R v Lewis

[2001] NSWCCA 345

CITATION:	Regina v Lewis [2001] NSWCCA 345
FILE NUMBER(S):	CCA 60051/01
HEARING DATE(S):	20 August 2001
JUDGMENT DATE:	10 September 2001
PARTIES :	Regina v Brian James Lewis
JUDGMENT OF:	Priestley JA at 1; Sully J at 2; Smart AJ at 57

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/61/0007
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	(A) M C Ramage QC (C) P G Berman SC
SOLICITORS:	(A) Garden & Montgomerie (C) S E O'Connor
CATCHWORDS:	Undue intervention by trial judge in examination and cross-examination - erroneous restriction on cross-examination of possible suspect - failure by accused's counsel to lead evidence of good character - evidence incorrectly rejected - competence of counsel - whether verdict not reasonably supported by the evidence
CASES CITED:	M v The Queen (1994) 181 CLR 487 R v Esposito (1998) 45 NSWLR 442 R v Birks (1990) 19 NSWLR 677 R v L G Wilson CCA unrep 31/3/95
DECISION:	Appeal against conviction is allowed - The appellant's conviction and sentence are quashed - Order that there be a new trial.

IN THE COURT OF
CRIMINAL APPEAL

60051/01

PRIESTLEY JA
SULLY J
SMART AJ

Monday 10 September 2001

REGINA v Brian James LEWIS

1   PRIESTLEY JA: I agree generally with the reasons of Sully J. In particular the materials he discusses when dealing with grounds of appeal 2, 5 and 6 seem to me to combine so that the grounds reinforce one another and make it necessary, in my opinion, that there should be a new trial.

Between 6 and 20 November 2000 Mr. Brian James Lewis, the present appellant, stood trial in the District Court at Parkes before his Honour Judge Kinchington QC and a jury. He was tried upon a charge that on 21 September 1997 he had broken and entered the premises of the Condobolin RSL Club and that he had stolen thereupon amounts of cash totalling $27,633.65. The indictment upon which the appellant was presented for trial contained a second, and alternative charge of receiving an amount of $25,336.75 with knowledge, at the time of the receiving, that such money had been stolen previously from the Condobolin RSL Club.

3   The jury found the appellant guilty as charged of the first count in the indictment: that is to say, the break, enter and steal count. In those circumstances it was not necessary for the jury to return a verdict on the second, and alternative, count in the indictment. The appellant was duly convicted; and he was sentenced to a term of imprisonment. The appellant does not seek leave to appeal against the sentence of imprisonment, and nothing more need be said about it. It is against his conviction of the offence of break, enter and steal that the appellant now appeals.

4   Ten grounds of appeal were notified and argued. They are as follows:

[1] The verdict of the jury was unreasonable and cannot be supported having regard to the evidence because:

(a) on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty; and

(b) a reasonable jury ought to have had a reasonable doubt of the guilt of the accused,

with the result that there was a miscarriage of justice.

[2] There was a miscarriage of justice because the trial Judge unduly intervened by eliciting evidence from the witnesses and the appellant. As a result he distorted the trial process and brought about a miscarriage of justice.

[3] There was a miscarriage of justice because counsel for the accused failed to put evidence of the accused’s good character before the jury.

[4] There was a miscarriage of justice because the trial Judge did not give the jury a fair review of the evidence relating to the video tapes, nor did he relate that evidence to the argument put by counsel for the accused concerning that evidence.

[5] There was a miscarriage of justice because:

(a) the trial Judge refused to allow it to be put to Robert Mitchell in cross-examination that he was a poker machine addict; and

(b) the trial Judge refused to allow Robert Mitchell to be referred to as a poker machine addict.

[6] There was a miscarriage of justice because the trial Judge refused to allow cross-examination of Robert Mitchell in order to establish that he borrowed $25,000 from his bank; and the trial Judge refused to allow the appellant to prove the amount borrowed.

[7] There was a miscarriage of justice because the trial Judge in his summing up to the jury said:

“Well the money could not have been counted, the Crown says in effect, if it was contained in the elastic bands as were on it when discovered by the police. You just could not count the money that way, you would have to take the elastic bands off and put them aside and it is inconsistent with what Mrs. Lewis, the sister-in-law, described.”

[8] There was a miscarriage of justice because the trial Judge in his summing up to the jury said:

“…………….. and it is not the way in which somebody who was saving money having withdrawn it from a bank account adding to and taking away from that you would find it. You would normally tend to expect that it would be in a bundle of notes, not separate bundles with elastic bands on it.”


[9] There was a miscarriage of justice because counsel for the accused failed to call evidence from the accused’s solicitor confirming the accused’s evidence.

[10] The trial miscarried because of the conduct of defence counsel.

5   It is convenient to deal with the grounds of appeal in the foregoing order.

Ground 1

6   The Crown case against the accused was circumstantial. It rested upon three basic propositions which can be summarised as follows:

[1] It was beyond dispute that somebody had in fact broken and entered the Club premises and stolen the amount charged in the first count in the indictment. The incidents of the breaking and entering pointed overwhelmingly to an offender who was familiar with, and equipped to neutralise, the Club’s security system.

[2] The appellant had opportunity and motive.

[3] On the morning following the commission of the offence, the appellant was found driving a motor vehicle in which there were secreted bundles of money totalling in amount a sum suspiciously close to the amount stolen from the Club; and that suspicion was reinforced by a comparison of the denominations of notes making up, respectively, the amount stolen from the club, and the amount found subsequently in the possession of the appellant.

7   On the first proposition basic to the Crown case, the evidence was that the Club had in place at the relevant time a fairly sophisticated security system. In order to activate, or to de-activate, the security system, it was necessary to key into a digital key pad an authorised PIN number. A number of club employees had on issue an individualised PIN number. In some cases the allocated PIN number could both activate and de-activate the security system. In other cases, the allocated PIN number could activate, but could not de-activate, the security system. Whenever a PIN number was keyed into the digital key pad, whether for the purpose of activating, or for the purpose of de-activating, the security system, the system operated so as to make a continuous chronological record showing which particular PIN number had been used on the particular occasion; and showing, also, the date and time at which the particular PIN number had been so used.

8   A check carried out on the morning of 22 September 1997 revealed that at 11.47 p.m. on 21 September the PIN number of a Mr. Robert Mitchell had been used to de-activate the security system. That same check revealed that the same PIN number had been used to re-activate the security system at about 8 minutes past midnight on 22 September. The Crown case at trial was that the appellant was in possession, on 21 September, of Mr. Mitchell’s PIN number. Mr. Mitchell gave evidence at the trial and to the effect that the appellant, while still employed as the manager of the Club, had asked him, Mr. Mitchell, for the detail of his PIN number. The appellant, who also gave evidence at trial, denied that he had ever obtained Mr. Mitchell’s PIN number. It seems to me to follow necessarily from the verdict of the jury that the jury must have accepted Mr. Mitchell, and rejected the appellant, on this particular point. For myself, I cannot see why it was not open to the jury to come to that conclusion.

9   The possession of Mr. Mitchell’s PIN number aside, it was not disputed at trial that the appellant, who had worked at the Club until early September 1997, had, as at 21/22 September 1997 such knowledge of the Club security arrangements as would have enabled him, if armed with a valid PIN number, to have effected entry to the Club premises; and to the safe within those premises; and to have stolen the large amount of cash then held in that safe.

10   The appellant’s case at trial stopped short of a positive allegation that Mr. Mitchell had himself been the thief; but it is, in my opinion, plain from a reading of the trial transcript that the defence strategy at trial was to insinuate to the jury in every way short of a simple and positive accusation, that Mr. Mitchell was so suspect that there must be, on that account, a reasonable doubt left in the minds of the jury as to the appellant’s guilt as charged in the indictment.

11   As to the second proposition fundamental to the Crown case, I have already touched upon the aspect of opportunity. Upon the aspect of motive, it was the Crown case that the appellant, as at 21 September, was in the course of purchasing a small business; that he needed a large sum of cash in order to complete that transaction; that he could not find, from his own unaided resources, an amount of cash sufficient for the purpose; and that he had, therefore, a demonstrable motive to steal the Club’s cash.

12   The defence strategy at trial was to contradict the Crown argument by calling evidence from the appellant’s mother, brother and sister-in-law, to the effect that the appellant’s mother, a lady aged some 80 years, had in her possession at the relevant time a large amount of cash; and that she had in fact advanced to the appellant an amount of cash sufficient to cover his needs in connection with his then current purchase of a small business.

13   As to the third proposition fundamental to the Crown case, it was not disputed that the appellant had been arrested early in the morning of Monday, 22 September; and that he had then been found, as earlier noted, in possession of an amount of cash almost equal to the amount that had been stolen from the Club.

14   As earlier herein noted, the Crown pointed at trial to comparative break-downs of, on the one hand the total amount stolen from the Club; and, on the other hand, the amount found in the possession of the appellant at the time of his arrest. It is sufficient for present purposes to note the relevant summaries.

Club Appellant

$100 notes $5,000 $100 notes $5,800

$50 notes $8,650 $50 notes $9,400

$20 notes $8,260 $20 notes $8,420

$10 notes $1,780 $10 notes $1,600

$5 notes $1,345 $5 notes $1,460

No breakdown $2,561.15 No breakdown -
Coins $ 2.00 Coins $6.75

Total $27,598.15 Total $26,686.75

15   The verdict of the jury indicates that the jury was satisfied that the Crown’s circumstantial case against the appellant had been established beyond reasonable doubt. The question arising thereupon for this Court is : “………………whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But 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”. M v The Queen (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 493 (references omitted).

16   This test was expanded a little later in the same judgment and 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 allowances for the advantage 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.” (ibid) at 494

17   The application to the facts of the present case of the foregoing principles, seems to me to raise two particular questions: first, the question whether the jury was entitled to find beyond reasonable doubt that the appellant, as of 21 September, was in possession of Mr. Mitchell’s PIN number: and secondly, the question whether the jury was entitled to reject the evidence of the appellant’s mother that she had been the source of the moneys found in the appellant’s possession at the time of his arrest.

18   As to the first question, I need not to add to what I have earlier written.

19   As to the second question, strong submissions were put for the appellant that the jury could not logically have rejected the evidence of Mrs. Lewis Snr.

20   I do not accept that submission.

21   The flavour of Mrs. Lewis’ evidence can be caught from a reading of the following excerpts from that evidence:

“Q. When Brian came home with the police, did he tell you that he had been arrested?
A. No. He wasn’t talking to me. The detective was.
Q. Did Brian say anything to you except to say that police wanted to have a look in the house?
A. No.
Q. That is at the time the police were there?
A. That’s right. No, he come in and went in with the police up and I never saw him until they were going.
Q. They were up there looking for something?
A. Yes, I didn’t know what they were looking for at the time.
Q. And later the detective told you that there had been this money gone missing from the RSL Club?
A. Yes.
Q. Did you think they might be looking for the money?
A. Well, I didn’t know what to think because I knew Brian had money and what would I have thought. It wouldn’t be that I didn’t think but then when he said about that, it made you think. I don’t know.
Q. Did anyone tell you that Brian had been found with a lot of money in his car that day?
A. No.
HIS HONOUR: Q. You just told us that you knew Brian had money, what did you mean by that? This is when the police came?
A. Umm.
Q. You told us that the police told you later that the RSL Club had been robbed?
A. The police came in and Brian went up in the rooms where ever they went and he come and he said he was Detective, I don’t know what he said his name was because I don’t know any of them, and he was sitting talking to me and he asked me did Brian give me money and I said, “No”. He said, “Well the RSL’s had a considerable amount taken from it”, and I said, “Well Brian hasn’t been in Condo”, and he said then, he said, “Quartermaine and Brian were leaving town”.
CROWN PROSECUTOR: Q. Did you think that they might have suspected Brian of having taken the money from the RSL?
A. I don’t know why they should.
Q. Did you think so at that time?
A. I didn’t know what really they were after.
Q. In any event, you didn’t tell the police that you had given Brian the money that day?
A. No, I never said any more. I was pretty sick at the time and I did say to the police, “Look, I don’t want you harassing me. I don’t feel well enough”. And he said, “Well we will come back and get you and take you down through the week to make a statement”.
Q. But you say they never came back?
A. No, I never saw them since.
Q. Isn’t it the case that one of the detectives came back quite a long time later, it might have even been a year later and asked you to make a statement?
A. No, that’s not right. They didn’t. They haven’t been back near my place.

Q. Isn’t it the case that you refused to make a statement?

A. No, that’s untrue. I’ve never saw them.
Q. Well after the police left, did Brian tell you what had happened that day?
A. I said to Brian, “What were they looking for?”. He said, “A key”.
HIS HONOUR: Q. Sorry, you just dropped - I didn’t hear the last bit.
A. I asked Brian what they were looking for an he said a key. That’s all I know about it. And Brian said they arrested him, that he is supposed to have robbed the RSL. So that’s all I knew about it.
CROWN PROSECUTOR: Q. Did he tell you that they had taken the money from - that he had with him?
A. Yes.
Q. You never told the police that you had given money to him that morning?
A. No.
Q. Why was that?
A. Well I didn’t know what it was all about.
Q. You knew Brian had been charged with taking money from the RSL?
A. I didn’t know then. I didn’t know until after they had gone.
Q. But after they had gone, you found out?
A. I beg your pardon?
Q. After the police had gone, you found out?
A. Yes Brian said they arrested him. They said he had robbed the RSL.
Q. You knew that they had taken the money that Brian had including the $16,800 you had given him?
A. Yes. Brian said that they took all that he had .
Q. And then the next day you gave Brian the further money you had in the house?
A. Yes.
Q. Why didn’t you go to the police after that and tell them --
A. What did I want to go to the police for. I knew he didn’t rob the RSL.
Q. Didn’t you think that if you went and told them where the money had come from it might help him?
A. No. That was their business to find out.
Q. But he was your son?
A. I believe John Keogh told them where the money come from.
Q. You believe John Keogh told them?
A. So I believe.
HIS HONOUR: Q. When did you find that out?
A. Oh a little bird.
Q. I said when did you find that out?
A. After on the 23rd I think.
CROWN PROSECUTOR: Q. On 23 September 1997?
A. Hmm.
Q. Who was the little bird?
A. I don’t know who he was.
Q. Didn’t you want to get your money back?
A. That’s what I’m trying to now.
Q. Why didn’t you go to the police and say, “Hang on, you’ve got my money there?”
A. Look, I don’t do those sort of things.
HIS HONOUR: Q. Sorry?
A. I don’t go to the police.
Q. Didn’t you think it would be helpful to your son if you went to the police and told them it was your money?
A. Look, I can’t walk across the street here unless I run out of breath. I live on my own. I can’t - I walk down two doors, once a week and get my groceries if Brian doesn’t happen to come over and I live in four walls.
CROWN PROSECUTOR: Q. You have got the telephone on?
A. Yes.
Q. You could have telephoned the police, that’s so isn’t it. Do you agree with me?
A. They could have come and asked me, couldn’t they?
Q. But you could have told them, at least telephoned them?
A. Well they were supposed to be coming back to take me down to give a statement but they never ever come so how --
Q. When they didn’t come you didn’t think to telephone them and say, “I’ve got something to tell you?”

A. No, I didn’t want to telephone them.
Q. Sorry?
A. I didn’t want to telephone them.
HIS HONOUR: Q. Weren’t you concerned that they in effect had your money?
A. Well they are the law. They can do what they want to.
Q. The question I asked was weren’t you concerned that they had your money?
A. Well anyone would be wouldn’t they?
Q. But you weren’t concerned to go and tell the police --
A. It was no good of me. It wasn’t my case. It was no good of me going to the police.
CROWN PROSECUTOR: Q. Why was it no good of you going to the police?
A. Well I don’t know. I wasn’t arrested.
Q. But your son was.
A. Yes.
Q. Don’t you think that’s a good reason to go to the police and tell them what you know?
A. Why didn’t they come back to me. They didn’t.
Q. I’m asking you the question at the moment.
A. Yes, well I am answering.
HIS HONOUR: Q. You see it could have only helped your son couldn’t it?
A. It might of, I don’t know.”

22   Mrs. Lewis Snr. was, of course, a lady of advanced years. It is impossible to tell from a bare reading of the transcript quite how she presented before the jury. I do not see, however, why the jury, with its special advantage of seeing and hearing the witness actually give the evidence, was not entitled to take the view that the evidence was unconvincing, for the reason that there was something odd about Mrs. Lewis’ reluctance to tell the investigating police that she had herself given the appellant either the whole, or at lest the greater part, of the cash found in his possession at the time of his arrest.

23   If it was open to the jury, as in my opinion it was, to make findings adverse to the appellant on each of the two previously stated questions, then I cannot see why this Court would now be justified in intervening upon the only permissible basis as explained in M. The appellant had motive. He had requisite knowledge and opportunity. There was a marked correspondence between the denominations of money stolen from the Club, and the denominations of money found shortly thereafter in the appellant’s possession. If the critical portions of the appellant’s mother’s evidence were not accepted, then that fact, coupled with all of the other matters mentioned, would have amply justified, in my opinion, the ultimate conclusion reached by the jury.

24   In my opinion Ground 1 has not been established.

Ground 2

25   The relevant principles of law are not in doubt. They are explored comprehensively, and with extensive references to relevant curial decisions, in R v Esposito (1998) 45 NSWLR 442, see in particular per Wood CJ at CL at 460F-474B. It is, I think, sufficient to quote for present purposes the following short extract from the judgment of Wood CJ at CL:

“The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined …………and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.” (ibid at 472C)

26   At the hearing of the present appeal the Court received without objection an affidavit of Mr. Geoffrey Casey, who has been throughout the solicitor for the appellant. Mr. Casey was in attendance throughout the entirety of the trial. His affidavit has annexed to it a meticulous schedule of the questions asked by the learned trial Judge. They amount in number to 1,337 questions. Some of those questions can be set aside at once as irrelevant to the point made by Ground 2. But very many of those questions, - and I would myself say, from my reading of the transcript, the greater part of them, - amount to much more than merely formal, or otherwise trifling, interventions on the part of his Honour.

27   It is, of course, the case that when a trial Judge intervenes during the course of the trial, it will be very often important to have a correct understanding, not only of what the Judge actually said, but of the way in which he said it; and of the general trial atmosphere in the context of which the interventions were made. In the present case it is not possible to have any understanding at all of his Honour’s interventions, except for what can be gleaned from a bare reading of the trial transcript itself.

28   Doing the best I can upon that limited basis, the first thing that strikes me is, not the bare number of the questions asked by his Honour, but the fact that his Honour’s interventions were constant throughout the trial. The interventions were not only persistent, but they seem to me to have had, persistently, what I would describe as a querulous or challenging tone to them. In the case of the evidence given by the appellant’s brother, Mr. Barry Lewis, his Honour’s interventions, both in examination and in cross-examination, seem to me to have taken effectively out of the hands of both counsel the proper taking of the evidence of that witness.

29   It would be possible, of course, to go, question by question, through the schedule of questions attached to Mr. Casey’s affidavit. I think, however, that it is both preferable and sufficient to say simply that I have read the entirety of the trial transcript, and that my own impression at the end of that exercise is a clear and firm impression that, whatever else can be said about the learned trial Judge’s interventions, it could not fairly be said that justice, whether or not it was done in fact, was seen manifestly to have been done.

30   That is, in my opinion, sufficient to warrant upholding Ground 2.

Ground 3

31   Mr. Casey’s affidavit speaks usefully to this ground also; but I do not think that it is necessary to do more than make the following points: first, no character evidence was called; secondly, there was a not insignificant amount of apparently good quality character evidence available to be called in support of the appellant’s case at trial; thirdly, I do not think that it is fairly open to be concluded that the only reason why the character evidence was not called was that counsel appearing for the appellant at trial, (not being counsel appearing for him on the hearing of the present appeal), made a deliberate and justifiable tactical decision from the consequences of which the appellant ought not now to be permitted to resile; and fourthly, that the loss to the appellant at trial of that character evidence entailed the loss, also, of the directions which the jury must have been given, as a matter of law, as to the use of good character were they satisfied that good character had been established in fact.

32   I conclude, therefor, that the appellant did indeed lose, on this particular account, something to which he was plainly entitled as part of a fair trial. I do not say that the calling of the available character evidence must have resulted in a different verdict; but I do think that it is not far fetched to suppose that it would have strengthened in some real and substantial way the appellant’s fair prospects, otherwise, of an acquittal.

33   I would uphold Ground 3.

Ground 4

34   I do not think it is useful to devote a great deal of time to canvassing this ground. That is because the tapes in question were tested for fingerprints, and none were found. The evidence touching the tapes was, at least as I read the trial transcript, both imprecise and confusing. In those circumstances, it does not seem to me that an extensive canvass of that imprecise and confusing material is likely either to strengthen or to weaken any other legitimate ground of appeal now available to the appellant.

Grounds 5 and 6

35   It is convenient to deal with these grounds together.

36   It is quite clear that Mr. Mitchell was, as of September 1997, and had been for some time previously, a heavy and compulsive poker machine gambler. It is clear that he had borrowed from time to time not inconsiderable sums of money from Club funds in order to support his gambling habit. There was uncontradicted evidence that Mr. Mitchell had been constrained, eventually, to raise mortgage finance on his home in order to pay back the moneys which he had borrowed from the Club in order to support his gambling habit. The question of what evidence about Mr. Mitchell’s gambling habit and his associated financial situation should

be permitted to be led on behalf of the appellant at trial, became a very controversial issue as between the learned trial Judge and counsel then appearing for the appellant. It seems to me that the appellant was entitled to draw out before the jury as clear and as comprehensive a picture as he could of the financial situation of Mr. Mitchell at and about September 1997. It was relevant, as it seems to me, to have any available detail of the mortgage transaction to which I have earlier referred. The term of the mortgage; its provisions as to interest; its particular obligations as to repayment; the capacity Mr. Mitchell had to fund the necessary repayments; whether it was the case that he was a sole mortgagor, rather than a mortgagor jointly with his parents, and if the latter, what personal and financial pressures might have been resulting; all such matters were, in my opinion, relevant to a fundamental point in the defence case, namely the point that Mr. Mitchell had a demonstrable motive far more stark and likely than any motive that could be ascribed plausibly to the appellant himself.

37   The way in which his Honour dealt with the attempts of the defence to explore with a proper thoroughness Mr. Mitchell’s true financial situation at material times, entailed in my respectful opinion the denial to the appellant of something to which he was entitled as part of a fair trial according to law.

38   I would uphold Grounds 5 and 6.

Ground 7

39   A fair reading of the trial transcript would suggest that the short answer to this ground is that the words attributed to the trial Judge did not express, or purport to express, any personal view of the Judge’s own; but purported to summarise one of the arguments that had been put to the jury as part of the Crown case.

40   Were it possible to say confidently that his Honour, although purporting to summarise an argument previously put by the Crown, was in fact putting as a Crown argument some proposition that the Crown had not actually put, then the present ground might well deserve to be upheld, subject always to a proper consideration of the fact that counsel appearing at trial took no objection, and asked for no re-direction, in connection with the passage now questioned.

41   It is, however, the case that this Court has no way, as at present advised, of establishing with precision whether or not the Crown did in fact put to the jury at trial an argument along the lines summarised by his Honour. In the absence of some clear evidence on the point, I would not be prepared to assume that the trial Judge was simply putting a view of his own, and wrongly representing that view as having been put as part of the final Crown submissions.

42   I would not uphold Ground 7.

Ground 8

43   In my opinion a fair reading of the passage to which objection is now taken, in the context of which it forms a part, gives rise to exactly the same state of affairs as is canvassed in connection with Ground 7.

44   I would not uphold Ground 8.

Ground 9

45   The nature of the evidence to which this ground refers appears from paragraphs 3, 4 and 5 of Mr, Casey’s affidavit to which I have earlier referred. I accept, as a matter of practical convenience, and without extended analysis and discussion, that this evidence, had it been called, would have been admissible as evidence of prior consistent statements.

46   That assumption once made, it is relevant to understand why the evidence was not called. Mr. Casey’s affidavit sheds no light upon that question. There is no affidavit or other evidence from counsel who appeared for the appellant at trial. Nor is there any other material that I can see which deals with that question.

47   In the absence of some such explanatory material, I would not uphold Ground 9.

Ground 10

48   This is not an easy ground to adjudicate. The written submissions of the appellant point to eleven separate instances of, to put the point frankly, professional incompetence. Some of these matters have been the subject of discussion in connection with other grounds of appeal; others have not.

49   The relevant principles are stated authoritatively in R v Birks (1990) 19 NSWLR 677 (see in particular per Gleeson CJ at 685D - F). It is useful to re-state them:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

50   It is useful to note, also, an observation made by the Chief Justice earlier in his Honour’s judgment:

“A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious.” (19 NSWLR, 684F)

51   It is, I think, significant that in Birks itself the Court had some direct evidence of why the particular counsel had taken the particular stance which led to the upholding, in accordance with the principles to which I have earlier referred, of that particular appeal. In the present case, by contrast, there is no such evidence.

52   It is, I think, all too easy in the circumstances of the present case to trawl through the trial transcript, and to compile with the wisdom of hindsight a check list of complaints in connection with the detailed conduct of the trial by counsel then briefed to appear for the appellant. Were this to be done, then I myself would think it to be no more than elementary fairness to give the counsel concerned some opportunity to be heard before making some finding or findings which might have very serious professional repercussions for that counsel. The matter is, as Birks itself makes plain, to be approached with a real caution .

53   On the whole, I have not been persuaded that, in the absence of any direct evidence explaining counsel’s stance in connection with all or any of the matters now raised by Ground 10, it would be fair to find, upon a bare reading of the trial transcript and nothing more, that the case was one of such “flagrant incompetence” as would justify the intervention of this Court.

54   I would not uphold Ground 10.

Summary and Orders

55   I have not been persuaded that the appellant is entitled to have the jury’s verdict set aside, and to have substituted for it a judgment of acquittal from this Court. I am, however, amply persuaded that the appellant did not have, overall, a fair trial according to law; and that he is entitled on that account to a re-trial.

56   In my opinion, the Court should make the following orders:

1. The appeal against conviction is allowed.

2. The appellant’s conviction and sentence are quashed.

3. Order that there be a new trial.

Brian James Lewis appeals against his conviction of on 21 September 1997 breaking and entering the premises of the Condobolin RSL Club and stealing $27,633.65 in cash. There is no application for leave to appeal against his sentence of imprisonment for 3 years 9 months with a non-parole period of 18 months.

58   Late on the night of Sunday 21 September 1997 after the Club had been locked up for the night, the staff had left and the alarms to the various sections of the Club had been switched on, a person broke into the Club probably about 11.47pm, and neutralised the alarm system by switching off the alarm in the relevant areas of the Club. That also switched off the alarm around the strongroom door. To do this the person used the PIN number of R J Mitchell, an employee of the club. The person must also have had a key to the Club. Further the person must have known that the key to the spirit cupboard was kept hanging on a rack with a number of other keys in a small room off the bar area; that in the spirit cupboard was a set of keys, being the key to the strongroom and the key which unlocked the padlock over the flap covering the combination dial. The person may have had a duplicate set of all keys

59   The thief also knew the numbers and how to set them on the combination dial to open the strongroom door. Having used keys to unlock the various cupboards and the padlock and having opened the strongroom door and stolen the money, the thief closed the strongroom door and took other steps prior to activating the alarm at 12.08 am on 22 September using Mr Mitchell's PIN number and leaving. The theft was not discovered until Mrs Whitehurst, the Assistant Manager, arrived at work later that morning.

60   This felony had many of the marks of an "inside job". It took place when there was likely to be a large amount of cash on the premises from the weekend's takings. The thief had to know the way the alarm system functioned, a PIN number which would switch it off and the combination of numbers which would unlock the safe. This was in addition to the knowledge about the various keys and their function. The issue at the trial was whether the Crown had proved beyond reasonable doubt that the appellant was the thief.

61   So far as was known, none of the directors had the requisite knowledge. There was evidence that three people had that knowledge, namely the appellant, who had retired as the Club's General Manager on 9 September 1997 pursuant to notice given on 11 August 1997, Mrs Whitehurst and Mr Mitchell. The appellant denied that he was aware of Mr Mitchell's PIN number. These three people had alibis. The appellant asserted that he spent the night at the Plainsman Motel at Forbes, about 1 hour's drive from Condobolin. The records and the evidence established that he checked in at the motel in the early evening and checked out about 8.29 am on the morning of 22 September 1997.

62   Mrs Whitehurst's husband gave evidence that she spent the night at home. She was in bed when he woke up at 1 am and at 6.30 am. Mr Mitchell's mother gave evidence that he arrived home about 10.30pm to 10.45pm and that he went into his bedroom about 11pm. Apart from her husband getting up during rhe night she did not hear anything until about 8 am when the telephone rang and her son answered it. She heard him drive away from the house. Ms A Staines, who was responsible for locking up the Club thought that Mr Mitchell left the club about 11pm, but she was not sure of the time.

63   Ms Staines gave evidence that the Club closed about 10pm and that she and other staff were involved in cleaning up, balancing the various tills and putting the money in the strongroom. Ms Wendy Deeves locked the strongroom. After they had finished all their work about 10.30 pm the staff members at the Club had some drinks. Ms Staines said that she and Ms Deeves were the last to leave. She could not recall whether the doorman, Mr Michael Knight, was with them or had left a little earlier. Ms Staines said that as she left about 11.30 pm she inserted her PIN number in the system, alarmed the Club and locked the front door. Ms Deeves described what she did thus:

"Then checked that everything was in and then I got the key out of the poker machine drawer and locked the safe and then did the combination and locked the little box that goes over that and locked that padlock."

64   She explained that the key to the strongroom and that for the padlock were on the same key ring which she put in the spirit cupboard behind the bar. Her evidence as to having a drink after completing the work, leaving the Club about 11.30pm and Ms Staines alarming the Club and locking the door was to the same effect as that of Ms Staines. The breaking, entering and stealing occurred shortly after they left.

65   The appellant stated that on the morning of 22 September 1997 he drove from Forbes to Parkes, deposited $200 into a Credit Union, purchased some items from Woolworths and drove to Condobolin. He detailed what he did after arriving at Condobolin. At the shops he was told about the break-in at the Club. He went to pay $1770 in cash to Mr J Piercey but he was not in his store. He returned to his mother's house and spoke to her about some money she was going to give him. He said that he told her that he was not exactly sure how much he needed. She gave him $16,000, $10,800 being in a brown pencil case (or wallet) and another $6000 in cash.

66   Shortly after midday on 22 September 1997 officers from Forbes Police Station stopped the appellant's motor vehicle on the South Condobolin Road about 15 kilometres from Forbes. The appellant was driving the vehicle and Mr D Quartermaine was travelling with him. They waited there until Dets McCarthy and Bennett arrived. Det McCarthy explained that the police were making enquiries in relation to the break and enter of the Condobolin RSL Club the previous night. In answer to a series of questions the appellant said he was going to the shop at Gooloogong, he was buying it for $15,000 with payment in cash and that the money was in the car. When asked where the money came from the appellant said "I don't think I should say any more".

67   The appellant was asked where the money was. He opened a suitcase in the boot of the vehicle and removed a brown pencil case which contained $10,800 in cash. He removed a coloured plastic bag containing $11,580 from the back of the vehicle and a further $1770 from the rear seat area of the vehicle. It had been out of sight. He had $910 in his wallet. In total the appellant had $25,336.74.

68   In his ERISP the appellant confirmed the answers which he had given police at the place where his vehicle was stopped. He stated that he did not wish to answer any more questions. However, he stated that the brown leather pencil case belonged to his mother. He agreed that there was $10,800, consisting of $100 notes, $50 notes and $20 notes. Asked if he was able to tell the police where the money came from he replied "No, I'm not actually". Although the Crown placed some reliance on this answer , the simple answer was that the money came from his mother but the question may have been understood as seeking the true source of the money, that is where and how his mother obtained it. Having said that the pencil case belonged to his mother, it is perhaps surprising that the appellant did not add that the money belonged to her, but he did not know how she acquired it.

69   The Crown placed much emphasis on the amount found in the car and on the appellant about 12-13 hours after the theft, being only a little less than the amount stolen, it being obvious that some moneys had been spent. The Crown also relied on the close correspondence between the denominations of the notes stolen and the quantities of each of them with those found in the appellant's vehicle and on his person. The notes stolen from the strongroom and those found in the vehicle were similarly bundled. There was nothing distinctive about the bundling.

70   About 7.30pm on 22 September 1997 police accompanied the appellant to his mother's residence at Condobolin. He lived there. Police found $1350 in $5 notes in a suitcase in a wardrobe in his room. When asked who owned the notes the appellant replied "I would prefer not to say".

71   One of the detectives spoke to the appellant's mother who was aged 80 and not in good health. She was almost housebound, leaving the house infrequently. In her evidence she appeared to be saying that she did not know what the police were searching for. Her son told her that they were looking for a key. When the police started talking to her she stated that she told them she did not want to be harassed and was not feeling well. She did not volunteer to the police that she had given the appellant the sums of $10,800 (in the pencil wallet) or a further sum of $6000. She was not asked directly whether she had given any money to the appellant or where he got his money. Her evidence suggests that she was wary of the police.

72   For a couple of months prior to September 1997 the appellant had investigated and agreed to buy a business in Gooloogong known as "Keogh's Takeaway". On 4 September 1999 he had paid a deposit of $1500. He was going to operate the business with a close friend, Mr Doug Quartermaine. Although the business was to be in both names, the appellant provided all the purchase moneys. A purchase price of $15,000 had been agreed plus stock at valuation. It was not known exactly how much the stock would cost. The appellant would also need to buy stock to keep the business running. As the appellant had never been in this kind of business before he was unsure how much he would have to outlay.

73   The appellant did not have enough money of his own to purchase the business. He knew his mother had some money so he asked her in July 1997 if she could help him out if he was short. She agreed.

74   The appellant said that when he set out from Condobolin he had the money given to him by his mother ($16,800), $1770 which he had intended to give Mr Piercy, about $6500 from the $11,000 he had borrowed prior to ceasing employment with the Club and $1000 from the $6000 he withdrew from his bank account on 18 September 1995, having paid $5000 to Leanne Hall. He also had $680 being the change Mrs Whitehurst had given him after he had handed her a cheque for $13,000 which more than covered his indebtedness to the Club. These sums total $26,750.

75   I interpolate a word of explanation. Between about 2 and 9 September 1997 the appellant by various withdrawals borrowed a total of $11,000 from the Club. It was his intention to repay that sum when he received his final cheque covering his entitlements. There was some delay as the Club waited for the auditor to make the requisite calculations. On 18 September 1997 he was handed a cheque for $22,000 by the Club. He banked it and immediately obtained a bank cheque for $13,000 and handed it to the Club. This was in repayment of the loan of $11,000 and sundry small amounts totalling $1334.32 which had to be paid to the Club. He was given change in cash of $665.68 by the Club.

76   The appellant said that he was released from the police station at Condobolin about 8pm on the night of 22 September 1997. He went home. The following morning he and his mother discussed what was going to happen about the purchase of the business. The police had taken his money and that of his mother and he had nothing. He feared that there was not going to be a shop. She said that she had some more cash and she came out with a cash tin. It contained $11,600 in the old style paper notes which ceased to be issued about 1992. This seemed to be an indication that she liked to save money at home. Her pension was paid into her bank account, from which withdrawals of amounts such as $4000, $3000 and $5000 were made on occasions as the credit balance in the account rose. The available records show that this has been happening since 1993.

77   The appellant said that on 23 September 1997 his mother drew a cheque on her account for $4000 and handed it to him. At the appellant's request Mr J Keogh came and picked the appellant up and drove him (with $11,600 in cash and the cash cheque for $4000) to Gooloogong. The appellant continued to Cowra where he, saw his solicitor, Mr G Casey.

78   Completion of the sale of the business and the assignment of the lease took place with the appellant paying Mr Keogh $10,000 in cash as he required. The appellant also paid the balance of the purchase money and subsequently for the stock.

79   The mother corroborated the payment to the appellant of the amounts of $10,800 in the pencil wallet and $6000 also in cash on 22 September 1997 to enable him to complete the purchase of the business and the further sum of $11,600 on 23 September 1997 and the handing over of the cheque for $4000. The latter payment of $11,600 and the handing over of the cheque for $4000 did not appear to be in serious dispute. The payments alleged to have been made by the mother on 22 September 1997 were hotly disputed. Much was made of the failure of the appellant and his mother to mention these when they encountered the police on 22 September 1997.

80   The appellant, his brother and his brother's wife gave evidence of the time when the mother was ill in hospital in early July 1997. She asked his brother and his brother's wife to fetch some money she had in a wallet in a bucket in the mother's toilet. There were mopheads on top of it. The brother's wife collected it, returned to the hospital with her husband and gave it to the mother. She said there was $11,000. She insisted on giving her son $200, returned the wallet to the son's wife and asked them to take the wallet containing the money to the appellant at the Club and ask him to put it in the safe for her. This they did. The appellant counted the money and verified that there was $10,800. The appellant returned the wallet and the money to his mother after her discharge from hospital.

81   A witness of importance at the trial was Mr R J Mitchell who stated that the appellant sought and obtained his PIN number. Mr Mitchell was a heavy gambler. He was much attracted to the poker machines. He borrowed money to finance his gambling and meet his gambling debts. He used the voucher system at the Club. He had an even stronger ,motive than the appellant to rob the Club.

The Defence Case

82   Apart from strongly denying that he broke into the Club and stole the money, the appellant denied that he knew the PIN number of Mr Mitchell. He was in Forbes not Condobolin when the theft occurred. The appellant also endeavoured to establish that the money he had in his car came from money he had and the money which his mother had given him. He relied on his evidence and that of his mother, his brother and his wife to establish that the mother had $10,800 in a pencil wallet and that she gave it to him. He established that at the time of his arrest he was on the way to pay for and complete the purchase of "Keogh's Take-Away" business at Gooloogong.

83   I do not propose to deal with all the grounds of appeal. It will suffice to deal with the major grounds.

:

There was a miscarriage of Justice because the trial judge unduly intervened by eliciting evidence from the witnesses and the appellant. As a result he distorted the trial process and brought about a miscarriage of justice.

85   Mr G J Casey, the solicitor for the appellant was present throughout the trial instructing counsel. He has prepared a schedule listing all the questions asked by the judge during the 9½ days on which evidence was led. He has separated those questions asked by the judge of each witness and specified those asked in examination-in-chief, cross-examination and re-examination. The judge asked a total of 1337 questions. Some related to routine matters necessary to facilitate the progress of the trial and some were innocuous. Some were comments or directions of no consequence.

86   The judge played an active part in eliciting the evidence of Mrs Whitehurst both in chief and during cross-examination, putting many questions, namely 106 questions in chief and 174 questions in cross-examination. He also intervened during the cross-examination of Mr Mitchell where it was not desirable. During cross-examination Mr Mitchell claimed that he could not remember how much he had borrowed through the bar voucher system during the first half of 1997.

87   He remembered that the appellant had told him that the money had to be paid back in July 1997 before an audit and did so. He could not remember that the amount paid back was about $6500.

88   Upon the cross-examiner suggesting to the witness that after the visit of the auditor in January 1997 the witness again started incurring debts to the Club by the use of the bar voucher system, the judge of his own motion rejected the question on the ground of relevance. A voir dire was held as to the witness' financial situation with particular regard to his borrowings from the Club and his bank transactions, his state of indebtedness and his poker machine problem. After submissions from counsel the judge gave a ruling as to the cross-examination which he would permit. There was further discussion in which the judge clarified the details of what he would permit. Further cross-examination took place with some interventions by the judge but they were relatively minor.

89   During the cross-examination of Mr Quartermaine the judge intervened and questioned him about the appellant telling him that his mother had provided the money in the appellant's car to pay for the business, the appellant's mother producing cash on the occasion when he was present and a photograph was taken and the conversations he had with the appellant after he was arrested and released on bail about paying for the purchase of the business. Then the judge asked Mr Quartermaine a series of questions about his conversations with Mr Keogh and why the appellant did not hand over $10,000 to Mr Keogh at Condobolin rather than drive in the car with that sum to Gooloogong. Mr Quartermaine was unlikely to know the answer to that question. On sales of businesses the balance of the purchase price is not usually paid until completion. As the cross-examination of Mr Quartermaine by the Crown progressed the judge continued to intervene and question that witness quite extensively. No argument was addressed to the Court about the correctness of the judge's decision to grant leave to the Crown to cross-examine Mr Quartermaine extensively after he had given evidence in chief for the Crown and been cross-examined by counsel for the appellant. The judge asked 114 questions during the cross-examination of Mr Quartermaine by counsel for the appellant and disrupted that cross-examination. The questions were not limited to elucidating matters which had been given in evidence.

90   The judge asked 89 questions during the appellant's examination in chief and thereby disrupted the flow of his evidence. It was a pity he devoted so much attention to the equipment and the tapes which recorded activities inside parts of the Club when it was common ground that they were not functioning at the time of the offence and had not been functioning since the previous day.

91   During the appellant's cross-examination the judge asked 172 questions. The judge questioned the appellant about Mr Keogh insisting upon $10,000 being paid in cash, the contracts which were signed and the purpose of the payment in cash and when it was paid. The judge intervened quite frequently as the cross-examination progressed and put propositions and questions to the appellant often having the effect of assisting the Crown. A reading of the transcript left me with the impression that on occasions the appellant was being cross-examined by the Crown prosecutor and the judge. The latter asked the appellant from time to time why he pursued certain courses of action or failed to take certain steps. The judge questioned the appellant about some of the answers which he had given the police in his recorded interview. During re-examination the judge queried the appellant's evidence that his mother never went to the bank.

92   During the relatively brief evidence in chief of Barry John Lewis, the appellant's brother, the judge intervened to an appreciable extent and disrupted the flow of the evidence. Some of his questions during cross-examination suggested that a story was being told which had some strange (in the sense of incredible) aspects.

93   The accused and his brother gave evidence on 16 November 2000. At the start of the hearing on 17 November 2000 counsel for the appellant at the trial said:

"What I'm about to say, I say with the greatest respect for your Honour and of your Honour, but I am concerned about your Honour's active intervention in the cross-examination of the witnesses for the defence and I raise it now because I foreshadow that I'd be concerned later on that perhaps in your Honour's summing up there may be an unfairness to the accused".

94   The judge took objection to what counsel had said, particularly the suggestion that he took from the remarks that he would be unfair in what he said to the jury. Counsel reminded the judge that counsel had not said that the judge would be unfair. The judge asked counsel to withdraw the suggestion he had made. Counsel did so.

95   The judge added:

"… I have asked questions throughout the course of this trial in order to clarify things that have been left, in my opinion, unclear, and which I hope would assist the jury in those points of clarification, and I'll leave it at that".

Unfortunately, a significant number of the judge's questions went much further than clarifying matters.

96   When the next witness, Mrs B A Lewis, the wife of the appellant's brother, gave evidence in chief and was cross-examined there were only a few interventions by the judge. In two questions he queried an answer she had earlier given. The implication was that it was not truthful. Mrs B A Lewis was followed by the appellant's mother, Mrs L Lewis, who was aged 80. The judge had difficulty in hearing her evidence in chief on occasions and went over with her what she had said. There were other interventions, some of which went beyond clarifying matters.

97   The judge intervened during her cross-examination and questioned her to the effect that she would be concerned that the police had her money. The judge further asked why she did not go to the police and tell them that the money which they had seized was her money as this could only help her. The judge questioned her about her practice in withdrawing money from her bank account and whether that had continued. He confirmed after the occasion when the appellant had asked her while she was in hospital in July 1997 for some money to help him buy the business at Gooloogong, there was no further discussion about the matter until 22 September 1997. (I interpolate that at the time he asked for help in July 1997 the appellant appears to have been aware of the $10,800 in the pencil wallet). The judge questioned the mother about why she had not asked the appellant to collect the wallet and lock it up and about how long she had been saving and holding money at home. She became exasperated with the judge and his questions. She said that she had been saving money since she left work in 1985, taking money out of her savings and putting it back as occasion required.

98   The judge intervened again in re-examination, questioning her as to the money she spent. She was not able to give the details which he wanted. She told the judge "You keep on the one thing. I'm not telling you lies". Many of the judge's questions seemed to be querying whether the mother could have given the appellant the moneys which she alleged. The judge's questioning was at times quite intense and especially so for an 80 year old lady, who had had health problems.

99   It would have been better if counsel for the appellant had, at a much earlier stage, protested about the extent of the judge's interventions and asked him to cease. Counsel did not ask the judge to discharge the jury on the basis of the judge intervening too much and disrupting the trial process. Counsel may have feared that such an application would not have been well received and could affect the remainder of the trial. Questions of the expense of a further lengthy trial (about 11 days) and the appellant's capacity to endure it and pay for it also arise.

100   The Crown pointed to the omissions of counsel for the appellant mentioned in the previous paragraph. The attitude of the Crown was that while it would have been better if many of the judge's interventions had not occurred, overall the situation was not so bad as to require this Court to set aside the verdict and order a new trial.

101   A study of the transcript reveals that the judge's interventions exceeded, by a significant margin, the permissible limits. They disrupted and distorted the trial process. Amongst other things, the terms of the interventions suggested that the appellant and witnesses called on his behalf were giving evidence that was not credible and engaged in actions which were not credible.

102   In R v L G Wilson CCA, unreported, 31 March 1995 Hunt CJ at CL and I in separate judgments emphasised the restraint and circumspection that a judge should exercise before he intervenes. Questions in the nature of cross-examination should be left to the Crown. That restraint and circumspection are very important when dealing with an accused and an elderly lady. It is hard enough for an accused or any witness to give evidence without undue interventions and questioning by the judge. In the present case, on this ground alone, the appellant has not had a fair trial according to law, the verdict must be set aside and a new trial ordered.

Appeal Grounds 5 and 6 read:

"5. There was a miscarriage of justice because


(a) the trial judge refused to allow it to be put to Robert Mitchell in cross-examination that he was a poker machine addict; and

(b) the trial judge refused to allow Robert Mitchell to be referred to as a poker machine addict

6 . There was a miscarriage of justice because the trial judge refused to allow cross-examination of Robert Mitchell in order to establish that he borrowed $25,000 from his bank and the trial judge refused to allow the appellant to prove the amount borrowed."

103   During the cross-examination of Mr R J Mitchell counsel elicited from Mr Mitchell that from time to time he had used the bar voucher system to borrow moneys from the Club, that is, he would sign a voucher for a nominated sum, give it to a staff member and receive cash in that amount. He could not remember the amounts he had borrowed from the Club during 1997 using that system. He could not remember if he owed $6500 to the Club in July 1997. Ultimately he agreed that the amount could have been in the thousands. He recalled Mr Lewis telling him to pay back the total of the amounts he had borrowed before the auditor's visit in July/August 1997.

104   A question arose as to the extent to which counsel should be permitted to cross-examine Mr Mitchell in front of the jury as to his financial affairs. A voir dire was held. In the course of that Mr Mitchell declined to agree that he had a serious poker machine addiction problem, but agreed that he had a problem and that as a result of that problem with the "poker machines", he was borrowing moneys to pay for the moneys he was putting through the poker machines. He also agreed that one of the sources of his borrowed moneys was the system of bar vouchers at the Club. He agreed that from August 1997 to the early part of 1998 he accrued a fairly significant debt of about $23-24,000. In July 1998 he borrowed $23,000 from the Commonwealth Bank to pay his debts on the security of a house in which he and his parents lived.

105   Mr Mitchell said that there was an EFTOS facility at the Club from which he used to take out money while he was at the Club. For example, on 23 June 1997 in one fashion or another, he took out $370 at the Club. He agreed that to gain funds to play the poker machines he would sometimes use the EFTOS machine at the Club to withdraw cash, sometimes sign bar vouchers and sometimes draw a cheque which was held by the Club until he had sufficient funds to clear the debt.

106   In his reasons the judge recited that Mr Mitchell had been questioned about advances made to him by the Commonwealth Bank in round sums of $5000 in September, October and November 1997 and February 1998 and that he stated he had repaid those moneys by taking out a mortgage over a house owned by him in July 1998. The judge also recorded that Mr Mitchell had used the voucher system to get advances and that his propensity to gamble was financed from his wages and moneys borrowed from the Commonwealth Bank. The judge continued:

"In these circumstances, it seems to me that any question of a motive on the part of Mr Mitchell has now all but disappeared. It does not seem to be to be relevant to the issue in these proceedings as to the actual amounts that were borrowed and as to the actual amounts that were repaid. The fact is the money was repaid pursuant to an arrangement that Mitchell had with the Commonwealth Bank. However, as evidence has been adduced that he had a gambling problem from prior to the date on which somebody gained access to the club's safe and took the monies I have previously referred to, it seems to me that while I should allow evidence to be given in general terms as to how he financed that gambling problem and as to how those monies were ultimately repaid in July 1998, I think that should be the end of the matter. It seems to me that it does not allow in the circumstances of this case the defence to argue that he had a motive to take any money from the safe in the light of his evidence that has been placed before the jury.
In these circumstances, I would confine the evidence - Mr Mitchell's evidence or cross-examination to the evidence he has already given and to the fact that that habit was financed by borrowings from the Commonwealth Bank which were subsequently repaid by him taking a mortgage out over his house"

107   This ruling is unsound. The poker machine addiction of Mr Mitchell was a costly habit. His continued need for money to finance that habit provided him with a strong motive to steal substantial sums of money during 1997. Raising a mortgage on the house in which he lived with his parents must have been a course of last resort. The fact that Mr Mitchell eventually had to raise a mortgage of $23,000 over the house emphasises the magnitude of his problem. It was erroneous for the judge to hold that "any question of a motive on the part of Mr Mitchell has now all but disappeared".

108   Counsel for the appellant was entitled to explore fully the financial and banking situation of Mr Mitchell from early 1997 to August 1998. Significantly an extra bank account was opened by Mr Mitchell in August 1997 to facilitate the making of advances by the Bank to him.

109   After the ruling counsel raised with the judge what was permissible. The judge replied:

"Well, it doesn't seem to me to be of relevance in these proceeds (sic) as to the amounts that he borrowed. He's given that he's had a gambling problem. I propose to allow him to be asked as to how he financed that gambling habit. I would anticipate that he will say from his earnings and from monies he borrowed from the Commonwealth Bank which were repaid by him in July 1998. The amount of the money seems to me is not relevant to these proceedings or anything else. It's too emotional. It's prejudicial - if $23,000 comes out, it just happens to be the figure and I don't think that should come out".

110   This exchange followed:

"WALSH: So your Honour's ruling that I can't mention the amounts of money or the dates that he did things.
HIS HONOUR: It doesn't seem to me to be relevant to the issues that arise in these proceedings. That's the basis I have excluded it. But he has a gambling problem. You can say that he borrowed money on the bar vouchers from time to time. He financed that gambling problem from his wages and from borrowings from the bank and it was repaid by him giving a mortgage to the bank"

111   These further rulings are also unsound. Counsel should not have been so restricted. The judge narrowed unduly what was relevant.

112   It was of importance to the defence case that counsel for the appellant be able to cross-examine Mr Mitchell fully. If this had happened it cannot be said that the outcome of the trial would have been a verdict of guilty. The judge did not seem to appreciate that there was another view available as to Mr Mitchell's motive and that counsel for the appellant was entitled to cross-examine so as to try and advance that other view. Depending on the severity of Mr Mitchell's poker machine addiction, it would not be difficult to envisage him dissipating $25,000 in poker machines.

113   Ground 6 has been made good. This requires a new trial. As to Ground 5 I see no good reason why poker machine addiction has to be sanitised to a gambling problem. This complaint, although valid, would not of itself warrant a new trial.

Appeal Ground 3 reads :

"There was a miscarriage of justice because counsel for the accused failed to put evidence of the accused's good character before the jury".

114   There was substantial evidence of good character available to the accused. He had been very active on behalf of the community and rendered a lot of community service. He had held positions of trust involving the handling of the moneys of others. No judge would permit the appellant to be cross-examined on a minor offence committed in 1969 when he was a juvenile. The appellant was entitled to a ruling from the trial judge to this effect prior to leading evidence of good character. Such an application should have been made. Senior counsel for the Crown expressed the view that it was most unlikely that any Crown Prosecutor would seek to raise that matter. I agree. The Crown suggested that evidence of good character may not have been called because counsel for the appellant was fearful of his client being cross-examined for acceding to Mr Keogh's insistence that $10,000 be paid in cash and agreeing to a second contract. Those facts emerged anyhow. It was not suggested that the appellant committed any offence or incurred any liability. The appellant was not responsible for what Mr Keogh did or intended to do. It would be a bold prosecutor who would engage in that line of cross-examination.

115   This was a case in which good character and the two traditional directions as to its use may have been of substantial use to the appellant. There was no valid tactical reason for not leading that evidence. Counsel's omission to lead that evidence appears indefensible.

116   This ground has been made good. There must be an order for a new trial.

Appeal Ground 1 reads:


"The verdict of the jury was unreasonable and cannot be supported having regard to the evidence because

(a) on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

(b) a reasonable jury ought to have had a reasonable doubt of the guilt of the accused with the result that there was a miscarriage of justice".

117   This ground is not made out for the following reasons:

(a) it was open to the jury to take the view that only 3 people had the requisite information to gain entry and commit the theft and that Mrs Whitehurst and Mr Mitchell had been excluded.

(b) it was open to the jury not to accept that the appellant's mother had as much money at home as she and the appellant suggested.

(c) the close correspondence as to amount, the quantities and the denominations of the notes stolen and those found in the appellant's car. This is telling. It is quite a coincidence that there should be such a correspondence if the moneys found in the car came from the sources described by the appellant.

(d) Even if the jury accepted that the appellant's mother had substantial sums of money at home, or thought that she may have had, it was open to the jury to find that she did not give any money to the appellant on the morning of 22 September 1997. The jury may have attached weight to the appellant and his mother not mentioning the matter to the police at an early point of time.

118   The Crown had a case of substance against the appellant but it was not impregnable. The further evidence led at a new trial may change the view that is taken of the evidence as a whole. The offence committed was a serious one. It would be incorrect for this Court to enter a verdict of acquittal.

119   The appeal against conviction should be allowed, the conviction quashed and a new trial ordered. As the appellant has served a little over 9 months of his 18 months non-parole period it will be a matter for the Director of Public Prosecutions to decide whether to proceed further.

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