R v Heron - [2000] NSWCCA 312

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Heron [2000] NSWCCA 312

FILE NUMBER(S):
60383/98

HEARING DATE(S): 10 April 2000

JUDGMENT DATE: 17/08/2000

PARTIES:
Regina v Michael Heron

JUDGMENT OF: Priestley JA Foster AJA Simpson J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70024/97

LOWER COURT JUDICIAL OFFICER: Sully J

COUNSEL:
Appellant - W.G. Roser
Crown - L.M.B. Lamprati

SOLICITORS:
Appellant - T.A. Murphy
Crown - S.E. O'Connor

CATCHWORDS:
Murder
appeal against conviction
application for leave to appeal against sentence

LEGISLATION CITED:
Evidence Act 1995 (NSW)

DECISION:
Appeal against conviction dismissed.
Application for leave to appeal against sentence granted
Appeal against sentence dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60383/98
PRIESTLEY JA
FOSTER AJA
SIMPSON J
Thursday, 17 August 2000

REGINA v HERON

MURDER - APPEAL AGAINST CONVICTION - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE.
At trial the prosecution case was that the death of Mr Jularic was caused by the appellant stabbing him with a knife in the course of a fight in a hotel pool room. The appellant admitted he had fought with Mr Jularic but denied having a knife or stabbing him. The medical evidence from the post mortem examination was that the fatal wound was made by a knife like object. Some glasses had been broken during the fight. The appellant’s case was that it was not unlikely that a shard of glass had accidentally caused the penetrating wound. Some witnesses gave evidence of having seen a knife in the appellant’s hand, some had heard voices exclaiming “he’s got a knife”.

The appellant’s chief grounds of appeal were that the trial judge had wrongly refused to discharge the jury, had spoken to the jury in the appellant’s absence, had wrongly admitted evidence, had made a prejudicial comment, had unduly made his own opinions known to the jury, and that the jury’s verdict was unsafe and unsatisfactory.

Held: Appeal dismissed. None of the grounds was made out. The judge had made no errors of law or in exercise of discretion, or procedurally, as complained of. In regard to his making his own opinions known to the jury, he had given appropriate instructions, on a quite sufficient number of occasions, telling the jury that they were the sole deciders of fact. There was no sign in his remarks of his attempting to use his position and authority to overbear the jury into accepting his views if they were different from his: R v Zorad (1990) 19 NSWLR 91, R v D (1997) 68 SASR 571 at 579, discussed and applied. On the unsafe and unsatisfactory ground, after taking into account the inevitable differences in detail of the evidence of the numerous witnesses, there was no basis for the court on appeal to have any doubt of the guilt of the appellant or to see any significant possibility that an innocent person had been convicted.

On the application for leave to appeal against sentence: leave granted but appeal dismissed; no error shown in the sentencing judge’s handling of the sentencing proceedings, or in their result.

ORDERS
1. Appeal against conviction dismissed.
2.Application for leave to appeal against sentence granted; appeal against sentence dismissed..

IN THE COURT OF

CRIMINAL APPEAL

CCA 60383/98
PRIESTLEY JA
FOSTER AJA
SIMPSON J
Thursday, 17 August 2000

REGINA v HERON

PRIESTLEY JA:
introduction:
On 9 July 1998, following a guilty verdict by a jury at a trial over which Sully J presided, the appellant was convicted of murder. On 23 September 1998 Sully J sentenced the appellant to penal servitude for a minimum term of fourteen years with an additional term of four years, to commence on 2 November 1996. He appeals against the verdict and conviction and also seeks leave to appeal, in the event that his appeal against verdict and conviction fails, against his sentence.
The charge of which the appellant was found guilty was that on 27 October 1996 at the Beresford Hotel, Bourke Street, Darlinghurst, he murdered Bill Velibor Jularic. It was not in dispute at the trial that at about 7 pm on that day there was a fight between the appellant and the deceased, that in the course of the fight the deceased suffered a wound from a sharp object which penetrated the top lefthand side of his chest, his top left rib and his left lung, that he collapsed, that the appellant ran away and that the deceased died soon afterwards. On 2 November 1996 the appellant went to the Surry Hills Police Station with his solicitor. He was then charged with murder. He has been in custody ever since.
The prosecution case was that the fatal wound was made by the appellant’s stabbing the deceased with a knife. The case for the appellant, who gave evidence at the trial, was that he did not have any knife in his possession during the fight or at any time relevant to it and that he did not stab the deceased. Also, in the course of the trial, it was contended for the appellant that the wound could have been caused by a shard of glass from glasses broken in the course of the fight. This possible explanation of the wound was explored at length with several witnesses and the resulting state of the evidence was said to support the submission that the jury could not find, beyond a reasonable doubt, that the appellant had stabbed the deceased.
The trial before the jury began on 4 June 1998 and continued through twenty-three sitting days until the jury brought in its guilty verdict on 9 July 1998.
The appellant’s notice of appeal contained six grounds. Five of these asserted procedural errors on the part of the judge and the sixth was that the jury’s verdict was unsafe and unsatisfactory. Before the appeal came on for hearing the appellant gave notice that he would seek the leave of the court to rely upon two further grounds of appeal. Leave to argue these grounds was granted. They raised two further alleged procedural errors on the part of the judge.
I will deal with the appeal by considering the seven procedural grounds in their numbered order and then finally considering the unsafe and unsatisfactory ground. (The grounds of appeal are reproduced as presented to the court.)
ground 1:
“His Honour erred in failing to discharge the jury after directing them that the appellant was a prisoner and was being held in custody. This failure caused a miscarriage of justice.”
The circumstances giving rise to this ground were as follows. The first day of the trial took place on Thursday 4 June 1998 in a courtroom in the Supreme Court, King Street. At the end of that day’s hearing the judge told the jury that he was considering having the trial moved to a courtroom at Darlinghurst, not the next day, but the first sitting day of the following week. The next morning, before the jury returned to the court, the judge told counsel he had received a note from the jury foreman asking that the trial continue in the King Street courtroom. He indicated to counsel that he would try to persuade the jury to agree to the transfer to Darlinghurst.
When the jury were brought in the judge outlined the advantages of Darlinghurst and mentioned various practical problems of the King Street court. At one stage he said:
“The fact of the matter is that the prisoner, just to take an example, had to be brought this morning in appropriate transport and then deposited somewhere away from the immediate precincts of the court and then brought downstairs and then brought up into court and he will have to do the same thing in reverse. That’s just one practical problem.”
After the judge had finished his explanations to the jury, the Crown Prosecutor said, in the absence of the jury:
“Just in your remarks to the members of the jury, you referred to the accused as the prisoner in going up and down the stairs. It may be inferred from that, that he is in custody. I am a bit concerned the jury may draw an adverse inference from those remarks. It’s something I think that can be cured by your Honour clarifying the situation.”
The judge said he would fix the matter and then asked the appellant’s counsel what he had to say. The transcript shows:
“TURNBULL: Can I say I am grateful to my learned friend. I didn’t hear the remarks, I have been alerted by my friend and indeed it might be something your Honour would want to check the transcript about.
HIS HONOUR: There’s no question about it. I told them that in aid of telling them what the practical problems are in this wretched court set up that we have here. I will fix that with them. There’s no great harm done.”
The jury were then recalled and the transcript records the following:
“HIS HONOUR: Ladies and gentlemen, just for more abundant caution, could I add one thing before we call Mr Rostami and it’s this. In the course of explaining to you the logistical problems that we have had down here, I told you about the arrangements that have to be made with Mr Heron, the accused each morning. I can’t imagine that you will have misapprehended what I said but just to be careful, you do understand you draw no adverse inference against him that he is required each morning to come here in the way I described to you and to be brought into the Court in the way I described.
So far as concerns the question of whether the Crown can prove the charge against him, a logistical matter of that kind bears no relevance and you will of course, Mr Foreman, keep an eye on the convenience of your colleagues and if there is some problem that arises, just send me a note and we will work around whatever the problem is.”
Nothing further was said about that matter during the rest of the day. The trial proceeded, and was adjourned to the next sitting day, Tuesday, 9 June, 1998, (at Darlinghurst). Early on that day counsel for the appellant submitted the judge’s efforts to deal with the situation that had arisen on the Friday were not sufficient in the circumstances and the jury might speculate about a matter as fundamental as whether the accused was in custody or not; on this basis it was submitted the jury should be discharged. The Crown Prosecutor opposed the application and the judge dismissed it.
In this court counsel for the appellant was not the same as the one who appeared for him at the trial. Although the submission that the judge should have discharged the jury was put more elaborately to this court than the discharge submission to the trial judge had been, at least so far as the record shows, it was substantially the same submission.
The basis upon which a judge should or should not discharge a jury upon a claim that inadmissible and prejudicial material has come before the jury has been discussed in many cases. The most recent authoritative statement of the position to which the court was referred was that made by the High Court in Crofts v The Queen (1996) 186 CLR 427 at 440-441. The statements in this case were applied in this court in R v Gilbert Adam [1999] NSWCCA 197 A decision arising from the same circumstances was delivered by the same court on the same day, R v Richard Adam, ((1999) NSW CCA 189), and reported, ((1999) 106 A Crim R 510).. At the trial in that case a document had found its way into the jury room, about which the trial judge (Wood CJ at CL) said that it was a matter of great regret that it should have done so but that that was not of itself determinative of the question whether a discharge should be ordered. For that, he said, there needed to be a high degree of need, but he went on to make it plain that that need was satisfied “where the Court takes the view that there is a tangible risk that an accused would be denied a fair trial by reason of the event which has occurred, and is further satisfied that the problem cannot be appropriately cured by direction to the jury.” (see par 67 of the CCA judgment).
A little later the Court of Criminal Appeal set out the governing passage from Crofts containing the authoritative statement of the rule (par 73), and then pointed out that in another part of its reasons in Crofts the High Court had said that “... it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account” (see par 74). The court (ie the CCA in Gilbert Adam) next cited the case of R v Bell (unreported, CCA, 8 October 1998) in which the court had referred to a number of authorities in which confidence had been expressed in the ability of juries to decide cases on the evidence, to ignore prejudicial information and to comply with a judge’s directions (par 75). The court then said that the principles applied by Wood CJ at CL were the proper principles to apply (par 77).
The position therefore is that the test stated by Wood CJ at CL (see the end of par 14 above) has been approved by this court as correct, and in accordance with the leading authority of Crofts.
In this court, counsel for the appellant sought to emphasise that to have called the accused “the prisoner” and to have referred to him as being in custody may well have led the jury to draw adverse inferences against him. There was some debate about the correct words to use to describe an accused person in custody throughout a trial. I doubt whether the members of the jury would have given any particular significance to the words used by the trial judge, but whether this be right or not, I think the trial judge’s direction was quite adequate to the circumstances. It was submitted that the direction did not say enough, but it seems to me to have been better to keep it short; to go into further detail might possibly increase the risk of causing the jury to speculate about the significance of the appellant’s whereabouts and movements during the trial.
As I have indicated I doubt whether any tangible risk of an unfair trial was created by what his Honour said. In any event I am of opinion that to the extent that there was any problem, it was appropriately cured by the direction the trial judge gave to the jury.
In my opinion the first ground of appeal fails.
ground 2:
“His Honour erred in bringing in and giving the jury directions in the absence of the appellant. This caused a miscarriage of justice.”
Counsel for the appellant asked that this ground be considered together with ground 1. The ground is based on the fact that on the third day of the trial, which happened to be the first day of sitting at Darlinghurst, a transport problem prevented the Corrective Services Department having the appellant at the court on time. In the appellant’s absence the judge had the jury brought into court and told them the court would not be sitting until 11.30 that morning.
It is submitted that his Honour did not then attempt to explain why that would be so nor did he explain why the appellant was not in court.
No question about this procedure was raised at the trial.
The submission as put to this court was that the appellant had been entitled to be in court at all times when the jury was there, that his not being there when the judge told them they would not be sitting until 11.30 could reasonably be expected to have caused them to speculate further about the facts mentioned to them on the preceding Friday about the appellant being “a prisoner” and in custody, with the reasonable possibility that they would draw adverse conclusions against him.
I do not think this submission has any weight. The references that had been complained about on the Friday were the subject of a direction by the trial judge which I have already said was in my opinion quite adequate to avoid any adverse result to the appellant. That being so, I see nothing in what occurred in the appellant’s absence on the Tuesday morning which might reasonably be thought to have led the jury to draw any adverse inferences against him.
ground 3:
“His Honour erred in failing to discharge the jury after making comment in front of them that the appellant had “wisely hidden” the issue of flight from him. This failure caused a miscarriage of justice.”
Counsel for the appellant was cross-examining a witness who had been present at the hotel at the time of the fight about the way he left the hotel when it became apparent the deceased had been wounded, and about the conversation between him and the person with whom he had left the hotel. The Crown Prosecutor objected, asking whether this went to the issue and saying that it was a matter that touched on credibility. The trial judge said:
“I suppose that rather depends upon how you define the issue, doesn’t it, something which is as yet wisely hidden from me at this time. I will not stop it at the moment. I will give the jury directions at the time.”
The trial judge then asked counsel for the appellant:
“You might just tell me since the objection is taken, what is the issue to which it goes?”
Eventually counsel said that the issue to which it went was flight but in answer to a further question by the judge he said it was not the flight of the appellant in respect of which he was asking the questions but “the context in which a number of people left that hotel in hurried circumstances”. The trial judge then disallowed the question.
No complaint is made in this appeal about the disallowance of the question but, at the time, and in the absence of the jury counsel submitted in effect that the judge should not have made the comment involved in the words “wisely hidden” because it could leave the jury with an impression that the defence was of no substance. He went on to make a submission concerning the judge’s demeanour on the previous day and to link that demeanour with what he was submitting was the effect of the judge’s observation about which he was complaining. He then asked the trial judge to consider his concerns and to indicate that if the jury had a view about what his Honour’s opinion was, they should not take that into account. The trial judge then asked whether counsel had any other application to make. Counsel replied he would have to take instructions in relation to any further application. A short adjournment was given to him for that purpose. When proceedings resumed, he said he had no further application to make.
It seems obvious that counsel had been combining a submission in which he was in substance asking the judge to undo what counsel was submitting was the prejudicial effect of the judge’s “wisely hidden” remark with a further, rather inchoate submission that the judge was demonstrating bias against the appellant. Following the judge’s question whether counsel wished to make any application concerning that, the answer came that no application was to be made.
Thus the position at the stage when counsel told the judge he had no further application to make was that the only matter about which the judge arguably had to make any decision was counsel’s application concerning his “wisely hidden” remark. It is also possible that the judge understood counsel’s statement that he had no further application to make as meaning that he was not pursuing any of his earlier submissions.
In any event the transcript does not record his Honour as saying anything further about the matter.
It seems to me quite plain from the transcript that in his Honour’s answer to the counsel for the prosecution which included the words “wisely hidden” he was not meaning to convey and could not reasonably be thought to have conveyed the meaning which counsel for the appellant attributed to the words in his submission.
In this court, in the Crown’s written submissions it was said that at the time when his Honour made the criticised remark he was unable to discern from the questioning just what issue the questions being asked were directed to. In my opinion it is obvious that this was the meaning of and the meaning conveyed by what his Honour said.
It is perhaps understandable that in the midst of a difficult trial counsel for the appellant thought that what the trial judge said carried a more sinister and hostile meaning than in fact it did. However, as I have said, the transcript leaves no doubt in my mind that what the trial judge said could not reasonably be taken to have had the meaning which counsel placed upon it; at the most, it seems to me that the trial judge was saying, with a touch of sarcasm, that, at the time when counsel for the prosecution had objected, he had not been able to see what issue the cross-examiner’s questions were driving at. This inability in fact turned out to be well-founded, because when counsel formulated the issue to which he said the questions were directed, it was an issue the trial judge ruled to be irrelevant, a ruling about which no complaint has been made in this court.

As to the suggestion made to the judge at the time that he was impermissibly indicating his own views, adverse to the appellant, to the jury, it is not strictly speaking necessary to deal with that here, because this particular incident was not raised in that connection in the course of the appeal. However, it seems appropriate to point out, as will be mentioned again later, that the trial judge in his summing-up told the jury on a number of occasions that they were the judges of the facts and that they were free to disregard any comments he had made about the facts of the case.
This ground of appeal fails.
ground 4:
“His Honour erred in failing to direct and warn the jury of the limited use, pursuant to ss 136, 165 Evidence Act 1995, the evidence of Brendan Cardinaels could not be used for in their deliberations. This failure caused a miscarriage of justice.”
Some details needs to be set out in order to make this ground comprehensible.
Sixteen witnesses were called in the prosecution case who had seen all or parts of the fight between the appellant and the deceased. Statements from two others, who were not in the jurisdiction, were read to the jury. Four of the sixteen who were called gave evidence of having seen a knife in the appellant’s hand. (There was good reason for the jury to think that three of these four - Messrs Niumeitolu, Rostami and Saad - were unreliable.) Of the other twelve, four (Messrs Sidoti, Drew and Cahill and Miss Veness) heard a voice cry, towards the end of the fight, “He’s got a knife”. (Mr Saad also said he heard this.) Mr S. Williams, the fourth of the witnesses who said they had seen a knife, also gave evidence that he had heard Mr Cahill say the appellant had a knife.
Another seven witnesses were, at the time of the fight, in a part of the hotel near the pool room. The deceased staggered into this part of the hotel after being wounded. These seven witnesses gave evidence of the deceased’s blood-covered appearance and of what he then said. Some said that the deceased had said words to the effect that he was going to die. One other said that the deceased had said “Look what he’s done to me” and another’s recollection was that the deceased had combined the two ideas by saying “He’s hurt me, I’m going to die”.
Mr Saad said he had been in the pool room when the fight broke out. His evidence was to the effect that the fight had had three phases. (This fitted to some extent with much of the other evidence.) He said he had intervened to bring about the end of the first phase by holding the appellant in a bear hug from behind; it then looked for a moment as if things might quieten down but then the second phase of punching and wrestling between the two men got under way; this second phase was broken up by a bystander called Robin who got in between the two men trying to pull them apart; he (Mr Saad) then picked up a cue stick from the pool table in order to chase the deceased outside because he had noticed that the appellant had a knife in his hand in the second scuffle; in his own words, “I proceeded to chase the deceased out”; then the deceased picked up a bar stool and came back towards the appellant; he then saw the appellant running towards the deceased and lunging towards him; then he noticed the deceased had blood dripping out of his jugular area at a rapid rate; the accused was pulling back; he heard the deceased say “He has got a knife”; he (Mr Saad) then panicked and left the hotel as quickly as possible.
Counsel for the appellant had in his possession a statement by Mr B. Cardinaels. (It had become Exhibit B in a voir dire; T903). In evidence later given by Mr Cardinaels after Mr Saad had given his evidence (which seems to have been led from Mr Cardinaels by Crown counsel from his statement, without objection,) it appears that in this statement Mr Cardinaels said that on the night of 27 October 1996 he had been at a residence in Surry Hills when just after 7 pm his friend George Saad knocked on the door. George Saad stood in front of him and said something like, “I have just seen a guy get stabbed”. Mr Cardinaels enquired “Where at” and he said the Beresford. He went on to say, “I told this guy to fuck off, there was going to be trouble”. Mr Cardinaels then asked him what happened and he said words to the effect, “I was at the Beresford, I was holding this bloke, I had him up against the wall and this bloke come over with a knife and stabbed him”. Mr Cardinaels then asked him “So what did you do?” and he said “I just took off straight away”.
When the appellant’s counsel cross-examined Mr Saad on Mr Cardinaels’s statement he was asked whether he agreed he had said these things to Mr Cardinaels. He agreed that he had spoken to Mr Cardinaels some time on the night of 27 October 1996, after the fatal stabbing, but he steadily denied having said to Mr Cardinaels that he had been holding the deceased when he had been stabbed.
Towards the end of Mr Saad’s cross-examination, counsel for the appellant raised with the judge the question whether the prosecution was going to call Mr Cardinaels as a witness. He said he had expected this would happen but he had been told by prosecution counsel that he did not think Mr Cardinaels’s evidence was relevant and therefore did not intend to call him. This led to considerable debate which at first was focused on the relevance of Mr Cardinaels’s evidence to the credibility of Mr Saad, obviously an important matter at the trial.
After discussion the trial judge indicated, without at that stage deciding, that he was inclined to think that at least some part of Mr Cardinaels’s evidence was relevant pursuant to s 106(c) of the Evidence Act 1995 (NSW) (the Evidence Act). Prosecution counsel said he would reconsider his position overnight.
Early in the following day’s hearing, counsel for the prosecution told the judge that he proposed to call Mr Cardinaels. At this stage discussion took place between the trial judge and counsel for the appellant on the question whether it would be open to counsel for the appellant in his final address to the jury to say that there was sufficient evidence concerning the possibility that a shard of glass had caused the fatal wound to prevent them being satisfied beyond reasonable doubt that it was the appellant’s stabbing with the knife that had caused the wound and the death. The trial judge was at first sceptical about whether such a course was open to counsel for the appellant, but eventually indicated that he would not prevent counsel for the appellant addressing the jury on that basis.
The discussion then returned to the question whether counsel for the appellant could establish from Mr Cardinaels an inconsistent statement by Mr Saad upon which he was entitled further to cross-examine Mr Saad. The trial judge said he could not see why counsel could not take Mr Saad through the balance of Mr Cardinaels’s statement, in order, as his Honour said (at T933) to “set the groundwork for either establishing out of his own mouth an admission that he said it to Cardinaels, or if he denied it, which he is almost certain to do, take advantage of 106(c) to prove a prior inconsistent statement and that itself in the circumstances of this case, would give you, wouldn’t it, 106(a) as well?” (Section 106(a) makes admissible evidence that tends to prove that a witness has a motive for being untruthful as a basis for cross-examining that witness as to the witness’s credibility.)
Counsel then reminded the judge that he had the previous day already taken Mr Saad through the relevant parts of the conversation which Mr Cardinaels alleged had taken place between them. It thus became clear that there was nothing further that counsel for the appellant wished to ask of Mr Saad based on Mr Cardinaels’s statement. This led the counsel for the prosecution to raise the question whether in these circumstances Mr Cardinaels should be called.
The trial judge then said that since Mr Saad had denied making the statement to Mr Cardinaels that he, Mr Saad, had been holding the deceased up against the wall when he was stabbed, that Mr Cardinaels’s evidence would be properly admitted in order to establish pursuant to s 106(c) that Mr Saad’s denial was not credible (T935). Counsel for the prosecution replied that whether or not Mr Saad held the deceased up against the wall did not go to the issues of the case.
At this point, the trial judge moved from the view that Mr Cardinaels’s evidence would go to the credibility of Mr Saad, to the further view that whether Mr Saad held the deceased up against the wall also went to a fundamental issue in the case namely how the stab wound could have been inflicted. He summarised the various possibilities and continued:
“I would not at the moment see that there is any evidence that he was stabbed at a time when he was immobilised by Mr Saad, not as an accomplice, but simply because that is in fact what happened. If the jury were to accept that at the time when he was stabbed so as to have suffered a wound of the kind that Professor Hilton describes, he, the deceased, was pinned up against the wall, the hypothesis of the shard of glass on the ground becomes steadily less open, doesn’t it?”
Here, his Honour appears to have been plainly saying that if Mr Cardinaels were to give the evidence known to the judge and counsel to be set out in his statement and if the jury were to accept that evidence and not accept Mr Saad’s denials, then the hearsay statement from Mr Saad, accepted by the jury as having been said by him, would furnish some evidence of the fact asserted by Mr Saad in the statement.
Counsel for the prosecution then said he would call Mr Cardinaels.
Mr Cardinaels was called, and evidence was led from him as I have summarised it in par 41 above. A brief cross-examination by counsel for the appellant brought evidence from Mr Cardinaels of the timing of Mr Saad’s arrival, which if accepted meant Mr Saad must have gone almost directly to Mr Cardinaels’s residence from the Beresford Hotel, and also that when he arrived there was blood all over his clothing as well as on his hands and arms (T940).
This would seem to indicate that part at least of counsel’s strategy at this stage was to have evidence prominently before the jury of Mr Saad having been much closer to the deceased at the time when or immediately after he was stabbed than he, according to his own account, had been. At an earlier stage (T931) the trial judge had asked counsel whether it was his case that Mr Saad had done the stabbing. Counsel had answered that he was not instructed to that effect. The trial judge indicated that if the defence case were that Mr Saad actually did the stabbing that would need to be put to him fairly and squarely. Counsel referred to the fact that he had already asked Mr Saad whether he had a weapon and that he had said no. The trial judge again strongly indicated that he did not think in the circumstances the jury could consider as an issue whether it was a possibility that Mr Saad had done the stabbing. Counsel replied, “There is a difference between putting the question and examining the possibility”.
That counsel still had this possibility in mind appears to be shown by the fact that almost immediately after the cross-examination of Mr Cardinaels was over, a police witness who was recalled for further cross-examination was asked whether he had directed anybody to test Mr Saad’s clothing (T941).
I have gone into the foregoing detail about the setting against which the ground of appeal presently being considered is put forward, because the basic complaint under the ground is that the trial judge did not direct the jury that Mr Saad’s statement to Mr Cardinaels, as recounted by Mr Cardinaels, could not provide any evidence of the fact that Mr Saad was holding the deceased at the time when he was stabbed by the appellant; it was submitted that the judge was obliged to tell the jury that their use of Mr Cardinaels’s evidence had to be confined to their consideration of Mr Saad’s credibility. This submission was pressed in the appeal although no complaint was made at the trial about the matter, either at the stage when the trial judge indicated, as set out above, that the evidence would be relevant to the issue of how the deceased received his fatal wound, or at the conclusion of the trial judge’s summing up.
In the appeal counsel for the appellant agreed that no direction had been sought to correct what he contended was a significant omission by the judge but contended that he was obliged to give the direction, whether or not it was asked for.
Although counsel’s submission, looked at in the abstract, might well have some force under the common law rules concerning hearsay, it does not appear to take into account the major changes made by the Evidence Act to the law of evidence concerning hearsay.
Two of the major changes relevant to the present case appear in ss 66 and 60 of the Evidence Act. Section 66 provides that the hearsay rule does not apply to evidence of a representation about an asserted fact given by a person who heard the representation being made if when it was made the occurrence of the asserted fact was fresh in the memory of the person who made the representation. Section 60 in effect makes hearsay evidence, if admitted for a particular purpose, evidence for all purposes.
Safeguards are provided against possible misuse of hearsay, by, for example, ss 136 and 165. Section 136 authorises the court to limit the use to be made of evidence if there is a danger that a particular use of it might be unfairly prejudicial to a party or misleading or confusing. Section 165 proceeds on the basis that hearsay evidence may be unreliable and provides that in a jury case, where a party so requests, the judge is to warn the jury that the evidence may be unreliable. However, the section then adds that the judge need not give a requested warning if there are good reasons for not doing so. Here, there was no request.
Notwithstanding the reasonably plain regime laid down by s 165, counsel for the appellant submitted that the trial judge had been obliged to give the same kind of direction that would have been necessary under the common law position before the Evidence Act came into force.
The submission in this form went further than had been asserted in the ground of appeal, which relied on ss 136 and 165. Probably this was because use of either of those sections would not have taken the appellant the distance he wished to go. The power under s 136 to limit the use of evidence as distinct from excluding it, gives the court an undefined flexibility in its use of the section which makes it seem difficult to me to say that the only order the trial judge could make, if he chose to use the section, was the order the appellant now contends for, namely that no use of the evidence in regard to any issue other than credibility could be made. Section 165 could not achieve the withdrawal of the evidence from use by the jury in connection with the factual issue, it could only lead to a warning to the jury that the evidence might be unreliable. Under this section, it would seem that the evidence would still be before the jury relevantly to the factual issue, but subject to the judicial warnings about it.
The most important feature relevant to this ground, however, is that the trial judge was not asked to exercise his powers under either s 136 or 165, or to take the further step of giving what is now claimed to have been an obligatory direction. That might not be fatal in regard to s 136, although in view of what the judge had said about the relevance of the evidence to an issue other than credibility, the apparent acquiescence of the appellant’s counsel in that approach, and, also apparently, the positive wish of the appellant’s counsel to have the evidence available for all purposes, I do not think the section can support the ground of appeal.
The same considerations apply to s 165, together with the additional problem for the appellant that it seems reasonably clear that the section only operates upon the request of a party, and even then is not obligatory on the judge. Without a request, (as here), the section does not operate; the trial judge may have other powers or duties to give appropriate warnings, but they would have to be independent of s 165.
This leaves the appellant’s submission that there was a common law obligation upon the trial judge to direct the jury that Mr Cardinaels’s evidence of what Mr Saad had said to him was no evidence of the fact that Mr Saad had been holding the deceased when the appellant stabbed him. The court was not referred to any authority supporting the view that the common law rule concerning hearsay worked the same way after the Evidence Act came into operation as it had before; nor have I been able to find any. In the absence of authority to the contrary, I can only say that on reading the Evidence Act and in particular Pt 3.2, the common law position relied upon by the appellant appears to have been deliberately changed by the statute to make some previously inadmissible hearsay statements admissible as proof of facts in issue. What Mr Saad said to Mr Cardinaels falls within this category. The position has changed from that at common law, where the dangers of hearsay evidence were guarded against by a rule of exclusion subject to exceptions, to that under the Evidence Act, where some hearsay is admissible, subject to safeguards. It seems to me that the right way for instructing a jury concerning hearsay evidence must begin with a consideration of the various provisions of the Evidence Act relating to it. The earlier authorities concerning the use of hearsay at common law can no longer be the governing authorities.
The result is that I do not think the appellant’s common law argument can be accepted.
A further point under this ground was based on something the trial judge said in his summing-up when referring to Mr Cardinaels’s evidence, which the judge spoke of as follows:
“... Mr Saad said ... he had just witnessed the killing at the Beresford Hotel, that he had had the deceased up against a wall, holding him there and that this bloke, by which we are to understand the accused, had come and stabbed the deceased.”
The words “by which we are to understand him the accused” were the judge’s own interpolation.
It was submitted that the appellant had not been identified in this way in what Mr Saad said to Mr Cardinaels and it was very prejudicial to the appellant for the identifying interpolation to have been made.
No request was made by counsel for the appellant following the summing-up to the judge to withdraw or correct what was said to be this very prejudicial interpolation.
On reading again the transcript concerning Mr Cardinaels and Mr Saad, their different evidence concerning the conversation between them, and what was said by counsel and the judge in arguing about whether or not Mr Cardinaels should be called as a witness by the prosecution, it is in my opinion clear that both counsel and the judge took the words “this bloke” to be referring to the appellant. The transcript in my opinion shows that this assumption was common to those present, to a degree where it was unnecessary for anybody to mention it. It simply went without saying. This seems to me to be quite a satisfactory explanation of why counsel at the trial did not ask for some redirection. It is more in accord with the reality of the situation that counsel’s reason for not asking for a direction was that one was unnecessary rather than that he overlooked the need for it.
In my opinion Ground 4 fails.
ground 5:
“His Honour erred in expressing his personal opinion of his perceptions of how the material witnesses for the Crown in the trial gave their evidence and the evidence they gave. These comments caused a miscarriage of justice.”
In support of this ground counsel for the appellant first agreed that it was open to the trial judge to express a view about the facts so long as he made clear to the jury both that his views did not matter if they disagreed with them and also that they were the group who had the legal function of deciding all relevant questions of fact. Counsel also made it clear that the trial judge had, in a general sense, appropriately directed the jury about this. Counsel then made two points; the first was that the judge had gone much further than was permitted under the conventional rule in making clear his views and impressing them on the jury, and the second was that additionally the type of comments he made went outside what was permissible, in that he not only commented on the evidence, “but expressed opinions on his perceptions of how witnesses appeared when they gave their evidence”. These points were made particularly in respect of the four witnesses who gave evidence of having seen a knife in the appellant’s hand.

What counsel was getting at with his second point can be made clearer by setting out one of the passages he criticised in this respect. In part of his summing-up in which his Honour discussed Mr Saad’s evidence, he said:
“very much depends, it seems to me, upon what you made of him as he presented before you in the witness box. He was certainly, you might think, self-possessed, self-confident, not overawed by the experience of appearing before a judge and jury in the Supreme Court to give evidence in a murder trial, a bit swaggery, perhaps, in the way in which he sauntered to the box and away from it, and carried himself while he was at the table giving his evidence. A matter for you, they are just views that occurred to me, and that I put to you for what you think they are worth, reminding you again that with him, as for every witness, it is for you to say at the end of the day whether you accept the witness or not in whole or in part.”
Similar passages relating to other witnesses were drawn to the court’s attention.
Counsel’s acknowledgment that the trial judge could, within limits, express views about the facts to the jury reflected a long established conventional rule of practice in Australian jurisdictions. One of many statements of the rule was made by this court in R v Zorad (1990) 19 NSWLR 91. In that case it had been submitted that a trial judge should not have expressed an opinion about a disputed matter which went to a relatively important issue. The court said:
“It was submitted that a trial judge should always refrain from expressing his view on such an issue (at least where it was contrary to the accused), and that he should be all the more careful not to appear to do so where the accused is unrepresented. We do not accept either of those submissions. A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury’s function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts: ... There is no different rule in relation to the central issues in the case. Nor is there a different rule where the accused is unrepresented.” (at 106-107, citations omitted)
The rule thus has two parts, the first permissive and the second restrictive.
The real gist of the restrictive part seems to be that the judge must not use his or her authority to overawe the jury into accepting the judge’s own views. In various cases it has been pointed out that although a judge may continually repeat that it is a matter for the jury to decide the facts, while the judge is in the course of stating the judge’s own views, the result may be that the authority of the judge prevails on the jury, so that they accept the judge’s views rather than independently arriving at their own.
This kind of two part rule is bound to give rise to differing expressions of what is and is not permissible to a judge. This was commented on and a number of the different expressions in the authorities referred to, in R v Machin (1996) 68 SASR 526, by Olsson J, sitting as a member of the South Australian Court of Criminal Appeal: see especially from 539 to 542.
Amongst the cases cited by Olsson J was R v Pavlukoff (1953) 106 CCC 249, a decision of the British Columbia Court of Appeal. Sloan CJBC delivered the leading opinion, with which three of the other four judges agreed. The Chief Justice reviewed a number of relevant cases, stating the rule in much the same way as this court did in Zorad and concluding there should not be a new trial, the overwhelming case against the appellant being one of the matters he took into consideration.
The remaining judge, O’Halloran JA, arrived at the same conclusion, but in his reasons made the point that it seemed to be an “absurdity” for a judge to be saying in one breath that the facts are for the jury and not for the judge, and in the next breath to be expressing his own opinions (see at 266). He went on, “If his opinion ought not to govern or influence the jury then why give his opinion to the jury”.
Although as a matter of rationality it seems difficult to dispute this point of view, what I have referred to as the conventional practice rule has been steadily maintained in Australian jurisdictions. Indeed, in South Australia, Olsson J’s apparently favourable references to what O’Halloran JA had said in Pavlukoff were promptly disowned in two further Court of Criminal Appeal decisions. In each case a majority firmly supported the entitlement of a trial judge to state the judge’s own opinions on factual matters to the jury, “[a]s long as the effect of [the judge’s] remarks is not to overbear the jury”. This citation is taken from the reasons of Cox J in the second of the two cases, R v D (1997) 68 SASR 571 at 579. The other case is R v Webb (1997) 68 SASR 545.
Nevertheless, the established rule still leaves an appellate court in the position described by Olsson J (Machin at 542) of deciding as “a question of judgment as to whether or not” the approach of the judge in a particular case has “offended the broad precepts” available from the rule. In Machin, Olsson J felt “driven” (at 542) to the conclusion that the judge had offended the broad precepts.
In the present case, having read what the trial judge said in the summing-up, it seems to me that he was, correctly, trying to achieve a number of objects in what he said. Bearing in mind the number of witnesses involved he tried to classify them in a way which might be helpful to the jury when dealing with the great mass of material they had to consider; he was seeking to bring to their attention the main factual issues they had to decide in the case; he was also seeking to refresh their memory about particular witnesses. In view of the length of the case I do not see anything objectionable in this. He also indicated his own opinion about particular factual issues from time to time, in a way that seems to me to have been moderate. He gave appropriate warnings at every reasonable opportunity to the effect that what he was saying about the witnesses was not what mattered but that it was the jury’s own view of the facts that must decide the case.
My own impression after considering all the material is that the trial judge in the summing-up was not attempting to overbear or overawe the jury nor does it strike me that what he said about the facts was likely to have swayed an ordinary, reasonable jury away from its own view of the facts.
In my opinion this ground also fails.
Before moving to the next ground, I note that under the ground just dealt with, various submissions were put in the written submissions for the appellant which did not fall within the terms of the ground. These submissions examined what the trial judge had said in his summing-up about some of the more important witnesses at the trial. In regard to most of these witnesses, the trial judge pointed out problems with their evidence, or parts of it, which would mean that the jury would have to consider the acceptability of all or part of their evidence. It was submitted for the appellant that three of these witnesses should not have been called in the Crown case at all, because of their obvious unreliability.
These submissions seems to me to be more relevant to the unsafe and unsatisfactory ground, and to the extent necessary, I will deal with them there.
ground 7:ground
“That his Honour erred in allowing the Crown Prosecutor to lead evidence of the credibility of a principal witness in the trial, Scott Williams, which was contrary to section 102 Evidence Act 1995, which caused a miscarriage of justice (see p 470T).”
The basis for this ground is that when Mr Williams was called to give evidence, his examination in chief began as follows:
“CROWN PROSECUTOR: Q. Is your full name Scott Robert Williams?
A. It is.
Q. You are a qualified optometrist by profession, is that correct?
A. I am.
Q. You conduct your own practice and have been doing so since 1987?
A. I do.” (T 470)
It was submitted that this evidence was not admissible because it was only relevant to Mr Williams’s credibility and s 102 of the Evidence Act provided that evidence “relevant only to a witness’s credibility is not admissible”.
No objection was taken to this evidence when it was given. In my view it was of little significance in the trial and it seems to me likely that no objection was taken to it because counsel for the appellant also thought it of no particular importance. I do not think the evidence, even if it were not admissible because of s 102, had any effect on the due conduct of the trial or that it could be said in any way to have contributed to a miscarriage of justice.
Further, however, I have some reservations about the proposition that the evidence was made not admissible by s 102. That section is known as the credibility rule (see Dictionary). It is immediately followed by a provision that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value (s 103(1)). Later, s 108(1) provides that the credibility rule does not apply to evidence adduced in re-examination. The sections all appear in Pt 3.7 of the Evidence Act (ss 102 to 108A). When Pt 3.7 is read as a whole, and the relation between ss 102, 103(1) and 108(1) is taken into account, it seems to me arguable that the proper interpretation and effect of the provisions is that they are intended to enable restriction of cross-examination on credibility issues. Section 102 may nevertheless apply to examination in chief but then only to evidence relevant “only to the witness’s credibility”. Incidental matters such as a witness’s occupation may or may not be, according to circumstances, relevant to some issue at a trial other than credibility, but it seems to me difficult to say that such evidence is relevant only to credibility. Another question that would need to be considered if it were necessary to interpret s 102 definitively in the present case would be whether credibility as defined in the Dictionary includes reliability in addition to believability and ability to observe and remember. Because, however, of my opinion that in any event this ground cannot succeed, it is not necessary to explore these matters further.
ground 8:
“That his Honour erred in allowing the Crown Prosecutor to cross-examine his own witness, Robert Niumeitolu, under the guise of re-examination, which was contrary to section 39 Evidence Act 1995, which caused a miscarriage of justice (see pp 128-130).”
The last question asked of Mr Niumeitolu in cross-examination was whether he could be wrong about the appellant having had a knife. To this he answered yes. In re-examination prosecution counsel sought, in effect, to get him to explain why, in light of his positive evidence in examination in chief he now said he might be wrong. Counsel asked some questions which were not objected to and then a leading question which was objected to and rejected. He then asked further questions, which were not objected to, leading up to the question, why, in examination in chief, he had said he had seen the appellant with a knife, but in cross-examination had said he might be wrong. This was objected to as not arising out of cross-examination. The trial judge said he thought it did. The question was then answered. After giving the explanation the witness returned to saying, as he had said in examination in chief, that he had seen the blade. After that, the re-examination tended towards becoming a repetition of the witness’s examination in chief. This led to an objection which was upheld, the trial judge saying he thought the topic had been covered as far as could be in re-examination. The relevant passage in the transcript is at T128/34 to 130/38. (No application was made by counsel for the appellant for leave to cross-examine the witness further.)
Section 39 of the Evidence Act provides that on re-examination a witness may be questioned about matters arising out of evidence given by the witness in cross-examination and that other questions may not be put to the witness unless the court gives leave.
I do not think there was any error by the trial judge concerning the proper application of the section. Nor do I think it can reasonably be said that anything that had occurred in the part of the re-examination complained of caused a miscarriage of justice.
In my opinion this ground of appeal also fails.
I now return to what is commonly called the unsafe and unsatisfactory ground, but is more accurately described in the way the ground is formulated by the appellant.
ground 6:
“The verdict returned by the jury is unreasonable or cannot be supported having regard to the evidence or there has been a miscarriage of justice (Unsafe and Unsatisfactory).”
The way in which this ground is formulated is based directly on s 6(1) of the Criminal Appeal Act 1912. The High Court in Jones v The Queen (1997) 191 CLR 439 held (at 452) that the test formulated by the majority of the High Court in M v The Queen (1994) 181 CLR 487 at 493 must be accepted as the appropriate test for determining whether the verdict of a jury should be set aside under s 6(1). A little earlier in Jones, the court had made clear what they had regarded as the test formulated by the majority in M. They had said:
“In M, Mason CJ, Deane, Dawson and Toohey JJ said (28) that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was ‘open to the jury’ to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
‘in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’
The majority judges explained the application of the test as follows:
‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.” (at 450 and 451 of Jones - citations from M omitted.)
In the present appeal, it was submitted for the appellant that there were discrepancies between the evidence of various prosecution witnesses, that the evidence of some of them displayed inadequacies, was tainted and otherwise lacked probative force.
I have already mentioned in dealing with ground 5, that the written submissions filed for the appellant raised matters under that ground which were more appropriate to be argued under the present ground. One of these matters was that the Crown should not have called three of the four witnesses who had given evidence they had seen a knife in the appellant’s hand at the time of the fight. This submission was based on aspects of the evidence of those witnesses which justified a criticism that they were unreliable or that their credit had been affected. In regard to Mr Rostami counsel for the prosecution in his final address had said that the jury might feel that they did not get much help from his evidence and reminded them of one aspect of his evidence (that he saw the knife entering the body of the deceased several times) which “just didn’t happen”. The submission for the appellant restated this as a total and absolute disowning of the witness by the prosecution. In his summing-up the trial judge said to the jury:
“There is no point in beating about the bush: Mr Rostami is a problem witness in this trial. There are real questions, real questions, about his credibility, and in so far as you are left at the end of the day doubting whether or not you can accept him, don’t accept him, because the risk of doing so is too great.” (S/u 108-109)
A little earlier the trial judge had said in regard to Mr Rostami’s evidence:
“... (his) evidence is part of the evidence in the trial. You may accept it or not. That is a matter for you but you cannot pretend that it is not there. You must come to a view about it one way or the other.” (S/u 105)
This last passage was used in the appellant’s written submissions as a basis for saying that Mr Rostami’s evidence “was left for the jury to form a view about, although highly prejudicial to the appellant, but which the Crown was not relying upon”.
There was no question but that Mr Rostami had been present at the time of the fight which ended with the deceased fatally wounded. The prosecution would have been open to criticism if it did not call him, unless the prosecution had reason to think that the witness was likely to give deliberately false evidence; in that case, no doubt a prosecutorial discretion could have been exercised not to call him. In the absence of reason to believe something of that kind, I do not think that the prosecution was at fault in having him give evidence before the jury. The comments made by prosecution counsel and later by the trial judge in his summing-up both seem to me to have been appropriate and quite fair to the appellant. I think the criticism of the calling of the other two witnesses, Messrs Niumeitolu and Saad is misplaced for the same reasons.
The great bulk of the criticism of the jury’s verdict was based on the numerous differences of detail between the evidence of a great many witnesses who were called. There were undoubtedly very many of these differences. To my mind, however, there were not the kind of discrepancies and differences which could have raised a reasonable doubt in the minds of the jurors about the cause of the death of the deceased.
There was no doubt that the appellant and the deceased were punching at and wrestling with one another for a significant period in the pool room. There is no doubt that the fight came to an end after the deceased suddenly began to bleed profusely after the appellant lunged at him. There is no doubt that his death was caused by a wound made by a sharp object which penetrated the top lefthand side of his chest, his top left rib and his left lung. Notwithstanding whatever might be said about the credibility or reliability of various witnesses, and the differences between their evidence, each of these matters was in my opinion proved beyond a reasonable doubt. The only explanation of how the deceased was fatally wounded otherwise than by the appellant which was even remotely open on the evidence, was that somehow a shard of glass of sufficient length and sufficiently sharp to have made the fatal wound had made that wound. Expert medical evidence had been called in the appellant’s case to support that possibility. Experts in the Crown case had conceded that it was possible the wound had been made by a shard of glass but were of opinion it was more likely to have been made by a knife. They were all asked, bearing in mind the position of the wound, what position the deceased must have been in for a shard to penetrate him in the way it did. They all described particular postures none of which accorded with any of the eye-witness evidence. Having considered for myself the evidence concerning this possibility, it seems to me to have been open to the jury to put it on one side as implausible. Having taken that step, it was in my opinion also fully open to the jury to conclude that it was beyond reasonable doubt that the deceased died from having been stabbed by the appellant.

The trial judge also directed the jury in regard to manslaughter, on the separate possible bases of provocation and intoxication. No complaint was made in the appeal about these directions, which seem to me to have been appropriate, nor was there any contention that the jury was not entitled to have rejected the possibilities the trial judge thus left open.
In my opinion, applying the test formulated by the majority in M, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. I do not for myself see that the jury ought to have experienced any reasonable doubt. On the evidence that was before the jury and after taking into account all the problems with the evidence which counsel for the appellant relied on but which do not seem to me to have damaged the core of the case against the appellant, I do not think there is a significant possibility that an innocent person was convicted.

106 conclusion on appeal against verdict and conviction.

In my opinion the appeal against the jury’s verdict and the conviction should be dismissed.

107 application for leave to appeal against sentence.

Sully J stated in moderate detail his reasons for sentencing the appellant to an eighteen year term, fixing the minimum term at fourteen years and the additional term at four years.

He outlined the facts relating to the trial, and then summarised the evidence concerning the events of the appellant’s day on Sunday, 27 October 1996, culminating with the fight in the Beresford Hotel and the murder. He referred to the fact that the jury’s verdict of guilty meant that they had found proved beyond reasonable doubt either an intent on the part of the appellant to kill or an intent to inflict grievous bodily harm on the deceased. He noted that it could not be discerned from the jury’s verdict which of those two possible intents they had found. For sentencing purposes Sully J needed to make a finding about which intent should be attributed to the appellant. He said he was satisfied beyond reasonable doubt that he should find the intent had been one to inflict grievous bodily harm, that finding in his view being more consistent with all the facts and circumstances surrounding the stabbing than a finding of intent to kill.
Sully J then noted that although more heinous instances of murder could be thought of, the case before him was in purely objective terms a very serious criminal offence. He said stabbing somebody to death in the course of a drunken bar room brawl was as serious a criminal offence as was known to the law and that community standards as embodied in the relevant legislation required that such a killing be denounced strongly and punished with all proper severity.
Having expressed his opinion about the way in which the crime should be looked at, separately from the circumstances of the offender, he then turned to consider the history and circumstances of the appellant. He referred to the evidence that had been put before him concerning the appellant’s personal, domestic, educational and vocational backgrounds and commented that he had had a sadly disadvantaged and troubled life. For present purposes I do not think there is any need to enlarge upon that, beyond saying that a substantial part of the appellant’s life had been lived in circumstances where violence was commonplace and aggressive behaviour was useful both for survival and reputation.
Sully J next considered the details of four particular matters in the appellant’s criminal record. These all involved convictions for assault as well as for other offences.
It is clear that this past criminal record deflected the sentencing judge from extending leniency to the appellant which he might otherwise have done, notwithstanding the objective seriousness of the crime. The sentencing judge said that the appellant’s plea of not guilty was something he had been entitled to make, but it meant that the reduction in sentence normally extended to an offender who pleaded guilty was not available to him. The sentencing judge then added, in the appellant’s favour, that he had gone to the Surry Hills Police Station on 2 November 1996 with his solicitor in order to surrender himself to the police. Sully J said that the available evidence suggested that the appellant was capable of finding and keeping lawful employment.
Sully J said that it was next necessary to balance the objective and subjective matters which he had previously summarised. After a brief discussion of a supposedly comparable case, Sully J said the court’s basic principle was
“that it cannot lawfully impose upon the prisoner a sentence greater than what is justly proportioned to the particular facts and circumstances of his individual case.”
He made it perfectly clear that there was no question that he was going to punish the appellant, in effect, a second time for earlier offences for which he had already been punished according to law.
He then turned to the question of special circumstances (s 5 of the then Sentencing Act 1989 (NSW)). He acknowledged that some of the matters personal to the appellant which he had earlier detailed were “capable” of constituting special circumstances. He noted that the purpose of finding special circumstances was to provide for an offender whose personal circumstances and personal requirements as to rehabilitation were such as to indicate a need for some special adjustment of what would otherwise be a reasonable apportionment of a sentence between minimum and additional terms. He then said he had come to the conclusion he would not be justified in changing, by reason of findings about special circumstances, the apportionment he considered to be otherwise proper. He then sentenced the appellant to the minimum and additional terms previously mentioned.
For the appellant, two principal arguments were put forward in support of the submission that the appellant’s sentence should be reduced.
One of these was that his Honour was in error in not acting on the footing that special circumstances were established.
The provision in regard to which this submission was made was as follows:
“Section 5(2). The additional term must not exceed one third of the minimum term, unless the court decides there are special circumstances.
(3) If a court sets an additional term that exceeds one third of the minimum term, the court is required to state the reason for that decision.”
No authority was relied on for the submission that the trial judge had been in error in not finding there were special circumstances. The submission seems to have been based on his Honour’s remark that some matters had certainly been capable of constituting special circumstances. However, he did not say that in his view they in fact constituted special circumstances. As I read his reasons, he expressly refrained from doing so. I do not see anything in the statutory provisions which, in the circumstances, obliged him to make such a finding. I see no basis for interfering with his decision in that respect.
The other contention made on behalf of the appellant was that the sentence was manifestly excessive. The circumstances of the appellant’s life were again referred to as well as Sully J’s remark that it was possible to imagine more heinous murders than the one he was dealing with. It was submitted that when everything was taken into account the sentence was a heavy one which was outside the appropriate range.
As to this argument, I agree only with the assertion that the sentence was heavy; I do not agree it was outside the appropriate range; in my opinion it was a heavy sentence for a very serious crime and one which, in my opinion, this court has no basis for interfering with.
In my view, Sully J’s reasons for sentence show that he gave due consideration to the various factors he had to take into account and arrived at a conclusion that was appropriate in the circumstances.

122 conclusion.

In my opinion the orders the court should make are:
1. Appeal against conviction dismissed.
2.Application for leave to appeal against sentence granted; appeal against sentence dismissed..

123 FOSTER AJA: I have had the advantage of reading the reasons for judgment of Priestley JA. I agree with those reasons and the orders which his Honour proposes. I would add only the following remarks.

Initially I had some concern as to whether grounds 1 and 2 in the appeal were made out. These grounds relate to the trial judge’s refusal to discharge the jury consequent upon his statement to them, made on the second day of the trial, that the accused, described in the statement as “the prisoner” was required to be brought to the court “by appropriate transport” and then taken “downstairs” and “then brought up into Court” that morning. Arguably this could have conveyed to some members of the jury that the accused was undergoing a sentence in respect of a prior conviction, which necessitated his being transported to court from gaol each day to be present at his trial. This perception could have been reinforced by the period of delay in commencing the trial on the following morning, during which period the jury was called into court in circumstances where the accused would have been noticeably absent.
However, upon full consideration of the matter and having regard to the directions given by the trial judge in respect of the earlier statement, I am in agreement with Priestley JA that the episode was relatively unimportant in the course of such a lengthy trial and was not such as could, in the circumstances lead to a miscarriage of justice.

126 SIMPSON J: I agree with the orders proposed by Priestley JA and with his Honour’s reasons.

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LAST UPDATED: 22/08/2000