R v Norman John Rose No. 4249 Judgment No. SCCRM 93/192 Number of Pages 19 Criminal Law and Procedure Evidence (1993) 69 a Crim R 1

[1993] SASC 4249

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL BOLLEN(1), DUGGAN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - evidence - Criminal Law - practice and procedure - evidence - test for qualification to give expert evidence - illiterate man allowed to refresh memory by the reading of his statement to police by the clerk of arraigns - rebuttal evidence - comment by, and directions of, Judge about failure of accused to call a witness named in an 'Alibi Notice'
Evidence Act 1929 s28. R v Bonython (1984) 38 SASR 45 at 47; R v Cheney
(1991) 99 ALR 360 at 378-381 and R v Kern (1986) 2 Qd R 209 at 211-212 and 214-215, distinguished. Clark v Ryan (1960) 103 CLR 486, discussed.

HRNG ADELAIDE, 22-23 September 1993 #DATE 5:11:1993
Counsel for appellant:     Mr S W Tilmouth QC
   with Mr W R Retalic
Solicitors for appellant:    Sykes Bldstrup
Counsel for respondent:     Mr B J Jennings QC
   with Ms G Davison
Solicitors for respondent: Director of Public
   Prosecutions

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J This is an appeal against a conviction imposed in the District Court. 2. The charges laid against the appellant with their "Particulars" were:-
"First Count Statement of Offence Armed Robbery. (Section
    158a of the Criminal Law Consolidation Act, 1935). Particulars
    of Offence Norman John Rose on the 21st January, 1992, at
    Glenelg East, being armed with offensive weapons, namely a
    baseball bat, a jemmy bar and a knife, robbed Yvonne Lorraine
    Callary of 4 rings, together of the value of about $11,850 and
    money in the amount of about $50.
     Second Count Statement of Offence Causing Grievous Bodily Harm
    with Intent. (Section 21 of the Criminal Law Consolidation Act,
    1935). Particulars of Offence Norman John Rose on the 21st
    January, 1992 at Glenelg East, caused grievous bodily harm to
    Yvonne Lorraine Callary, with intent to do her grievous bodily
    harm.
     Third Count Statement of Offence Wounding with Intent to do
    Grievous Bodily Harm. (Ibid.) Particulars of Offence Norman
    John Rose on the 21st January, 1992 at Glenelg East, in company
    with another, wounded John Callary, with intent to do him
    grievous bodily harm.
     Fourth Count Statement of Offence Offering a Benefit to a
    Witness. (Section 244(1) of the Criminal Law Consolidation Act,
    1935). Particulars of Offence Norman John Rose on the 19th
    July, 1992 at Adelaide, offered to give a benefit, namely money
    in the amount of $10,000 to John Alfred Robertson, a person
    required to give evidence in judicial proceedings, as an
    inducement to him not to give evidence in the said proceedings,
    namely the trial of Norman John Rose on charges of Armed
    Robbery, Causing Grievous Bodily Harm with Intent to do Grievous
    Bodily Harm and Wounding with Intent to do Grievous Bodily
    Harm." 3. The jury returned unanimous verdicts of "guilty" on counts 1, 2 and 3. On count 4 the jury returned a verdict of "not guilty of offering a benefit to a witness but guilty of attempting to pervert the course of justice". 4. The appellant appeals against the convictions on counts 1, 2 and 3. 5. John William Callary is a jeweller. In January 1992 his shop was at Jetty Road, Glenelg. His wife worked in the shop. They lived at 43 Dunbar Terrace, Glenelg East. There is no doubt but that on the night of 20th-21st January 1992 two disguised men illegally entered the house of Mr and Mrs Callary. They were armed with a baseball bat, a jemmy bar and a knife. They assaulted Mr and Mrs Callary with bar, baseball bat and knife. They stole rings and money. They left the Callaries injured, bound and handcuffed. Each was badly injured. Police came. Mr and Mrs Callary were admitted to hospital. Mrs Callary had to have surgery to insert metal plates in repair of smashed cheekbones. Mr Callary was less seriously hurt. 6. The two men each wore dark clothes, woollen gloves and balaclavas. Mr and Mrs Callary could not identify them. They described each as being in his mid-twenties, something like 5'7"-5'8" high and of slim build. The main purpose of entry and attack was to try to get the keys to Mr Callary's shop. So much emerged from the demands of the attackers. There was no evidence of identification. That must be steadily remembered. The case was not one of disputed identification with identification made from appearance or photographs. It was a case based on circumstantial evidence. The two men concerned were obviously acting in the course of and in furtherance of a plan. Each was guilty of counts 1, 2 and 3. 7. I will not recite more details of the brutal attacks made on Mr and Mrs Callary. 8. The Crown alleged that the appellant and his friend, John Overstead, committed these three offences. Overstead was not charged on the same information as was the appellant. Overstead was charged on a separate information and either had pleaded "guilty" or indicated his intention to plead "guilty" by the time of the trial of the appellant. As I have said the case against the appellant depended on circumstantial evidence. I recite a long passage from the opening of the Crown prosecutor at trial. That will reveal much of the evidence which the Crown proposed to rely on. The relevant part of the opening is:-
    "On the night following the assault, that is on 22 January
    1992, Detective Davies and Detective Williamson from the
    Darlington CIB searched the area around Glenelg East. They were
    looking for anything that might be connected with the incident
    at Dunbar Terrace. At the junction of Butler Court and Maxwell
    Terrace in Glengowrie - which was about 100 metres away from the
    house at Dunbar Terrace, over the tramline, on the other side -
    the police officers found, in a drain, a number of items which
    the Crown alleges were involved. They found in that drain a
    jemmy bar, a baseball bat, two blue balaclavas, two tracksuit
    pants, and three woollen gloves. They also found two pairs of
    running shoes. One was a pair of Lynx brand of shoes, and the
    other a pair of Nikes.
     From there, the investigation could really begin. The police
    put out an announcement about the baseball bat that they had
    located. They were given information about the baseball bat
    that led them to the Argus Furniture shop on Burbridge Road at
    Hilton. There they came in contact with a person by the name of
    John Robertson.
     John Robertson gave information to the police that he knew the
    accused Norman John Rose, and the person Johnny Overstead. And
    that on 20 January 1992, that is, about three hours before the
    intrusion into the house, he'd been asked by Mr Rose, this
    accused, to supply him with a baseball bat. The two of them, Mr
    Robertson and Mr Rose, went to the Argus Furniture shop, where
    Mr Robertson was working. Mr Robertson went inside. He picked
    up a baseball bat, came out, and gave it to Mr Rose. After he
    had given the baseball bat to Mr Rose, they both went back to
    the place where Mr Rose was living, and Mr Robertson left Mr
    Rose there with Johnny Overstead. Mr Robertson went out fishing
    with Mr Rose's grandfather, Leslie Ferguson.
     The police showed Mr Robertson the baseball bat that they had
    found in the drain, and Mr Robertson identified that baseball
    bat as being the same baseball bat he had given to Mr Rose just
    three hours or so before the assaults. He identified the
    baseball bat by words written at the top of the baseball bat,
    and by a price tag of $10 that was written upon it. The
    baseball bat was not a new bat, as you will see, but one that
    had been bought secondhand by the owner of this shop.
     Now after Mr Robertson and Mr Ferguson had finished their
    fishing, they went back to the place where Mr Robertson had
    dropped Mr Rose, and Mr Ferguson stayed there. The accused, Mr
    Rose, was supposed to have been staying at his grandfather's
    place. Mr Robertson didn't see him again after that time for a
    number of months.
     All of the items that were located in the drain were tested at
    the Forensic Science Centre. They were initially tested for
    blood, to establish whether or not they were the items that had
    been used to assault Mr and Mrs Callary. It was found that
    there was large amounts of blood on the clothing, and on the
    items that could have come from Mr and Mrs Callary, included
    blood on the jemmy, on the tracksuit pants, on the gloves, and
    on the baseball bat, and on the Nike shoes.
     On 29 January 1992, Mr Callary was given permission to go from
    the Flinders Medical Centre back to his house to try and tidy it
    up a little bit. When he got to his house, he was in the
    bedroom, he was looking around, and he found a black woollen
    glove amongst the linen on his bed. That glove was given to the
    police, and that glove, it is alleged, is the missing glove that
    matches another glove that was found in the drain.
     After the police had received their information from Mr
    Robertson about who had had the baseball bat on this night, the
    police went back to Mr Callary and asked him if they could have
    a look at his ledger from the jewellery shop. In that ledger
    they found an entry on 8 November 1991, just over two months or
    so before this incident. The entry in that ledger was for a
    person by the name, N.J. Rose of 33 Koolunda Avenue, Woodville.
    During this transaction Mr Callary had purchased a length of
    chain from a person that gave their name as N.J. Rose.
     Mr Rose was not arrested until 12 June 1992. When he was
    arrested, the police did a medical examination upon him. They
    took from him samples of saliva, samples of his hair, and his
    feet were examined. They also took from him samples of his
    blood. All of those samples were taken in an effort to see
    whether he could be connected to this crime or not. The samples
    of his saliva and his blood were examined at the Forensic
    Science Centre by a Mr Christopher Pearman. He also examined
    the clothes and shoes that were found in the drain. On one of
    the balaclavas he did a test to see whether there was any saliva
    present around the mouth piece. He found that there was a
    presence, that there was there amylase, which is an enzyme found
    in saliva as well as some other bodily fluids, around the mouth
    piece of one of those balaclavas.
     He tested that sample, and then he tested the sample from Mr
    Rose. He found that both of the samples fell into the AB
    grouping. And the AB grouping, it's alleged, is relatively
    unusual amongst our population. Studies have shown that the
    blood group A makes up about 40.9% of our population. People
    with the blood group B make up about 10.2% of our population.
    People with the blood grouping O make up about 44.3% of our
    population. People with the blood grouping AB, that Mr Rose
    has, make up about 4.6% of our population.
     Hairs were also found in the balaclavas, and those hairs were
    examined by Ms Tridico from the Forensic Science Centre. She
    examined the hairs from the balaclavas, and the hairs taken at
    the medical examination of Mr Rose. At the end of her medical
    examination, she found that hair from both of the balaclavas
    could have come from Rose.
     In addition to looking at items of a medical type nature, the
    Forensic Science Centre also had a look at the size of the
    clothing that was located. It will be alleged that the size of
    the tracksuit pants is the size that one would expect somebody
    of Mr Rose's height to be wearing.
     Now you will remember that I said that Mr Rose's feet were
    also examined during the medical examination. His feet were
    examined by two podiatrists from the Flinders Medical Centre.
    Their names are Sara Jones and Jo Robinson. During the
    examination of Mr Rose's feet, they made casts of his feet, they
    removed the shoes that he was wearing at the time of the
    examination, and they examined those shoes, and the two pairs of
    shoes that had been found in the drain. They noted that Mr Rose
    had a number of features to his feet.
     Now one of those features is a condition known as Morton's
    toe. That is where the second toe is longer than the first toe.
    They also noted that Mr Rose had an elevated big toe. They also
    noted that he had, somewhat unusually for a person of his age, a
    feature known as heel bumps. Now they will explain that to you
    in due course, but basically it is a spur like feature on the
    back of the feet. At the end of their examination, they
    concluded that the combination of these characteristics in
    somebody of Mr Rose's age was unusual.
     They examined the two pairs of shoes, and they found that
    there were certain characteristics in those shoes which meant
    that Mr Rose could have worn both of these pairs of shoes. They
    concluded if he'd been wearing the Lynx shoes, they would have
    been too tight on him. If he had been wearing the Nike shoes,
    those shoes would have been relatively loose on him. It is
    alleged that on this night Mr Rose was indeed wearing those Nike
    shoes. It's also alleged that because those shoes were too
    tight for him, he had the laces done up as tightly as they could
    have been. HIS HONOUR: I think you misstated that. It should
    be because they were too loose for him. MS DAVISON: Yes, His
    Honour is quite correct. The Nike shoes were too loose for him.
    He had the laces done up as tightly as he could, and he was
    still able to just slip his feet out of these shoes, without
    having to undo the laces when it came to removing them." 9. It will be seen in relation to the baseball bat that if Robertson was to be believed there was (as Mr Tilmouth said) "a very strong...basis for implicating Rose". I should say that the appellant, Overstead and Robertson all knew each other. 10. The fourth count arose from the allegation supported by Robertson that whilst the appellant was in custody Robertson came to see him. It was alleged that the appellant offered Robertson $10,000 not to give evidence about the baseball bat. Of course, the evidence of Robertson was important in relation to count 4 and as evidence of consciousness of guilt of counts 1, 2 and 3 on the part of the appellant. 11. I hark back to the evidence of shoes in the passage from the Crown prosecutor's opening from which I have quoted. 12. The first ground of appeal is that the learned trial Judge should have ruled that the evidence of Ms Robinson and Ms Jones, the two podiatrists, was "not expert evidence". In support of this ground Mr Tilmouth put his submissions in his Outline and spoke to them. He wrote:-
     "1. Expert Evidence (Ground 1) 1.1 The guiding principle is
    that experts should not testify in areas unless the subject
    matter 'so far partakes of the nature of a science as to require
    a course of previous habit, or study, in order to obtain a
knowledge of it': Clark v Ryan (1960) 103 CLR 486 at 491 per
    Dixon CJ.
     1.2 In the case of new or unfamiliar techniques or technology,
    such as the present, the court should be satisfied that opinions
    given have a sufficient scientific basis to render the results
    part of a field of knowledge which is sufficiently organised and
accepted: R v Bonython (1984) 38 SASR 45 at p47 and R v
Runjanjic (1991) 53 ACrimR 362 at 369.
     1.3 In this case the 'expert evidence' of the podiatrists was
    not based on any published books or research (pp186-7, 426-7,
    216-9, 222, 223-5, 514 and 525-6). Furthermore, so far as the
    evidence goes, the so-called 'Morton's toe' occurred, on very
    limited and out-dated studies, in at least one third of persons
    (pp188-9, 191-3, 222-3, 402-5, 434-5, 525). There were no
    specific studies for Australians. Nor were there any studies or
    research showing that the specific characteristics of the
    appellant were unique or otherwise. Indeed, it was conceded
    that this was a completely new forensic exercise: pp199-200.
     1.4 There was therefore no valid basis for admitting this
evidence at all." 13. Admission on the limited basis of consistency, that the shoes could have been worn by the accused, was tantamount to evidence of identification (Ruling p4 and 7 and Summing-Up pp39-40, 60, 64-6 and 68-9): R v Carroll (1985) 19 ACrimR 410 and R v Lewis (1987) 29 ACrimR 267. Shoes found by the police close to the scene of the crime and soon after its commission were things capable of being used to sheet home guilt to the appellant. If these shoes would not fit his feet at all then they would not sheet home guilt or play any part in connecting him to the crimes. If he could wear shoes then they and the fact that he could wear them was capable of being some use in the reaching of a verdict. 14. The podiatrists gave evidence which the Crown prosecutor had forecast. But before that Mr Retalic, counsel for the appellant at trial, had made a powerful objection to the admission of this evidence. The learned trial Judge admitted the evidence. He published his reasons a few days later. 15. Mr Tilmouth QC, for the appellant before us, offered earnest arguments in favour of his point that the evidence of the podiatrists was inadmissible. I entertain no doubt that it was admissible. The learned trial Judge heard evidence on the voir dire. I find his reasons for admitting the evidence, after the hearing on the voir dire, to be perfectly sound. His Honour said:-
    "The expert opinion evidence under consideration here is, as
    I have indicated, to be given by two podiatrists from whom I
    heard some evidence during a voir dire hearing. The Crown seeks
    to adduce this evidence, not on the subject-matter of whether,
    by reference to a comparison of the accused's feet and wear
    marks in some shoes allegedly found apparently dumped in a drain
    near the scene of these crimes, these were shoes that had been
    worn by the accused, but on the limited subject-matter of
    whether, by reference to such a comparison, those shoes could
    have been worn by the accused.    The subject-matter of the
    opinion evidence in question is not identification evidence per
    se, or anything akin to fingerprint identification, or voice
    print identification, but rather evidence of the characteristics
    and points of comparison to be seen on both the foot and the
    shoes from which circumstantial evidence an inference may
    ultimately be sought to be drawn (in conjunction with other
    circumstantial evidence) that there was a connection, a
    'deductive conclusion', or a correlation, or a correspondence
    (such as with handwriting comparison, traditional blood testing,
    speech patterns and the like). The issue here is, therefore,
    quite different, in terms of how far it was expected that the
    expert witness would go in expressing an opinion, from that in R
v Bonython (1984) 38 SASR 45, where the subject-matter of the
    opinion evidence was the comparison of handwriting and the
    actual identification of certain signatures, in R v Chaudhary
(No.1) (1985) 122 LSJS 219 where the subject-matter of the
    opinion evidence was the provenance identification of carpets,
in R v Carroll (1985) 19 ACR 410, where the subject-matter of
    the opinion evidence was the identification of an accused by
    bruise marks on the victim's thigh said to have been left by the
accused's teeth, and in R v Lewis (1987) 29 ACR 267, where the
    subject-matter of the opinion evidence was the identification
    of an accused by matching of bite-marks to the accused's teeth.
    (These latter two cases were relied upon by Mr Retalic.)
    Though the issue here is quite different from that in the cases
    just referred to, the principles are the same (see R v Bonython
    (supra) and the cases that have followed and applied it since
    that important case was decided).    The first thing that the

    Crown needs to do is pass, if it can, 'the threshold test', viz.
    to prove that the subject-matter of the opinion evidence in
    question, that is to say (and I emphasize) the characteristics
    or points of comparison of both the feet and the shoes (as
    opposed to the identification of the accused himself) are not,
    or are not wholly, within the knowledge and experience of
    ordinary persons and are such that a person, without instruction
    or experience in the specialized area of knowledge or human
    experience to do with podiatry, would not be able to form a 10
    sound judgment on the matter without the assistance of witnesses
    possessing special knowledge or experience in that area.    The
    subject-matter of enquiry in this voir dire hearing is such that
    persons, without instruction or experience in this area of
    knowledge or human experience, are unlikely to prove capable of
    forming a correct judgment upon it without the assistance of the
    opinion of witnesses possessing special skill.    The Crown,
    therefore, passes 'the threshold test'. It was not suggested on
    the accused's behalf that "the threshold test" had not been
    passed here.    The next two things that the Crown must do are
    to establish, first, the relevant field of expertise, viz. that
    the subject-matter of the opinion (that is to say, the
    characteristics of the feet and points of comparison between
    wear-marks in the shoes) of each of the so-called experts forms
    part of a body of knowledge or experience which is sufficiently
    organized or recognized to be accepted as a reliable body of
    knowledge or experience, a special acquaintance with which by
    the witness would render her opinion of assistance to the Court,
    and, secondly, the qualification of the witness, viz. that each
    witness has acquired by study or experience sufficient knowledge
    of the subject-matter to render her opinion of value in
    resolving the issue before the Court.    Both are established
    here, in my judgment, on the evidence of the two podiatrists
    which I accept as credible and reliable.    There is nothing new
    or novel about the technique which the podiatrists have
    purported to use to reach their conclusion that the accused
    'could have worn' one or more of the pairs of shoes examined.
    It may well have been otherwise if the Crown had sought to
    identify the accused by adducing their opinion (the podiatrists'
    opinion) to the effect that 'this shoe had been worn by that
    accused person, whose feet I had examined'.    This is not a
    case in which a scientific principle relating to podiatry had
    entered 'the twilight zone' referred to in Frye v The United
    States 293 FR 2nd 1013 at p.1014. The subject-matter of
    evidence here, it is important to note, is not directly the
    identification of the accused. It is not put forward as
    providing, on its own, the foundation for conviction. However,
    it is a strand of a rope of circumstantial evidence, or "a link
    in a chain" of circumstantial evidence, of the type contemplated
    by Muirhead AJ in R v Lewis (supra) at p.288.    There is
    clearly a chain here for the consideration of the jury. There
    is other evidence in the prosecution case which purports to link
the accused with the crimes." 16. As Mr Tilmouth wrote in his Outline the leading authority on admission of expert evidence in Australia is Clark v Ryan (1960) 103 CLR 486. In the quoted passage from his Outline Mr Tilmouth recites a passage from the reasons of Dixon CJ. But I do not think that Dixon CJ was contemplating a "course of habit or study" only in class room or lecture theatre or from books. There is a place for the evidence of what I call "the practical expert". An engineer, both from practical observation or work and study from books or lectures will understand the workings of an internal combustion engine. So will a mechanic who has worked on engines man and boy for (say) these 30 years. I do not stay to cite passage from the evidence before the jury and on the voir dire given by the two podiatrists. I mention that Miss Robinson had a Diploma in Podiatry received in 1951 from the London Foot Hospital. Note, a hospital for feet. She had worked at and taught podiatry ever since that time. Her evidence about the vocation of podiatry and of her qualifications entirely justified the reasoning of the learned trial Judge in support of his decision to admit her evidence. So did the evidence of Miss Jones. She had less but sufficient experience. She received her Diploma of Applied Science (note "science") in podiatry from the South Australian Institute of Technology in 1986. She had worked at podiatry extensively ever since. 17. The evidence of the podiatrists answered the "test" stated by Dixon CJ in Clark v Ryan. It answered to the test so far as the subject matter of the proposed evidence was concerned. Podiatry is something in the nature of a science which requires a course of study in order to obtain knowledge of it. Each witness had embarked on and completed a course in podiatry. Each podiatrist had applied her knowledge to the practice of podiatry. The absence of much "literature" in this respect (Outline of Mr Tilmouth para 1.3) is not to the point. In lecture rooms, from such notes or books as there were on the subject and from practice each witness was qualified to offer the opinions which she did offer. They added up to evidence that the shoes could have been worn by the appellant. 18. Mr Tilmouth complained not only of the admission of the "opinion evidence" but that it went further than showing that the appellant could have worn the shoes. He said (I omit our interjections):-
    "What I am saying is that in the end result, the evidence
    that went before the jury was that these were fairly specific
    feet. The evidence was that no two feet are alike, that is just
    an anatomical statement.... What was characteristic about Mr
    Rose's feet, were the long second toe, heel bumps, the fact that
    the toe sticks up and therefore I think the word was 'pronates'
    into the shoe and leaves a mark where it has been rubbing up
    against the upper part of the shoe.... At the end of the day,
    the jury may well have used this material to say Rose wore one
    of those pairs of shoes because the unusual characteristics of
    his feet were mirrored in the wear patterns of the shoes. If
    that is true, then the evidence that went to the jury went well
    beyond just consistency, and depending on the quality of that
    evidence, was strongly probative of what I have called
    identification." 19. With all respect I cannot see any substance in these complaints. The condition of the foot of the appellant could have left an impression in a shoe or shoes. The appellant could wear each pair. All this was evidence fit for the consideration of the jury. The learned trial Judge spoke of "consistency" ie that the shoes were consistent with being worn by the accused. So they were. Very consistent. I can find no fault in the jury's giving (if it did) great weight to condition of foot and shoe. 20. The learned trial Judge left the question of "foot and shoe" to the jury in the correct way. As Mr Jennings QC, for the respondent, put in his Outline: "Its effect or weight was not overstated". The learned trial Judge said:-
    "It is important to remember what the podiatrists purported
    to say. The Crown sought to adduce Crown evidence from
    podiatrists, not on the subject-matter of whether by reference
    to a comparison of the accused's feet and wear marks in the
    shoes allegedly found apparently dumped in a drain near the
    scene of these crimes, these were shoes that had been worn by
    the accused, but on the limited subject-matter of whether, by
    reference to such a comparison, those shoes could have been worn
    by the accused.
     The subject matter of the opinion evidence in question is not
    to be viewed as identification evidence, or anything akin to
    fingerprint identification, but rather as evidence of the
    characteristics and points of comparison said to be seen on both
    the feet and the shoes from which circumstantial evidence an
    inferences may ultimately be sought to be drawn that there was a
connection or a correspondence." 21. This is certainly in no way an overstatement. I think that the learned trial Judge could have left it to the jury as evidence much more strongly than he suggested. In think it was some evidence connecting the accused with the crime. But it was left as a factor or one point in the mass of circumstantial evidence capable of implicating the appellant. 22. As the learned trial Judge said in his reasons for admitting the evidence there is "nothing new or novel about the techniques which the podiatrists purported to use to reach their conclusion that the accused 'could have worn' one or more of the pairs of shoes examined". As has appeared I think that the evidence was capable of being taken further. The learned trial Judge did not. 23. The passage in R v Bonython (1984) 38 SASR 45 at 47 where the Chief Justice speaks of the caution needed if a witness has "made use of new or unfamiliar techniques or technology" does not apply here. 24. I may say in passing that the evidence of the podiatrists is, to some extent, not opinion evidence at all. The jury looked at the shoes on the feet of the appellant. To a large degree the evidence of the podiatrists merely guided or helped the jury in its observations. 25. The first ground fails. Counsel argued ground 3 before ground 2. Ground 3 is:- "The witness John Robertson ought not to have been allowed to have his statement read to him before the jury, and then adopt it, as such a procedure is not a 'refreshing of the witness's memory'. Robertson gave very incriminating evidence, not only on count 4 but as to each other count. If his evidence was accepted beyond reasonable doubt then the jury was entitled to conclude that the appellant behaved like a guilty man. On the other hand it must be remembered, as will appear, that Overstead gave evidence which would have entitled the jury to acquit. If his evidence about the name of the person who accompanied him on the commission of the crimes might reasonably have been true then the jury would have been obliged to acquit. 26. Robertson gave evidence in a voir dire hearing of imperfect capacity to read (to put it comprehensively). He said he could spell little words. In answer to the question, "Are you able to read any documents at all" he said, "No". In my opinion, this was adequate evidence to enable the learned trial Judge to conclude that Robertson could not read. 27. Robertson had given a statement or statements to police in Victoria. At trial he complained that he could not remember what he had said. The statements were in Court as something from which he could have refreshed his memory had he been able to read. The method chosen to enable him to refresh his memory was, in my opinion, satisfactory. I agree with the submissions of Mr Jennings in his Outline. They are:-
    "The method was appropriate. There is no reason of
    principle why a blind person or illiterate person should not be
    able to refresh memory in this way. It is merely an
    application, in unusual circumstances, of the basic rules
    relating to refreshing memory. The memory is revived not by
    reference to the written word but by hearing read a record which
    the witness verified as accurate at the time." 28. I am content to adopt these submissions. Ground 3 fails. Ground 2 is -
    "The learned trial Judge ought to have refused the
    prosecution application to call rebuttal evidence from the
    witness McDonald because:
     (a) there was no previous inconsistent statement made by
    Overstead.
     (b) The statement attributed to Overstead would have been
    inadmissible if tendered against the maker, and ought not to
    have been led in the exercise of the learned trial Judge's
    discretion." 29. I begin by saying that the fact that the statement made by Overstead to the police may have been inadmissible against Overstead on his trial is irrelevant. Here he was a witness. And it is his credit which was in issue on this score. Police in Victoria took a statement from Overstead. In it he said that he had taken part in a robbery at the home of Mr and Mrs Callary. He spoke in detail of events leading up to it, during it and after. He refused to identify his companion. But before the statement had been recorded on tape Overstead had told Detective McDonald of the Victorian police that his companion was the appellant. 30. The Crown gave counsel for the appellant a copy of this statement during trial. But "the defence" had obtained more information from Overstead. In his evidence he said that he had committed the offences at the home of Mr and Mrs Callary with John Robertson, not with the appellant. He said that he had been staying at the house of the appellant. On the relevant night Robertson came to the door, said "let's go", and he (Overstead) went with Robertson and committed the offences. 31. Counsel for the appellant at trial knew that Overstead had not told the police who his companion was in the recorded statement. "The defence", therefore, knew that on identity of companion Overstead was prepared to say that it was Robertson whereas he had not told the police in the recorded statement who it was. "The defence" must have expected Overstead to be heavily cross-examined. 32. In evidence both in chief and under cross-examination Overstead claimed not to remember several things which he had mentioned to the police. Counsel at trial objected to much of the cross-examination of Overstead. After cross-examination had been in progress for some time counsel objected. The transcript record is:-
    "MR RETALIC: My friend has now spent about ten minutes at
    least asking Mr Overstead whether he remembers a conversation.
    It is not helpful to continue this line of cross-examination,
    given his repeated answers that he is not really in a position
    to comment. If the prosecutor wants to call some evidence later
    on that is another issue. It is not appropriate. HIS HONOUR:
    Presumably the prosecutor may be labouring the point. I don't
    know. But she is highlighting an inconsistent statement which,
    of course, she is entitled to do for the purposes of
    cross-examination. It may be that she is, having highlighted an
    inconsistent statement, going to attempt to get the witness to
    admit that what he said in court was not the truth, not
    accurate. That is all part of cross-examination. MR RETALIC:
    Yes, except that once the witness says he has no recollection of
    whether he said these things or not, he may have said them, then
    again he may not, it is not proper, as Your Honour puts it, to
    highlight something by repeatedly asking what amounts to the
    same question. HIS HONOUR: It depends on what the purpose is.
    If the ultimate purpose is to get the witness to say, as he
    might for all we know, 'Yes, we did case the joint; we were
    there' the next question is 'You told this court a lie'. Once
    that is done that may be crucial to the credibility of the
    witness. MR RETALIC: I have been stopped for asking the same
    question more than twice, not by Your Honour. There is a
    prohibition in the Evidence Act against prolix questioning.
    That is precisely what this is. MS DAVISON: The Crown suggests
    that Mr Overstead has a good recollection of all of these
    matters. The Crown will suggest to him that he has told the
    police about these matters in great detail less than three
    months ago. For the jury to accept he now has no recollection
    of any of these matters, but purports to have a recollection of
    going into the house and doing what he did in the way that he
    said, is just incredible. For that purpose I submit that I am
    entitled to ask him about each of the matters that he has spoken
    to the police about and put those to him, ask him whether he
    remembers them or not and then formally prove the statement.
    HIS HONOUR: I overrule the objection. I will permit that
    cross-examination." 33. In my opinion, Ms Davison was correct. In my opinion, the learned trial Judge was correct. The content of this statement was not known to the learned trial Judge at the time. But he could have gleaned much from the cross-examination. The suggestion that the statement taken by the police was not an inconsistent statement was not sound. It was inconsistent in that it had in it more detail than was in the evidence given by Overstead and it did not identify the companion. It was an inconsistency relevant to the subject matter of the case. Overstead did not (as a reading of the evidence shows) distinctly admit that he had made it. The Crown prosecutor was entitled to cross-examine on it (s28 of the Evidence Act). This course can have been no surprise to "the defence". Nor did it cause any injustice. As Ms Davison said to the learned trial Judge:- "At the time he was called they were aware, or should have been aware, that his record of interview was markedly different from the evidence that he was to give in court and he could, therefore, be cross-examined in relation to it." 34. The inconsistencies were not, as suggested by Mr Tilmouth, inconsistencies on collateral issues. 35. The Crown was allowed to call evidence in rebuttal from Detective E. P. McDonald of the Victorian police. He deposed to an interview with Overstead on 29th February 1993 in a police station. I set out his evidence in chief in full:-
     "Q. You are a member of the Victorian Police Force.
     A. That is the case.
     Q. On 19 February 1993, did you interview a man by the name
    of John Overstead.
     A. I did.
     Q. Did you interview him at the Broadmeadows Police Station.
     A. I did.
     Q. Prior to commencing a conversation with him that was
    recorded by means of a tape recorder, did you have a short
    conversation with him.
     A. I did.
     Q. Did you have that conversation with him whilst you were
    waiting for paperwork to arrive from Adelaide.
     A. That is the case.
     Q. During the course of the conversation, did Mr Overstead
    speak about the charges that he may be facing in relation to a
    matter in Adelaide.
     A. He did.
     Q. Did he speak about a co-offender in relation to that
    matter.
     A. He mentioned a name, yes.
     Q. What name did he mention.
     A. He mentioned the name Norman Rose.
     Q. Can you tell us what he said in relation to Mr Rose.
     A. He said that he had - he was wanted by the South
    Australian Police for a particular matter which he had
    committed. The man that he had committed it with was a man by
    the name of Norman Rose. He indicated that although he was
    quite happy to tell that to me before the tape recording
    commenced, he would not name him on the tape recording for fear
    of reprisals after he was sentenced to gaol for the matters that
    the South Australian Police were looking for him for.
     HIS HONOUR: Ladies and gentlemen, I just advise you that you
    have heard evidence from a witness as to a statement allegedly
    made by Mr Overstead to this witness. You may use that
    statement as evidence of the statement having been made, but not
    as evidence of the truth of what was allegedly stated by Mr
    Overstead to this witness.
     XN Q. Did Mr Overstead say anything to you during this
    conversation about who had organised the offence.
     A. He said - this is before the tape recording was activated
    - he said that Rose was the person who had organised it and that
    Rose had waited for him, Overstead, to be released from prison
    for the enterprise to be carried out.
     HIS HONOUR: You should treat that evidence in the same way as
    the previous evidence ladies and gentlemen.

     XN Q. Was there any conversation between yourself and Mr
    Overstead about items that had been stolen during the alleged
    offence.
     A. A general query to Overstead. I'd asked him what were
    some of the items that were stolen. He told me about some items
    of jewellery, ladies rings I believe they were. He told me that
    that they had been stolen from the rings of a woman - I beg your
    pardon, the rings had been stolen from the fingers of a woman.
    The rings were then taken to a place where he and Rose then
    attempted to melt the rings down by putting them in a frypan, or
    a saucepan and heating that particular utensil over a kitchen
    stove. That effort to melt the metal down failed, so the gold
    went black and they three it away, after they had removed the
    stones from the particular item of jewellery, which they then
    took to a secondhand dealer I believe it was and sold the stones
    from the rings to the secondhand dealer.
     Q. As the time that you had the conversation that you have
    just related to us, did you make any notes of that conversation.
     A. I did not.
     Q. Why didn't you make any notes at that time. A. Because of
    the legislation in Victoria whereby matters that may be used as
    admission, or confession in a criminal proceeding, for them to
    be admissible they must be recorded on the tape recorder. I
    endeavoured to cover this in later questioning on the tape
    recorder, but Mr Overstead refused to elaborate as he had done
    before the tape recording commenced, therefore I made mention of
    it to the investigating South Australian Police as an
    investigative aid in their enquiries into the matter which I had
    spoken to Mr Overstead about.
     HIS HONOUR: You should treat ladies and gentlemen the evidence
    of this witness about what he says was stated to him by Mr
    Overstead regarding the rings and the melting down, in the same
    way as the previous evidence, namely, evidence of statements
    allegedly made by Mr Overstead to the witness, and not as
    evidence going to the truth of those matters.
     XN Q. You told us that you had a conversation with Mr
    Overstead on 19 February 1993 that was recorded by use of a tape
    recorder.
     A. That is so.
     Q. Looking at the two tapes that you have been handed, do they
    form a portion of the conversation that you had with Mr
    Overstead.
     A. They do. MS DAVISON SEEKS TO TENDER TAPE ONE AND THE
    PORTION OF TAPE TWO THAT HAS BEEN PLAYED TO MR OVERSTEAD IN OPEN
    COURT. HIS HONOUR: I note your objection Mr Retalic, and I
    overrule it. There's no need for you to repeat the argument and
    for me to repeat the ruling. EXHIBIT P45 Tapes received as a
    bundle tendered by Ms Davison. Admitted." 36. That was, in my opinion, evidence fit to be used as directed by the learned trial Judge. In my opinion, the directions as appear in the examination were correct. The evidence of what Overstead said went to his credit. It will have been seen that the witness, Overstead, told McDonald (if McDonald was to be accepted) that he had committed the crime with the appellant. He refused to name him in what he said when his remarks were being recorded on tape. But he did tell McDonald before the tape recording started that he had committed the crime with the appellant. Mr Tilmouth called that an "off the record" statement. Perhaps there may have been grounds for refusing to admit the record of interview against Overstead on his trial. I say only "perhaps". But this was not a trial against Overstead. The evidence was not illegally obtained. Nothing to support this suggestion appears in the evidence. All that happened is that Overstead told McDonald something before the tape recording began which he would not tell him when the conversation was being recorded on tape. 37. Much of the objection to the calling of McDonald in rebuttal was based on principles dealing with evidence admissible or not against an accused person. They are not relevant here. 38. In my opinion, Mr Jennings QC correctly wrote in his Outline:-
    "To characterise the evidence as of 'high prejudice, but no
    probative value (it went only to credit)' is to misunderstand
    the evidence and its purpose. The statement was not evidence
    against the appellant (the jury were so warned emphatically).
    It was a manifestly inconsistent statement by an important
    defence witness on a critical issue, viz. whether Robertson was
    with Overstead. It was not unfair in any relevant sense that
    the Crown be allowed to impugn Overstead's account by proving it
against him." 39. Mr Tilmouth relied to some extent on the cases of R v Cheney (1991) 99 ALR 360 at 378-381 and R v Kern (1986) 2 Qd R 209 at 211-212 and 214-215. Mr Jennings said that these cases turned on their own facts, I agree with Mr Jennings. In R v Cheney it will be seen that the trial was held to have miscarried not only through (as there held) wrongful admission of evidence but also because of "the absence of an adequate direction as to the use to which the evidence could properly be put" (per von Doussa J at 381). 40. In R v Kern (supra) Derrington J said (pp211-212):-
    "Evidence which is admissible by reason of s18 is
    technically capable of being led in rebuttal but subject to the
    discretion of the trial Judge, which is applicable to all
    rebuttal evidence in accordance with the principle set out more
recently in Killick v R (1981) ALJR 35; 37 ALR 407. Briefly
    stated, it emphasises the dangers of unfairness to the accused
    caused by the admission of rebuttal evidence so that it should
    be allowed only when the Crown could not have reasonably
    anticipated its need, and then only in respect of a serious and
    material point and where the probative value of the evidence is
    strong. The section does not provide any statutory right to
    call such evidence exclusive of the discretion and does no more
    than make that evidence admissible in a proper case: R v Ghion
(1982) Qd R 781. Unlike Killick v R (supra) and a number of
    other cases where the evidence could have been led in the Crown
    case, the relevant evidence here could not of its very nature be
    called until after the defence case. The position is such a
case was left open in Parker v R (1982) 41 ALR 576: but it was
held in R v Neville (1985) 2 Qd R 398 that where ss18 and 101
    had operation so that the Crown sought to lead evidence in
    rebuttal of a prior inconsistent statement of a defence witness
    the considerations which were relevant in Killick v R (supra)
    had application in competition with the factor of the inability
    of the prosecution to call the evidence any earlier. How the
    discretion will be exercised will depend upon the relative
    strength of the probative force of the evidence as to the real
    issues for the jury and the possible prejudicial effect of
    rebuttal evidence in general, together with any other relevant
    factors. On these considerations in the present case, because
    of the casual nature of the conversation in issue, and
    consequently because the result is more a question of credit of
    a witness than of direct evidence relating to the offence, in
    general principle it was not of such probative force as to
    justify its being allowed in rebuttal." 41. There on the facts the evidence was wrongly admitted. Here it was important that the Crown should be able to attack the credit of Overstead. There was no unfairness in its so doing. The Crown could not have anticipated the need for evidence in rebuttal until Overstead had given his evidence. 42. I agree with the additional remarks of Mullighan J about ground 2. 43. Ground 2 fails. Ground 4 is:- "The learned trial Judge ought to have declared a mistrial, in the exercise of his discretion, as a result of the behaviour of the witness Overstead." Overstead behaved badly. He refused at times to come into Court. He refused to answer questions. He spoke in abusive and offensive fashion, usually to the Crown prosecutor. 44. The Judge saw and heard at all that. He refused to discharge the jury. I cannot say that he was in error in exercising his discretion not to discharge the jury. It is important to remember that the question of discharge of a jury by reason of disruptive conduct by a witness depends on how the conduct appears to the judge, and whether it appears to him likely to have prevented the jury's returning an impartial verdict. A reading of the transcript suggests His Honour was right not to discharge. Certainly I could not say that he was wrong. 45. Ground 5 is:- "The learned trial Judge misdirected the jury by telling them that the absence of the witness Leslie Ferguson from the trial meant that they could conclude that his evidence would not have helped the defence case." 46. The man Ferguson is the grandfather of the appellant. The appellant had early given notice of an alibi. The learned trial Judge spoke of it and the failure to call Ferguson thus:-
"I remind you ladies and gentlemen of s285(c) of the
    Criminal Law Consolidation Act. That was a section that I
    referred to earlier during the trial and which was discussed at
    a time when some notices, and in particular an alibi notice
    attached to a certificate from the Director of Public
    Prosecutions was tendered before you. I remind you that
    s285(c), which represents the law about which I give you a
    direction and you are bound to follow what I say and adopt what
    I say about this, that if a defendant, if an accused person,
    proposes to introduce evidence of alibi at the trial of an
    indictable offence, at the trial of offences of the kind alleged
    here, prior notice of the proposed evidence must be given. The
    notice must be in writing. The notice must contain a summary
    setting out with reasonable particularity the facts sought to be
    established by the evidence. The notice must contain the name
    and address of the witness by whom the evidence is to be given.
    That would mean witness, or witnesses. The notice must contain
    any other particulars that may be required by the rules. The
    notice must be given within seven days after the defendant is
    committed for trial. The notice must be given by lodging a
    notice at the office of the Director of Public Prosecutions, or
    by serving the notice by post on the Director of Public
    Prosecutions.
     I should also explain that evidence of alibi means evidence
    given, or adduced (or to be given or adduced) by an accused,
    tending to show that he was in a particular place, or within a
    particular area at a particular time and, thus, tending to rebut
    an allegation made against him, either in the charge on which he
    is to be tried, or in evidence adduced in support of the charge.
     The evidence is that an alibi notice dated 20 April 1993,
    annexed to a notice pursuant to that section - which forms part
    of Exhibit 42 - it was stated by the accused's solicitors that
    'it was proposed to introduce evidence of alibi at the trial of
    Norman John Rose as follows:
     Mr Rose was at his home address at Unit 3/398 Cross Road,
    Clarence Park at the time the alleged offence occurred. He was
    in bed with his girlfirend, Sasha Heasley. Also present at
    those premises at the relevant time was Mr Rose's grandfather
    Leslie Ferguson' and it was further stated that the name and
    address of the witness by whom the evidence was to be given was
    as follows: 'Leslie Joseph Ferguson, Unit 2, 46 Bransby Street,
    Plympton'. That was the man, you may conclude, who was the
    same person who was being called 'Pops'.
     The evidence of alibi, I remind you, means evidence to be
    given on behalf of an accused tending to show that he was at a
    particular place, or within a particular area, at a particular
    time and, thus, tending to rebut or answer an allegation made
    against him.
     Mr Retalic referred to a list of persons on the back of the
    information (or indictment) and referred to what happened before
    you, as a jury, were empanelled. I should tell you that what
    appears on the back of the information (or indictment) in terms
    of witnesses to be called (or likely to be called) by the Crown,
    and what was read out to you by prosecuting counsel before you,
    as a jury, were empanelled, does not constitute evidence in this
    trial, and you may not, therefore, draw any inferences from
    those things.
     There was some other evidence about the man Ferguson, and, in
    particular, Detective Williamson told you that he had arranged
    for Mr Ferguson to be brought to court, and to be available to
    give evidence if he was called, and Detective Williamson told
    you that he was waiting outside, so it would be reasonable to
    conclude, if you accept Detective Williamson as a reliable
    witness, that he, Mr Ferguson, was available to give evidence.
     You may conclude that there was no evidence at all which
    purported to explain, let alone any examination amounting to an
    explanation at all, explaining why he was not called by the
    defence, who had earlier indicated an intention to call him as
    an alibi witness.
     Whilst you should firmly bear in mind that there is no onus of
    proof resting with the accused (he does not have to prove
    anything) you may draw the inference from the fact that Mr Les
    Ferguson was not called by the defence, in circumstances where
    he would appear to have been available, and his absence from the
    witness box is not otherwise explained, that his evidence would
    not have assisted the defence case.
     I am not saying that you may draw an inference adverse to the
    accused; for you to do so would be quite wrong, and it would
    breach both a fundamental rule of the criminal law regarding
    onus of proof, and the basic right of the accused at his trial
    to say nothing if he chooses; all I am saying is that you may -
    I emphasise the word 'may', and do not say 'must' - you may draw
    an inference that Mr Ferguson's evidence could not have assisted
    the defence case regarding alibi. Apart from that, you should
    not speculate as to what he might or might not have said had he
    been called to the witness box." 47. The directions in this passage are correct and the learned trial Judge was right to give them. Mr Tilmouth said that Ferguson was "available to both parties". No doubt. But Ferguson was "in the camp" of the appellant. 48. Ground 5 fails. I look at the case generally. Circumstantial evidence is weak or strong depending on itself. This was a very strong case for the Crown indeed. Mr Jennings said it was overwhelming. Perhaps that is not going too far. The evidence, in my opinion, pointed inexorably to the guilt of the appellant. Of course, it would not have done so if the evidence given by Overstead might reasonably have been true. The jury must have rejected that evidence. It was entitled to do so. Perhaps the jury accepted the evidence of the witness, Alexandrau, amongst other evidence. He gave evidence that the appellant said that "he was the one who bashed up the old lady and the old man". They were speaking of the events at the home of Mr and Mrs Callary. But be that as it may, the case with or without that admission was very strong indeed. The accused had a fair trial. There is no reason to fear any miscarriage of justice. 49. I would dismiss the appeal.

JUDGE2 DUGGAN J I agree that this appeal should be dismissed for the reasons given by Bollen J.

JUDGE3 MULLIGHAN J In my view the appeal should be dismissed. I agree with the reasons expressed by Bollen J and I only wish to comment on one aspect of the argument of the appellant with respect to Ground 2. 2. The appellant was not aware of the conversation between Detective McDonald and the witness Overstead, before Overstead was interrogated, until after the cross-examination of Overstead had commenced. Consequently, he was not aware that, according to Detective McDonald, Overstead had implicated him before important decisions were made as to the conduct of the Defence. Those decisions were putting to the witness Robertson that he was the co-offender of Overstead, the accused not giving evidence and the calling of Overstead by the Defence. Mr. Tilmouth contended that the appellant probably would have made different decisions had he known of the alleged statements of Overstead to Detective McDonald and, consequently, there has been considerable unfairness to the appellant and proof of these statements in rebuttal should not have been permitted in the exercize of discretion. 3. In my view there is no substance in this contention. The appellant, through his legal representatives, had access to Overstead before each of these decisions were made. The way in which Robertson was cross-examined suggests that a version of events had been obtained from Overstead. It would appear that he omitted to mention that there had been an earlier conversation with Detective McDonald. The Crown Prosecutor was not aware of this conversation until after the cross-examination of Detective McDonald began. There is no reason to conclude that the appellant had been led into some sort of trap. Even if the South Australian police officers involved in the investigation of the appellant were aware of the alleged statements of Overstead to Detective McDonald implicating the appellant before the trial commenced, there is no reason to suppose that any of them had kept that information from the Prosecutor for any improper purpose or that there was any thought to creating a trap. The appellant's legal advisers had access to Overstead and he saw fit not to tell them. It is not unusual for a party calling a witness not to be told of some important matters which causes embarrassment or detriment. 4. The circumstances did not justify the exclusion of the evidence of these out of court statements in rebuttal on the basis of unfairness to the appellant.