R v Grey

[2000] NSWCCA 46

Reported Decision: [2000] 111 A Crim R 314

New South Wales

Court of Criminal Appeal

CITATION:	R v Grey [2000] NSWCCA 46
FILE NUMBER(S):	CCA 60803/98
HEARING DATE(S):	Wednesday 9 February 2000
JUDGMENT DATE:	3 March 2000
PARTIES :	Regina v Anthony Stephen Grey
JUDGMENT OF:	Grove J at 1; Sully J at 18; Simpson J at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	94/61/0159
LOWER COURT JUDICIAL OFFICER :	Rummery DCJ

COUNSEL :	L.M.B. Lamprati (Crown) P.J.D. Hamill (Appellant)
SOLICITORS:	S.E. O'Connor (Crown) T.A. Murphy (Appellant)
CATCHWORDS:	Criminal Law and Procedure - New Evidence - Crown Witness - Disclosure of Prior Convictions - Defence Aware That Witness Was Police Informer But Not That He Had Received Consideration For Such In His Own Sentencing Proceedings - Whether Absence Of Cross Examination Led To Miscarriage
CASES CITED:	R v Birks 1990 19 NSWLR 677 Mickleberg v The Queen 1988 167 CLR 259 R v Mraz (No 1) 1955 93 CLR 493 R v Taranto (1999) NSW CCA 396
DECISION:	By majority, appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60803/98

GROVE J
SULLY J
SIMPSON J

Friday 3 March 2000

REGINA v ANTHONY STEPHEN GREY


JUDGMENT

1 GROVE J : I have had the advantage of reading the judgment in draft form of Simpson J and gratefully adopt her sketch of the background to this appeal. I do not wish to add to what she has written concerning the alternative ground of appeal which was sought to be supported by reference to s 165 of the Evidence Act and R v Birks 1990 19 NSWLR 677.

2    Grounds 1 and 2 are inter-related in the sense that both focus upon the omission to disclose that the witness Reynolds received a benefit by way of leniency in sentencing proceedings deriving from assistance which he had rendered, and was rendering to police. That benefit flowed from the content of a “letter of comfort” signed by two detective sergeants (one of whom was Detective Sergeant Bandouvakis, the informant in the case against the appellant) dated 23 September 1993 and tendered as Exhibit G before Nield DCJ who dealt with Reynolds for his offences. Reynolds was on 30 September 1993 sentenced to imprisonment for nine months to be served by way of periodic detention. Although the recording of his Honour’s remarks on sentence has since been destroyed, a notation probably made by the Crown representative present in Court at the time has survived and reads:
“Save for prior good character, rehabilitation and Exhibit G would have imposed full time gaol”.

3    It is plain from unchallenged affidavit material presented in this Court that, had the Crown Prosecutor at the appellant’s trial, which did not commence until 10 August 1998, been aware of the content of the letter of comfort he would have disclosed it to the defence. The essential issue now is whether the absence of communication of the fact that assistance to police was one factor in gaining leniency for Reynolds demonstrates miscarriage of justice in the appellant’s trial.

4    An affidavit by counsel who appeared for the appellant at trial (who did not appear in the appeal) referred to reading documents in August 1999. About this he affirmed:
“It was only when I received these documents that I first became aware that Mr Reynolds was in fact a police informer, and had provided assistance to the police and that Detective Bandouvakis had prepared a letter to the presiding judge to assist Mr Reynolds in relation to his sentence proceedings.”

5    Whilst that evidence is accepted, and without debating whether Reynolds as a primary witness was a police informer in respect of whom the guidelines issued by the Director of Public Prosecutions explicitly applied, it was obvious that Reynolds was assisting police in the current matter in the sense that he was giving evidence against the appellant. Reynolds’ record of convictions was disclosed to the defence.

6    In written submissions on behalf of the appellant it was stated:
“In short, the defence case was that each car had been acquired from Reynolds in the condition in which it was sold. If the vehicles had been converted or ‘rebirthed’ the conversion occurred prior to the transfer of the property from Reynolds to the appellant. By implication (at least) it was the defence case that Reynolds was the true villain.”

7    It was acknowledged that it was never directly put in cross examination that Reynolds had performed the conversions but there were unmistakably sinister implications in cross examination suggesting that, at the relevant time, he possessed stamps which could be used for the purpose of stamping engine and chassis numbers; that such stamps were never produced to police; that at the time of the offences alleged against the appellant he had severe financial difficulties; that his car yard was capable of holding a number of vehicles; that there were discrepancies in log books he was required to keep relating to the sale and disposal of the cars; and that during the time he conducted the wrecking business he had used the stamps to place engine and chassis numbers upon certain vehicles, in particular Ford motor cars, and that this process was “not easy”. The vehicles involved in the charges against the appellant were Ford motor vehicles.

8    The perception of possible miscarriage is confined to a limited aspect of cross examination of Reynolds referrable to general credit rather than to the facts of the case. The possible significance of such cross examination should be assessed in the context of the overall evidence.

9    The five subject vehicles were stolen in the western part of the State at or near Dubbo. The appellant lived at Dubbo. Reynolds operated his car yard at Yennora in Sydney. Although the cross examination of Reynolds conveyed the implications referred to above, the challenge to Reynolds’ evidence as to fact lay essentially in a contradiction between his testimony that all but one of the cars supplied to the appellant were in undriveable condition; and in the appellant’s unsworn statement that they were all driveable when he received them.

10    It was common ground however that no vehicle was in registration when it passed from Reynolds to the appellant, but all five “reborn” vehicles were in fact registered by the time they were sold to purchasers. (Four vehicles were sold by the appellant and the fifth vehicle was sold by his wife).

11    The pattern of movement from non-registered status to registered vehicle in each case is supportive of the conclusion that the metamorphoses involved in the rebirth of the vehicles were simultaneous with the changes in registration status, i.e. when they were in the possession of the appellant.

12    As has been pointed out, trial counsel had also appeared for the appellant at committal proceedings when Reynolds was cross examined. It is true that it did not emerge in the evidence at committal proceedings that the assistance to police had been a factor in gaining leniency for Reynolds. There was nevertheless extensive cross examination about the relationship between Reynolds and investigators. That cross examination took place on 23 June 1994. It included exploration of matters in these terms:
“Q. And when did the police first speak to you in relation to the matters of Mr Grey?
A. I was brought in for a statement in January this year.
Q. In January of this year?
A. This year yes.
Q. Did they speak to you about Mr Grey’s matters before January 1994?
A. They had, I couldn’t give you dates on, on when it had happened and not specifically Mr Grey they had asked me matters of the vehicles certainly before then.
Q. About the vehicles?
A. Yeah the vehicles that were tagged in the police book.
Q. Was it only in relation to the five vehicles that the prosecutor has referred you to in evidence today or were you asked by police about a whole host of vehicles?
A. Yes I have been asked about many vehicles, there were vehicles that I was charged with, that happened in between February ’92 and March ’92.
Q. They were the vehicles you were charged in relation to?
A. Yes.
Q. Well now how many vehicles were involved in the matters that you were charged with?
A. There were eight vehicles.
Q. Eight vehicles?
A. Mm.”
13    And later in his cross examination:
“Q. Were you spoken to by the police in respect of any other matters where you may have been charged but you were not charged?
A. Where I may have been charged?
Q. Yes, there were other instances where involving motor vehicles or breaches of regulations that, that you breached that you could have been charged but you weren’t charged you were only charged with the matters that you’ve appeared before the court for?
A. I don’t quite understand the question, if you’re saying have I done other things that were wrong?
Q. Yes?
A. I’m sure I have in relation to my books but --
Q. In relation to other motor vehicles?
A. I’ve been a police witness on other occasions, I’ve had basically in a similar situation someone else had done something and I was just a --
Q. A witness as you are now?
A. As I am now.
Q. So how many times have you been a witness and how many cases have you been involved in?
A. Well I was involved in one in Goulburn when I first started, I was involved in my own case where I was convicted and this one.
Q. Any other cases in the future that you’ve anticipated with--
A. I certainly hope not.
Q. You see I put this to you that in relation to the silver Fairlane that Mr Grey went down to collect that vehicle and buy it off you and there were no number plates fitted to the vehicle?
A. That’s right yep the number plates were at that time held by the police.
Q. For the silver Fairlane?
A. Mm.
Q. Why was that?
A. Because those number plates were on one of the vehicles that I was charged with.
Q. There is when Mr Grey went down to purchase it?
A. There were no number plates on the vehicle that’s right.”
14    Insofar as the material upon which it is desired that Reynolds be cross examined as to credit is fresh or new evidence the tests articulated in Mickelberg v The Queen 1988 167 CLR 259 are relevant. In the joint judgment of Toohey and Gaudron JJ @ 301 their Honours said:
“The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see e.g. Gallagher v The Queen 1986 160 CLR 392 @ pp 395, 402, 410. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen 1974 131 CLR 510 @ pp 516-517, per Barwick CJ noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen 1979 142 CLR 659, at pp 666, 675-677.
There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be ‘credible’, ‘cogent’, ‘relevant’, ‘plausible’: see e.g. Gallagher 1986 160 CLR at pp 395-396, 401-402, 408-409; Craig v The King 1933 49 CLR 429 at p 439; Ratten 1974 131 CLR at pp 519-520; Lawless 1979 142 CLR at pp 671, 676-677. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher 1986 160 CLR at p 410 per Brennan J) or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the [accused]’ ( Gallagher 1986 160 CLR at p 399 per Gibbs CJ and per Mason and Deane JJ) 1986 160 CLR at p 402.”

15    Given the availability of Reynolds to be cross examined at committal proceedings and the examples of the thrust of cross examination set out above; to which might be added the explicit knowledge that Reynolds had been charged, convicted and sentenced; with great respect to the contrary view, I find it hard to postulate that reasonable diligence would not have detected that Reynolds had sought and obtained some favourable consideration for his assistance to authority in his own sentencing proceedings. The precise detail of the content of the letter of comfort may have required a judicial order in order to enable access, but the circumstance that benefit for assistance was granted was not subject to any inhibition from disclosure.

16    Whether ground 2 be regarded as made out or not, it remains to consider whether the inability to utilize the relevant information because of its non disclosure has led to miscarriage. In the context of the factual evidence pointing towards the guilt of the appellant, I am unable to conclude that the addition of one additional factor to the many others addressed to the central Crown witness gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant.

17    The appeal should be dismissed.
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IN THE COURT OF
CRIMINAL APPEAL

60803/98

GROVE J
SULLY J
SIMPSON J

Friday 3 March 2000

REGINA v ANTHONY STEPHEN GREY


JUDGMENT
18    SULLY J: I agree with Grove J.
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IN THE COURT OF
CRIMINAL APPEAL

60803/98
GROVE J
SULLY J
SIMPSON J
3 March 2000
REGINA v Anthony Stephen GREY
Judgment
SIMPSON J :


19    On 26 August 1998 following a trial by jury in the District Court the appellant was convicted on five counts of stealing motor vehicles and four counts of disposing of stolen motor vehicles. The indictment also contained five counts of receiving stolen motor vehicles as alternatives to the stealing charges, but, having regard to the verdicts on the principal charges it was unnecessary for verdicts to be taken on the alternatives.

20    On 30 October 1998 Rummery DCJ sentenced the appellant on each count on which he was convicted to a total term of penal servitude for five years, made up of a minimum term of three years and an additional term of two years, all sentences to be served concurrently. The appellant appeals the convictions. He has abandoned an application for leave to appeal against the sentences.

21    The Crown case was that the appellant (with, to a more limited extent, his de facto wife, who was jointly charged with him) was involved in the systematic theft and re-constitution (colloquially called re-birthing) of Ford motor vehicles, and their subsequent re-sale. All offences were alleged to have been committed over a period between April and November 1992, in and around Dubbo in the central west of NSW. In part, the Crown presented its case on a circumstantial basis, relying on the doctrine of recent possession. The appellant did not dispute having had possession, or having disposed, of the vehicles in their converted state. He denied stealing them, converting them, or knowing that they had been stolen. He claimed that he had received four of the vehicles, in driveable condition, from Leon Reynolds and had purchased the fifth vehicle and given it to Reynolds to repair.

22    Reynolds was an important, even critical, Crown witness in relation to each count in the indictment. His evidence was to the effect that in 1992 he ran a motor vehicle wrecking yard in Yennora and that during that year he had sold a number of wrecked vehicles to the appellant. He said these were not in driveable condition at the time of sale. It was the Crown case that the appellant used parts from these vehicles to re-constitute the stolen vehicles.

23    Reynolds was extensively cross-examined by counsel for the appellant at trial, apparently with the intention of establishing in the jury’s mind the reasonable possibility that he, not the appellant, was responsible for the thefts and the conversions, and that the appellant had innocently acquired the vehicles from him and disposed of them.

24    The lines of the dispute were therefore clearly drawn, and drawn in such a way that Reynolds’ credibility was a serious and important issue. He himself had pleaded guilty in 1993 to a series of charges of a similar nature and had been sentenced to nine months’ imprisonment to be served by way of periodic detention. So much was known to the appellant’s legal advisers, and was used by them in cross-examination on the issue of his credibility. What was not known to the appellant’s legal advisers was that in his sentencing proceedings the officer in charge of the investigation, Detective Bandouvakis, had provided to the Court a letter outlining assistance that Reynolds had given, both in admitting his own guilt, but also, importantly, in relation to police inquiries into
“the activities of a group in the central west of this State, involving the theft and the conversion of Ford motor vehicles, on a widespread basis.”

Detective Bandouvakis was the informant in the charges against the appellant.


25    An available inference from the passage extracted above is that the investigation to which reference was made was the investigation which resulted in the present charges.

26    Reynolds was sentenced by Judge Nield on 30 September 1993. Although his Honour’s remarks on sentence have, apparently, never been transcribed and the tapes have been destroyed, the Crown Prosecutor’s note taken at the time of sentence records that the Judge ordered that the Bandouvakis’ letter be placed in a sealed envelope and that, but for the contents of the letter, Reynolds would have been sentenced to a term of full-time custody. Plainly, therefore, Reynolds received, with the support of the prosecution authorities, a very significant benefit resulting from the information he gave Detective Bandouvakis.

27    By grounds 1 and 2 of the appeal the appellant asserts that, as a result of the ignorance in his legal representatives of the existence of the Bandouvakis letter and the benefit received by Reynolds, an important matter relating to Reynolds’ credibility was not put before the jury. Although one ground, as framed, attributes blame to the “prosecuting authorities” for failure to bring the existence of the letter to the appellant or his lawyers, this can be disposed of quickly. In an affidavit sworn for the purpose of the appeal the Crown Prosecutor at the trial disclaimed any knowledge of the letter and said that if he had known of it he would have told the appellant’s counsel about it. Detective Bandouvakis clearly knew of the letter, and he was the informant on the record in the appellant’s trial; but it must be remembered that the letter was written and used in 1993, and the appellant’s trial was in 1998. No reason for the long delay was disclosed in the material before this Court but fairness precludes any conclusion that the non-disclosure of the letter at the appellant’s trial occurred by reason of some mala fides on the part of anybody to do with the prosecution. The most likely reason for its non-disclosure, on the material now available, is that the passage of time rendered its significance less obvious. I would not attribute any actual impropriety to anybody involved in the prosecution of the appellant.

28    That conclusion does not, however, have the necessary consequence that no miscarriage of justice occurred. A miscarriage of justice can occur accidentally, or without any fault on the part of any individual. Having considered all of the material, I am of the view that the appellant has demonstrated that such a miscarriage occurred. The existence of the letter, and the advantage derived by Reynolds as a result were important relevant matters affecting Reynolds’ credibility which should have been known to the appellant’s counsel at trial. Had they been known to counsel, they could, and would, have been put before the jury, and may have affected the jury’s acceptance of Reynold’s evidence.

29    For the purpose of the argument the Court was provided with extracts of guidelines issued by the Director of Public Prosecutions concerning aspects of prosecution policy. These guidelines have been made public by publication in Criminal Law (NSW) (Watson, Blackmore, Hosking) and contain the following:
“11. …
Prosecutors are under a continuing obligation to make full disclosure to the accused of all facts and circumstances and the identity of all witnesses reasonably to be regarded as relevant to any issue likely to arise at trial. Tactical considerations are not to be taken into account when making that assessment. …
16. The Office [of the DPP] maintains an index of informers. An informer is a person (not being a victim or a primary witness) who has given assistance to police or investigators as a consequence of knowledge that has come into his or her possession through direct personal contact with the alleged offender. …
With the assistance of the Office index the accused should be informed in advance of the trial of:
(a) the informer’s criminal record;
(b) whether or not the Police Service or Corrective Services have any information which might assist in evaluating the informer’s credibility, particularly as to:
(i) motivation,
(ii) …
(iii) …
(iv) …
(v) the extent to which public officers have given evidence or written reports on behalf of the informer (eg to courts, Parole Board);
(c) whether any monetary or other benefit has been claimed, offered or provided;
(d) …
(e) …
(f) whether any discount on sentence has been given for assistance in the matter; and
(b) …
…”

30    It will be observed that an informer is defined as a person who has given assistance to police or investigators, but that the definition excludes a victim or a primary witness. Since Reynolds was a primary witness it may well be thought that he was not, strictly speaking, an informer for the purpose of the guideline. This is, in any event, of little significance, because the guidelines do not give any enforceable right to any person. They are, however, relevant in the consideration of whether, in accordance with prosecution policy, the Bandouvakis letter ought, in the ordinary course, to have been disclosed to the defence. Prima facie, as a matter of prosecution policy, as well as of fairness, the letter should have been disclosed. It contained information which might have assisted in evaluating Reynolds’ credibility and, except for the fine distinction between “informers” and “witnesses”, would have fitted neatly into the guideline. Even leaving aside guideline 16, guideline 11 is relevant, and would ordinarily require disclosure of a letter as significant as that here in question.

31 Moreover, pursuant to s 14 of the Director of Public Prosecutions Act 1986, separate guidelines have been issued to police in relation to disclosure by police to the Office of the DPP of information and material additional to briefs of evidence provided. These guidelines require police to notify the DPP of the existence of, and where requested, to disclose all documentation, material and other information, including that concerning any proposed witness, which might be of relevance to either the prosecution or the defence.

32    Of course, guidelines cannot be treated as prescriptive in the same sense as a statute might prescribe procedures, non compliance with which might have specific legal consequences. The DPP guidelines are precisely what they are called - guidelines. They are designed to ensure the fair conduct of criminal prosecutions. They do not create any enforceable right in any individual. But they do provide a useful touchstone, both of what fairness requires, and of what an accused person might expect by way of disclosure from those involved in the prosecution. The guidelines which I have extracted show, in my opinion, what ordinary notions of fairness would in any event suggest: that, had those involved in the prosecution of the appellant been conscious of the existence of the letter, and of the benefit Reynolds received, and had they complied with the obligations suggested in the guidelines, the Bandouvakis letter would have been disclosed to the appellant, and his legal advisers would have been in a position to make use of it in cross-examination of Reynolds.

33    Counsel for the appellant referred also to the rules of the NSW Bar Association concerning the duties of prosecutors who hold practising certificates issued by the Bar Association. A Crown Prosecutor who is a barrister is bound to observe those rules, the sanction for non-compliance potentially being disciplinary action under the Legal Profession Act 1987 : s 57D(4). The rules include the following:
”62. A prosecutor must assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
…
66. A prosecutor must disclose to the opponent as soon as practicable all material available to the prosecutor or of which the prosecutor becomes aware which constitutes evidence relevant to the guilt or innocence of the accused, unless such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.”

34    These rules, like the guidelines, do not confer on any accused person any directly enforceable right. They, too, are relevant to a proper evaluation of the fairness of the trial as it took place, and to what the appellant was entitled to expect from the prosecution by way of disclosure.

35    The fundamental question which emerges from all the guidelines and rules, and, independently, from ordinary notions of fairness, is whether the undisclosed document could be said to have had sufficient relevance to a material issue in the proceedings. The material issue was Reynolds’ credibility. As I have said his evidence was important, if not critical, to the prosecution case, given the issues as they emerged. The fact that he gave to the police information about the very matters with which the appellant was charged, resulting in a reduction in his own sentence, was highly relevant to his credibility. Having given the information in 1993, he was obliged at the risk of himself being re-sentenced; to maintain his position when the appellant was tried: Criminal Appeal Act 1912, s 5DA. I am of the view that the unavailability to the defence of the evidence might have caused the appellant to lose a fair chance of acquittal: R v Mraz (No.1) 1955 93 CLR 493.

36    The Crown, however, argued that the letter amounted to new evidence (drawing a distinction between fresh evidence and new evidence) and that, in the exercise of reasonable diligence on the part of the appellant’s legal representatives at and prior to trial, it would have been disclosed, and that, accordingly, he is not now entitled to rely upon it. The appellant was represented by the same experienced counsel at committal (which was contested) and at trial. During the course of cross-examination of Reynolds at committal the appellant’s counsel elicited Reynolds’ own prior convictions, including the convictions for offences of a nature similar to those with which the appellant was charged. He also elicited the fact that Reynolds had given evidence for the prosecution on other occasions. The Crown argument was that the answers given by him to those questions should have alerted defence counsel to the possibility, or probability, that Reynolds had received support from police in return for his assistance and that, therefore counsel should have made, or should have caused to be made, the necessary enquiries as a result of which the letters would in all likelihood have been divulged. I do not accept this reasoning. First, the questions and answers in the committal do not bear the character the Crown now wishes to give them. When a question was put to Reynolds that might be interpreted (with a good degree of generosity) as asking on how many occasions he had been a police witness in relation to motor vehicles he answered:
“I’ve been a police witness on other occasions, I’ve had basically in a similar situation someone else had done something and I was just a …”
37    He was then asked on how many occasions he had been a witness and how many cases he had been involved in and his answer was:
“Well, I was involved in one in Goulburn when I first started, I was in my own case where I was convicted and this one.”

38    I do not agree that these answers should have signalled to the appellant’s counsel that enquiries ought be made as to any benefit Reynolds received for the information he gave in relation to the investigation into the offences with which the appellant was charged. The offences were non specific, tending to suggest (so far as they can be said to have any precision) that Reynolds had given evidence in relation to other matters. The benefit he received on sentence was expressly in recognition of the information (and evidence) that he gave in relation to the charges against the appellant. It may be that the appellant’s legal representatives could have issued a subpoena for production of the District Court file, in order to ascertain whether Reynolds had received any benefit on sentencing; but some limits ought to be applied to the assessment of what speculative steps should have keen taken. The answers extracted do not reasonably suggest a line of inquiry and I do not believe that the failure to pursue any possible advantage given to Reynolds in any way reflects on the appellant’s then lawyers, or ought now to preclude reliance on the present ground.

39    A second part of the reasoning which I do not accept is that appropriate enquiries would or might have drawn out the existence of the letter. It is not at all clear what enquiries the appellant’s legal representatives might have made based on the answers extracted. Since there was insufficient in the answers to suggest that he had received a benefit in relation to the present charges , there was no reason for the appellant’s lawyers to have sought access to the material relevant to his sentencing. In any case, the primary obligation lay on the prosecution to disclose the letter, not upon the appellant’s lawyers to engage in a complicated detective exercise. The concession that the failure to disclose the letter might have resulted from an understandable oversight on the part of those involved in the prosecution in no way diminishes the impact of the oversight on the appellant's conviction.

40    During the course of argument the Court was referred to authorities establishing that the fresh evidence rules have more limited operation in relation to criminal trials than in civil. I do not find it necessary to do more than acknowledge that these matters were drawn to our attention.

41    I am satisfied that the appellant has established a miscarriage of justice on this ground.

42    Counsel sought, and was granted, leave to add an alternative ground of appeal: that the failure of the appellant’s former legal representatives to make the relevant enquiries falls within the principles stated in R v Birks (1990) 19 NSWLR 677, and itself caused a miscarriage of justice. Having regard to the conclusions I have reached above, it is unnecessary for me to pay any further attention to this ground.

43 That makes it strictly unnecessary to consider a further alternative ground, which concerned the failure of the trial Judge to give a direction under s 165 of the Evidence Act 1995 , but since I understand that other members of the Bench may not share my views on the first issue, I should deal with it briefly.

44 At trial, counsel sought a direction in relation to Reynolds’ evidence. He generally related the application to s 165. S 165 applies to evidence of a kind that may be unreliable, specific examples of which are given. In a jury trial, where evidence falls into the category of evidence that may be unreliable, and the trial Judge is requested by a party to do so, the Judge is required to warn the jury that the evidence may be unreliable; to inform the jury of matters that may cause it to be unreliable, and to warn the jury of the need for caution in determining whether to accept the evidence; and the weight to be given to it if accepted.

45    One of the specific examples of evidence of a kind that may be unreliable is identified as:
“(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding.”

46    As I have noted above, the tenor of the cross-examination addressed to Reynolds was to suggest that the conversion of the vehicles had taken place while they were in his custody and before he passed them on to the appellant. It was common ground that, although the groundwork for such a conclusion was painstakingly laid, by, inter alia, establishing that Reynolds had the tools and facilities that would have enabled him to undertake the conversion, it was never directly put to him that he had in fact done so.

47 Where a direction is sought in reliance upon s 165(1)(d), it is necessary for the trial Judge to determine whether there was evidence capable of raising a reasonable supposition that the witness concerned was criminally concerned in the events giving rise to the charge. If so, the Judge is obliged to give the direction (unless, in the circumstances of the case, there were good reasons not to do so: see sub s (3)): R v Taranto ; R v Freeman [1999] NSW CCA 396, unreported, per Spigelman CJ, Dunford and Hidden JJ.

48 Unfortunately, that is not what occurred in this case. The Judge was asked for a s 165 direction; but the application did not rely on any of the specific examples of unreliable evidence mentioned in the section. Instead, the application relied upon Reynolds’ statement that he had a poor memory; and that he had tried to expunge the relevant period of his life from his mind; and that in 1998 he was giving evidence of events that had occurred in 1992. The Judge held, quite correctly in my view, that neither of these circumstances was sufficient to bring Reynolds’ evidence within the description “of a kind that may be unreliable”, so as to bring s 165 into play. It was, as the Judge said, in no different category than the evidence given by any of the other witnesses, all of whom were recounting events of the distant past. He held that it was part of the jury’s function to assess, and to evaluate, the reliability of the evidence of all of the witnesses, including Reynolds. In the context of the application that was made to him, this was an entirely correct conclusion. What is now put is that the Judge failed to apply his mind to the assessment whether Reynolds was a witness who might reasonably have been supposed to have been criminally concerned in the events giving rise to the charges. This he was never asked to do.

49 One question that arises is whether the appellant requires leave, pursuant to Rule 4 of the Criminal Appeal Rules , to argue this ground. Rule 4 provides as follows:
“No direction, omission to direct, or decision as to the admission or rejection of evidence given by the judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.”

50 An application for a direction in general terms under s 165, on the basis of a witness’s poor memory and the lapse of time since the events in question, is insufficient when the ground now raised is that a direction ought to have been given because of the suggestion that Reynolds might reasonably be supposed to have been criminally involved in the enterprise. Leave is required to argue the ground. It is not affected by the discovery of the Bandouvakis letter. The issue of Reynolds’ involvement was an issue at trial. Many cases have established the obligation of counsel to assist the trial Judge, and to ensure that the trial process is not infected by avoidable error. Particularly in the light of the failure of counsel to put expressly to Reynolds the accusation that he was criminally concerned in the thefts or conversation of the vehicles, there was no reason why the Judge should, in the absence of a request by counsel, have turned his mind to paragraph (d) of s 165(1). Had he been invited to do so, it may well have been that he would have reached the necessary factual conclusion which would have given rise to the need to give the direction. Had he done that, undoubtedly he would have given the direction. This is a case in which, in my opinion, leave under Rule 4 should not be granted.

51    In the light of my conclusion in relation to grounds 1 and 2, I propose that the appeal be allowed, the convictions quashed, and a new trial ordered.
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