R v Stewart

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Stewart [2001] NSWCCA 260 revised - 10/09/2001

FILE NUMBER(S):
60523/00

HEARING DATE(S): 23/05/01

JUDGMENT DATE: 05/09/2001

PARTIES:
Regina v Malcolm James Stewart

JUDGMENT OF: Spigelman CJ Hulme J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 999/41/0214

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL:
P.G. Berman SC - Crown
A.P. Cook - Applicant

SOLICITORS:
S.E. O'Connor - Crown
South Eastern Aboriginal Legal Service - Applicant

CATCHWORDS:
Criminal Law - Summing up - warning to jury under s 165 of the Evidence Act - evidence of a 'kind' that may be unreliable

LEGISLATION CITED:
Crimes Act 1900 - s 112(2)
Evidence Act 1995 - ss 38, 66, 108(3), 116(1) 164, 165
Criminal Procedure Act 1986 - s 108
Criminal Appeal Act 1912 - s 5DA
Crimes (Sentencing Procedure) Act 1999 - s 23

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

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60523/00
SPIGELMAN CJ
HULME J
HOWIE J

WEDNESDAY 5 SEPTEMBER 2001

REGINA v MALCOLM JAMES STEWART
HEADNOTE
CRIMINAL LAW: The appellant was convicted of a charge of aggravated break, enter and steal from a dwelling house contrary to s 112(2) of the Crimes Act 1900. The Crown case was that the appellant and a co-offender, Braddick, armed with offensive weapons, entered a dwelling house and stole property from those premises. Braddick pleaded guilty to the charge and gave an undertaking to give evidence against the appellant and as a result his sentence was reduced to take into account the offer of assistance. In accordance with that undertaking he gave evidence implicating the appellant.
On appeal it was asserted that the warnings given by the trial judge under s 165(2) of the Evidence Act 1995 in respect of the evidence of Braddick were inadequate.
HELD
Per Hulme and Howie JJ, Spigelman CJ, dissenting: The appeal should be dismissed.
Per Hulme J: Although the judge failed to comply with s 165(2)(b) of the Evidence Act, rule 4 of the Criminal Appeal Rules should be applied as there was no possibility of a miscarriage of justice.
Per Howie J: There was no breach of s 165(2) of the Evidence Act and the warnings were not otherwise inadequate in the circumstances of the case, and in any case rule 4 of the Criminal Appeal Rules should be applied.
Per Spigelman CJ (dissenting): The trial judge failed to comply with s 165(2)(b) of the Evidence Act and a miscarriage of justice occurred.
Per Spigelman CJ and Hulme J: The trial judge was required to warn the jury in respect of the discount of sentence granted to Braddick and the consequences of the failure to comply with the undertaking, per Spigelman CJ: because Braddick came with s 165(1)(d) of the Evidence Act; per Hulme J: because of the scheme by which sentencing discounts are subject to appeal under s 5DA of the Criminal Appeal Act.
Per Hulme and Howie JJ, Spigelman CJ (not deciding): Evidence “of a kind that may be unreliable” in s 165 of the Evidence Act generally refers to evidence, the unreliability of which may not be apparent to the jury, or where the court has some special appreciation of the likelihood of the evidence being unreliable or where for some other reason the jury may be misled in evaluating the reliability of the evidence.
ORDERS: Appeal against conviction is dismissed. Application for leave to appeal against sentence is granted but the appeal is dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60523/00
SPIGELMAN CJ
HULME J
HOWIE J

WEDNESDAY 5 SEPTEMBER 2001

REGINA v MALCOLM JAMES STEWART
JUDGMENT

SPIGELMAN CJ: In this matter I have had the advantage of reading the judgments of both Howie J and Hulme J in draft. The facts and issues are set out in their Honours' reasons and it is unnecessary for me to repeat them.
Howie J approaches the construction of s165 of the Evidence Act1995 against the background of the pre-existing common law position. A similar issue arose with respect to other provisions of the Evidence Act in Papakosmas v The Queen (1999) 196 CLR 297. The approach adopted by the High Court with respect to provisions there under consideration, is in my opinion, applicable to s165.
Gleeson CJ and Hayne J said at [10]:
“It is clear from the language of the Act, and from its legislative history, that it was intended to make and that it has made, substantial changes to the law of evidence in New South Wales…. the sections of the Act relevant to this case undoubtedly make express provision different from the common law. It is language of a statute which now determines the manner in which evidence of the kind presently in question is to be treated. The appellant argues that the meaning and effect of that language, properly understood, is to be determined in the light of, and in a manner that conforms to, the pre-existing common law. For reasons that will appear, that argument must be rejected.”
Gaudron and Kirby JJ said at [46]:
“The Act specifies new rules of evidence in place of those developed by the common law.”
McHugh said at [88]:
“The Act has made substantial changes to the law of evidence. Notwithstanding s9, reference to pre-existing common law concepts will often be unhelpful.”
Section 165 must be construed together with s164. The whole of s165 and the relevant part of s164 are set out by Howie J. The two sections constitute reform of the law of a fundamental kind. The origins of these provisions are found in the report of the Australian Law Reform Commission.
In its Interim Report (The Law Reform Commission, Report No 26, Evidence, vol 1, Canberra, 1985) the Commission said:
“1015 Warnings The present law is too rigid and technical. There is a strong case for saying that it does not adequately serve the rationale of minimising the risk of wrongful convictions. Warnings can be required when not necessary and avoided when they should be given in the circumstances of the particular case. In addition, warnings, in their present form, distract attention from the issue of reliability of the evidence in question. Finally, the directions to be given are so complex that they are likely to be ignored. There is also a strong case for arguing that the law does not provide an appropriate guide for and control of the judge. Attention is focused on technicalities instead of the needs and merits of each particular case. The law, in its complexity, creates problems that can exceed the help it may give. What is required is a simpler regime, under which the trial judge must consider whether a direction appropriate to the circumstances should be given. It must also be flexible.
…
1016 It is proposed that the existing requirements of law and practice be abolished. This will have the consequential effect of removing the obligation to direct juries about what is corroboration, what evidence may amount to corroboration and that, notwithstanding the absence of corroboration, the jury may still convict if satisfied beyond reasonable doubt of the accused’s guilt. In the case of ‘accomplice evidence’ it will remove the obligations to direct juries about who is an accomplice and that it is for the jury to determine whether the witness is or is not an accomplice.”
It is plain that a significant change in the law was intended. I agree with the characterisation by the learned authors of Cross on Evidence Australian Edition at [15260]:
“Sections 164 and 165, though they have statutory and common law precursors, constitute an attempt at a fresh start.”
See also Conway v The Queen (2000) 98 FCR 204 at [220].
The proposition that the pre-existing common law is unlikely to be of assistance in construing s165 is reinforced by the scope of the matters contained within it. The above extracts from the Commission Report come from the chapter on corroboration. However, s165 extends to matters dealt with by quite discrete areas of the pre-existing law of evidence as amended by the Act, e.g. hearsay, admissions and identification evidence. These are disparate categories to which a new single scheme applies.
In its Final Report the Commission proposed to retain what it described, at par [239], as a “general residual obligation to warn the jury in appropriate cases”. (The Law Reform Commission, Report No 38, Evidence, Canberra, 1987.) This covered what the Commission identified in its Interim Report at par [1017] to be a “disadvantage” arising from specifying the categories, namely of the possibility that “some category may emerge in the future which should be treated in the same way”.
In order to make provision for this “general residual obligation” the Law Reform Commission had originally recommended a provision in the identical form to that which has been enacted as s165(5):
“165(5) This section does not affect any other power of a judge to give a warning to, or to inform, the jury.”
Notwithstanding the use of the word “power”, this was the only provision that could be understood as implementing the recommendation for a “general residual obligation”. This ambiguity may be the explanation for the final form of the Act, to which I will hereinafter refer.
The Act as finally adopted by the Commonwealth Parliament, and subsequently by the New South Wales Parliament, went beyond the draft prepared by the Commission. Specifically, the list of categories, which in the Commission’s draft was exhaustive, was made inclusive by the enactment of the introductory words of s165(1) as follows:
“This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: …”
The Commission’s two reports are of no direct assistance for the construction of these words, which were not contained in the Commission’s draft of the legislation.
It may be that the parliaments, by the addition of these introductory words to the subsection, intended to provide explicitly for what the Commission had recommended and which was implicit in the subsection of the draft as presented by the Commission that became 165(5). Perhaps the word “kind” was adopted in the same sense as the Commission had in par [1017] of its Interim Report used the word “category”. If so, it would encompass in express terms what the Commission regarded as necessary to make provision for, i.e. “that some category may emerge in the future which should be treated in the same way”.
The word “kind” is a word of a breadth and generality which it may be appropriate to read down. Any reason that could be advanced for questioning the reliability of evidence in the specific circumstances of a case can be stated at different levels of generality. Once stated at a level of generality higher than the specific facts of a particular case, such a reason could satisfy the description of “a kind” of evidence. That would have the result that in every case in which an assertion of lack of reliability is made, the compulsory provisions for a warning on request in s165(2) would apply, subject only to the exception in s165(3). The acknowledgment, in s165(5), that there will be other circumstances in which a judge will be required to warn or inform the jury with respect to these matters, suggests that the word “kind” must be read down in some way.
I do not find it necessary for purposes of resolving the case now before the Court to determine this matter or to reconsider other judgments of this Court in the way that Howie J has done.
Application of s165
The reason why it is unnecessary to express a final view on the above matters is because the relevant witness in the present case, Mr Braddick, falls within the provisions of s165(1)(d). He is a person “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”. The terminology “might reasonably be supposed to”, was intended to encompass all those who, as a matter of fact, were actually “criminally concerned in the events giving rise to the proceeding”. Mr Braddick was so concerned by his own admission and conviction.
By reason of the applicability of s165(1)(d) it is not necessary to decide, in the present case, the true scope of the introductory words “evidence of a kind that may be unreliable”. Specifically, it is unnecessary to recognise a category, such as Hulme J suggests, of persons who have been sentenced with respect to the matter giving rise to the proceedings and who might be at risk of losing the benefit they had received on sentence. That issue, in my opinion, falls to be determined in the present case under s165(2)(b) i.e. the obligation of a trial judge to identify for the jury the “matters that may cause” the evidence of a particular witness to be unreliable.
The present case should be determined on the basis that his Honour failed to specifically identify for the jury the fact that the benefit on sentence, which Mr Braddick had obtained, was at risk. The relevant extracts from his Honour’s summing-up are set out by Howie J.
I agree with the observations of Howie J that a direction under s165(2) should not employ the word “accomplice”. The use of such terminology may give the appearance to the jury that the judge has formed an opinion on the issue it has to determine. Counsel’s request to the trial judge for an “accomplice” warning was a shorthand formula invoking s165(1)(d). His Honour acceded to the request. The only issue is whether his Honour complied with the statutory obligation to “inform the jury of matters that may cause [the evidence] to be unreliable” within s165(2)(b).
His Honour did inform the jury that Mr Braddick’s undertaking to give evidence in the trial of the Appellant was taken into account on sentence. There was no reference, however, to the fact that Mr Braddick could lose the benefit of that reduction in sentence if he failed to give evidence of the character that he did eventually give. This is not a matter which would necessarily be known to the jury. In my opinion it constituted a failure to satisfy the requirements of s165(2)(b).
I agree with Hulme and Howie JJ that the Appellant’s submission that the directions actually given amounted to “little more than recitation of a formula” should be rejected. His Honour gave a comprehensive warning which, save in one specific respect, was all that was required. Nevertheless, the matter to which his Honour failed to refer was, in my opinion, of considerable significance.
Section 5DA of the Criminal Appeal Act1912 is a mechanism by which the benefit on sentence that Mr Braddick had received could be removed from him. A jury would not know that there was any such mechanism unless they were informed of its existence by the trial judge. The only fact that was before the jury was that Mr Braddick had received a benefit. This was both adduced in evidence and referred to in his Honour’s summing-up. The jury were never informed that he could lose that benefit.
The mandatory requirements of s165(2) need to be observed, subject only to a decision to the contrary under s165(3). Respectfully, I do not agree with Howie J that the fact that there are numerous circumstances in which witnesses can receive benefits or lose advantages by giving evidence detracts from the requirements of s165(2)(b). The risk of loss is a “matter” within that provision.
For the reasons given by Hulme and Howie JJ, s165(3) has no application in the present case. The section does apply to an inadequate warning under s165(2). However, his Honour never turned his mind to the determination of whether or not there were good reasons for not giving a warning which encompassed the possible loss of a benefit on sentence. In my opinion, no such reasons exist.
At this stage of my judgment, I reach the same conclusion as Hulme J, though by a different route, in that I find that s165(1)(d) applies to this case. Accordingly, it is not necessary to identify or consider a category of evidence “of a kind that may be unreliable”, pursuant to the introductory words of the subsection.
Application of Rule 4 of the Criminal Appeal Rules
No complaint was raised at the trial to the effect that his Honour’s s165 warning was defective. Hulme and Howie JJ would both refuse leave. I am unable to agree.
Mr Braddick’s credit was central to the trial. There was no other evidence linking the Appellant to the offence. Mr Braddick commenced to give evidence exculpatory of the Appellant. Leave was given to cross-examine him and the Crown sought to play the audiotape of his ERISP. Mr Braddick then agreed to give evidence in accordance with the ERISP. It would have been open to the jury to infer that the benefit that had been given to him on sentence would have affected Mr Braddick’s decision to give the evidence he eventually gave, overcoming his initial reluctance to do so. That knowledge could have affected the jury’s readiness to accept his evidence.
The jury deliberated for a considerable period of time in a case in which the trial was short and the facts were in a narrow compass. There can be little doubt that the delay that occurred was due to the jury considering in detail the reliance they could place upon the evidence of Mr Braddick. Nothing else in the trial really mattered.
The jury reported an inability to agree. A direction in accordance with Black v the Queen (1993) 179 CLR 44 was given. The jury reported an inability to agree a second time. The trial judge sent the jury a note to continue to try to reach agreement in accordance with his earlier direction. The jury continued deliberating for a further period of more than half an hour. The jury came back and reported, for the third time, that they were deadlocked. The jury was sent home after being told that they would be asked again the next morning to try to reach a verdict and if they had not done so after about an hour that they would be discharged. The jury returned the next morning and after deliberation of fifty minutes returned with a verdict of guilty. These are important circumstances of the trial.
If the jury had been informed that Mr Braddick was at risk of an increased sentence by reason of his failure to give evidence in accordance with his original statement to the police, that could have made a substantial difference. The only issue in the trial was Mr Braddick’s credit. In my opinion, a miscarriage of justice occurred. In these circumstances, leave under rule 4 should be given.
I would allow the appeal and order a new trial.
HULME J: In this matter, I have had the advantage of reading the Reasons for Judgment of Howie J in draft form. Save and except for some remarks of His Honour under the heading “Were the Directions Inadequate or Erroneous” I agree substantially with those Reasons and with the order proposed by His Honour. In respect of a number of the matters canvassed by His Honour under the heading to which I have referred, I prefer to express my own views.
I also agree with what His Honour has said in rejecting the criticism that the warning given to the jury was “cursory and amounted to little more than recitation of formula” and in respect of the suggestion that the warning given was diluted by remarks to the effect that such a direction was given in every case where an accomplice gave evidence.
However, in my view evidence given under or pursuant to an arrangement or understanding under which the witness giving it is rewarded or stands to lose a reward for that evidence, certainly when that arrangement or understanding is one envisaged by Section 23 of the Crimes (Sentencing Procedure) Act or the subject of an undertaking referred to in s5DA of the Criminal Appeal Act, is evidence “of a kind that may be unreliable” within Section 165 of the Evidence Act. Such evidence falls sufficiently into a category to be regarded as of a “kind”. It is also of a kind that may be unreliable. In that latter regard, the “kind” commonly shares many of the attributes of, or reasons for, unreliability which evidence of a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding” or “who is a prison informer” - the kinds of evidence referred to in Section 165(1)(d) and (e) - has.

In reaching this conclusion I am not unconscious of the fact that incentives to give untruthful evidence not uncommonly exist in other circumstances and unless a degree of discrimination is exercised in categorisation, there will be a temptation to regard the evidence in many of these circumstances as falling within the description “evidence of a kind”. Thus it could be argued that evidence of any one with a bias or with an interest in the result of proceedings was “evidence of a kind”. The latter circumstance would cover nearly every case and if the words “of a kind” are to have any operation, clearly evidence of the nature of that in this last example does not come within the section.
The ease with which the language used in s165 can be applied to circumstances which, if “of a kind” has the significance Howie J and I would afford to it, Parliament cannot have intended to be within that language means that some test of what is and what is not evidence to which the section applies is necessary. For the reasons given by Howie J, whether the evidence is such as could not be expected to fall within the general experience and understanding of a jury and in respect of which the courts have special knowledge is an, if not the, appropriate test. The fact that some of the specific examples included in s165(1) of evidence of a kind that may be unreliable, e.g. that which may be affected by age or mental ill health, are of evidence which a jury could be expected to regard as suspect in accordance with their general knowledge, does not invalidate this conclusion.
On this test also, because a jury could not be expected to know of the incentive or often the extent of the incentive, to a witness to give an account favourable to the Crown and adverse to an accused, and the courts do have such knowledge, the evidence of persons having the benefit of Section 23 of the Crimes (Sentencing Procedure) Act and to whom Section 5DA of the Criminal Appeal Act does or may apply is in my view, “evidence of a kind that may be unreliable” within s165.
Quite independently of him being “a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding” but because he received a discount on his sentence in return for an offer of assistance by way of giving evidence against the Appellant, and was liable to have that discount removed, the evidence of Brian Braddick was thus evidence to which, subject to subsection 165(3), subsection 165(2) applied.
However, such obligation to warn as subsection 165(2) imposes is conditioned on a request and so far as the material before this court goes, all that was asked for was “a direction on accomplices”. Was this broad enough to require Judge Garling to refer to the fact that Braddick had been given a discount on his sentence and that if he failed to fulfil his undertaking in that regard he might well have his sentence increased? While often present, these matters of course are not necessary incidents of a witness having been an accomplice.
In my view, subject to the operation of subsection 165(3), his Honour was obliged to refer to the discount and the risk of Braddick’s sentence being increased. The reason lies in the terms of subsection 165(2). Those subsections, and the opening words of subsection 165(1) provide:-
“(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a) …
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
Subsection 2 directs attention to “the evidence”. The evidence must fall within the description “of a kind” for s165 to apply to it at all but once the section does, the warnings and information required are such as do or may have a bearing on the evidence given and there is no need to confine these to only those matters which would bear on the reliability of evidence of the “kind”. After all, an assessment of whether a witness’ evidence should be accepted will often depend on the totality of matters bearing on its reliability. The request for a “direction on accomplices” necessarily referred to the evidence of Braddick and, subject to subsection (3), the judge was obliged to inform the jury of all matters that may cause “it”, i.e. that evidence, to be unreliable. The discount Braddick received on his sentence and the fact that discount was liable to be lost if he failed to fulfil his undertaking were matters which were relevant to any assessment of the reliability of Braddick’s evidence and, subject as I have said to subsection (3), the judge should have informed the jury of these matters.
And clearly the imparting of that information to the jury or the reminding them of it should have occurred in the context of the warnings referred to in paragraphs (a) and (c). That is clearly the intent of the subsection.
His Honour’s observation that Braddick “was sentenced, as part of his sentence, it was taken into account, as the law requires, he was going to give evidence in this trial” was sufficient in its terms to inform the jury that Braddick was likely to have derived some benefit in, or discount from, his sentence in consequence of the prospect of his giving evidence although, having regard to the purpose behind s165, the remark suffered from the disadvantage that it was made some time removed from the accomplice warning his Honour gave. The transcript of the summing up shows the 2 topics were 4 pages removed from one another, albeit all of those pages were devoted to Mr Braddick. However, his Honour made no reference to the risk that the benefit or discount was liable to be lost. And this was important. It is one thing for a jury to think that a witness may have derived a benefit for promising to give evidence. It is quite another, and more important, for the jury to know also that if the evidence given is not to particular effect, a sentence on the witness is liable to be increased.
My agreement with the Reasons of Howie J extends to his Honour’s view that s165(3) refers not just to the general requirement to give a warning when requested but also applies to the content of the warning and that in most cases where a judge considers there are good reasons for not complying with subsection (2) the judge should indicate what these reasons are. In this case his Honour did not provide any such reasons and none sufficient for not giving the warning are apparent. Thus the mandatory requirements of s165 were, in my opinion, breached.
However, there was no request for further directions. In light of rule 4 of the Criminal Appeal Rules, whether the Appellant should be allowed to rely on the point depends on the significance of his Honour’s omission. Having regard to what his Honour did say about the Appellant giving evidence in the trial being taken into account in his sentence and the context in which this topic and the accessory warning appear, I do not regard the failure which I have identified in this regard as significant to the fairness of the trial or to the ultimate result.
So far as the omission to refer to the fact that if Mr Braddick did not give evidence to particular effect, the sentence on him was liable to be increased is concerned, Howie J has reproduced the evidence which was given and then set out reasons why rule 4 should prevent this omission from being relied on. I agree substantially with these and with his Honour’s conclusion in this regard.
I am furthermore satisfied that in the context of the trial and his Honour’s summing up, there has been no miscarriage of justice and that the appeal against conviction should be dismissed. For the reasons given by Howie J I also would grant leave to appeal against sentence but dismiss that appeal.
HOWIE J: On 14 July 2000, the appellant was convicted by a jury of aggravated break, enter and steal from a dwelling house contrary to section 112(2) of the Crimes Act 1900. He was sentenced by Judge Garling to imprisonment for 4 years with a non-parole period of 2 years and 6 months to commence from 14 July 2000. The non-parole period is to expire on 13 January 2003. The applicant appeals to this Court against his conviction and seeks leave to appeal against the severity of the sentence.
The applicant relies upon only one ground of appeal in respect of the conviction. It is asserted that the trial judge erred in that his directions to the jury under s 165(2) of the Evidence Act 1995 in respect of the chief Crown witness, Brian Braddick, were inadequate. In light of the limited nature of the ground of appeal it is necessary to give only a brief account of the evidence at the trial.
It was alleged by the Crown that the appellant and Braddick, while they were both armed with offensive weapons, entered a dwelling house and stole property from those premises. There was no dispute at the trial that at about 9 pm on 14 July 1999 at least two men, one of whom was Braddick, gained entry to a residential dwelling at 12 Jaycee Avenue, Nowra through an unlocked garage door. While in the garage these persons armed themselves with hockey sticks that they found there. They then entered into the living area of the house through a closed, but unlocked, door.
On that evening the son of the householders, Aaron Pease, had been left alone while his mother and stepfather had gone out to a social gathering. He was watching television in his bedroom when he heard footsteps in the hallway. He opened his door and saw a man wearing a black beanie. After telling the intruder to leave the house, Aaron ran to the bathroom and locked the door. Someone outside the door told him they would not hurt him. He heard more noises and then opened the door slightly. He saw that the man with the beanie was in the bedroom and another man with a jumper over his head was near the bathroom door. Both were armed with hockey sticks.
The man nearest him with the jumper said, “If you don’t open the door we will bash the crap out of you”. He heard the other man with the beanie say, “No we won’t”. Aaron then locked the bathroom door again and heard someone yell out, “Where’s the money? All we want is the money”. He then heard the sound of objects breaking. He went to the bathroom window and began to cry for help. When he heard the sound of a hockey stick against the bathroom door, he climbed out of the window. He went to the house of a neighbour and the police were contacted.
Two police officers responded to the call. As they drove along the Princess Highway, they saw Braddick, who was carrying a bag, exit from a hole in a fence of one of the premises in Jaycee Avenue. When he became aware of the police vehicle, Braddick returned back through the fence. He was pursued by one of the officers who followed a trail of compact discs apparently dropped by Braddick as he attempted to make his escape. The officer saw Braddick climb over a fence and followed after him.
In the meantime other police had attended the area. One of them, having seen the heads of three persons near a fence, ran towards that area. He came upon the appellant who was standing alone outside 4/1 Jaycee Avenue not far from where the officer had seen the three people. The officer told the appellant that he was after three persons who broke into a house. The appellant asserted that he had done nothing wrong but was told to lie on the ground. The appellant repeated that he had done nothing wrong and said he had been standing urinating near where the officer had come across him. The appellant was searched but no items stolen from 12 Jaycee Avenue were found on him.
About this time Braddick was arrested a short distance away. He was moderately affected by alcohol and admitted he had stolen the compact discs. Police searched the area and found a quantity of items stolen from 12 Jaycee Avenue piled up near 4/1 and 5/2 Jaycee Avenue. When first questioned by police, Braddick admitted the offence but maintained that he was by himself. He later took part in an ERISP in which he implicated the appellant as being involved.
On 16 March 2000 Braddick pleaded guilty to aggravated break enter and steal at Nowra District Court. He gave an undertaking to give evidence against the appellant and, as a result, his sentence was reduced in order to take into account the offer of assistance. He was sentenced to imprisonment for two years with a non-parole period of 12 months.
The Crown called Braddick to give evidence at the trial of the appellant. At the outset of his testimony the following questions and answers took place (T 18):
Q. You were charged in respect of an aggravated break,
enter and steal offence committed on 14 July 1999 is that correct?
A. Yeah that's correct.
Q. You appeared at this court on 16 March this year and pleaded guilty to that offence before his Honour, is that correct?
A. Yeah.
Q. In the course of the proceedings on your sentence matter you undertook to give evidence against this accused Malcolm Stewart, is that correct?
A. I signed papers, yeah.
Q. Did you say anything to the court about giving evidence? A. I'm not too sure, like I don't remember.
HIS HONOUR: Q. Now listen to me, you gave evidence before me didn't you, didn't you? A. I can't--
Q. You clearly remember when you were in this court?
A. I remember I was standing in the court, but I don't know if I gave any evidence against Malcolm.
HIS HONOUR: You can't remember that, okay. Yes Mr Crown.
CROWN PROSECUTOR: Q. Do you recall that you received a non-parole period of 12 months from his Honour in respect of the break, enter and steal offence? A. Yeah.
Q. Do you also remember you got a period on parole of 12 months after that? A. Yeah, I think.
Q. Do you agree that his Honour indicated that the sentence imposed upon you was discounted because of your offer of assistance?
A. Yeah, I do, do understand that.
HIS HONOUR: Sorry I didn't hear his reply.
CROWN PROSECUTOR: "I did understand that".
Initially Braddick told the jury that, when he committed the offence, he was quite intoxicated and he thought that he was alone. He said that, while he heard someone speaking during the commission of the offence, he did not recognise it as the voice of the appellant whom he had known all his life. In light of this evidence and the different account he had given in the ERISP, the Crown sought, and was granted, leave to treat him as an unfavourable witness under s 38 of the Evidence Act.
There then followed a short period of cross-examination of Braddick by the Crown Prosecutor in the presence of the jury during which the Crown sought leave to play the audio tape of the ERISP. However, this became unnecessary because after a short adjournment Braddick indicated that he was willing to give evidence in accordance with the ERISP. Braddick then gave evidence that he, the appellant and another man had left the house of Braddick’s girlfriend, where they had been drinking alcohol, to purchase more beer. On the way they decided to rob the premises at 12 Jaycee Avenue. They entered the garage, removed some property, and then, having armed themselves with the hockey sticks they found there, Braddick and the appellant entered the house through a closed but unlocked door.
Braddick then gave an account that was generally in accord with the evidence given by Aaron Pease as to what happened inside the house. He admitted that he might have made some threat to Aaron while the boy was locked in the bathroom and said it was the appellant who attempted to reassure him by indicating that he would not get hurt. He said that property was taken from the house including tools and a stereo and it was piled up where it was found by the police.
Defence counsel cross-examined Braddick to the effect that he was too drunk to accurately remember what happened that night, that he told police untruths in the ERISP and that he had implicated the appellant to improve his own situation. Braddick admitted he had told lies earlier in his evidence.
The appellant gave evidence denying any involvement in the offence. He said that he remained at the house drinking but that Braddick had disappeared for about half an hour. The appellant went outside to urinate and he saw Braddick running away from police. The appellant was then arrested.
Request for a warning
It is clear that on any version Braddick was involved in the offence with which the appellant was charged. His evidence was vital to the Crown case. However, there was some support for his version in the evidence of the police officer as to the appellant being located not far from the stolen property and near where the police officer had seen three people at the fence.
Before the summing up commenced the trial judge raised with both counsel what directions he should give to the jury. The following is recorded in the transcript:
“His Honour enquired of counsel that other than the standard directions did counsel also want a direction on accomplices. Counsel agreed. His Honour enquired as to right for (sic) silence and evidence on oath and witnesses generally. Agreed to by counsel. Discussion ensued on directions to be given to jury including elements of the case.”
The appeal has been conducted before this Court on the basis that what was said by the trial judge and counsel as to the appropriate directions to be given to the jury was sufficient to amount to a request for a warning under s 165(2) of the Evidence Act. Section 165 is as follows:
165        (1)         This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a)         evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;
(b)         identification evidence;
(c)          evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
(d)         evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
(e)          evidence given in a criminal proceeding by a witness who is a prison informer;
(f)           oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;
(g)         in a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.
(2)         If there is a jury and a party so requests, the judge is to:
(a)         warn the jury that the evidence may be unreliable; and
(b)         inform the jury of matters that may cause it to be unreliable; and
(c)          warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3)         The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)         It is not necessary that a particular form of words be used in giving the warning or information.
(5)         This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
One of the complaints made before this Court is that his Honour did not comply with s 165(2)(b) in that he failed to inform the jury of certain factual matters that had a bearing upon the reliability of Braddick as an accomplice. There is nothing to suggest that these matters were raised with the trial judge either before the summing up or after it. There was no objection raised by defence counsel to anything said by his Honour in the summing up and no request for further directions.

Before dealing with the particular issue raised in this appeal and the adequacy or otherwise of the directions given to the jury about Braddick’s evidence, it is necessary to consider the scope of the obligation imposed upon a trial judge to give a warning to the jury about evidence which is before them and the content of such a warning.
Warnings to juries at common law
Before considering the provisions of the Evidence Act, some reference should be made to the position at common law. It will not always be helpful, and at times it may be positively misleading, to consider the common law rules of evidence when construing the provisions of the Evidence Act. However, s 165 has its origins in the common law requirement that the trial judge give a warning to the jury in respect of potentially unreliable evidence and s 165(5) recognises that a trial judge has power to make comments and give warnings to the jury in respect of the evidence in the trial in addition to those required by the section.
As a result of the experience of judges gained in conducting criminal trials, the common law established categories or classes of evidence that were considered to be potentially unreliable and about which, as a rule of practice, judges were required to warn the jury. The warning normally cautioned the jury about the potential unreliability of the evidence, the reason why the evidence might be unreliable and the manner in which the jury should consider the evidence. Usually the jury were told of the need to “scrutinize the evidence with care” before convicting upon it. In respect of some categories, the evidence was thought to be so unreliable that the trial judge was required to tell the jury that it was dangerous to convict on the evidence unless it was corroborated. The categories in which such a warning was required was evidence given by the following types of witnesses: complainants in sexual assault cases, Kelleher v The Queen (1974) 131 CLR 534; accomplices, Davies v DPP [1954] AC 378; and children giving sworn evidence, Hargan v The King (1919) 27 CLR 13.
The common law also recognised that there would be, from time to time, potentially unreliable evidence that did not fall within these established categories and yet in respect of which a warning might need to be given. Whether a warning should be given and what should be said to the jury in such a case was a matter falling largely within the discretion of the trial judge and depended upon the circumstances of the particular case. The fundamental obligation on the trial judge was to put the defence fairly and adequately: Reg v Spencer [1986] AC 128 at 142. If a warning was not given in a case calling for a warning, or if the warning was insufficient to bring home to the jury the potential unreliability of the evidence, any conviction resulting might be set aside on appeal because a miscarriage of justice had occurred: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 604.
The need for a warning about evidence not falling within the established categories was considered by the High Court in Bromley v The Queen (1986) 161 CLR 315. The chief Crown witness was a schizophrenic who had suffered from an episode of that illness on the night in question and had been admitted to a mental hospital. The trial judge gave a direction to the jury that they must scrutinise the evidence of the witness with special care, but did not warn them that it would be dangerous to convict upon the evidence of the witness unless it was corroborated. The High Court held that the warning given was sufficient. Gibbs CJ, in a judgment with which the majority of the court agreed, declared (at 319):
“………..What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence”.
As to the contents of the warning to be given in such a case, his Honour said (at 319):
“The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.”
Brennan J delivered a separate judgment in which he considered the circumstances in which a warning was to be given. His Honour stated (at 323-324):
“It must be remembered that the sole raison d'etre of the rule requiring a warning to be given ‘is to ensure that the jury is alive to the danger of convicting on the uncorroborated evidence of a class of witnesses whose testimony may, for reasons already indicated, be untruthful’: per Mason J. in Kelleher v The Queen (1974) 131 CLR 534, at p 560. The courts have had experience of the reasons why witnesses in the three accepted categories [accomplices, children giving evidence on oath, and complainants in sexual assault cases] may give untruthful evidence wider than the experience of the general public, and the courts have a sharpened awareness of the danger of acting on the uncorroborated evidence of such witnesses. The experience of the courts has shown also that the reasons which may lead one suspect witness to give untruthful evidence are not necessarily the same as the reasons why another suspect witness may do so: see R v Weston [1924] VLR 166, at pp 171-172; McNee v Kay [1953] VLR 520, at pp 524-526…………
The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer [1986] AC 128, at p.135 “partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind”: See also per Lord Ackner at p.141 and per Lord Diplock in Hester [1973] AC 296, at p.325. If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick C.J. said in Kelleher, at p.543:
‘The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play’.”
As to the content of a warning in the case then before the Court, Brennan J stated (at 325):
“Perhaps no more can be said than this: when the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence as to the witness’s mental disorder are such that the jury may not have fully perceived or the jury’s attention may have been diverted from the danger, a warning should be given.”
In Carr v The Queen (1988) 165 CLR 314 a majority of the justices of the High Court were not willing to find that there was a rule of practice which required that a warning be given to a jury that it was dangerous to convict on the evidence of a disputed oral confession made to a police officer. This was because, in their Honours’ view, judicial experience had not identified this class of evidence as being so unreliable that such a warning should invariably be given, see Wilson and Dawson JJ at 318-319, Brennan J at 326.
During the course of his judgment, Brennan J returned to a consideration of when a warning was required to be given and stated (at 325):
“…………A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial.”
His Honour considered that, in accordance with Bromley, a warning was required in the circumstances of the case under consideration to alert the jury to the fact that a comparison of the demeanour of the police officers and the accused in giving evidence before them was not necessarily a sound guide to comparative veracity and that the jury had to bear in mind that the police entertained a belief as to the accused’s guilt before any confession was made. It is apparent that the warning favoured by Brennan J in that case informed the jury of two matters relevant to their consideration of the confessional material, one was of a general nature and the other arose specifically from the evidence at the trial.
However, at common law a warning might be required even though the evidence was not of a kind that might be unreliable. The trial judge was to caution the jury whenever there was, to use the words of Brennan J in Carr quoted above, “a perceptible risk of miscarriage of justice”. As Deane J said in Longman v The Queen (1989) 168 CLR 79 (at 95-96):
“[The] responsibility [of a trial judge] includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury.”
Such a potential danger could arise because the Crown’s case was based upon the evidence of a single witness unsupported by any other evidence: R v Murray (1987) 11 NSWLR 12, or because the accused’s ability to defend himself had been affected by the long delay before prosecution: Longman at 90-91, Crampton v The Queen (2000) 75 ALJR 133 or to counter the disadvantage occasioned to an accused person interviewed in custody without facilities for recording the interview: McKinney and Judge v The Queen (1991) 171 CLR 468 at 474.
In Crampton, above, the High Court stressed, as the joint judgment in Longman had done, that there was an important difference between, on the one hand, a comment by the trial judge on an aspect of the evidence which was relevant to an assessment of its reliability and, on the other hand, a warning to the jury about the approach that must be taken to the evidence in an assessment of it: Crampton at 140C, 156D. A comment relates to a matter, about which the jury will generally have sufficient knowledge and understanding to appreciate its significance, but which the jury may have forgotten or overlooked had the judge not reminded them of it. It will normally be sufficient if the judge draws the jury’s attention to the matter either directly or by reference to counsel’s address.
However, a warning reflects the special experience of the law with a matter of which the jury may have little knowledge or understanding: Crampton per Kirby J at 156E. So in a warning it is not sufficient for the trial judge merely to refer to a submission about the matter made by counsel in addressing the jury. The authority of the trial judge must be used to impress the significance of the matter on the collective mind of the jury.
Warnings under the Evidence Act
It is against this background that the provisions of the Evidence Act dealing with warnings by a trial judge should be considered. By s 164(1) the requirement that some classes or categories of evidence be corroborated was abolished. Further, s 164(3) states:
(3)         Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the Judge:
(a)         warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or
(b)         give a direction relating to the absence of corroboration.
Section 164(3) does not prohibit the trial judge from giving a warning that would have been required at common law in relation to the three categories of witnesses referred to earlier, one of which was accomplices. Although such a warning is no longer mandatory, it is open for the trial judge to give a warning as to the danger of convicting on the uncorroborated evidence of a witness and in some cases such a warning may be required, although it is unnecessary to use terms such as “dangerous” or “corroboration”: R v Lewis (NSWCCA, 8 September 1998) at 9.
As has been noted already, s 165(5) preserves the power of a judge to give a warning or to inform the jury about a matter arising from the evidence, whether or not a warning is requested under s 165(2). Thus the Act maintains the common law requirement that a warning be given “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”: Longman at 86. Such a warning must be given even where no party requests it. It will not necessarily depend upon the potential unreliability of a particular kind of evidence. A warning may be required in order to redress any unfairness to the accused that may have arisen from the nature of the evidence before the court or the manner in which the offence was investigated or prosecuted: R v King [2000] NSWCCA 507. A warning may be given whenever judicial experience indicates that special attention or care is required in making an assessment of the evidence and the weight to be attributed to it: R v Kirby [2000] NSWCCA 330 at [58].
The content of the warning will depend upon the circumstances of the particular case including any aspect of the trial, such as cross-examination and counsel’s addresses: R v Johnson (1998) 45 NSWLR 362 at 369. In Bromley Brennan J said (at 325):
“The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content.”
However, s 165 is concerned only with those occasions where the possibility of a miscarriage arises because there is evidence before the jury “of a kind that may be unreliable”. Because any evidence given in a court may be unreliable, it is necessary to consider the scope of the section in order to determine, not only when a warning should be given, but also what its content should be.
When formulating its proposal upon which s 165 is based, the Australian Law Reform Commission noted that the traditional rationale at common law for requiring a warning to be given in respect of certain categories of witnesses, was the experience of the courts that there was a real risk that the evidence of a witness falling within those categories may be more unreliable than the evidence of a witness who did not fall within a designated category. In its Interim Report, ALRC No 26 Vol 1, the Commission explained its proposal in this way (at para 1017):
“It is proposed that there be an obligation to give a warning, unless there is good reason not to, where it appears to the judge that evidence coming within one of several broadly described categories may be unreliable, or its probative value may be over-estimated….The warning is to be directed to the weaknesses of the evidence and the need for care in deciding whether to accept it. In deciding whether there are reasonable grounds for not giving a warning, the judge could consider matters such as the other evidence before the court and the importance of the evidence.”
The Commission’s proposed provision listed most of the categories of evidence now found in s 165(1) and relied upon the residue power retained by s 165(5) to provide for warnings in categories of evidence which may later be identified by the courts. The draftsman of s 165 obviously addressed the Commission’s concern about future categories or classes of unreliable evidence by ensuring that the provision was not limited to the designated classes of evidence. Hence s 165 applies generally to “evidence of a kind that may be unreliable” including most of the kinds of evidence identified by the Commission.
The Commission recognised that evidence falling within one of the designated categories may actually be reliable and, therefore, there was not the same risk that the jury might misestimate the weight of the evidence. In such a case the warning might detract from the real value of the evidence to the cost of the party relying upon it. To meet this eventuality, it was proposed that the trial judge should consider the evidence in question to determine whether a warning needed to be given in a particular case even though it had been requested by a party. The Commission stated (ibid at para 1019-1020):
“…it is not enough to demonstrate that evidence comes within one or more of the categories. Before the judge must consider giving a warning, it must be shown that the evidence may be unreliable or open to misestimation…Cases will vary so much that a guided discretionary approach is required.”
The “guided discretionary approach” is achieved, initially, by a discretionary determination as to whether the evidence falls within the scope of the section, either generally or because it falls within one of the designated categories, and, thereafter, by the discretion to refuse to comply with the section if the judge considers that there are good reasons to do so: s 165(3).
The categories of evidence designated in the section include, generally speaking, those kinds of evidence where the common law (as affected by legislative intervention in the case of sexual assault complainants) had required that a warning be given. They are the kinds of evidence about which, at the time when the provision was proposed by the Commission, the courts had already acquired a special knowledge of the potential unreliability of the evidence or in respect of which the courts had perceived that there was a danger of the jury overestimating the weight to be given to the evidence. It was the nature of the evidence that made it suspect or that gave rise to concern that the jury might give it undue significance. A warning was generally required unless the circumstances of the charge, the issues at the trial, or the manner in which the trial had been conducted indicated that a warning was not warranted.
It should be noted that in relation to the evidence of oral admissions made to police officers, s 165(1)(f), the section does not replicate the circumstances in which a warning was required to be given at common law in accordance with the decision in McKinney and Judge. That is because s 165 is concerned, not to redress the disadvantage of an accused person who is in police custody, but to alert the jury to the unreliability of oral confessions made to police officers: Lowe (1997) 98 A Crim R 300 at 311. The focus of the warning necessary to avoid the possibility of a miscarriage of justice in respect of confessional material was altered significantly as a result of the enactment of s 424A of the Crimes Act (now s 108 of the Criminal Procedure Act). That section, which was incorporated into the Crimes Act by legislation cognate to the Evidence Act, provided generally that an admission could not be received into evidence unless it had been electronically recorded. It was recognised by the majority in McKinney and Judge that the purpose and content of the warning to be given in respect of unrecorded confessions might need to change in the future. Their Honours said (at 474):
“A rule of practice will operate to counter the relative disadvantage accruing to an accused person who is interviewed while in police custody at a place lacking recording facilities. And as the means of recording become generally available, the absence of a recording will tend to bring the reliability of a confessional statement into issue, thus raising the question whether, in line with what was said in Bromley v The Queen, and quite apart from anything said in Carr, a warning should be given.”
However, the legislature appears to have determined for the courts what the majority of the High Court in Carr was not prepared to find: that evidence of a confession given orally by a police officer is evidence of a kind that may be unreliable.

Where there is evidence that falls within the scope of s 165 but no request is made by a party for a warning, the trial judge may still give a warning relying upon the power recognised in s 165(5). The combined effect of ss 164 and 165 is to provide the trial judge with the flexibility to give a warning appropriate to the case in light of the issues raised and the factors which might affect the reliability of the evidence. In R v Spedding (NSWCCA, 11 December 1997, unreported), this Court noted that the terms of ss 164 and 165 sought to express and give practical application to the common sense approach which had been adopted in other jurisdictions as exemplified in the following statement of Dickson J in Vetrovec v The Queen [1982] 67 CCC (2d) 1 (at 17):
“Because of the infinite range of circumstances which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness. There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support.”
Whether the evidence in respect of which a request for a warning is made comes within one of the designated categories will be a matter for the trial judge to determine. It is a discretionary judgment which will generally involve a question of fact: R v Flood [1999] NSWCCA 198 at [14]; R v Taranto [1999] NSWCCA 396 at [2], [38]. The section is concerned with the possibility of unreliability: Flood at [3]. But as the Commission recognised in the second of the quotes from the Interim Report above, a warning does not have to be given just because the evidence comes within a specified category or might otherwise fall within the scope of the section. For example, there is no requirement that a warning always be given where the complainant in the trial of a child sexual assault offence is of a young age: R v AGJ (NSWCCA, 30 October 1997); Lane v R (1996) 66 FCR 144 at 149, or where a witness is suffering from a mental or physical disability: Flood, above. A warning is only required where there is a real possibility that the matter, which causes the evidence to fall into one of the designated categories, actually affects the reliability of the evidence before the court. The trial judge is entitled to come to the view that the reliability of the evidence is not affected by a matter which would otherwise bring the evidence within the section: Flood at [10].
The application of s 165 to the evidence before a jury is clearly not restricted to evidence falling within the categories specified in s 165(1): Williams (1999) 104 A Crim R 260 at 268; Covill (2000) 114 A Crim R 111 at 121. However, the scope of the section in respect of evidence not coming within the designated categories is somewhat problematic. Any evidence adduced before a jury may be unreliable, yet it could not have been intended that the section should require a trial judge to determine whether there are good reasons for refusing a request to give a warning simply because a party points to some aspect of the evidence which suggests it may be unreliable. That was certainly not the intention of the Commission.
In R v Baartman [2000] NSWCCA 298 Kirby J (with whom Spigelman CJ and Smart AJ agreed) stated (at [62]):
“In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence (see ALRC 26, Vol 1, para 1017)…..”
His Honour then went on to quote passages extracted from the judgment of Brennan J in Bromley at 325 that I have quoted more fully above.
Where a matter which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not “of a kind that may be unreliable” and the section does not apply. Consistently with the common law, the Commission’s proposals, and the decision in Baartman, matters of a general nature that might affect the reliability of any kind of evidence adduced in a trial do not of themselves bring the evidence within the scope of the section.
In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone “evidence of a kind that may be unreliable”. However, as I will indicate later, these types of matters might be made the subject of comment by a trial judge, and, in the case of a crucial Crown witness, a summing up may be defective if no reference is made by the trial judge to such matters when reviewing the case against the accused.
In Lane v The Queen (1996) 66 FCR 144 one of the issues considered by the Court was whether a warning had to be given under s 165 in respect of the uncorroborated evidence of a complainant. The Court (Gallop, Davies and Kiefel JJ) said (at 146E):
“It may be observed that although subs (1) of s 165 is couched in terms which would not exclude other kinds of evidence qualifying as unreliable, there is no mention of ‘evidence of the victims of sexual offences’. And it ought also be borne in mind that the section speaks only of evidence of a ‘kind’, which is to say a class, and this would require a generalised assessment and not one based upon a particular witness’s account in proceedings.”(my underlining)
The Court held that the section did not apply to victims of sexual assault offences as a category of unreliable evidence.
The approach taken by the Full Federal Court to s 165 is consistent with that taken by this Court in Baartman. Accordingly, when a request is made for a warning under the section, the trial judge must first determine whether the evidence, if it does not fall within one of the designated categories, is of the class, or type, of evidence about which a jury might be misled in making an assessment of whether to accept it or in evaluating its worth. The section will apply to the evidence if the trial judge considers that the court has some special knowledge or experience about that kind of evidence which the jury may not possess and which may affect its reliability, or because it is the kind of evidence to which a jury may attribute more weight than it really deserves. The risk of the jury giving too much weight to that kind of evidence may arise because of the nature of the evidence itself or because of the significance which may be attached to it by the jury having regard to the evidence in the context of the trial as a whole. If the evidence does not intrinsically have the potential to mislead the jury or if there is nothing about the trial which would suggest the jury may be deflected or misled in evaluating the evidence, then it is not within the scope of the section and a warning under s 165 is not necessary.
In R v PLV [2001] NSWCCA 282 at [51-54], it was held that a warning was not required to be given in respect of the fact that evidence was given by the complainant and her brother of matters occurring 25 years earlier when they were both young children. Although in that case s 165 did not apply because no request for a warning was made, it was held that a warning was not required although it was open to the trial judge to comment on the matter. The Chief Justice with whom the other members of the Court agreed remarked that the potential unreliability of such evidence would have been known to the average juror and it was not a matter which had become known to the courts by any special experience. It was not a case where the danger of the evidence may not have been appreciated by the jury without a caution or warning.
An example of the operation of s 165 to evidence of the kind where the jury might be mislead as to its reliability is R v Barnes (NSWCCA, 1 December 1998). This Court considered that a warning under s 165 should have been given in respect of the evidence of the behaviour of a tracker dog. This was because of the risk that the jury might place too much weight on the untested and untestable ability of a dog to track scent. Therefore, the jury were to be warned that they should bear in mind that the dog was not cross-examined and that they should be careful to avoid overestimating the reliability of the operation of the dog’s senses so as to avoid arriving too readily at the conclusion contended for by the Crown from the evidence of what the dog did. See also Benecke (1999) 106 A Crim R 282.
Another example is Lowe, above, at 317 where it was held that a warning should be given in relation to the identification of an object associated with the accused, even though such evidence is not a distinct category mentioned in s 165(1). A warning under the section was required because such evidence may be unreliable in the same kind of way as “identification evidence” referred to in s 165(1)(b) may be unreliable. It is evidence “of a kind that might be unreliable” because the court has special knowledge of the unreliability of identification evidence generally and there is the risk that the jury may place too much weight on the evidence unless they are warned of its dangers. It should be noted that the term “identification evidence” which appears in s 165(1)(b) has a particular meaning when used in the Evidence Act and is defined in the Dictionary of the Act so that the term is only used to refer to evidence identifying an accused person.
There are decisions of this Court which appear to suggest that the section has a wider scope than that which is identified in Baartman. In Lewis Beazley JA (with whom Wood CJ at CL and Sperling J agreed) stated (at 14);
“Section 165 is directed at evidence ‘which may be unreliable’ and specifies, by inclusion, a list of such evidence. The fact that the list is inclusive and not exhaustive means that by the express terms of the section, there is evidence not included in paragraphs (a) to (g) which ‘may be unreliable’ for the purposes of the section. Put simply, s 165(1)(a)-(g) is not an exclusive code of the unreliable evidence to which the section applies. Evidence afflicted by bias, or evidence of an event given by a witness affected by alcohol or drugs at the time of the event may be unreliable and thus fall within the section.” (my underlining)
If this passage of the judgment is to be read as requiring that a warning under the section be given when requested in every case of a witness who is affected by bias or was at the time of the event intoxicated, I, with respect, do not believe that it should be followed. It is inconsistent with the view of the section taken in Baartman and, in my view, the purpose of the section. This may be because the passage indicates that s 165 relates to “evidence which may be unreliable” rather than the words “evidence of a kind which may be unreliable” used in the section.
In my opinion, the same can be said of this Court’s decision in V (1998) 100 A Crim R 488. In that case it was argued on behalf of the appellant that the trial judge had failed to adequately warn the jury of the evidence of the complainant where the Crown case relied solely upon her evidence. In particular, it was argued that there were specific features of the case which meant that the complainant’s evidence may be unreliable and thus a warning was required under s 165(2). Those features were: the significant delay in complaint, the personal animosity of the complainant and her mother to the accused and the fact that the complaint was made shortly after what Smart J, who gave the leading judgment, described as “ugly confrontations between the appellant and the complainant and her mother”. Smart J, with whom Gleeson CJ and Dowd J agreed, held that a warning should have been given under s 165(2) in respect of the evidence of the complainant. In reaching that conclusion, Smart J referred to s 165 as applying “where evidence may be unreliable”.
With respect, I do not believe that the evidence came within the scope of s 165. Unless evidence of a complainant is of a kind that may be unreliable (and that was not suggested in the judgment), there was no aspect of it which called for a warning under the section. There was nothing to indicate that the jury may have failed to understand the significance of the circumstances surrounding the making of the complaint nor did the court have any special knowledge about the matter that it could impart to the jury.
However, it does not follow that the decision to allow the appeal was erroneous or that a warning about the complainant’s evidence was not required. Smart J also held that s 164 did not dispense with the need to give a warning of the type referred to by Lee J in Murray and that such a warning should have been given because the Crown case relied exclusively upon the complainant’s evidence. That finding is, with respect, obviously correct. But in my opinion all that was required was a warning of this nature with appropriate comments about the matters that were relevant for the jury to bear in mind in their careful scrutiny of the complainant’s evidence.
Further, in my respectful opinion R v Mayberry [2000] NSWCCA 531 should not be followed to the extent that it may be taken to have held that inconsistent statements made by a complainant in a sexual assault case required that a warning be given under s 165. That decision was primarily concerned with the requirement for a Longman warning and it appears that the absence of such a warning, or, at least an adequate one, was the principal basis upon which the summing up was found to be defective and the appeal allowed. However, Beazley JA (with whom Greg James and Kirby JJ agreed) said (at [62]):
“Counsel at trial did not seek a direction under s165. However, the inconsistencies in NRD's evidence, particularly in relation to complaint, were such as required the judge to give a warning which encompassed the type of matters specified in s165(2). In particular, he should have warned the jury that NRD's evidence may be unreliable, pointed out for them the matters which might cause the evidence to be unreliable and given a warning to the jury of the need for caution in assessing whether to accept the evidence and the weight to be given to it.”
I do not, with respect, believe, for the reasons I have already given, that the fact that a complainant has made inconsistent statements is a matter which by itself necessarily requires a warning under the section or otherwise. At least, that is so where evidence of complaint has been admitted only as relevant to the credibility of the complainant, for example, to rebut a suggestion of fabrication under s 108(3) of the Act.
In Driscoll v The Queen (1977) 137 CLR 517 Gibbs J said (at 536):
“………the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable”.
Much of this statement was quoted with approval in Morris v The Queen (1987) 163 CLR 454 at 469-467.
However, the situation may be different where the evidence of complaint has been admitted as evidence of the truth of what is stated and, therefore, is being used for a hearsay purpose. In R v TJF [2001] NSWCCA 127 the jury were told that the evidence of complaint could be used as evidence of “the allegation made in the complaint” as well as evidence of consistent conduct on the part of the complainant. In other words, the complaint was admitted as evidence of the truth of what was said in the complaint under s 66 of the Act. Studdert J, with whom Beazley JA agreed, held that a warning was required under s 165(2) with respect to the evidence of complaint, it being hearsay evidence and, therefore, falling within s 165(1)(a). As a request to give a warning was refused and there was no good reason for the refusal, it was held that there had been a miscarriage of justice. However, Studdert J specifically referred to, and applied, Mayberry and determined that one factor requiring a warning under s 165 was that there were different versions of the complaint.
The third member of the Court in TJF, Sperling J, while agreeing generally with the reasons of Studdert J and that a warning should have been given, noted one exception to his concurrence with what his Honour had said. Sperling J stated (at paras 74-80):
“The exception is this. His Honour is of the opinion that the warning pursuant to s165 ought to have extended to alerting the jury to the different versions of the complaint (as counsel for the appellant submitted it should have done).
I respectfully disagree. Section 165 applies - as specified in subs (1) - to ‘evidence of a kind that may be unreliable’. If a party so requests, the judge is to warn the jury that the evidence may be unreliable and inform them of the matters that may cause it to be unreliable.
When one looks at the kinds of evidence in subs (1) which are listed as examples of the kinds of evidence to which the section relates, it is apparent that the purpose of the section is to provide the jury with the benefit of the accumulated experience of the judiciary concerning the potential for unreliability associated with some kinds of evidence.
The reasons why one kind of evidence may be unreliable are different from the reasons why another kind of evidence may be unreliable. For example, the reasons why hearsay evidence may be unreliable are different from the reasons why identification evidence may be unreliable, and different again from why evidence from a prison informer may be unreliable. The section is directed to ways in which evidence of various kinds may be unreliable for reasons associated with a particular kind of evidence.
Inconsistency between versions of events is as much a reason why direct evidence of events may be unreliable as it is a reason why hearsay evidence of events may be unreliable. The inconsistency between versions of complaint in the present case was a reason why the evidence of complaint might be unreliable, but it was not a reason associated with the hearsay character of the evidence.
A trial judge should, of course, relate his or her observations to the evidence when giving a warning concerning hearsay evidence pursuant to section 165, specifying how it is that the evidence in question may be unreliable in ways associated with its hearsay character. But the section does not extend to a feature of the evidence which may make the evidence unreliable for other reasons.
In the present case, the trial judge was at liberty to warn the jury that the evidence of complaint might be unreliable in view of the inconsistency between versions, but s165 did not require that to be done.”

His Honour then went on:
“What you have got to remember and this is a matter of law, when you are assessing his evidence is that he is known as an accomplice. Now this is a direction of law, which I have to give to you. This is a direction which I must give you concerning the evidence of Mr Braddick. It is a direction which is given in every case in which the Crown relies upon the evidence of an accomplice, in order to establish the guilt of the accused. It is not given in this case because of any view which I may have formed, concerning the evidence of Mr Braddick. Such a direction must be given in every case, in which the Crown relies upon the evidence of a person, who himself participated in some way, in the very crime or crimes with which the accused has been charged.
The need to give such a direction arises because the courts have, over the years, accumulated a great deal of experience concerning the reliability of evidence given by accomplices and that experience would not readily be known to general members of the public, such as yourselves. That experience has shown, that the evidence given by accomplices, is often unreliable. I do not intend to suggest that their evidence is always unreliable.
My purpose in giving you this direction is only to warn you, that the evidence of an accomplice may be unreliable and for that reason alone, you must approach that evidence with considerable caution in the way which I will outline shortly.
There are no doubt, many reasons why the evidence of an accomplice may be unreliable. It is only natural, you may think, that an accomplice may want to shift the blame, from himself, onto others and to justify his own conduct. In the process the accomplice may construct untruthful stories, which tend to play down his own part in the crime and to play up the part of others in their crime. Even to blame quite innocent people. Experience has shown that once having given that version to the police, the accomplice may feel that he is locked into that version and that he is bound to relate the same version when giving evidence and when assessing him, you must remember, that warning I have given to you, remember it is given in every such case.”
This part of the summing up contained the warning under s 165(2). What his Honour said to the jury in that regard has to be considered in the light of the direction that counsel agreed his Honour should give and what warning and information was required to be given to the jury in compliance with s 165(2) because Braddick was “ a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings”.
The direction that the counsel agreed Judge Garling should give was, what his Honour referred to as, a “direction on accomplices”. Accordingly his Honour gave the warning which had traditionally been given in relation to accomplices at common law as modified by s 164(3)(a) of the Act. That subsection relieved his Honour of the necessity of warning the jury that it was dangerous to convict on Braddick’s evidence in the absence of corroboration. The warning given by the trial judge, however, complied generally with s 165(2): it indicated that the evidence of Braddick might be unreliable because he was involved in the commission of the offence with which the appellant was charged; it informed the jury in general terms why the evidence of an accomplice might be unreliable; it warned the jury of the need for caution in accepting the evidence. The warning was given with the authority of the judge and the court’s special knowledge of the unreliability of that kind of evidence was conveyed to the jury.
Were the directions inadequate or erroneous?
The first complaint now made about the directions is that the warning given to the jury was “cursory and amounted to little more than recitation of formula”. In my opinion, that criticism is unfounded. What his Honour said by way of informing the jury of matters that may make the evidence of an accomplice unreliable were adequate, generally speaking, to alert the jury to the potential unreliability of Braddick’s evidence and to explain why they should exercise caution in acting upon it. There was nothing that his Honour said that was inappropriate to an assessment of the evidence of Braddick. Nor was what his Honour said ineffective in bringing home to the jury the danger generally arising from the evidence of an accomplice.
The next complaint made is that his Honour diluted the warning by telling the jury on three occasions that such a direction was given in every case where an accomplice gives evidence. As Badgery-Parker J pointed out in R v Chai at 178, the trial judge should in fairness to the Crown make it clear that, in giving the warning, he or she is not expressing a personal opinion about the evidence but rather that the warning is given because of the nature of the evidence which is before the jury. However, in R v Roddom [2001] NSWCCA 168, I cautioned against a trial judge repeatedly indicating to the jury that the particular warning was always given where evidence of that nature was before the court. It seemed to me that such a repetition runs a risk that the jury will treat the warning as a matter of routine.
I do not retreat from that view, but it is the particular summing up under scrutiny that has to be considered when determining whether the warning given was effective in bringing home to the jury the caution with which they were required to approach the evidence. In this particular case I do not accept that the repetition of the statement that such a warning is given in every case of evidence given by an accomplice had the effect for which the appellant contends. Quite the contrary, in my view, the repetition enforced the general distrust that the court attaches to such evidence. Two of the occasions when the statement was made occurred immediately after one another and were followed by an explanation as to why such a direction is always given: that is because of the special experience of courts concerning the unreliability of such evidence. The third time his Honour made the statement occurred at the end of the directions on accomplices immediately after the jury were told that they must remember the warning when assessing the evidence of Braddick.
The appellant’s major complaint is that his Honour failed adequately, or at all, to refer to two matters which were significant in the jury’s assessment of the evidence of Braddick. These matters were, firstly, that he had been given a discount of his sentence as a result of his undertaking to give evidence against the appellant and, secondly, that, if he failed to fulfil that undertaking, he might be the subject of a Crown appeal under s 5DA of the Criminal Appeal Act.
As I have already indicated, neither of these matters formed the basis of an accomplice warning at common law. That may be because discounts, undertakings and Crown appeals based upon the failure to comply with undertakings are relatively modern forensic weapons. But as part of an accomplice warning the judge was required to inform the jury that the witness might have a reason to implicate another person even to the extent of fabricating evidence against an innocent person. It was necessary that the jury be informed of this matter because it explained to the jury why the evidence of an accomplice might be unreliable in the absence of any evidence to suggest that the accomplice was to obtain any benefit as a result of giving evidence against the accused.
The fact that a discount of a sentence has been given to a witness as a result of an undertaking to give evidence against another person, is not a matter which is intrinsic to a witness who falls within s 165(1)(d), nor is it a matter which is exclusive to such a witness. There will be cases where a witness has been given, or will receive, a benefit as a result of undertaking to give evidence about events in which the person was not in any way concerned, criminally or otherwise. A paid police informer is an obvious example. Nor is it unusual for an allegation to be made to a witness that his or her evidence has been fabricated so that the witness can pursue a claim for compensation under victims compensation legislation, or to obtain custody of a child of the marriage, or for some other benefit personal to the witness and which the jury are asked to take into account as a possible reason for the witness to fabricate evidence against the accused.
I do not believe that the fact that a witness might obtain a benefit as a result of giving evidence against the accused necessarily brings the evidence within the scope of s 165. It is frequently the case that defence counsel puts to a witness that he or she has something to gain from implicating the accused in the criminal conduct giving rise to the charge before the jury. Yet I am not aware that it has ever been suggested, at least prior to the introduction of the Evidence Act, that a warning was required about the possible unreliability of such evidence. In my view there is no difference between an allegation that the witness is to obtain a benefit from giving evidence against an accused and an allegation that the witness has some other motive, such as bias, for giving the disputed evidence. Neither of these types of allegations, even if accepted by the witness as true, necessarily results in the evidence being of a kind that might be unreliable for the purposes of s 165.
In my opinion, the fact that there is evidence in the trial that the witness has actually received a benefit for giving evidence against the accused diminishes the necessity for the judge to bring that matter to the attention of the jury and to warn them of its possible affect on the reliability of the witness. A warning is required where the jury might not be able to ascertain that there is any benefit to be gained by the witness in giving evidence. There is, in such a case, a danger that the jury may give the evidence significant weight simply because they cannot perceive a motive for the witness to fabricate evidence implicating the accused in the offence before them. As I have already indicated, part of the rationale for the accomplice warning at common law was to alert the jury to the fact that the accomplice may have reason to implicate the accused even though the reason may not have been obvious.
Prison informers are viewed by the courts as potentially unreliable witnesses and, therefore, are specifically referred to in s 165(1)(e). One of the reasons why a warning was normally required in respect of the evidence of such a witness at common law was because the jury might not be able to divine any possible benefit to be gained by a prisoner who was serving a sentence at the time of giving evidence. In Pollitt v The Queen (1992) 174 CLR 558, when discussing the various factors which made the evidence of prison informers potentially unreliable, Deane J said (at 586):
“Another [reason] is the likelihood that a prison informer may be motivated to fabricate such evidence either by a perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury”. (my underlining)
I acknowledge that it is generally desirable for a trial judge to specifically raise with a jury the fact, if it be the case, that a witness coming within subs 165(1)(d) had been given a discount of his or her sentence on the basis of an undertaking to give evidence against the accused and the effect of a failure to comply with that undertaking; see Conway v R [2000] 98 FCR 204 at [207]. But these are matters that, in my view, fall into the category of comment on the evidence and there is no requirement that the jury be informed that they are matters that may cause the evidence to be unreliable under subs 165(2)(b). The question of whether the failure to refer to those matters has brought about a miscarriage of justice will depend upon a consideration of the evidence at the trial, the addresses and the effect of the summing up considered as a whole and not simply because there was a failure to comply with s 165(2).
At the end of the day what is required is that the jury be placed in a position where they can properly, fairly and effectively assess the evidence before them. If there is a matter that may adversely affect the reliability of the evidence or some part of it, what is required to adequately deal with that matter in the summing up will depend upon the nature of the matter, the issues before the jury and the conduct of the trial. What may be sufficient in a short trial with a single issue may not be adequate in a complex trial where the summing up occurs some considerable time after the particular piece of evidence has been given. What is required, where s 165 applies and a request for warning is made under s 165(2), may not be required where the evidence does not come within the section or no warning under the section is requested. If there is a risk that the jury might not have fully appreciated the significance of a matter that has the potential to affect the reliability of the evidence or may have been misled as to its significance, then the trial judge should warn the jury about the matter in order to avoid a risk of a miscarriage of justice.
This is why it is necessary that a trial judge should inform a jury of the relevance of a grant of immunity to an accomplice. Without the judge bringing that matter to the attention of the jury and informing them how that matter may cause the evidence of the accomplice to be unreliable, there is a risk that the jury may not have been in a position to properly evaluate the accomplice’s evidence.
But, in my opinion, the same concern does not attend the fact that an accomplice has received a discount of his sentence upon giving an undertaking to give evidence against an accused. I do not believe that there is anything peculiar or special about that matter that would justify a warning or require that the judge inform the jury of its relevance in the assessment of the evidence of the accomplice. Generally speaking, there can be no real basis to fear that the significance of the matter may be lost on the jury. Nor can it be said to be a matter about which the court has some special knowledge that it should share with the jury. Although, the jury may have no general experience or understanding of a situation in which an offender has received a sentencing discount on the basis of giving evidence against another person, they would readily appreciate that a witness may fabricate evidence in order to gain a significant benefit for himself, whatever the nature of that benefit might be. I cannot accept that a jury would have any difficulty at all in fully appreciating the significance and relevance of the fact that a criminal might falsely implicate another in order to spend less time in gaol.
I do not believe that the jury had to be informed of such a matter under s 165(2). But if I were wrong in that view, it would have been well open to the trial judge to determine that there was a good reason, in the context of the trial and counsel’s addresses, not to inform the jury of that aspect of Braddick’s evidence because it would have been obvious to the jury and they would fully have appreciated its impact upon Braddick’s reliability. As Wood CJ at CL stated in R v JGW [1999] NSWCCA 116:
“Moreover, it remains the fact that where a danger, such as unreliability is obvious to the lay mind, the lack of any specific reference to it is diminished in its significance: Bromley (1986) 161 CLR 315 at 325.”
In any event, the trial judge in the present case did not fail to refer to the benefit received by Braddick during the summing up, even if he did so somewhat obliquely. As can be seen from the first passage that I have quoted from the summing up, at the very commencement of his discussion with the jury about the evidence of Braddick, Judge Garling referred to the circumstances in which the witness came to give evidence against the appellant. Although the trial judge did not mention the words “discount of sentence” or explicitly refer to the sentence of Braddick being reduced by reason of his undertaking, the jury must have understood that his Honour was referring to the discount given to Braddick by reason of his undertaking to give evidence against the appellant when the trial judge said:
“He was sentenced and as part of his sentence, it was taken into account as the law requires, he was going to give evidence in this trial.”
It was appropriate that his Honour remind the jury of the matter, but having made a reference to it there was really nothing more to be said in order that the jury would fully understood and appreciate its significance to the single issue in the trial. The fact that defence counsel at the trial did not raise the matter with the trial judge, indicates that he was satisfied that the jury appreciated the point.
It was submitted on the hearing of the appeal that the trial judge should have mentioned this matter when informing the jury as part of the accomplice warning. I do not believe there is any merit in the complaint. Normally it is preferable that a trial judge give the warning and the information under s 165(2) at the one place in the summing up: R v Richards (NSWCCA, 3 April 1998) at 7. But, as I have already indicated, the fact that Braddick received a discount was a separate consideration from the fact that his evidence might have been unreliable because he was an accomplice. In my view there was no error in this regard, particularly having regard to the brevity of the summing up.
For the same reasons that it was not necessary, in my view, that his Honour specifically refer to the sentencing discount, there was no possibility of a miscarriage of justice arising by his Honour’s failure to refer to the right of the Crown to appeal if Braddick had reneged on his undertaking. In the circumstances of this trial, that was not a matter about which his Honour was required to inform the jury when giving them the warning under s 165(2).
The following question and answer were given during cross-examination of Braddick:
“Q. Is it the case that someone has indicated to you today that if you did not come back into this Court and stick to what you told the police that you would be required to go back to court?
A. No I knew that before I came here today.”
It can be assumed that defence counsel addressed the jury on the consequences for Braddick if he had failed to give evidence implicating the accused as he had undertaken to do. There has been nothing placed before this Court to suggest that he did not address on this matter as would be expected in light of the question he asked. The single issue before the jury was whether they could accept the evidence of Braddick beyond reasonable doubt. I find it difficult to believe, without evidence being placed before this Court to the contrary, that a central platform in defence counsel’s address would not have been that Braddick had received a benefit for giving evidence implicating the appellant in the offence and that Braddick knew that, if he did not do so, he risked further punishment. I have little doubt that defence counsel would have placed great significance on the change in the nature of Braddick’s evidence after he was cross-examined by the Crown on the inconsistency between his initial evidence and the contents of the ERISP.
Provided that the consequences for the witness in failing to give evidence in accordance with his undertaking has been sufficiently placed before the jury so that they would understand the significance of the fact that a witness is still at risk of further punishment when giving evidence in the trial, I do not believe that the trial judge is always required to raise this matter with the jury and inform them of its relevance in order to ensure that a miscarriage of justice did not arise. Whether or not the failure to refer to the matter in the summing up gives rise to the possibility of a miscarriage of justice will depend upon the circumstances of the particular trial. In this case the summing up followed immediately after defence counsel’s address and there was a single issue before the jury: Braddick’s reliability when implicating the appellant in the offence.

I acknowledge that it is important that the jury understands that a witness, who has been given a sentence discount or some other benefit for giving evidence implicating an accused, has at the time of giving evidence before the jury an obligation to give such evidence on pain of further punishment. The jury should not be left to assume that the witness has no reason to give false evidence implicating the accused at the time of the trial. They should be made aware that the fact that the witness has been sentenced for his part in the offence did not necessarily diminish the likelihood that his evidence might be unreliable: Conway at [207].
There was some discussion during the hearing of the appeal as to whether the jury would have inferred from the question and answer that I have quoted above that Braddick was at risk of some sort of penalty if he failed to fulfil his undertaking. I accept that a jury could not be expected to know of the mechanism by which Braddick might be further punished if he did not fulfil the undertaking that he gave, unless they had been told of the right of the Crown to appeal during the course of the trial. In the absence of any evidence to the contrary, I would assume that at least one counsel, if not both, referred to the matter during his address.
In any event, the jury were made aware that Braddick risked having to return to court if he did not “stick to what he told the police”. The jury must have understood this to be a reference by defence counsel to Braddick’s undertaking to give evidence for the Crown in accordance with the ERISP. The jury knew that he had received a discount of his sentence because of the undertaking. In my opinion, they must have appreciated that, if Braddick were required to go back to court for failing to stick to what he told police, it was because he was going to be punished in some way for not fulfilling that undertaking.
In the present case the trial judge told the jury that an accomplice might feel committed to maintain the version that he gave to police implicating the accused. His Honour informed the jury that one of the matters which gave rise to the potential unreliability of an accomplice was that he may feel locked into the account he had given to police. I do not believe that it was essential that he go on to tell the jury why Braddick may feel locked into that account, if the jury were aware, as I believe they would have been, of the consequences for him if he did not give that account in evidence before them.
The comments made by his Honour about the evidence of Braddick were less than ideal, but that is not the test to be applied by this Court when determining whether a miscarriage of justice may have occurred. In my view there was no breach of the requirements of s 165(2)(b). Insofar as the trial judge may have failed to comment on matters relating to the reliability of the evidence of Braddick, no complaint was raised at the trial and rule 4 applies. Defence counsel must have understood the significance of the discount and the consequences of the failure of Braddick to fulfil his undertaking, yet he apparently accepted that, in the context of the evidence and his address, the summing up was fair to the appellant and the jury were sufficiently warned in relation to the evidence against him.
There was one matter concerning the warning given by his Honour which was not raised as a ground of complaint or in the written submissions filed on behalf of the appellant but which arose during the hearing of the appeal. Subsection 165(2)(c) requires the trial judge to “warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it”. During that part of his summing up dealing with Braddick as an accomplice his Honour said:
“My purpose in giving you this direction is only to warn you, that the evidence of an accomplice may be unreliable and for that reason alone, you must approach that evidence with considerable caution in the way which I will outline shortly.”
Thereafter his Honour went on to inform the jury of the reasons why the evidence of an accomplice might be unreliable. His Honour never did outline to the jury the way in which they were to approach the evidence with considerable caution.
At common law it was traditional to give a warning in terms that the jury was to “scrutinise the evidence with care”. This is the terms in which the directions in Murray, and Longman are framed. It was the warning given by the trial judge in Bromley. There appears to be three components to a warning to be given under the common law: the need for caution, the reason why caution is required and the way in which the caution is to be applied by the jury when assessing the suspect evidence. To borrow an analogy from Lord Devlin’s report on identification evidence, the warning is like a road sign that reads, “caution, slippery road, slow down”. It was presumably this third element of the warning to which his Honour was referring when he told the jury that he would outline the way in which they must approach the evidence with considerable caution.
However, s 165(4) states that no particular form of words is necessary when giving a warning under the section. Further, apart from requiring the jury to be made aware of the need for caution in assessing the evidence, s 165(2)(c) does not require that the judge tell them how to apply the warning. It seems to me that a warning to be given under the section is like a road sign that reads, “Caution, slippery road, be careful”. The warning does not tell the driver what specific action to take to meet the danger warned against. In my view, it is not necessary for a trial judge to say any more than his Honour did in order to comply with the section and to give a sufficient warning in the circumstances of this case.
Considering the summing up as a whole, I am unpersuaded that the jury did not adequately have brought to their attention those matters that were relevant to an assessment of Braddick’s reliability. In addition to the comments and warning that the trial judge gave because of Braddick’s status as an accomplice, his Honour reminded the jury of the following matters: that Braddick had lied on his oath in court (two references); that he had not fully told the truth to police (two references); that he had given inconsistent versions in his ERISP and in his evidence, that he was drunk on the evening; that he made accusations against the police that were denied by them in evidence before the jury; and that the jury should consider his demeanour and determine whether he was reluctant to “dob in a mate” as the Crown suggested or whether on the other hand he may be a “straight-out liar”.
I am not persuaded that the absence of a specific reference to the matter of the discount or his Honour’s omission to refer to the consequences for Braddick if he failed to give evidence in accordance with his undertaking resulted in a miscarriage of justice in the present case, having regard to the length and nature of the trial and the fact that the summing up followed directly after defence counsel’s address. The applicant should not be allowed to rely upon these matters in the absence of any complaint by counsel about the terms of the summing up or a request for any further directions at the trial. The other criticisms of the summing up have no foundation.
In my opinion the appeal against conviction should be dismissed.
Sentence
In relation to the application for leave against sentence I am of the view that the application should be refused. The complaint is effectively that having regard to the sentence imposed upon the appellant his Honour must have taken an overly serious view of the objective circumstances of the offence. There is no merit in that argument. This Court has frequently warned that it expects a strong stand to be taken in relation to home invasion offences: R v Blackman and Walters [2001] NSWCCA 121 at [31].
Although this was not the most serious offence of its type by any measure, the appellant and his co-offender armed themselves with weapons capable of inflicting serious harm on any person in the house who might resist their attempts to obtain money or other valuables. They could only have armed themselves on the basis that they realised some person might be at home and they were prepared to threaten violence if necessary. There was little mitigation from the fact, if it be so, that it was the appellant who reassured Aaron that he would not be hurt after he was threatened by Braddick: R v Speeding [2001] NSWCCA 105 at [24]-[25]. As the Crown pointed out in its submissions, this statement by the applicant could simply have been a ruse to lure the boy out of the locked bathroom and assist them to find money or valuables.
In my view there is nothing in his Honour’s remarks on sentence to indicate that he fell into error and, notwithstanding the appellant’s age and circumstances, the sentence was not manifestly excessive. It was in the correct proportion to the sentence imposed upon his co-offender having regard to Braddick’s plea, his assistance to the authorities in giving evidence against the appellant and the appellant’s more serious criminal record.
I propose that the application for leave to appeal against sentence be granted, but the appeal be dismissed.
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LAST UPDATED: 10/09/2001

[2001] NSWCCA 260

5 September 2001