R v Johnson - [2004] SASC 241

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JOHNSON
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Anderson)
13 August 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES
DUTY TO DISCLOSE - INCONSISTENT EVIDENCE.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WARNING REQUIRED OR ADVISABLE - OTHER CASES
POLICE INFORMANTS - TAINTED OR POTENTIALLY UNRELIABLE WITNESS - DIRECTION TO JURY

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WHAT CONSTITUTES CORROBORATION - ADMISSIONS AND CONDUCT OF ACCUSED
LIES TOLD BY THE ACCUSED - DIRECTION TO JURY.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - GENERALLY
The appellant was convicted of murdering his de facto – the appellant and the victim had a volatile relationship – evidence was led indicating that the appellant had previously threatened to kill the victim – the victim’s body was located by police approximately 3 weeks after her disappearance – the victim had been bludgeoned to death - the appellant and the victim were seen driving in a vehicle prior to the victim’s disappearance – an abandoned vehicle of similar description with bloodstains consistent with an attack carried out with multiple blows on a person seated in the front passenger seat was located by police.
The appellant appeals against conviction – whether the prosecution failed to disclose relevant information - whether the trial judge erred in failing to adequately warn the jury in relation to the unreliability of prosecution witnesses – whether the trial judge erred in failing to direct the jury as to the permissible use of lies told by the appellant, including the creation of a false alibi – whether the trial judge erred in directing the jury on the identification evidence of a witness relied upon by the appellant.
Appeal dismissed.
Evidence Act 1995 (NSW) ss 116, 165, referred to.
Grey v The Queen (2001) 184 ALR 593; R v Macaskill (No 2) (2001) 81 SASR 155; R v Carabott [2002] SASC 283; DPP v Faure [1993] 2 VR 497; Edwards v The Queen (1993) 178 CLR 193, distinguished.
R v Hawkins [2000] SASC 419, discussed.
R v Sinclair and Dinh (1997) 190 LSJS 53; Bromley v The Queen (1986) 161 CLR 315; Longman v The Queen (1989) 168 CLR 79; R v Dellapatrona and Duffield (1993) 31 NSWLR 123; R v Rose (2002) 55 NSWLR 701, considered.

R v JOHNSON
[2004] SASC 241
Court of Criminal Appeal: Duggan, Besanko and Anderson JJ

DUGGAN J. The appellant was convicted of the murder of Michelle Ryan at Mansfield Park between 24 and 28 May 2002. He has appealed against his conviction.
The appellant and the deceased were living in a defacto relationship at the time of her death. Evidence was led at the trial that it was a turbulent relationship and that the appellant had made threats to kill the deceased not long before her disappearance on the evening of Saturday 25 May 2002.
On 21 May 2002 the appellant, the deceased and some friends drove from Adelaide to Whyalla. When returning from Whyalla the group stopped at Port Augusta early on the morning of 22 May. The appellant and the deceased argued while they were there and, according to the prosecution case, the appellant threatened the deceased when she said she was not going back to Adelaide when he wished to leave. It is alleged that the appellant said to the deceased that they had to hitchhike back to Adelaide and, when she refused, he said “If you don’t hitchhike with me I’ll end up killing you”.
Eventually, the appellant walked and hitchhiked back to Adelaide arriving on Wednesday 22 May. The deceased and the others arrived back on the Thursday afternoon.
The appellant and the deceased were due to appear in the Port Adelaide Magistrates Court on Friday 24 May. Various people heard them arguing on the Friday morning. They were seen driving around in a green Corolla sedan during the afternoon. In the evening they went to visit an acquaintance, B. They were seen together during the afternoon and evening of the Saturday. They were heard arguing with each other on the Saturday evening. The prosecution contended that the appellant killed the deceased late on the Saturday evening or early on the morning of Sunday 26 May.
The body of the deceased was discovered in the dry bed of the Gawler River on Friday 14 June 2002. It appears that she had been bludgeoned to death. Her injuries were consistent with multiple blows to the head and face.
The green Corolla used by the appellant and the deceased was seen by local residents parked in McMahon Avenue, St Agnes on Monday 27 May. It appeared to have been abandoned and the police moved it to a compound that evening.
After the deceased’s body was found, the police were advised of the connection between the appellant and the car. It was examined and the interior was found to be bloodstained. Evidence was led that the bloodstains were consistent with an attack carried out with multiple blows on a person seated in the front passenger seat.
Evidence of the appellant’s dealings with the car was given by B and her partner M. B had known the appellant since 2000. She also knew the deceased. M had met the appellant and the deceased. B contacted the police after she became aware of the discovery of the deceased’s body and, on 17 June 2002, provided information to them about the appellant and his possible connection with the alleged murder.
According to the evidence, the appellant went to see B at her house at Ridgehaven shortly after lunch on Monday 27 May. M was home with B at the time. B said that the appellant was very agitated. He said he had been chased by police officers while driving his car and that he had left it several blocks away. B saw two number plates in the appellant’s bag and, according to her, he said that he took them so that the police would not know details of the registration of the vehicle. M drove the appellant to pick up the car after obtaining some petrol. He said the appellant directed him to McMahon Avenue where he saw the Corolla. The number plates were missing. M said in evidence that the appellant told him that the police had taken the number plates and he asked M to drive him home. M refused, but gave him some money to catch a bus. M then parted company with the appellant.
The appellant did not give evidence. However he did take part in interviews with the police. He told them that he was with the deceased on the evening of Saturday 25 May and that when they returned home, there was a note inviting the deceased to a neighbour’s home. She left and that is the last he saw of her. He said he left the car parked around the corner from the house in which they were living and he had not seen it since.
Grounds 7 and 8. Disclosure by the prosecution
The appellant was given leave to appeal on a number of grounds, but it is convenient to deal first with an application for leave to appeal in relation to grounds 7 and 8 in the Notice of Appeal. These grounds state that:
“7The fair trial of the accused miscarried as a result of the failure of the Prosecution to disclose that on the 17^th June 2002, the witness [B] was a registered informant for the police. The applicant will seek leave of the Full court to adduce evidence that the witness [B] was a registered informant on the 17^th June 2002.
8The fair trial of the accused miscarried as a result of the failure of the Prosecution to disclose that on the 17^th June 2002, the witness [M] was a registered informant for the police. The applicant will seek leave of the Full court to adduce evidence that the witness [M] was a registered informant on the 17^th June 2002.”
I have referred to the evidence given by B and M. It is clear that their evidence in relation to the appellant’s visit and his alleged statements and actions concerning the Corolla was a crucial part of the circumstantial case presented by the prosecution. Furthermore, the defence argued that the murder might have been carried out by these two witnesses.
For reasons which appear later, the appellant claims that if the jury had been made aware that B and M were informants at the time B first gave information to the police on 17 June 2002, this would have been an important factor to take into account when assessing their evidence.
In order to deal with the arguments on these grounds of appeal it is necessary to refer to the history of the defence requests for information concerning the witnesses B and M and the disclosures made by the prosecution in response.
The appellant was committed for trial on 5 May 2003. After the committal hearing Mr Vadasz, who acted for the appellant at the trial, made various requests of the Director of Public Prosecutions (DPP) for information, some of it relating to B and M. On 3 October 2003 the DPP wrote to Mr Vadasz advising that, on 26 June 2002, the police paid $50.00 for a telephone card and petrol for B and M. It was also revealed that on 11 July 2003 the police paid $155.00 for registration of a vehicle being driven by B and $45.00 for a telephone card and petrol.
Prior to trial, a subpoena dated 30 October 2003 was served on the Commissioner of Police requiring him to:
“(a)Have present at Court copies and originals of the Investigation Running Sheets made in relation to the murder of Michelle Ryan.
(b)Have present at Court copies and originals of any letter of comfort written in relation to [B].
(c)Have present at Court all records, computer or otherwise, concerning agreements with or deals made with [B] and [M].”
The trial commenced on 4 November 2003 and, after various preliminary issues were determined, the jury were empanelled on 13 November 2003. In response to the subpoena, documents were produced to the court and leave was given to the appellant’s counsel to inspect them. The prosecutor, Mr Henchliffe, stated in an affidavit tendered on the hearing of the appeal that he provided Mr Vadasz with a copy of the documents which were produced to the court on 4 November 2003.
The documents described by Mr Henchliffe in his affidavit included the following:
1A facsimile transmission from Detective Senior Sergeant Feltus to the Office of the DPP dated 24 April 2003 which stated as follows:
“ATTENTION: ANDREW WILLIAMS (DPP)
REFERENCE: REGISTERED INFORMANTS/WITNESSES [B] AND [M]
IN RECENT COURT MATTER OF JOHNSON (CHARGED WITH MURDER OF RYAN) THE ABOVE GAVE EVIDENCE AND MADE REFERENCE TO CONSIDERATIONS. THE FOLLOWING DETAILS ARE SUPPLIED:
26/06/02$50 PAID BY SAPOL FOR ‘PHONE CARD AND PETROL.
11/07/02$155 PAID BY SAPOL FOR 3 MTHS REIGS. OF VEHICLE AND $45 FOR ‘PHONE CARD AND PETROL.”
2A letter dated 9 August 2002 addressed to the Presiding Magistrate, Adelaide Magistrates Court. The letter stated that M, who was appearing before the court and would be applying for a remand and bail, had recently assisted the Major Crime Investigation Section by providing information that led to the location of a vehicle used in the commission of the alleged murder of Michelle Ryan.
3A letter dated 24 June 2002 to the Presiding Magistrate, Christies Beach Magistrates Court, from Detective Superintendent Schramm of the Major Crime Investigation Branch. The letter stated that B was due to appear in the court to answer charges of larceny. It was said she did not appear and a warrant was issued. The letter stated that B had been working closely with the investigation into the murder of Michelle Ryan. Detective Superintendent Schramm said that B had supplied considerable information to assist the investigation and had intimated her willingness to continue to assist. A request was made that the contents of the letter be taken into account when B applied for bail.
4A receipt from B for money given to her by Detective Senior Sergeant Feltus to obtain petrol and a telephone card.
5A receipt signed by B to acknowledge the payment of $200.00 to assist in the registration of the vehicle she was using and to pay for a telephone card and petrol.
6A letter dated 6 February 2003 from Detective Senior Sergeant Feltus to the solicitors acting for B outlining the assistance she had given in relation to the present matter.
7A letter from Detective Senior Sergeant Feltus to the South Australian Housing Trust requesting a suitable residence for B.
On 10 November 2003 Mr Vadasz wrote to the DPP requesting a copy of notes taken by Detective Senior Sergeant Feltus and, in particular, notes made in relation to the occasion on which B made her initial statement to the police. Mr Henchliffe stated in his affidavit that, as soon as he received this request, he passed it on to Feltus who, shortly thereafter, provided him with a copy of the notes requested. Mr Henchliffe said he gave the notes to Mr Vadasz. The notes included handwritten notes relating to contact made by Feltus with B and M on 17, 18, 21, 26, 27 and 29 June 2002 and 10 July 2002. In two of the entries which refer to B and M they are described as “informants”. In a further three references to B she is described as an “informant”.
In an affidavit sworn by Mr Vadasz and tendered on the hearing of the appeal he stated that he does not recall receiving a copy of the facsimile from Feltus to the DPP in which B and M are referred to as “registered informants/witnesses”. He said he did not believe that the prosecuting authorities disclosed to him that either B or M were registered informants. He stated that if he had been told that these witnesses were informants he would have pressed the issue in cross-examination. He stated that the subpoena dated 30 October 2003 was “specifically intended to establish that Prosecution had made full disclosure of all information relevant to the relationship between [B], [M] and SAPOL and the circumstances of them giving a statement”.
Mr Vadasz does not mention in his affidavit the handwritten notes made by Feltus which refer to B and M as “informants” and which Mr Henchliffe stated he gave to Mr Vadasz. We were told by Mrs Shaw QC, for the appellant, that Mr Vadasz cannot remember whether he received the letter of comfort prepared for M which, according to Mr Henchliffe, was included in the documents given to Mr Vadasz in response to the subpoena.
The transcript of proceedings for the first day of the voir dire hearing on 4 November 2003 records a discussion relating to the subpoena issued to the Commissioner of Police. Mr Henchliffe told the court during that discussion that he had already made available to Mr Vadasz a copy of the running sheets referred to in para (a) of the subpoena. He then said that Feltus was present in court to produce the documents sought in paras (b) and (c) of the subpoena. The trial judge asked Feltus to produce those documents to the court and, in reply to a question from the judge, Mr Henchliffe stated that there was no claim for privilege made in respect of the documents. He added:
“Indeed, Detective Feltus has provided me with a copy which I have also given a copy to Mr Vadasz, so we do all have those now.”
The judge then marked the documents particularised in paras (b) and (c) of the subpoena exhibit “A”.
It is clear, therefore, that documents were produced to the court in answer to the subpoena and Mr Henchliffe has sworn that the documents numbered 1-7 above were provided to Mr Vadasz. Mr Vadasz does not specifically deny receiving the documents which Mr Henchliffe has sworn were provided to him.
In these circumstances, I accept the assertion of Mr Henchliffe that he provided these documents to Mr Vadasz. They include the facsimile transmission which refers to B and M as “registered informants/witnesses”. I also accept that he provided Mr Vadasz with a copy of the handwritten notes of Feltus which refer to B and M as “informants”.
At no stage prior to or during the trial was a specific request made for information as to whether either B or M was an informant. However, the documentation which was disclosed referred to the two witnesses as informants. No questions were asked of Detective Senior Sergeant Feltus as to whether the two witnesses were informants. M was not asked whether he was an informant. B denied in evidence that she was an informant, but defence counsel did not use the information at his disposal to pursue the issue.
In summary, therefore, the defence did not specifically request information as to whether B and M were informants. The subpoena did not call for the production of documents to establish the status of B and M as informers. Nevertheless, documents were provided to the defence which did disclose that B and M were informers. It is true that the information in the documents did not reveal when they became informers, but they are described as such in an entry dated 18 June 2002.
After the trial and before the appeal the defence wrote to the DPP requesting information as to the status of B and M as registered informants. The reply from the DPP included the following information:
“[B] and [M] were registered as informants on 17/6/02 by Detective Senior Sergeant Gerry Feltus, who was the Major Crime Investigation Section officer supervising the Michelle Ryan murder investigation. Detective Feltus is not aware if they were ever registered informants before then, as he is not privy to that information. They are no longer listed as registered informants by Detective Feltus.
Detective Feltus first had contact with [B] by telephone on 16/6/02 (see page 1798 of the trial transcript). He then met with [B] for the first time on 17/6/02. Prior to 16/6/02 he had never had any contact with [B].
Detective Feltus first had contact with [M] at a meeting with him and [B] on 17/6/02. Prior to that he had never had any contact with [M]”.
If defence counsel considered that the informer status of the two witnesses was a relevant issue at the trial, the material which was in his possession would have alerted him to obvious lines of cross-examination of B, M and Detective Senior Sergeant Feltus. However, the cross-examination went no further than the enquiry of B as to whether she was an informant.
In these circumstances I have reached the conclusion that the assertion in the grounds of appeal that the prosecution failed to disclose relevant information in this respect must be rejected.
Irrespective of what was disclosed to the defence at the trial, I do not think that the appellant has lost a fair chance of acquittal by reason of the informer issue. It was clear on the evidence that B had gone to the police with information about the appellant’s possible involvement in the disappearance of the deceased. The benefits which she and M received following the giving of the information were disclosed to the defence at the trial. B was cross-examined about the benefits she received and the letters of comfort which were provided by the police to assist her were tendered. There was no cross-examination of M on the letter of comfort which was prepared for him. Mr Vadasz does not deny that he was provided with a copy of that letter.
It was argued that if it had been established that B and M were informers as at 17 June 2002 when B provided information to the police, this would have supported the defence assertion that the police accepted B’s information at face value and decided not to investigate whether B and M had been responsible for the murder. The assertion by Feltus that he had not known whether B and M were registered informants before they provided the information to him has not been challenged. Feltus was in charge of the investigation into the murder. In my view, there is no basis for the argument that the police failed to investigate whether B and M were involved in the murder because of their relationship with the police.

Then it was argued that the fact that B and M were informers as at 17 June 2002 would have been relevant to an argument advanced by the prosecutor in his final address to the jury when he said, in answer to the defence submission that B may have been responsible for the murder:
“Now, do you think that a murderer or someone who is intimately involved in a murder would tell police and give them the only link between them and the murder? If she hadn’t contacted the police as she did they would never have known about her.”
According to the argument now advanced by the appellant, if B was an informer when she went to the police with information about the murder, she would be confident by reason of her informer status that she could convince the police to believe her and not turn their attention to whether she was involved in the murder. It was further argued that, as an informer, she would have known that she could receive benefits from the police.
In my view, if the jury were minded to accept the prosecutor’s argument that B would realise she was taking a risk in approaching the police if she had been involved in the murder, it is unlikely that they would accept that her appreciation of that risk would evaporate because of her informer status. The issue raised by the prosecutor’s argument and what might have been put in answer to it does not give rise to concern that there was a possible miscarriage of justice. As for the further argument that, as an informer she would have known she could receive benefits from the police, it must be accepted as common knowledge that assistance to the police in such circumstances can result in benefits to a person charged with offences.
These submissions may have been put as arguments, but again it is my view that the issues which they raise are not of such significance as to give rise to concern that there was a possible miscarriage of justice.
It must be acknowledged that B’s denial in evidence that she was an informer was a circumstance which could have led to further cross-examination relating to her credibility. However, as I have pointed out, the potential for such cross-examination should have been apparent to the defence in view of the information which was in their possession.
The appellant placed reliance on Grey v The Queen (2001) 184 ALR 593 where it was held that a miscarriage of justice occurred because the appellant had been deprived of a full opportunity to discredit a witness who had benefited from police assistance in the form of a letter provided to the court at the time he was sentenced for various matters. The letter referred to his assistance in providing information to the police in connection with the matter in which it was alleged the appellant was involved. It was not disclosed to the defence.
Grey’s case can be distinguished in two respects. For the reasons which I have given, I do not regard the present case as involving a failure by the prosecution to disclose relevant information. Furthermore, in the light of the information which was available to the jury concerning the benefits which had been received, I do not think that the further information concerning the witness’s status as an informer would have given rise to potentially productive cross-examination to the extent envisaged in Grey’s case at [18].
I would grant leave to appeal on grounds 7 and 8 but dismiss the appeal on those grounds.
Grounds 1 to 4. Failure to warn
Grounds 1 to 4 complain that the trial judge erred in failing to adequately warn the jury in relation to the evidence of B and M and two other witnesses, Patrick Regan and Mark Pitfield.
In the case of B, the appellant argued that the need for a warning arose because of the importance of her evidence, the fact that the defence argued that she may have been involved in the death of the deceased, the benefits she had received from giving evidence for the prosecution and her prior criminal history and involvement in drugs.
The history and rationale of the practice of warning juries of the dangers of convicting on the evidence of certain categories of witnesses was summarised by Cox J in R v Sinclair and Dinh (1997) 190 LSJS 53. His Honour discussed the cases of Bromley v The Queen (1986) 161 CLR 315 and Longman v The Queen (1989) 168 CLR 79. In so doing he recalled the comment of Brennan J in Bromley at 324 that the courts have had experience of the reasons why witnesses in certain categories “may give untruthful evidence wider than the experience of the general public, and the courts have a sharpened awareness of the danger of acting on the uncorroborated evidence of such witnesses”.
Cox J also drew attention to the comment in Longman at 86 that –
“The general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.”
Cox J went on to say at 60:
“The general principle applicable here, in my view, is that implicit in Longman and Bromley – that where there is some particular reason, such as bad character or hostility or self-interest, to question seriously the bona fides of a Crown witness, the trial judge should give the jury such warning as is appropriate of the possible danger of basing a conviction on the unconfirmed testimony of that witness. He might also have to give the warning where the confirmation comes from a similar questionable source. The kind and degree of the warning will depend on the circumstances of the case including the degree to which the need for it will or will not be obvious to the jury. There is no prescribed formula for the warning and it will often be sufficient to give it in brief and unelaborated terms. Its purpose will usually be to share with the jury the courts’ ‘sharpened awareness’ (to use Brennan J’s expression in Bromley) of the danger of acting on the uncorroborated evidence of such witnesses. If, from their general knowledge and common sense and the evidence they have heard, the jury will inevitably be well aware of any potential unreliability in a witness, it may not be necessary for the judge to do any more than remind the jury of the evidence. As I understand it, that is the way that the case of the bad character witness has generally been dealt with in criminal trials in this Court. Exceptional cases apart, it will be enough to remind the jury of the discrediting evidence and that will necessarily have the effect of alerting the jury to the possible danger of acting on that witness’s evidence.”
Similar views were expressed by Hunt CJ at CL, Abadee and James JJ in R v Dellapatrona and Duffield (1993) 31 NSWLR 123. The appellant Dellapatrona argued that a warning was required in the case of two witnesses who were described as informers and agents provocateurs It was also claimed that the witnesses had a purpose of their own to serve in relation to the possibility of a reward. Their Honours said at 147:
“There is no special direction required in relation to the evidence of an agent provocateur. There is nothing inherently unreliable in the evidence of such a witness, nor is there the potential for unreliability which – because it would not otherwise be apparent – a trial judge would be required to bring to the jury’s attention: Bromley v The Queen (1986) 161 CLR 315 at 319, 324-325. A witness who has acted as an agent provocateur may by reason of some particular conduct on his part when acting as such attract criticism relating to his credit, but in such cases that would be obvious to the jury from the attack made upon his credit in relation to that particular conduct. A trial judge would no doubt usually draw the attention of the jury to such criticism (as the judge did in this case in some detail), but beyond that nothing special is required.
Nor does a mere police informant fall into the category of witnesses about whom a special direction is required. It is a very different thing in relation to prisoner informants: Pollitt v The Queen (1992) 174 CLR 558; see also R v Clough (at 405-406). But, as those cases make clear, the obligation of the trial judge to warn the jury as to the unreliability of the evidence of such witnesses arises because that unreliability may not be appreciated by the jury, arising as it does out of prison culture unlikely to be known to them. None of those special circumstances applies to the ordinary police informant. If the informant has a criminal background, that will no doubt be exposed in cross-examination. Such a background was exposed in relation to the Greens in this case, as were the rewards which they had received and the further rewards which they had sought in relation to the assistance which they had given. The judge referred to all of this in his summing-up. The possibility that the Greens may have fabricated their evidence for that purpose was made abundantly clear. It did not require any special direction: R v Asciak (1989) 43 A Crim R 256 at 260. We do not interpret this Court’s decision in R v Oliver (at 547-548) as saying that anything more was required.”
(See also R v Hawkins [2000] SASC 419 at [18] – [26].)
In the present case, after summarising the evidence of B and the criticisms made of it by defence counsel, the trial judge told the jury:
“Ladies and gentlemen, you will have to consider the evidence of [B] with great care. You will recall that she was cross-examined at some length. She admitted that she suffered from a chronic amphetamine habit, and she and [M] were heavy consumers of amphetamines. She agreed that her amphetamine habit, together with other expenses, was costing her and [M] somewhere in the vicinity of $3,500 per week. She told you that they financed that habit by stealing.
On the basis of her evidence, they would have had to have stolen approximately $10,000 worth of goods per week in order to have sufficient funds to maintain their drug habit, because you will remember they got about a third of the value of the goods when they sold them. She agreed that she had been in custody after she had provided Sergeant Feltus with the information. She found life in prison extremely difficult and was very keen to get out. She agreed that she contacted Feltus and that she sought his assistance both in relation to her appeal, and also to get some financial assistance. She also sought help to find other accommodation.
Sergeant Feltus told you that he did assist her and that the police gave her a letter to assist her. All of those matters were put to her in cross-examination.
It is the defence case that she has told lies, that she has been protecting herself and [M], and that [M] was involved in the disappearance of Michelle Ryan, or, at the very least, that is a reasonable possibility. It was suggested to her that she was involved, and when it was suggested to her, you will recall how she denied it.
In assessing [B]’s evidence, you are entitled to have regard to the fact that she had a drug habit, that she had been in trouble with the police, and that she had received a gaol sentence. You are entitled to have regard to the fact that she sought assistance from the police. She sought assistance on the basis that she was helping the police. You should treat her evidence, therefore, with some caution.
You might have regard to the fact that she was seeking assistance of the police. Do you think that the fact that she was seeking police assistance, and the fact that she had a drug habit, means that you cannot rely on her evidence? Do you think that she and [M] might have been involved in the disappearance of Michelle Ryan? I remind you, of course, that it is not for the accused to prove anything, and you can only act on the evidence of [B] and [M] if you are satisfied that they are honest and their evidence is reliable.
. . .
It was suggested to [B] that her consumption of amphetamine could have affected her memory. She denied that to be the case.
I remind you about the evidence of telephone calls between [B] and [M]. It is suggested that she was desperate to get out of gaol and lied to assist her own position. These are matters for your consideration.”
Mrs Shaw argued that the judge was required to go further in his directions on B’s evidence. She placed particular emphasis on the requirement for a special warning to the jury in those cases where evidence is given by a person who has an obvious motive to exculpate him or herself in relation to the offence charged. She referred to R v Macaskill (No 2) (2001) 81 SASR 155 where a warning was considered necessary in the case of evidence given by the father of a young child which implicated the mother in its killing. The mother was charged with manslaughter. On appeal Nyland J pointed out that the father was one of only two people with access to the child at the relevant time. On the day following the child’s admission to hospital the father said it might have been his fault as he could have hit the child’s head on the pram. He had an aggressive personality and had been violent towards the accused in the past. He admitted that he had anger management problems. The child had incurred injuries in the past and there was no evidence to distinguish whether they were caused by the accused, the father or both. In these circumstances it was held that a warning about convicting the accused on the evidence of the witness was necessary.
Reliance was also placed on R v Carabott [2002] SASC 283, a case in which drugs were found in a vehicle being driven by the appellant. It was the appellant’s case that the drugs had been placed there by a man named Kruss who, he said, was the owner of the vehicle. Kruss gave evidence for the prosecution. He denied being the owner of the vehicle. However, he had previously informed a police officer that he was in the process of selling the vehicle to the appellant. He denied making this statement when he gave evidence. Equipment associated with drug use was also found in the car. There were two mobile telephones in the car, one of them leased to Kruss’s defacto wife. He was unable to explain its presence in the car. The fact that Kruss had his own interest to serve and that his evidence was critical to the prosecution case, called for a warning about the dangers inherent in his evidence.
Then the court was referred to DPP v Faure [1993] 2 VR 497. The appellant was convicted of murder. The main witness for the prosecution was his wife. The case was conducted on the basis that it was either the appellant or his wife who killed the deceased. Hampel J listed a number of factors which, in his opinion, provided the need for a warning by the trial judge:
“There was evidence of a stormy relationship between Mrs Faure and the applicant, including a number of separations and her desire as well as her attempts to be rid of him and even have him killed. Her statement implicating the applicant and attributing a confession to him was made just after she had accused him of interfering with her daughter which resulted in an argument and her leaving. The confession she alleged he made was when he was in custody. There was evidence that she had access to the firearm, she had a motive to confront the deceased and had the opportunity to shoot him. She was also familiar with the general area where the firearm was found buried and where she said the applicant told her it was. In her original account to the police she did not tell what she later claimed was the truth. There was no corroboration of the main features of her evidence, namely her sighting of the applicant in the vicinity of the deceased’s house with a gun and of the alleged confession. Most significantly, the case was conducted on the basis that it was either the applicant or Mrs Faure who killed the deceased. While she was not on trial, she was the main witness against the applicant and clearly had an interest in inculpating him while denying that she was responsible. She had, according to the applicant, told him when they had come to Melbourne together, that it was she who killed the deceased.”
In each of these cases there was some basis in the evidence for the submission that the witness might have a purpose to serve by reason of his or her possible involvement in the offence.
However, it is my view that a warning is not called for simply because the defence suggests that the witness might have been involved in the offence. In the present case, there was no evidence which pointed to B being a participant in the murder. She said she was told by the appellant that the car was at a location not far from her house. The police had earlier retrieved it from that location. The defence submitted that the fact she knew where the car was implicated her. This was no more than a possible explanation for her knowledge about the car raised by the defence. The appellant suggested possible motives for B killing the deceased, but there was no evidence to support any of them. One of the suggestions raised was that the deceased might have owed money to B for the purchase of drugs. B had supplied drugs to the deceased. However, she denied selling drugs to her.
In my view, the circumstances were not such as to require a warning to be given in relation to B’s evidence on the basis of her possible involvement in the offence, resulting in an interest in inculpating the appellant.
Clearly, there were circumstances which required the exercise of caution in assessing B’s evidence. She had a chronic amphetamine habit which led her to commit offences in order to support it. She was given assistance in return for her information in the case. The trial judge reminded the jury of these circumstances and told them to exercise great care when considering her evidence. However, these were matters, the significance of which would have been obvious to the jury. It was unnecessary to give a special warning based on the experience of the court with respect to dangers which might not be appreciated by the jury.
There was no evidence before the jury that M had received any benefit from the police. The comments which I have made about the absence of any evidence to suggest that B was involved in the murder apply also to M. He also was a drug addict involved in committing offences of dishonesty. There was evidence that he was subservient to B. These circumstances were brought to the attention of the jury who were told that they were matters relevant to the witness’s reliability and credibility. In my view a special warning was not required in relation to this witness.
The witness Pitfield was called to support the evidence of B and M that the appellant had visited their house on the occasion when he is alleged to have spoken about the Corolla. Mr Pitfield did not suggest he was present during the conversation, but he did say that he saw the appellant there and spoke to him.
The witness said this incident took place on 26 May, but he did not know whether it was a Sunday or a Monday. He fixed it by reference to an assault on him which required treatment in hospital. According to his evidence, after the assault had taken place he went to the house in which B and M were living. It was then that he saw the appellant. He said he went to hospital that evening. The hospital records show that he was admitted at 9.20 pm on 26 May 2002 and discharged at 10.40 am on the following morning.
Mr Pitfield was knocked unconscious in the course of the assault which preceded his visit to B’s house. He appears to have been mistaken in some respects as to times. It was suggested at the trial that B had influenced him and also Mr Regan into giving false evidence in order to support her version. The trial judge reminded the jury of these arguments. In my view they do not support the complaint that the jury should have been given a warning about this witness’s evidence.
Mr Regan said in evidence that he was at the house occupied by B and M on an occasion in May 2002. He could not be more specific about the date. He said a man called “Johno” was there. He had not met him before. He said the man arrived at about midday. He heard Johno say that his car had run out of petrol. The group then went to the Modbury Hotel. Johno went with them and M got some petrol for Johno’s car. The witness went into the hotel with B. Johno and M then drove off in M’s car. This version is consistent with M’s evidence as to what transpired before he drove the appellant to where he said the green Corolla was parked.

Mr Regan said in cross-examination that he had been a patient at Glenside Hospital for about seven months. He was discharged shortly before he gave evidence. He had been suffering from depression and was taking medication at the time he gave evidence. He had undergone shock treatment whilst in hospital. He agreed in cross-examination that antidepressant medication has an effect on memory. He was taking amphetamines at the time of the events in May 2002. He had been receiving psychiatric treatment since 1996.
There was no evidence that Mr Regan suffered from delusions. His principal complaint seems to have been depression. His comment about antidepressant drugs affecting memory must be considered along with his purported recall of the events which he said took place. The trial judge reminded the jury of the witness’s psychiatric treatment including shock treatment and that the witness agreed antidepressant drugs can affect memory. In my view, the circumstances did not require that a particular warning be given to the jury in relation to this witness’s evidence (cf. R v Hawkins [2003] SASC 419 at [26]).
Defence counsel did not request the trial judge to add a warning to his comments in relation to any of the witnesses in respect of whom it is now suggested a warning should have been given. In my view this ground of appeal should be dismissed.
Ground 5. Direction on lies
The next ground of appeal complains that the trial judge erred in failing to direct the jury as to the permissible use of lies told by the appellant, including the creation of a false alibi. Mrs Shaw argued that the prosecutor suggested in his closing address that a consciousness of guilt could be inferred from some of the appellant’s statements and actions.
In one part of the prosecutor’s address he referred to the evidence of some witnesses who stated that the appellant came to their house early on the morning of Sunday 26 May. The prosecution case was that the deceased had been murdered late on the evening of 25 May or early on the morning of 26 May. The appellant had been at the house of these acquaintances on the evening of 25 May and they noticed that when he returned on the Sunday morning he was, to use the expression of one of the witnesses, “all dressed up”. He told them that he had been out playing poker machines and drinking. He said that the deceased had left after they arrived home on the Saturday night. He said he had been “raging with friends” and he made reference to a woman with cancer. According to the prosecution case he was referring to B.
In his address, the prosecutor said that an explanation for the change of clothing could be that the appellant would have had blood on his clothes if he had killed the deceased. However, he then referred to the evidence of what the accused had said about where he had been and commented:
“What the Crown suggests is that in going back to 9 Edie Street that morning he was establishing or attempting to establish an alibi to say where he’d been the night before when the Crown suggests Michelle Ryan had been killed. The alibi he was establishing is that he was with [B] and one presumes [M] as well. You’ve heard from them and I’ll come to their evidence in a moment but it doesn’t support what the accused says.”
The prosecutor then referred to what the appellant had said to the police when first interviewed by them on 15 June 2002. He gave them to understand that, when the deceased left, he stayed at the house for the night.
The prosecutor reminded the jury that when the appellant was interviewed again on 24 June he told them that, when the deceased left on Saturday evening, he went into town to play the poker machines. The prosecutor continued:
“So there’s a difference there in itself between what he told the police on one occasion and the other. Now, of course, you’ll need to consider whether he was lying to the police the first time or whether there was another explanation, that he was mixed up or forgot what he had done that night. Certainly he initially said he slept the night at 11 Warren Street. He told people on the Sunday that he hadn’t, that he had been out all night playing pokies and later on he’s told that version to police as well.
In considering whether that explanation of where he was at the time is accurate or a reasonable possibility you need to consider the evidence that might support it in the form of [B] because that’s who he said he was with in Hindley Street. [B] denied Mr Johnson had come around on the Saturday night, 25 May, come around to her place.
…
Things just don’t match up. [M], when it was put to him that he had played the pokies with Mr Johnson on that night in the early hours of the morning, he doesn’t recall on that occasion – there were two or three times him and [B] had taken Michelle and Johnson into town to play the pokies so there was no support from them of Mr Johnson’s, assertion of where he was that night.”
As the appellant did not give evidence, the jury were invited by the defence to consider what he had said to the police in the course of interviews with them. The appellant’s counsel at the trial submitted to the jury that the appellant had been frank and open with the police. One of the criticisms the defence made of the police investigation was that they did not immediately check the appellant’s version to the police that he went out on the night of Saturday 25 May and played poker machines in the city.
However, it is clear from the prosecutor’s address that he was encouraging the jury not to accept any version which the appellant had put forward as to his movements because of the inconsistencies in the appellant’s account. The jury were not being asked to infer consciousness of guilt from what the appellant said to the police and the other witnesses. The submission was that the appellant was lying and that his version should be rejected.
The prosecutor suggested as part of his submission that the accused was putting forward an alibi. However, the time of death could not be fixed with any precision and the appellant told all to whom he spoke that he was with the deceased until she left the house on the Saturday evening. The appellant was not attempting to create the impression that he did not have any opportunity on the Saturday night to kill the deceased. The focus of the prosecutor’s submission was on the fact that the appellant may have given two conflicting versions as to his movements for the period after he claimed the deceased left the house.
Prior to the commencement of final addresses, the prosecutor referred to the appellant’s comments as to where he was on the Saturday night and the Sunday morning. The prosecutor said that, in effect, this was an alibi but he did not intend to tell the jury that, if they found that the alibi was a lie, they should use that evidence in any way other than to reject the appellant’s evidence. The prosecutor dealt with the evidence in this manner in his address. There was no suggestion by the defence at trial that the prosecutor had suggested the evidence could be used to indicate consciousness of guilt.
In my view there was no danger of the jury acting on the evidence summarised by the prosecutor as an implied admission of guilt. A direction in accordance with Edwards v The Queen (1993) 178 CLR 193 was unnecessary.
Ground 6. The direction on identification
The final ground of appeal asserts that the trial judge erred in directing the jury on the evidence of a witness who gave evidence of seeing two people near the green Corolla on Monday 27 May.
I have said that the vehicle was seen by local residents parked in McMahon Avenue, St Agnes. The prosecution called Maria Harman who lived near McMahon Avenue. She said that on a Monday in May 2002 she was looking out of her window when she heard a car door close. She did not see a car but she saw a teenage boy walking across the road and a man standing in the middle of the road. She did not think anything more about it, but when she went out half an hour later she saw the green Corolla parked in McMahon Avenue and noticed that it had no number plates.
The witness described what the man was wearing. She said she only saw the side of his face as he started to walk off. She said he was dark in appearance, of medium height slight build and about 40 years of age. She said she did not recognise either the man or the teenager. In a statement to the police the witness said she did not see the face of the man. In cross-examination she said that at some time later she saw some TV footage of the man arrested in the case. Her cross-examination continued:
“QAnd you saw some footage of the man they had arrested.
AThat’s right, yes.
QAnd it was your view that that person was not the person you saw dumping the car or you thought was dumping the car?
AYes.
QThat’s the person they arrested? (INDICATES ACCUSED)
AYes.
QThat wasn’t the person you saw in the street?
AWell, he had a cap on. No, I don’t – he looks entirely different to what I saw actually on the TV.
QCan I show you this particular photograph. Have a good look at this please. Take your time. I’m going to ask you if that could have been the person, the older of the two men you saw in the street. Could have been?
AVery well could have been.”
The photograph she was shown was a photograph of M.
She was asked some questions by the trial judge:
“QWhen you say ‘It could well have been that man’, what do you mean?
AWell – how can I put this – he wasn’t a well-dressed man. He had – like his hair was – I think like the – you know, like it kind of curls out a bit under the cap, like it’s sort of scruffy, like it wasn’t well-combed, or wasn’t anything like that.”
It is clear that the evidence was of doubtful value, both as to the identification and the extent of any connection between the two people and the car. However, it was relied upon by the defence as supporting the suggestion that M had taken the car and parked it where it was found.
After summarising the evidence of Ms Harman, the trial judge referred to the evidence of another witness:
“I might at this stage deal with the evidence of Ms Catanzariti. You will recall that she was the lady who was driving along Port Wakefield Road and says that she saw the deceased who was walking on the eastern side of Port Wakefield Road in a southerly direction. Ms Catanzariti was driving along the western lane of the northbound carriageway and she said she saw a woman hitchhiking. She described that woman as wearing light pants and a light jacket. She said that she recognised the woman from a photograph in the Sunday Mail. She said that was about two weeks before the photograph was published, and we know that the photograph was published on Sunday, 16 June, the day after the body was discovered.
So, if Ms Catanzariti is accurate about the date and there is some uncertainty and if you can rely on her evidence about seeing the deceased the question is, does that cause you to have a reasonable doubt about the accused’s guilt? Well, ladies and gentlemen, you will give that evidence consideration.
You may of course have regard to the fact that many of the witnesses who saw the deceased just prior to her death gave evidence that her hair had been cut short and that it was not as it appears in photograph P45, which is the photograph Ms Catanzariti looked at. Ms Catanzariti said that the person had long hair, similar to that in the photograph. You will also have regard to the fact that Ms Catanzariti was driving and that the person she observed was some distance away on the opposite carriageway, walking in the opposite direction. The clothing that Ms Catanzariti described was not similar to the clothing that the deceased was wearing when her body was discovered. You must ask yourselves how much weight are you prepared to give Ms Catanzariti’s evidence?”
His Honour then made some general comments about identification evidence. He said:
“I direct you, ladies and gentlemen, that the experience of the courts over many years has been that evidence of identification of persons can be notoriously unreliable. Very often people purport to identify someone and it is clear that they are mistaken. Great care must be taken when considering evidence of witnesses who purport to identify someone. In assessing such evidence, you should consider whether the person identified was a stranger to the witness. What opportunity did the witness have to see the person the witness said they are identifying? What was the distance? What was the lighting? How long did the witness have to observe that person? The experience is that it is easy to make an innocent error. It is probably happened to all of you, ladies and gentlemen. You have seen someone in the street, you are convinced that you know them and, when you get closer to them, you realise that they are a stranger. Sometimes you may have even had the embarrassment of having greeted the person only to realise that you have greeted a stranger. So, ladies and gentlemen, when you consider the evidence of a person who did not know the deceased, who saw a woman from a distance momentarily and then later identified that person from a photograph in the newspaper, you have to ask yourselves can you rely on that evidence or could the person have made a mistake? Might that evidence just be the kind of evidence that you would regard as irrelevant in the case? It is entirely a matter for you.
A similar caution applies to the evidence of Ms Harman who said [M] looked like the person who was in the vicinity of the abandoned Toyota Corolla. If, of course, you accept Ms Catanzariti or consider that it might be reliable, then that is a matter to which you can have regard when assessing other evidence in the case and, in particular, the evidence about the time of death. You must consider whether Ms Catanzariti has any relevance to this case at all.”
It is obvious that some of the considerations referred to in these directions are frequently used in directions to juries in cases where there is a purported identification of an accused person. It was argued that it was a misdirection to refer to these matters in a case in which the identification evidence was being relied upon by the defence.
A similar situation arose in R v Rose (2002) 55 NSWLR 701. The appellant was charged with the murder of his former wife. According to the prosecution case, the appellant killed the deceased when she visited him at his flat in Armidale one evening before her intended departure on a bus which left for Brisbane later in the evening. The appellant denied involvement in the killing. The case presented against him was entirely circumstantial.
Evidence was led at the trial from an independent witness, Mr Dawson, who said he saw a woman answering the description of the deceased at a laundromat in Armidale on the evening of the alleged offence at a time which was inconsistent with the prosecution case. The evidence was clearly exculpatory and was described by Smart JA as “of considerable importance”.
The trial judge told the jury shortly after the evidence was given that “caution must be exercised in dealing with such evidence when you come to address it”. When the trial judge addressed the jury some time later he said:
“… it is the obligation of the Crown to exclude beyond reasonable doubt any possible reasonable explanation that is inconsistent with guilt. So that you must consider the evidence of Mr Dawson, and his evidence relating to the Laundromat … in that context. Might the accounts of Mr Dawson be true? If it be true can you be satisfied beyond reasonable doubt that all reasonable possible explanations inconsistent with guilt have been excluded. So you must carefully consider and evaluate the evidence of Mr Dawson.
Now, perhaps we have all had the experience of mistaking one person for another. There are a numb er of issues that may commend themselves as matters which you might consider in this context. First, for instance, there is an issue as to whether or not the person who makes the identification knew the person who is identified? The suggestion being that it is perhaps easier to mistake someone you don’t know than someone you know. The second is that you must, perhaps, look at the circumstances of identification. Are they fleeting, and what was the opportunity of the person to make the observations which they made. In this case, I think it is – I will go to the evidence in a moment, Mr Dawson did not know Kristine Rose. On the other hand his evidence is that he saw her face to face, and in a fairly confined space, and indeed had a conversation with her.
Another matter that may be relevant is that it is perhaps that someone may unconsciously be influenced by publicity, including photographs. And the fourth issue I suppose is whether or not the photograph that he sees is a good likeness of the person. Well here I will go to the evidence in a moment but there is a very little evidence as to precisely what the publicity was.”
The questions arose as to whether s 116 of the Evidence Act 1995 (NSW) required the trial judge to inform the jury of a special need for caution when considering the evidence. The majority held that s 116 did not apply, but that s 165 of the Act rendered it appropriate for the trial judge to give a warning in relation to the potential unreliability of such evidence. Alternatively, it was held that the judge had a residual power pursuant to s 165 to give a warning to the jury where the judge believed it was necessary to do so in the interests of justice.
There is no legislation in this State which is similar in effect to the New South Wales provisions. However, some of the comments made in the case are of assistance in relation to the present matter.
The majority said at [295]:
“But, even if we were wrong in the view we take of the scope of s 165(1), s 165(5) makes it clear that the trial judge has a residual power to give a warning to a jury, or to inform them about some matter where the judge believes it is necessary to do so in the interests of justice. If the particular evidence under consideration does not fall within the scope of s 165(1), the trial judge has power to give a warning or provide the jury with information although there is no requirement to do so. In our view it was open to Kirby J to conclude that in fairness to the Crown the jury should be alerted to the general difficulties involved evidence of the nature of that given by Mr Dawson.
Although we are of the opinion that identification evidence generally falls within the scope of s 165, it does not follow that a warning has to be given. Nor is it necessary for a judge to give a warning of any particular kind and, certainly, not one of indicating the special caution required by s 116. As Hunt CJ at CL pointed out in R v Clarke (1997) 97 A Crim R 414, not all identification evidence has the potential for unreliability that attaches to visual identification of a person. Identification of an inanimate object, such as a motor vehicle, may be less likely to be open to mistake and it may not be so persuasive. The trial judge is required to make a discretionary judgment in all the circumstances of the case whether to give a warning and what the content of the warning should be. In R v Stewart (2001) 52 NSWLR 301, it was held that s 165(3) applies to each of the matters set out in s 165(2), so that, for example, a trial judge may find that there is a good reason not to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, as required by s 165(2)(c).
In the case of evidence of a person other than the accused, and in circumstances where the evidence favours the accused, there would be good reason for the trial judge to temper the warning and information given to the jury in respect of that evidence. Clearly there would be no basis for the trial judge to warn the jury that mistaken identification has led to erroneous convictions. Generally speaking it would not be necessary for the trial judge to caution the jury in terms of s 165(2)(c) although we would not hold that such a caution could never be given. In our view, what Kirby J said to the jury about the evidence of Mr Dawson in the summing up was appropriate. Although we do not believe that it was correct for the trial judge to tell the jury, the day after Mr Dawson's evidence was given, that, in respect of identification evidence, ‘caution must be exercised in dealing with such evidence when you come to address it’, we do not believe that in the circumstances of this particular case that remark might have led to a miscarriage of justice in light of what his Honour said to the jury in the summing up many days later.
We do not consider that this ground has been established.”

Smart AJ dissenting was of the view that a warning was not required or expressly permitted by the Act. He added at [340]:
“There could be no objection to a judge pointing out to a jury particular weaknesses of particular identification evidence where it is exculpatory, always bearing in mind that an accused has to prove nothing but it would seldom if ever be correct to give a caution or warning in respect of such evidence. Sometimes alibi evidence involves identification evidence. Of course, the judge would also have to point out the strengths of the identification evidence.
The appellant submitted that exculpatory identification evidence should not attract the usual inculpatory identification evidence directions, such as people have falsely been convicted on in the past as a result of mistaken identifications, except perhaps in an exceptional case. The appellant reminded the Court that the evidence of Mr Dawson was the only piece of evidence in the trial that attracted a warning from the judge of the need for caution. In a case where the contemporaneous identification evidence of Mr Dawson was strong, having taken place in a lighted shop, involving face to face discussions, lasted about five minutes and there was the reference by the lady to catching the bus to Brisbane that evening, such a caution was unfortunate and unfair. Further, Mr Dawson's general description of the lady he saw generally corresponded with the deceased. The witnesses were speaking of events which had happened 19 years previously.
. . .
There is substance in the appellant's complaint that the judge neutralised Mr Dawson's evidence by telling the jury, on the day following that on which it was given, that caution must be exercised in relation to it. The statement that he would deal with the matter in the summing-up does not reduce the effect of the warning which he gave. That was clear, simple and cogent. Mr Dawson's evidence was significant, perhaps the most important evidence in favour of the appellant.
The appellant placed much greater reliance on what the judge said shortly after Mr Dawson gave evidence than on what was said in the summing-up. There could be no objection to the judge reminding the jury (as he did in the summing-up) that we have all had the experience of mistaking one person for another, that Mr Dawson did not know the deceased and that they should look at the circumstances of the identification, namely that he saw her face to face in a fairly confined space and had a conversation with her.
The judge stated that someone may unconsciously be influenced by publicity including photographs raising a point for consideration but as he said there was very little evidence as to precisely what the publicity was. In these circumstances it was a point better not raised, and may have had the effect of casting doubt on Mr Dawson's evidence when no base existed for doing so. The reference to whether the photographs was a good likeness was innocuous.”
The potential difficulties associated with identification evidence exist irrespective of whether the evidence is favourable or unfavourable to an accused. I see no reason why the jury should not be told about them as long as appropriate instructions are given in relation to the burden of proof. However, I am of the view the trial judge should not have used the expression “great care” in his directions. This language is more appropriate to a direction on the dangers of acting on identification evidence in a case where the evidence is adverse to the accused.
In deciding on the likely effect of these directions on the jury, it is relevant to take into account the directions given on the burden of proof. The trial judge made it clear in his directions on the standard and onus of proof that the appellant did not have to prove anything. The jury were also told that “the defence have no onus to prove any theory. The prosecution must disprove it”. In further directions the trial judge said:
“I emphasise that because it is not always easy, particularly when discussing contentions made by the defence, to avoid using words which might be thought to suggest that an accused who puts forward an explanation or a contention about something alleged against him, that is a different version of the facts for instance, or that it was someone else and not him who committed the crime, that he has to prove it. He does not. It is the Crown that has to do all the proving in this court and that includes, as I have said, its obligation to disprove any relevant defence or explanation.”
Later in the summing-up, the trial judge returned to the evidence of Ms Harman:
“Ladies and gentlemen, as I have said before, I remind you about her evidence in cross-examination, that [M] could have been the person she saw in the centre of the road. She said the accused was not the person and she said the photograph, as she had seen on television of the accused, was not the person.
In re-examination, I asked her what she meant by ‘could well have been the man’, referring to [M], and she responded: ‘How can I put this? He wasn’t a well-dressed man. He had, like, his hair was, I think, like, you know, like kind of curls out a bit under the cap, like it’s sort of scruffy, like it wasn’t well combed or anything like that.’
Turning to her evidence about the Toyota car. If you accept Ms Harman’s evidence, you might conclude that whoever abandoned the green Toyota car abandoned it in McMahon Avenue at 12.30 on 27 May. You might also conclude that it was abandoned sometime earlier than that and that the car door banging was, as Mr Henchliffe put to you, perhaps the young man having a look inside this car which appeared to be abandoned. That is yet another explanation.
Ms Harman is uncertain about the day but, having regard to the evidence of Mr Watts and Mr Byrnes, together with the evidence of the police, you might have little doubt that the car was seen in the late afternoon of 27 May and collected that evening. Again if you accept Ms Harman’s evidence about two people being in the vicinity at the time that the car was abandoned, you must ask yourselves what you make of that. The Crown case is that it was the accused who abandoned it. Could she be mistaken? May it be as Mr Henchliffe suggested, that the person who Ms Harman saw had nothing to do with the abandoning of the car? Could it be a coincidence that when her attention was drawn to the noise of a car door, it was a person examining what appeared to be an abandoned her? Does her evidence raise in your mind a question as to whether the car might have been left there by someone other than the accused? If so, who? Is it possible that it was [M]? If it was, why would [M] and [B] tell the police about the car? Who was the young boy? There is no evidence of [M] being in the company of a young man. Was it a stranger? How then did [M] and [B] know about it? Is it a coincidence that it was abandoned in the Ridgehaven area? These are matters for you.
You see, ladies and gentlemen, you will have to think about the green car. The alternatives are that it was abandoned by the accused; it was abandoned by [M] and/or [B], who put the police on to it, and you might ask why would they do that, or it was abandoned by a stranger. Ladies and gentlemen, do you think a stranger is a reasonable possibility in this case? How would [M] and [B] have known about it? So, ladies and gentlemen, it might have to come back - it’s a matter for you - to being either the accused or [M] and/or [B] who abandoned that car, and then you will have to consider the matters that were put to you and whether you think it is a reasonable possibility that it was [M] and/or [B] who were involved in the murder and disappearance of the deceased. If it is a reasonable possibility, ladies and gentlemen, if you think it is a theory consistent with the accused’s innocence, a reasonable theory consistent with the accused’s innocence, then he is entitled to an acquittal.”
The probative value of Ms Harman’s evidence was very slight. She made a casual observation of two people. The suggestion that they had anything to do with the car, let alone leaving it there, is tenuous. At best, the witness saw only the side of the older person’s face as he walked off. She told the police she did not see his face. Her evidence of comparisons between the appearance of the man she saw and the person she saw on television and in the photograph shown to her at the trial were also tenuous.
The jury were not told to disregard this evidence: it was left open to them to take it into account in the appellant’s favour. The only aspect of the direction which was inappropriate was the observation about assessing the evidence with “great care”.
In all the circumstances, I am of the view that there was no risk of a miscarriage of justice by reason of the directions.
In my view the appeal should be dismissed.
BESANKO J. In my opinion this appeal should be dismissed. I agree with the reasons of Duggan J and there is nothing I wish to add.
ANDERSON J. I agree with the reasons of Duggan J and I agree that the appeal should be dismissed.