R v Roach

[1992] QCA 84

IN THE COURT OF APPEAL	[1992] QCA 084
SUPREME COURT OF OUEENSLAND

CA No 309 of 1991

Mr Justice McPherson
Mr Justice Davies

Mr Justice Shepherdson

THE QUEEN

v

DAVID JOHN ROACH

(Applicant)

JUDGMENT - McPHERSON, DAVIES JJA Delivered the Twenty-Ninth day of April 1992

MINUTE OF ORDER
Appeal against conviction dismissed. Application for leave to appeal against sentence

refused.

CATCHWORDS
CRIMINAL LAW - SUMMING UP - Applicant convicted of murder Whether summing up
referring to witnesses' "interest" in outcome forbidden per Robinson - Whether identifying accused

as having a "probably unarguable" interest in outcome invited particular scrutiny of his evidence.

Counsel:	J Lyons for the appellant Butler for the Crown
Solicitors:	W.H. Tutt & Quinlan for the appellant Director of Prosecutions for the Crown

Hearing date: 27 March 1992
David John Roach was tried before a Judge and jury in the criminal sittings of the Supreme Court
in Brisbane on a charge of murdering Anthony Peter Donnarumma on 8 January 1991. He was
found guilty and sentenced to imprisonment for life.

This is his appeal against conviction. The notice of appeal also refers to an appeal against sentence. However, no submission on sentence was addressed to us at the hearing; the sentence imposed is in any event mandatory; and the presence in the notice of appeal of the reference to an appeal against sentence is evidently the inadvertent consequence of using the prescribed form without striking out the words applicable an appeal of that kind. The appeal against sentence is therefore dismissed.

Upon the appeal coming on for hearing Mr Lyons of counsel, who appeared for the appellant, sought and granted leave to amend the notice of appeal by omitting all existing grounds and inserting the following single ground:

"A miscarriage of justice resulted from His Honour erring in law by directing the jury that as one of the factors that may be considered in assessing the evidence of witnesses was whether a witness had a particular interest in the outcome of the proceedings."

The ground now relied on has its foundation in the decision of the High Court in Robinson v. The Oueen (No. 2) (1991) 65 A.L.J.R. 644, or in some of what was said by their Honours in the reasons for judgment in that case. For the purpose of considering it and subsequent decisions in which it has been applied in Queensland, it is necessary to set out in full the remarks on this subject of the learned trial judge in the course of his summing up in the present case. He said:

"When you assess a witness, you bring to bear your experience and commonsense and you ask yourselves a number of questions, I suppose. You can ask yourself, for example, whether a particular witness has any interest in the result of the case. You see, a person who has an interest in the result is much more likely, either on purpose
or without meaning to, to colour his evidence. Obviously some people who have given evidence in this case have got some interest in the result. It is probably unarguable that the accused has an interest in the result; perhaps his friend has an interest also. You might think that the police officers have an interest in the result. If they launch a prosecution, presumably they would prefer to see a successful conclusion than an unsuccessful one.
You might think there are other witnesses who had an interest.

Now, do understand this very clearly: the fact that a witness has an interest in the result does not mean that you do not accept the evidence of that witness. It is simply something you take into account when you scrutinise the evidence given by that witness. And you should not approach it on the basis that 'one witness has more of an interest than anyone else, so we will look at that witness's evidence more carefully'. That is not a proper approach. The interest a witness has in the result

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is something you take into account and nothing more. You look at the demeanour of the witness as
displayed in the witness-box. That can help you to assess a witness... 11
To grasp the force of the complaint made about this part
of the summing up, some account of the circumstances of the
offence is needed. On the evening of 8 January 1991 the

deceased was in his house at Darra, where he lived with his children and their mother, who is a Miss Charmayne Bruce. At some time between about 8.30 and 9.30 p.m., someone was heard outside. The deceased went to the door and a conversation ensued. Miss Bruce heard the sound of a shot. When she went to investigate she found the deceased lying face down on the ground. He had been shot through the left side of his head by a bullet from a .32 calibre firearm. The spent cartridge case was found at or near the scene of the shooting. Miss Bruce had not seen and was unable to identify the killer, although immediately before the shot she had heard a male voice say

"the dog".

At the trial there was no dispute that the deceased had been murdered by someone. The only question was whether the appellant was the killer. He was first questioned by police on 1 May 1991. He denied knowing the deceased and said that he had never been to his house at Darra. He also denied having on the evening of the killing visited one David Scicluna and borrowed a pair of overalls from him. It was put to him by the investigating officer that on the following night (9 January) he had returned to Scicluna's house. He and Scicluna had gone to a pigeon loft or cage in the yard, where

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the appellant produced a firearm and threatened to kill
Scicluna and his wife and child, if ever he told anyone that

the appellant had shot the deceased. In the course of the police interview the appellant went to the toilet accompanied by a police officer. When he returned he admitted to the interviewing officer that he had "blasted" the deceased and had thrown the gun in the river. In the video and

tape-recorded interview that followed the appellant made a full and detailed confession of having shot the deceased on the night in question. He said he had done so because the deceased was "a dog", meaning a person "who dobs people in to

the poli @I
"dogs
". He

ce . The appellant said that he hated confirmed that he had thrown the gun, wrapped in the

overalls borrowed from Scicluna, into the river from the Goodna boat ramp.

At the trial evidence was given by Scicluna. He and

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I other witnesses said that the deceased was a supplier of

I
marijuana of which quantities were found in a garage on the deceased's premises. Scicluna was a buyer
from or retailer of the drug for the deceased. He confirmed that the appellant had borrowed the overalls
from him on the night of the killing, and that later the appellant had told him he had thrown them into the
creek at Goodna. Scicluna said the
appellant had produced a gun and threatened him and his wife and child with death if he told anyone.

This conversation had taken place in the pigeon loft on the night after the killing.

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In the course of cross-examination by counsel for the appellant, it was put to Scicluna that he had told the

appellant in the conversation in the pigeon loft that it was he Scicluna who had shot the deceased; and that it was Scicluna who had threatened the appellant with the gun, and not vice versa. This version of events was denied by Scicluna, whose evidence about borrowing the overalls was supported by testimony from a Miss Debbie Allen, who was the woman with whom Scicluna lived. on the other hand, the

appellant himself gave evidence at the trial in which he

denied killing the deceased and repeated the substance of what

had been put by his counsel to Scicluna. He gave alibi
evidence that was supported by a Miss Donna Hughes, who

testified on his behalf to that effect. She had known the appellant from the time they were in grade 4 at school together. He said that the video-taped confession had been given to police because he had seen Scicluna at the police station when he went to the toilet, and became terrified that Scicluna would carry out his threat to kill him if he, the

appellant, did not confess to having committed the murder
himself.

The foregoing detail (which is not exhaustive) of the evidence at the trial enables the appellant's submission on appeal to be understood. It is that in the extract from the summing up already set out, the trial judge had identified the appellant as a person who, it was "probably unarguable", had

I I

lean interest in the result", adding that perhaps his friend

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has an interest also". For the appellant it was submitted
that the description "his

friend" was capable of describing

either of two witnesses. One was Donna Hughes, who gave evidence in support of the alibi presented by the
appellant. The other was Scicluna. Both may be said to have had an

interest in the outcome of the case, the latter presumably because of a wish to divert suspicion away from himself as the real murderer. The submission was that his Honour should have identified Scicluna specifically as a witness whose interest might have led him to "colour" his evidence. Because this was not done in the summing up, the jury had in effect been invited, in scrutinising the evidence of the appellant and Hughes, to keep in mind the likelihood of their "colouring"

their evidence.	The summing up was, it was submitted, thus
affected by an	imbalance, which ought to have been rectified

by a specific direction that Scicluna's evidence was also

liable to be coloured because of his

own interest in the

outcome of the case. The decision in Robinson v. The Queen
(No. 2) was cited to the trial judge in the course of the

hearing on the application for redirections after summing up. His Honour said that, having read it, he remained of the view that "it is appropriate to say to the jury that they can take into account the interest a witness may have in the result", adding "and I think that is all I did".

His Honour Is impression of what was said in Robinson is

inconsistent with two subsequent decisions of the Court of Criminal Appeal. In R. v. Wilson (C.A No. 175 of 1991;

7 11 Dec. 1991), de Jersey J. said that in his opinion the effect of

Robinson was that:

"Where an accused person gives evidence, the trial Judge may not direct the jury that in assessing his or her
evidence, they might take account of his or her interest in the outcome of the proceedings."

In the same case Macrossan C.J., while acknowledging that "there is a great danger that proper balance will be lost" if the trial judge enters upon a discussion of the interest of the witnesses in the outcome of the trial, nevertheless considered that the High Court had not declared that every reference to such interest was necessarily a misdirection. His Honour considered that on appeal the task for the court was one of making:

an assessment in the circumstances of the words of the summing-up and their likely effect in qualifying the presumption of innocence, or inducing the jury to bring less than a fair and open-minded consideration to the testimony of the accused."

The third member of the Count in R. v. Wilson was Dowsett J. In separate reasons he said he was "in general agreement" with the reasons of de Jersey i., adding that "in practice it is now undesirable in the extreme that a trial judge make any reference to such interest in advising a jury on resolving conflicts of evidence".

In R. v. Wilson the Court of Criminal Appeal by a majority (Macrossan C.J. , dissenting) quashed the conviction. If any doubt then remained about the views of Dowsett J. on the subject, it is we think resolved in the subsequent appeal of R. v. Allen (C.A. no. 171 of 1991 ; 13 Dec. 1991 ), in which his Honour rejected a more restricted view of the ratio of the

8

High Court in Robinson. The case of R. v. Allen was one in which the conviction was quashed by a similarly constituted Court of Criminal Appeal in circumstances in which the trial judge in summing up had said no more on the subject than that "in assessing the evidence it might assist you to think whether a witness has any interest in the case". Macrossan

C.J. dissented from the result in that case, but he did so for a reason that did not involve rejecting the view of the majority in R. v. Wilson, which his Honour acknowledged he was bound to accept. Having regard to the very limited observation on the matter of interest by the trial judge in

R. v. Allen, it is plain that the Court of Criminal Appeal considered that any reference to it at all is, "except in the most exceptional case", fatal to the summing up and to any guilty verdict that may follow.

From what was said in the two cases before the Court of Criminal Appeal it is apparent that the reasons of their Honours in Robinson v. The Oueen (No. 2) are open to more than one interpretation. There the appeal was from a conviction on

a charge of rape in which the issue at trial was whether the complainant had given her consent to the single act of sexual intercourse which had admittedly taken place. In the course of summing up, the trial judge had directed the jury that one

way of testing the credibility of the witnesses was to

consider the interest that some of them had in the outcome of

the case. "Indeed%@, he went on:

you might think that one witness above all others
has a greater interest than all others in the

outcome of this case. You might say, 'Well, this witness has a particular interest in the outcome of

this case. We should look at his or her evidence

closely, more closely than perhaps we should look at others'. That is a matter you have to bear in mind

when scrutinising a particular witness's evidence."

Later, toward the end of the summing up, his Honour said this:

"Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness's evidence closely. You might think - it is a matter solely for you that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely."

Finally, in the course of redirecting the jury at the request of counsel for the accused the trial judge said:
I told you in effect that one of the tests you apply in considering a witness was the interest a witness
had in the outcome of the case, and I think I suggested to you this morning you might well conclude that the
accused has the greatest interest of all the witnesses. I think I also said that you might think that the greater
the interest the more carefully you should scrutinise a witness's evidence. You might well conclude, it is a
matter for you, that the complainant also has an interest in the outcome of this case. I didn't intend to lead

you to believe that you apply only the interest in the outcome of the case test to the accused only. You

apply it all the witnesses if you believe that test is applicable."

In disapproving this form of direction, their Honours said it was unfair because it suggested to the jury that they might think that the appellant "had a greater interest than any other witness in the case", and consequently that his evidence "had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for

might think that the any other witness in evidence "had to be

might think that the appellant "had a greater interest than any other witness in the case", and consequently that his evidence "had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused" (65 A.L.J.R. 644, 645 col. 2 G-H). They went on to say that its effect was to treat the appellant at this trial as a "suspect witness",

no reason other than 644, 645 col. 2 G-H).

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comparable to an accomplice, a complainant in a sexual case,

If whose evidence is to be accepted only after
or a young child, "whose evidence is to be accepted only after the most careful scrutiny". That, their
Honours considered, was, in a case where the accused gave evidence, to undermine the benefit which the
presumption of innocence gave to an accused person (ibid, at 646 col. 1B-C). In the result, the Court
considered (at 646 col.2 A-B) that, understanding the direction, as the jury would have done, as meaning
"that the evidence of the appellant had to be scrutinised more carefully
than that of any other witness", there was a serious
misdirection in the summing up, "which went to the fairness of

the trial of the appellant and which undermined the

#I

presumption of innocence .

Viewed in this way, the decision in Robinson can be seen

that case because it

as condemning the direction used in that case because it

singled out the evidence of the accused for the particular and

ground that it was

close scrutiny of the jury on the ground that it was

inherently suspect on account of the interest of such a person

A consequence or perhaps it is
the vice of such a direction is

in the outcome of the case. A consequence, or perhaps it is an independent criterion, of the vice of such a direction is its unfairness to the accused as tending to undermine the presumption of innocence. This was, we think, essentially the impression of the ratio of Robinson that commanded itself to

The other and much wider

Macrossan C.J. in R. v. Wilson. The other and much wider interpretation accepted by the majority in the latter case is evidently based on the following passage in the joint judgment

in the latter case is

1 1 in Robinson v. The Oueen (1991) 65 A.L.J.R. 644, 646,

col. 1 D-E to col. 2 A:

"Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown."

It is the third sentence (beginning "But to direct a jury ...") that has been the source of much of the difference of judicial opinion already noticed. It is possible to view it

prohibition against the use in
or even reference, with respect

as a general and unqualified prohibition against the use in summings up of any direction, or even reference, with respect to the matter of interest of witnesses in the outcome of the case. If that is the correct approach, then the direction of the trial judge in the present case would be fatally flawed, in that it specifically referred to the interest of the

ase as Of

appellant in the outcome of the c probably unarguable"

and inferentially also perhaps as liable to "colour" his

evidence.

There are, however, good grounds for thinking that such a wide view of the reasoning was not intended to form the ratio of Robinson. The passage from the reasons of their Honours that is set out above appears clearly enough to relate back specifically to the two extracts from the summing up quoted

1 2

earlier by their Honours, which have been set out in these

t

reasons.	What was condemned by the High Court was the
direction	to the jury that "they should evaluate evidence on
the basis	of the interest of witnesses in the outcome of the

I I

case . . . . What that direction encouraged was a comparative
evaluation (or devaluation) of the testimony of witnesses according to the extent of the particular
interest of each witness in the result of the trial. The two extracts identified were directed
specifically to evaluating the evidence in this way; the first of them used the expression gllwe
should look at his or her evidence closely, more closely than perhaps we should look at others"'. It

is true that it

was introduced by the expression "you might say . . . "; but it
ended with an unqualified instruction "That is a matter you

have to bear in mind" when scrutinising the evidence of a witness. Moreover, this instruction to the jury was substantially repeated in the final part of the direction, which, although it was also introduced by the words "You might think - it is a matter solely for you - ", went on to suggest

to the jury that they "should" scrutinise the evidence of the

accused closely, because he had "the greatest interest of all the witnesses you saw and heard". The comparative evaluation of testimony that was invited was thus one in which the evidence of the accused was encumbered by the handicap of his having the greatest interest in the outcome of the case.

It seems to us that it was to these matters in the

summing up, rather than to the references in it to the

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interest of witnesses as such, that their Honours' criticisms were directed. In both civil and criminal cases in Queensland it has for many years been common practice to mention the interest of witnesses as a factor for consideration of the jury in assessing credibility. Had their Honours intended to forbid all reference in summing up to the interest of witnesses in the outcome of the case, one might expect them to have said so in unqualified terms. As it is, their Honours expressly accepted that a jury are "entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings". If the jury may properly consider such matters, it would be surprising if the trial judge were absolutely precluded from mentioning them, the more so perhaps because in a criminal trial in Queensland s.620 of the Criminal Code states it to be "the duty of the Court" to instruct the jury as to the law applicable to the case "with such observations upon the evidence as the Court thinks fit to make".

It is plainly not a purpose or function of s.620 to extend the power of the trial judge to commenting on the evidence in a way that undermines the presumption of innocence in favour of an accused person who testifies; or to inviting such a comparison or contrast between his or her testimony and the evidence of other witnesses as to create an impression that any such testimony should first be closely scrutinised, or approached with a degree of suspicion, before it can be considered capable of belief or worthy of credence. It was

1 4

that tendency, which the High Court identified in the direction given by the trial judge in obinson, that

in our opinion was considered fatal to the conviction in that case.

In the result, therefore, we respectfully agree with

Macrossan C.J. in R. v. Wilson that a more limited view of the ratio of Robinson is justified. It follows that the conclusion of the Court in R. v. Allen ' in which the trial judge did no more than refer to the assistance in assessing evidence that might be gained by the jury from thinking about whether a witness had any interest in the case, cannot be considered as correct.

with these matters in mind, we turn to the direction of the trial judge in the present case. It is clear that his Honour did not suggest that the evidence of a witness should be rejected on account of his or her having an interest in the case. on the contrary, having such an interest did not, he

directed the jury, "mean that you do not accept the evidence of that witness. It is simply something you

take into account when you scrutinise the evidence given by that witness". And,

his Honour went on -

"You should not approach it on the basis that 'One witness has more of an interest than anyone else, so we will look at that witness's evidence more carefully'. That is not a proper approach. The interest a witness has in the result is something you take into account and nothing more".

As can be seen, the summing up in the present case was careful to avoid the pitfalls that were

identified in the direction , in Robinson. The interest of witnesses in the

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outcome was mentioned as a factor to be taken into account. But it was mentioned essentially for the purpose of introducing the direction that was to follow, by which the jury were specifically warned not to scrutinise the evidence of a particular witness more carefully simply because he had more of an interest than anyone else. Directing the jury in this way was, we consider, not open to objection.

Whether, by saying that the accused had "probably uably" an interest in the result, the judge singled out

unarguably" an interest in the result, the judge singled out

his evidence as inviting particular scrutiny is perhaps a more

an equivocal way

difficult question. Except possibly in a ( $@perhaps his friend has an interest also") made no reference
to the possible interest
the trial judge
of Scicluna in

diverting suspicion from himself. Had he done so, it is possible that the summing up would then have been open to the complaint that he was presenting the jury with a form of comparison, contrast or competition between the testimony of

the appellant and that of Scicluna, in which the evidence of the former was blighted by his having an immediate and compelling interest in the outcome. It was not in order to invite such a comparison that the interest of the accused was mentioned; its existence must have been obvious to the jury, whether or not they were specifically reminded of it. The effect of the direction given to them was to warn that they were not, simply for that reason, to discard or discount the accused as an acceptable witness of the truth.

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The case was, in any event, not simply one involving a straightforward choice between the conflicting oral testimony of two witnesses whose credibility was evenly poised. The appellant had, after proper warning, given the police a full and detailed confession, which he knew at the time was being video and audio-recorded. By contrast, Scicluna himself had not made any such admission. The cogency of the appellant's

I

explanation for giving that confession was therefore a

.@1

f

critical matter to be determined by the jury. If they

rejected the explanation he offered for giving the confession, there was no discernible basis for not concluding that it was he who had committed the offence. To that question, which involved the genuineness of the confession, Scicluna's testimony was of little or no relevance at all. The case is therefore not, like R. v. Mustafay (C.A. no. 258 of 1991; 6 Mar. 1992), one in which the issue of guilt turned simply on the resolution of a direct conflict between the testimony of the accused and the complainant, who were the only witnesses

I to the rape alleged against the accused in that case. There

the form of comparison between those two witnesses, which was expressly invited by the trial judge,

was as a matter of fairness vitiated at the outset by the direction he gave to

the jury in that case. It emphasised "the very great

interest" of the accused in the proceedings, while entirely

ignoring the corresponding interest that the complainant had

I11
in denying she was operating as a prostitute on the night in question. It thus, as the Court of Appeal
perceived, singled out the particular interest of the accused in having his

1 7

version accepted, so as to present it to the jury for their consideration with the crippling disability that it

came from a person having such a "very great interest" in the outcome of the case.

We do not consider that any such criticism can

justifiably be levelled at the direction in the summing up in

In no sense was the

evidence of the
f or reasons of

the present case. In no sense was the evidence of the appellant singled out as inherently liable, for reasons of interest, to be more closely scrutinised than the testimony of any other witness before it could be accepted as reliable. The jury were not invited to undertake an assessment of the

testimony of	witnesses based on a comparative evaluation of
the levels of	their respective interests in the outcome of the
proceedings.	Nothing that was said on the subject by the

learned trial judge can be described as either unfair or as tending to undermine the presumption of innocence to the benefit of which the appellant continued to be entitled whether or not he had given evidence in the case.

It follows in our opinion that the appeal

conviction should be dismissed.

against

IN THE COURT OF APPEAL

SUPREME COURT OF OUEENSLAND

Before the Court of Appeal
Mr. Justice Davies JA.
Mr. Justice McPherson JA.
Mr. Justice Shepherdson

T H E 0 U E E N

V.

DAVID JO N ROACH

C.A. No. 309 of 1991

JUDGMENT - SHEPHERDSON J.

Delivered

MINUTE OF ORDER:

Appellant

ed the 29th day of April, 1992

1.           That the appeal be allowed.

2.           That the conviction be quashed.

3. Order a new trial.

CATCHWORDS:  Criminal trial summing up. witnesses based on interest

case. Robinson v. The Oueen 65 A.L.J.R. 644 discussed.

Evaluation of in outcome of (No. 2)(1991) R v. Bateman

. . . .

(1946) 31 Cr.App-R.106, R v WilS on Court of

Criminal Appeal 11
(unreported).
Counsel: J. Lyons for appellant

Butler for the Crown

December 1991

Solicitors:  W.H. Tutt & Quinlan for appellant Director of Prosecutions

for the Crown

Hearing date:

27th March, 1991

IN THE COURT OF APPEAL

SUPREME COURT OF OUEENSLAND

No. 309 of 1991

Before the Court of Appeal
Mr. Justice Davies JA.
Mr. Justice McPherson JA.

Mr. Justice Shepherdson

T H E 0 U E E-N

V.

DAVID JOHN ROACH

AppellanA

JUDGMENT - SHEPHERDSON J. Delivered the 29th day of April, 1992

I have had the benefit of reading the draft judgment of McPherson JA. and I am grateful to

accept his statements as to the relevant parts of the summing up.

Because I have a different view of the ratio of Robinson v. The Oueen (No. 11 (1991) 65

A.L.J.R. 644 I have concluded that this appeal should be allowed. My reasons now follow.

The critical direction in Robinson has been set out in the judgment of McPherson JA. The High Court held that that was "a

serious misdirection in the summing up which went to the fairness of the trial of the appellant and which

undermined the presumption of innocence".

Thus the misdirection transgressed two aspects of a criminal trial - fairness to the accused person

and the presumption of innocence which he bore.

In Robinson's case, the High Court after making its

criticisms of the summing up said:-

"Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the

Crown. "
In my view the words in the last two sentences of that extract, contain the ratio of Robinson's case.

It is significant that the second last sentence in that extract speaks of "the interest of witnesses in the outcome of the case" - it is not limited to interest of the accused person as a witness.

Once a trial judge is confronted with a situation in a criminal trial where evidence of prosecution witnesses may conflict with evidence given by an accused person, it is my view that in summing up to the jury, any suggestion by the judge that the jury should evaluate evidence on the basis of the interests of witnesses in the outcome of the case, will, in the light of the decision in Robinson amount to a serious misdirection going to the fairness of the accused person's trial, save in the most exceptional case.

In my experience, members of juries appear to show good common sense in evaluating evidence led before them. The trial judge is obliged "to instruct the jury on the law applicable to the case with such observations upon the evidence as the Court

thinks fit to make" (s.620 Criminal Code).
However, the question of believing or not believing any witness is a question of fact and like all other questions of fact is for the jury (R. v. Bateman (1946) 31 Cr.App. R.106).
In telling a jury how to evaluate evidence a judge is, in my view encroaching on the jury's domain. The process of evaluating the credibility of a particular witness is done by the jury no doubt adopting their combined experiences in life and their collective common sense. Once a trial judge, in a case where the accused has given evidence, directs the jury that they evaluate evidence on the basis of interests of witnesses in the, outcome of the case, even though the accused person's interest be not mentioned at all, one can logically expect the jury to readily conclude that the accused person has the greatest interest in the outcome of the case. once that situation is reached the accused person is disadvantaged for the reasons given by the High Court in Robinson.
I would add that once the trial judge advises or directs a jury as to tests for evaluating the credit of witnesses in a case where the accused person has given evidence he runs the risk of prejudicing the fair trial of that person and of undermining the presumption of innocence. In my view, in such a case the trial judge should not advise or direct on any test for evaluating the credit of any witness.

I should add that I agree with the views of de Jersey J. in R. v. Wilson (Court of Criminal Appeal 11 December 1991 (unreported)) that in every case in which "an accused person gives evidence the trial judge may not direct the jury that in

assessing his or her evidence, they might take account of his or her interest in the outcome of the
proceedings".

Despite the care of the learned trial judge, I have concluded that in the present case, his

directions transgressed the decision of Robinson, supra.

I would allow the appeal, quash the conviction and order a new trial.