribed statement" within the terms of s 409. 25 That, however, is a somewhat different case to the present where, although admitted to bail which required his attendance at the Local Court for the committal hearing, the appellant did not appear on 16 February 1996, and before proceeding with the committal hearing the proceedings were adjourned so that a warrant could be issued pursuant to s 41(1B)(d), after which the evidence for the prosecution could be taken in the absence of the appellant. It has been held in a number of cases that most criminal proceedings can proceed in the absence of a party who voluntarily absents himself, see for example R v Hallocoglu (1992) 29 NSWLR 67 at 71-73, (the case of a respondent to a Crown appeal against sentence, where the authorities are collected), and in a number of cases this has been referred to as "waiver": e.g. R v Abrahams (1895) 21 VLR 343 at 347-348, R v Jones No. 2 [1972] 1 WLR 887 at 891-2, 56 Cr App R 413 at 419-421. I see no reason why similar considerations should not apply to committal proceedings, so that where a defendant has voluntarily absented himself, particularly in breach of his bail undertaking (as here), he should be deemed to have waived his right to be present. 26 In R v Sullivan (CCA - 22 August 1995) it was held that the conditions prescribed by s 48C for admissibility of a statement could be "waived" by a defendant, so that notwithstanding the failure of the statement to comply with that section, having been admitted at the committal, the statement became admissible at the trial under s 407(7) following the death of the maker of the statement. In that case the defendant was represented at the committal. 27    The object of giving notice pursuant to s 48E(1)(a) is so that the witness can be present at the committal for the purposes of being cross-examined on his statement, as there could be no other purpose in the witnesses being required to attend. The giving of the notice for the witnesses to attend indicates that the appellant wished to cross-examine them, but the failure on his part to appear at the committal indicates that he no longer wished to do so. In my opinion, where a defendant has given notice, and subsequently by non-attendance has waived his right to be present, he should be deemed to have impliedly consented to the statement being tendered in his absence. Accordingly, I would regard the statements tendered in the present case as being "properly admitted", notwithstanding that notice had been given for the makers to attend at the committal, and there had been no express formal consent to the statements being tendered in the absence of the witnesses. 28    Stackelroth was concerned primarily with whether, if the conditions for admissibility under s 409(7) had been satisfied, there was a residual discretion to exclude a witness' statement apart from the general discretion to exclude unfairly prejudicial evidence; see now Evidence Act ss 135, 137. There was also an issue whether the statement in question had in fact been amongst the material tendered at the committal. The maker of the statement had in fact been cross-examined at length at the committal and no question of the defendant's failure to appear or to cross-examine was in issue. 29 The other matter raised in relation to s 409 was that the statements were tendered and went into evidence as exhibits instead of, as s 409 requires, being read to the jury. This is a technical objection which could have been but was not taken at the time they were tendered. This point was not covered by her Honour's rulings on either of the two voir dires, but when the statements were tendered near the end of the Crown case there was no objection, and I regard that as indicating no objection to them becoming exhibits, as opposed to being read to the jury. Although technically they should have been read to the jury rather than tendered as exhibits, it makes little difference in this day and age when the jury is often supplied with parts of the transcript and permitted to read the evidence of the witnesses. The objection not having been taken at the trial, Rule 4 applies, and as it is of a purely technical nature I would refuse leave to argue it. 30 For these reasons I am satisfied that the two statements of Mr Chenhall were admissible pursuant to s 409 of the Crimes Act as it then stood, 31 Even if the statements were not admissible under s 409(7) they were in my opinion admissible pursuant to s 65 of the Evidence Act 1995 which provides:

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:
(a) made under a duty to make that representation or to make representations of that kind; or
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) made in circumstances that make it highly probable that the representation is reliable; or
(d) against the interests of the person who made it at the time it was made . . .

32 That section applies in proceedings where the maker of a previous representation is unavailable to give evidence of an asserted fact (subs (1)). The witness is unavailable if dead: Dictionary, cl 4(1)(a). The representation may be oral or in writing and "previous representation" is one made other than in accordance with giving evidence in the same proceedings: Dictionary. 33 It was submitted that the statements did not come within paragraphs (b) or (c) of s 65(2). In my view they came within both. At the time of the first statement (23 June 1995) the Jeep had not been recovered, the statement essentially related to Mr Chenhall's receipt in mid June of his American Express statement and the steps he had taken following such receipt, and a denial that he had sought authorisation for a $50,000 purchase on 3 June. The statement should be regarded as made "shortly after the asserted fact(s) occurred" and I can see nothing in the circumstances to suggest these representations may be fabrications. On the other hand, the assertions in paragraphs 7 and 9 relate to events more remote in time and may not satisfy the test of being made "shortly after" the asserted facts occurred. As the later statement of 12 August 1995 relates to documents shown to him on that same day the representations contained therein were clearly made "when or shortly after the asserted fact(s) occurred" and once again there is nothing in the circumstances to suggest the representations may be fabrications - particularly as in relation to the second document the alleged forged signature purporting to be his is misspelt. Most of the first statement and the whole of the later statement therefore come within s 65(2)(b). 34 Section 65(2)(c) requires that the representations be made in circumstances that make it highly probable that they are reliable. The whole basis for the second voir dire was to exclude the evidence on the basis that the deceased, because of his alcoholism and other conditions, may not have been a credible witness, but her Honour rejected these submissions, and in my view, although not expressly referring to s 65, in light of her Honour's findings, no other conclusion could have been reached but that the conditions of s 65(2)(c) were satisfied. 35 True it is that notice under s 67 had not been given, but if her Honour had ruled at the conclusion of the first voir dire that the statements were not admissible under s 409, notice could, and presumably would, have been given pursuant to s 67 at that stage. Section 67(4) gives the Court power to admit the representations notwithstanding the failure to give notice, and in my view, if the statements had been rejected under s 409, and an application had been made to dispense with notice under 67, this was an appropriate case for such leave to be given. The appellant and his legal advisors had defacto notice at all relevant times that the Crown intended to lead these statements in evidence. 36 For these reasons, even if the statements were not admissible under s 409(7) Crimes Act, I am satisfied they were admissible under s 65(2), Evidence Act 1995.

Ground 2: Her Honour erred in failing to discharge the Jury consequent upon the Jury asking, "Why is the defendant now under correctional services guard?"
In the alternative
Failing to take corrective steps by way of appropriate warning or direction in relation to Ground 2.

37    The appellant had been on bail during the trial but failed to a appear on 12 October 1999, the sixth day of the trial, in circumstances detailed in the transcript and his bail was revoked. Two days later on, 14 October 1999, the jury asked the question referred to. Discussion followed and appellant's then counsel specifically did not seek the discharge of the jury and said:

"I think that all that can be really said in the circumstances is that it's a matter of no relevance and certainly something they ought not to speculate on."

After further discussion on other unrelated legal issues, the jury returned to court and were directed as follows:
"Firstly in relation to the number 1 question in relation to Mr Gover, I direct you that you should not be concerned about that situation. It is irrelevant and you, the members of the jury should not speculate so it's not something that should impinge upon your deliberations at all."

38    It was submitted that the appearance in court of the appellant apparently in Corrective Services custody was tantamount to evidence of bad character, which was inadmissible, could not be remedied, and required discharge of the jury; or at least a direction in different terms. 39    The ground is completely without merit. Rule 4 applies, one cannot assume that the jury or any member of it would infer guilt as a result of seeing the appellant in custody, it was a situation of the appellant's own making in failing to honour his bail undertaking to appear, his counsel expressly declined to seek the discharge of the jury, and the direction given was in substance and effect that requested by his counsel.

Ground 3: Her Honour erred in her response to the jury to the following question: "We need clarification on the following point. Is 'another reasonable explanation' limited to the evidence before us?"

40    This was a question sent to the trial judge after the jury had been deliberating for some time, and related to her Honour's directions regarding circumstantial evidence. After the question was received there was considerable discussion in the absence of the jury as to how the question should be answered and in the light of that discussion her Honour redirected the jury on circumstantial evidence and then said:

"So it is for the Crown to satisfy you of the guilt of the accused. If in fact, you were of the view that, based on the evidence, there was a reasonable explanation consistent with innocence, then it is for the Crown to negate that explanation."

She then repeated the direction she had previously given on the drawing of inferences.

41    It is the passage quoted above that is objected to and it was submitted that that passage was inconsistent with the recent decision of this Court in R v McIntyre [2000] NSWCCA 6. That was an arson case where it had been argued at the trial that the evidence was consistent with the fire being either deliberately or accidentally lit by the owner of the premises, the estranged former partner of the appellant. The trial judge had directed the jury:

"There was no evidence that the fire was either accidentally or deliberately lit by Ms West. Those matters were no more than suggestions. You are not allowed to speculate or guess. You can draw inferences but only from the evidence."

In upholding the appeal, Hulme J, with whom Sully and Hidden JJ agreed, said:
"It is of course both proper and common for a judge in the course of a summing up to tell a jury that they must not speculate or guess, operations of the mind quite different from the drawing of inferences. However, as his Honour pointed out to the jury, this was a circumstantial case. The appellant was entitled to be acquitted if the Crown could not exclude all reasonable hypotheses consistent with innocence.
Such hypotheses must, as I have said, be reasonable. But a jury does not have to be able to infer that an event, the subject of such an hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event."

42    The other reasonable hypothesis or the explanation does not need to be something of which there is evidence, as was suggested by the direction given to the jury in McIntyre, but it must be consistent with such evidence as the jury accepts. A jury must consider whether the evidence is consistent with any hypothesis or explanation consistent with innocence, but cannot have regard to hypotheses or explanations which are inconsistent with such evidence as they accept. In my view this is all that her Honour was conveying to the jury, namely that they were to look to the evidence to see whether there was any other reasonable explanation consistent with innocence, but not guess or speculate on matters inconsistent with the evidence in the case. She was not suggesting, as was the case in McIntyre, that there had to be some direct evidence of the alternative hypothesis or explanation. That case is therefore distinguishable and, having regard to the whole of the answer to the question and bearing in mind what preceded and what followed the passage complained of, I do not consider the jury could have possibly been misled into looking for direct evidence of an alternative hypothesis or explanation. 43    No objection was taken to the direction when it was given, which I say followed a lengthy discussion in the absence of the jury so Rule 4 applies; but in this regard it is only fair to record that counsel who had been appearing for the appellant during the trial was not able to appear on the day the question was asked and answered, and the solicitor who took his place acknowledged that he was not as familiar with the case as counsel had been. 44    I would give leave to argue the point although no objection was taken at the time, but I am satisfied that the ground is without substance and there was no error of law in her Honour's direction. 45    For these reasons I consider that the appeal should be dismissed and the convictions affirmed. 46    SIMPSON J: I agree with the orders proposed by Dunford J and with his Honour's reasons.

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