R v Teasdale

[2004] NSWCCA 91

Reported Decision: 145 A Crim R 345

New South Wales

Court of Criminal Appeal

CITATION:	R v Teasdale [2004] NSWCCA 91
HEARING DATE(S):	15 March 2004
JUDGMENT DATE:	16 April 2004
JUDGMENT OF:	Tobias JA at 1; Adams J at 54; Smart AJ at 55
DECISION:	1. Appeal upheld; 2. Conviction and sentence quashed; 3. Verdict and judgment of acquittal entered
CATCHWORDS:	PRACTICE AND PROCEDURE - closing address to jury - where Crown invites jury to disbelieve witness evidence when no basis for making invitation - where no cross-examination of the witnesses the jury was invited to disbelieve - trial judge's duty to direct jury to ignore unsubstantiated and improper assertions - whether trial miscarried - s8(1) Criminal Appeal Act 1912 (NSW) - whether order for new trial appropriate - EVIDENCE - inviting jury to disbelieve witness's evidence with no basis for making invitation - no cross-examination of the witnesses the jury invited to disbelieve - s38 Evidence Act 1995 (NSW). - APPEAL - jury verdict - whether jury ought to have entertained reasonable doubt - whether unsafe or unsatisfactory verdict - whether evidence contained discrepancies or lacked probative force - whether significant possibility that innocent person convicted - s6(1) Criminal Appeal Act 1912 (NSW).
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Appeal Act 1912 (NSW); Evidence Act 1995 (NSW).
CASES CITED:	DPP (Nauru) v Fowler (1984) 154 CLR 627; Jones v The Queen (1997) 191 CLR 439; M v The Queen (1994) 181 CLR 487; R v Pedrana [2001] NSWCCA 66; R v Hasenkamp [1998] NSWSC 40; R v Kennedy [2000] NSWCCA 487; R v Kneebone (1999) 47 NSWLR 450; R v Stavrinos [2003] NSWCCA 339; R v Walton [1999] NSWCCA 452.
PARTIES :	Regina Brett Robert Teasdale
FILE NUMBER(S):	CCA 60420/03
COUNSEL:	A: P.D. Rosser R: M Grogan
SOLICITORS:	A: N Moir R: S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 02/31/0452
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

CCA 60420/03
DC 02/31/0452

TOBIAS JA
ADAMS J
SMART AJ

Friday 16 April 2004

REGINA v BRETT ROBERT TEASDALE

Judgment

1 TOBIAS JA: On 25 March 2003 the appellant, Brett Teasdale, pleaded not guilty before his Honour Judge Coolahan in the District Court at Newcastle to the charge that on or about 9 November 2001, at Hamilton in the State of New South Wales, he did inflict grievous bodily harm upon Ian Gregory Eggins (Mr Eggins). However, on 1 April 2003, after a five day trial, the jury returned a verdict of guilty. On 27 June 2003, the appellant was sentenced by his Honour Judge Williams to 18 months imprisonment commencing 27 June 2003 and suspended upon his entering into an 18 month good behaviour bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. The appellant appeals to this Court only against his conviction.

2 The Crown's case was that at about 12.35 am on 9 November 2001, at the Kent Hotel at Hamilton, the appellant threw a schooner glass at Mr Eggins, which struck him in the face causing serious injuries. At the time the appellant was an off-duty police officer who was present at the hotel with approximately ten to twelve other off-duty police officers.

3 The Crown called five witnesses who gave evidence that they saw who threw the glass. Each of Mr Eggins, his friend Mr Geoffrey Douglas, his sister Ms Tracey Eggins and a Mr Wheeler (who was an independent witness in that he knew none of those involved) was able to describe that person but was not able to identify him as the appellant from a visual identification procedure conducted some months later. The only witness who was able to identify the appellant as the person who threw the glass on the evening in question was Mr Dane Foster who knew the appellant from having grown up with him in the same area and, more particularly, because the appellant had arrested him the month before the subject incident on a charge of drink/driving. I shall return to these witnesses' evidence later in these reasons.

4 The Crown also called Mr Joseph Archibald, Mr Lee Upton and Mr Wayne Mills, all friends of Mr Eggins. However, none of them saw the person who threw the glass.

5 The Crown then called nine off-duty police officers who were present at the hotel in the company of the appellant. None of these witnesses saw who threw the glass at Mr Eggins. However, one of the officers, Constable Sarah Armstrong, gave evidence which, if accepted by the jury, was exculpatory of the appellant.

6 Finally, the Crown called a Mr Luke Hofman who was not a police officer but was a good friend of the appellant. He did not see who threw the glass but he also gave evidence consistent with that of Constable Armstrong which, if accepted by the jury, was exculpatory of the appellant. Indeed, in his summing up, the trial judge said of this evidence:

"If you were to accept the evidence of either Mr Hofman or Constable Armstrong, you might think it would certainly rule out the accused as being a person who was responsible for the throwing of the glass."

7 It was accepted by the Crown, the appellant and the trial judge that the crucial witness at the trial was Mr Foster. He was the only witness who said that he saw the appellant (whom he knew and recognised) throw the glass. As I have observed, four of the witnesses (including Mr Eggins) were able to describe the person who threw the glass but none were able to identify the appellant as that person. However, they generally gave descriptions which were consistent with the appellant's appearance on the evening in question. Those witnesses, apart from Mr Wheeler, were associated with the victim, Mr Eggins. All the other witnesses could be said to be associated with the appellant although none of the eight off-duty police officers called by the Crown observed the glass being thrown, they did give evidence of an incident occurring at the hotel on the night in question.

8 It is apparent from the foregoing that the evidence before the jury could be summarised as follows. Only Mr Foster saw the appellant throw the glass that struck Mr Eggins. Three other witness associated with Mr Eggins gave evidence describing the glass thrower but were unable to identify that person as the appellant. Mr Wheeler, who was an independent witness, was also able to describe the glass thrower but, again, was unable to identify that person as the appellant. Constable Armstrong and Mr Hofman, who were associated with the appellant, gave evidence that was exculpatory of him although neither saw the glass being thrown. None of the eight other witnesses, who were off-duty police officers and therefore associated with the appellant, saw the glass being thrown. It was in that context that the Crown's case hinged entirely upon the jury's acceptance beyond reasonable doubt of the credibility and reliability of Mr Foster and, in particular, the truth and accuracy of his identification of the appellant as the glass thrower.

9 It is with that perspective in mind that I turn to the first ground of appeal.

Ground 1: The trial miscarried by reason of comments by the Crown Prosecutor in his final address

10 Early in his final address to the jury the Crown Prosecutor, having stated that the real issue was the identity of the person who threw the glass, sought to pour scorn on the fact that nine off-duty police officers had not observed the glass being thrown. He said this:

"Well as I said, you might have wondered near the end of last week whether the glass did materialise in thin air and suddenly appear in Mr Eggins' face because by the time that we had called nine off-duty police officers and the accused himself had given evidence which totals about ten, no one saw the glass thrown.
We sat through a very boring State election campaign where it seems to be that everyone debates the need for additional police officers, it becomes like an auction. Someone says let's get a thousand more, and then the Labour Party says let's get 1500 more and then the Liberals say get 2000 more, well that would be fantastic, because if we had another say 2000 police in the Kent Hotel that night, we'd probably have 2000 who didn't see a glass thrown. I mean what are they teaching down there in that academy, brilliant observational police who can't see anything happen?
Almost all the civilians who were called in this trial, whether they be Mr Ian Eggins' group or not and Dane Foster wasn't with Mr Eggins nor was Matthew Wheeler. Somehow they seen it's their glass thrown. Maybe their benefit was they'd never been to the Goulburn Academy for 12 months. Also these police seem to have a unique ability to witness assaults on fellow police but don't seem to be able to witness assaults on anybody else. They can see headbutts on their officers without any problem, and they can see punches to the head on their own officers, no problem there, they can even see punches on themselves, but if it's on anyone else who, not an off-duty police officer, or wearing a uniform, we just can't see it, what's going on. …"

11 Having informed the jury that the Crown was obliged to call all witnesses who had relevant evidence to give irrespective of where their allegiances lay and that that was the reason why the off-duty police officers had been called, the Crown Prosecutor then invited the jury to assess those witnesses and decide who was and was not truthful. He asked, perhaps rhetorically,

"Why was it that none of them were able to see that glass?"

12 The Crown Prosecutor then referred to some of their evidence and, in particular, to evidence that they "just weren't interested". He then said this:

"Was there some agreement at the Station Hotel [to which some of the witnesses had proceeded after leaving the Kent Hotel] that no-one would see the glass? We won't take any prosecutions against anyone who assaulted us, because we don't want it to raise, let's hope it all just gets buried, disappears."

13 Having then informed the jury that his role was merely to "put some ideas and to make my submissions to you", the Crown Prosecutor then said to the jury:

"You might decide that all the police were completely truthful in this matter and that none of them did see anything. Indeed you might think that they established the accused couldn't possibly be guilty of this matter. That's a matter solely and wholly for you."

14 He then sought to explain in the following terms why he had criticised the evidence of the off-duty police officers:

"Let me make it clear in criticising the police or raising those issues to you. This isn't a royal commission into the police service at Lake Macquarie, nor is it some enquiry into police conduct. The only thing you're here to decide is whether the Crown has proved a case beyond reasonable doubt against the accused for the offence that is alleged, so it's important not to get too wound up in looking at the police behaviour, but where it becomes important is if you're going to rely on any of that police evidence to have a reasonable doubt in this matter. Don't just take what all of those police officers said, accept it completely and go, oh well I must have a reasonable doubt based on that because none of them saw the accused do it, in fact if you believe Sarah Armstrong, he couldn't have done it, or his friend Luke Hofman, he couldn't have done it either. Analyse that evidence carefully before you decide that that causes you to have a reasonable doubt."

15 Towards the end of his address, the Crown Prosecutor again referred to the "police evidence generally" as if it was seeking to create an impression that there was some great brawl in the hotel after the incident involving up to 15 Aboriginals and that that impression was intended by those who gave that evidence to establish that Mr Eggins and his friends were the troublemakers and that they essentially got what they deserved. He then said:

"It was some big brawl that none of the police wanted to be involved in and they really weren't responsible for anything."

16 The Crown Prosecutor then referred to Mr Foster's evidence and suggested that the off-duty police witnesses could not really assist the jury at all. After some further references to the evidence of Mr Eggins, Mr Douglas and Mr Andrews and, having suggested that Mr Andrews (an off-duty police officer) had failed to ask Mr Douglas who threw the glass and otherwise to assist in identifying Mr Eggins' assailant, his concluding remarks to the jury included the following assertion:

"They didn't want you members of the jury to find out who it was who threw that glass, but fortunately members of the jury, Dane Foster saw it. In my submission to you members of the jury, you should accept his evidence beyond a reasonable doubt."

17 It is patently clear from the Crown Prosecutor's final address to the jury that he was asserting that there was a conspiracy of silence between the off-duty police witnesses to protect the appellant because he was guilty of the offence charged. It was, as the appellant submitted, an attack upon a class of people by reason of their membership of that class and of which the appellant was also a member. His comments about their selective lack of observational skills notwithstanding their training, whereby they were able to witness assaults on fellow police officers but not by one of their own upon Mr Eggins, as well as his assertion that they did not wish the jury to find out who threw the glass, permits of no other interpretation.

18 Furthermore, having suggested at one point that the police witnesses could not really assist, the Crown Prosecutor then invited the jury to disbelieve those witnesses when they had said, on oath, that they did not see the glass being thrown. In other words, he was clearly inviting the jury to disbelieve that evidence. The problem, however, was that the Crown Prosecutor had not provided any basis for the making of such an assertion.

19 Because Constable Armstrong and Mr Hofman had given evidence exculpatory of the appellant, the Crown Prosecutor had legitimately sought and obtained the leave of the trial judge pursuant to s 38 of the Evidence Act to cross-examine those witnesses. However, no such application was made with respect to the other eight off-duty police witnesses who were the subject of the Crown Prosecutor's scathing remarks. It follows that those witnesses were never afforded the opportunity to answer the allegation made by the Crown Prosecutor in his final address that they were not telling the truth when they said that they did not see the glass being thrown but were deliberately seeking, and conspiring with each other, to protect the appellant in circumstances where to their knowledge he was plainly guilty of the offence charged.

20 It is well established that the Crown Prosecutor has a responsibility to present the Crown case properly and fairly. The relevant authorities are collected by Greg James J, with whom Spigelman CJ agreed, in R v Kneebone (1999) 47 NSWLR 450 at 457-460 which was applied by this Court in R v Walton [1999] NSWCCA 452 and R v Kennedy [2000] NSWCCA 487. The present case is similar to that of Kennedy.

21 In Kennedy, a witness was called in the Crown case and, in his address, the Crown Prosecutor asserted that the witness was endeavouring to protect the accused and doing her best to look after his interests. However, the Crown Prosecutor did not put any questions to the witness that would have afforded her the opportunity to answer that suggestion. Like the present case, the Crown had not sought to lay any groundwork for questioning the veracity of the witness by making an application under s 38 of the Evidence Act. In these circumstances, it was held that the Crown Prosecutor's conduct amounted to a serious irregularity.

22 Studdert J, with whom Heydon JA and Greg James J agreed, stated the position in the following terms ([37]):

"There can be no question but that the Crown Prosecutor had a responsibility to present the Crown case properly and fairly. Unfortunately what the Crown Prosecutor did in relation to this appellant required that the witness should have been afforded the opportunity to address the substance of the critical submissions later made to the jury. Since the Crown Prosecutor did not afford the witness the opportunity to meet these assertions later put to the jury, there was no justification for their being made."

23 In my opinion, the Crown Prosecutor's conduct in asserting in his final address to the jury that the off-duty police officers whom he had called in Crown case had, in essence, conspired to give evidence to the effect that none of them had seen the glass thrown let alone the person who had thrown it, is such as to require this Court's most severe disapproval. His conduct was exacerbated by the fact that, when making application for leave to cross-examine Mr Hofman, the Crown Prosecutor expressly referred to Kennedy and said to the trial judge:

" Kennedy's case was the one that talked about it being an abuse by a Crown Prosecutor in submitting to the jury at the end of the trial to be critical of a witness or effectively accuse a witness of being untruthful without giving them the opportunity to deny the allegation put to them."

He then informed his Honour that it was his intention to be critical of Mr Hofman in his closing address to the jury and to submit that they should reject his evidence.

24 What he said was further exacerbated by his assertion that even if another 2000 police had been at the Kent Hotel that night, none of them would have seen the glass being thrown. The Crown Prosecutor, in the passage extracted in [14] above, clearly acknowledged that it was open to the jury on the basis of the off-duty police evidence, to entertain a reasonable doubt as to whether or not the appellant threw the glass. It is readily apparent that it was in order to negate that doubt that he asserted to the jury that they should, in effect, disbelieve the evidence of the off-duty police officers concerned upon the basis that they had conspired to close their eyes to the truth in order to protect their colleague, the appellant.

25 By including Constable Armstrong in the passage referred to, the Crown Prosecutor was also asking the jury to disbelieve her evidence which, he acknowledged, was exculpatory of the appellant upon the implicit basis that she also, like her fellow off-duty police officers, was involved in the conspiracy. She had been cross-examined by him to suggest such a conspiracy but the others had not. It is true that Mr Hofman was not a police officer but, as the Crown Prosecutor made clear, he was a friend of the appellant and he was also included, by association, in the alleged delinquency of the other off-duty police officer witnesses.

26 In my respectful opinion, the trial judge should, at the very least, have made it clear in his directions to the jury that they were to ignore the Crown Prosecutor's unsubstantiated and improper assertions. Regrettably, he did not do so. If anything, he left the door open for the jury to take those matters into account. In his summing up, after referring by name to the off-duty police officers who gave evidence as well as, and in particular, to that of Constable Armstrong and Mr Hofman, the trial judge said this:

"At the very least, Mr Moir says their evidence would cause you, apart from anything else, to have a reasonable doubt about whether it was Mr Teasdale who threw the glass. The Crown, of course, has said to you, well you just would not accept the evidence of any of these police officers. They were not doing their best to tell you the truth. But, can I say this members of the jury whether or not you accept the evidence of these police officers you might think has little bearing on the issues in this case I say that for this reason. Even if you were not to accept the evidence of the police officers, you cannot use that fact to plug up any gaps that might exist in the Crown case."

27 His Honour then referred to the "ultimate issue in" the case being

"whether or not you are satisfied beyond reasonable doubt that Mr Foster was an honest and accurate witness"

following which he suggested to the jury that apart from Constable Armstrong, the evidence of the off-duty police officers would not assist them on that issue. However, he then continued in these terms:

"Even if you were to come to a conclusion they were covering up for someone, which as I understand it by inference the Crown invites you conclude, you would not be able to say that they were covering up for the accused. That would be speculation and you are not entitled to speculate in this case."

28 In my opinion, the trial judge erred in failing to direct the jury in unequivocal terms that they were to ignore the assertion by the Crown that the off-duty police witnesses (other than Constable Armstrong) were not doing their best to tell the truth and that they were covering up for the appellant. Although he sought to reduce the impact of the Crown Prosecutor's remarks on this issue, he kept them alive, for instance, by directing the jury that even if they considered that those witnesses were covering up for someone, they could not say that they were covering up for the accused. He suggested that that would be speculation. However, it seems to me that it was open to the jury to consider that it was not speculative to conclude that those witnesses, if they were not telling the truth, were covering up for the appellant. Who else would they be covering up for in giving evidence of not having seen the glass being thrown?

29 The regrettable fact is that the trial judge should have directed the jury to ignore the Crown Prosecutor's assertion that the witnesses in question were not doing their best to tell the truth and were covering up for the appellant because there was no proper basis upon which such an assertion could have been made. The trial judge did not do this. In my opinion his failure to do so, when taken in conjunction with the language employed by the Crown Prosecutor, resulted in the trial miscarrying.

30 It was common ground that the appellant's legal representative at the trial had failed to object to this aspect of the Crown Prosecutor's address; nor had he sought any direction or redirection from the trial judge with respect thereto. Accordingly, r 4 requires the leave of this Court to rely on this ground of appeal. In my opinion that leave should be granted and this ground of appeal should be upheld.

Ground 2: The verdict of guilty constituted a miscarriage of justice in that the jury ought in all the circumstances to have entertained a reasonable doubt.

31 In support of this ground the appellant submitted that there was such a discrepancy between the evidence of Messrs Wheeler, Douglas and Ms Higgins on the one hand and that of Mr Foster on the other, that the jury must have had a reasonable doubt as to the accuracy of Mr Foster's identification of the appellant as the glass thrower.

32 In his evidence, Mr Foster said that he had seen the appellant with a large dark-skinned man engaged in an argument. He observed them from a couple of metres away as they were yelling at each other. He then saw the appellant pick up a schooner glass from the table in front of him and throw it at the person with whom he was having the argument, the glass striking the latter in the face. In cross-examination he said that the argument between the appellant and the other person went on for a couple of minutes prior to the throwing of the glass.

33 This evidence was in stark contrast to that of a number of other witnesses. The victim, Mr Eggins, had said that he had seen his cousin, Mr Archibald, arguing with another man whom he had never seen before. He (Mr Eggins) was standing about one to two metres from them. He went over and pulled his cousin away telling him "don't worry about it, just walk away". Mr Archibald was then pushed onto Mr Eggins who then turned around, looked up and was hit in the face with the schooner glass. He described the glass thrower (although he had only caught a glimpse of him before he was hit) and, in cross-examination, denied that he had been in an argument with him or anyone else prior to being struck. Furthermore, he did not suggest that the glass thrower was the person with whom Mr Archibald had been arguing.

34 Mr Douglas was standing with Mr Eggins. He observed Mr Archibald having a "bit of a discussion" with another man. He saw Mr Eggins walk over to see what was happening and observed another person come across and push Mr Archibald onto Mr Eggins. As Mr Eggins turned around he was hit with the glass. He said the person who threw the glass was as far away from Mr Eggins as the length of the jury box. In cross-examination he agreed that the glass was thrown a distance of approximately five to six metres and over the top of a number of people standing between the person throwing the glass and Mr Eggins. He also denied that the glass thrower was "involved" with Mr Eggins prior to the glass being thrown or that he was the person arguing with Mr Archibald.

35 Tracey Eggins (Mr Eggins' sister) gave similar evidence. She observed Mr Archibald arguing with another man and Mr Eggins going over to him and telling him to settle down and to move away. She then saw Mr Archibald move out of the way and then saw a person (not being the person with whom Mr Archibald had been arguing) pick up a glass and throw it at Mr Eggins (who was about four metres away from the glass thrower), hitting him in the face. In cross-examination she agreed that there were about ten people between the person throwing the glass and Mr Eggins and that the glass went over the top of the people between them.

36 Mr Archibald gave similar evidence. He referred to an argument between himself and another man whom he described. He recollected his cousin, Mr Eggins, coming over and grabbing him on the shoulder. He turned around to walk off with Mr Eggins and was pushed in the back causing him to fall to the floor. He did not see the glass being thrown.

37 Of particular importance is the evidence of Mr Wheeler. Of all the witnesses that were called, he was the only one who, apparently, had not been drinking that evening. He had a "birds-eye view" of the events that unfolded as he was 6'7" tall. At around 1.00 a.m. he observed a group of five to six Aboriginals arguing with a group of eight to ten people whom he described as white Australian. The two groups were within five metres of each other. He then observed one of the white Australian males turn from the disturbance, walk one to two metres to a table, pick up a glass, walk back to the group and then throw it. In cross-examination he said that the distance from the point where the glass was thrown to the person who was hit (Mr Eggins) was three to four metres. He further agreed that the glass "pretty much" went over the top of the people to reach its target.

38 The discrepancies between the evidence of Mr Foster on the one hand, and that of the other witnesses referred to above on the other, is readily apparent. It is clear that the evidence of those witnesses, Mr Eggins, Ms Eggins, Mr Archibald and, in particular, Mr Wheeler was in significant respects inconsistent with that of Mr Foster. On the basis of that evidence it would certainly have been open to the jury to have a reasonable doubt about accepting Mr Foster's evidence as accurate. That doubt could have been enhanced by their acceptance of the exculpatory evidence of Constable Armstrong and Mr Hofman. The question is, ought they to have entertained that doubt?

39 It is now well established that the power of this Court to set aside a verdict on the ground that it is unsafe or unsatisfactory in the context of s 6(1) Criminal Appeal Act 1912 was authoritatively explained by the majority judges of the High Court in M v The Queen (1994) 181 CLR 487 at 492-493. Their Honours said that although the phrase "unsafe or unsatisfactory" does not appear in s 6, it allows a verdict to be set aside where it is unreasonable or not supportable on the evidence.

40 In Jones v The Queen (1997) 191 CLR 439 at 450-451, Gaudron, McHugh and Gummow JJ, on the basis of the majority decision in M, explained the test for determining whether a verdict is unsafe or unsatisfactory in these terms (citations omitted):

"In M , Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'
The majority judges explained the application of the test as follows:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' "

41 It was submitted by the Crown that the issues raised by the differences between the evidence of Mr Foster on the one hand and that of Messrs Eggins, Archibald, Douglas, Wheeler and Ms Eggins on the other were quintessentially matters for the jury to resolve. The legal representative for the appellant at the trial referred to these matters in his final address to the jury and of the necessity, emphasised on a number of occasions by the trial judge in his summing up, that they had to be satisfied beyond reasonable doubt that Mr Foster was an honest and accurate witness. It was thus submitted that the jury's verdict when taken in the context of the repeated directions of the trial judge in his summing up, made it clear that they were satisfied beyond reasonable doubt that Mr Foster was, indeed, an honest and accurate witness.

42 As the majority judges explained in M, it would only be where the evidence of Mr Foster lacked creditability for reasons which were not explained by the manner in which it was given, that a reasonable doubt which this Court might experience would also be one which a jury ought to have experienced. Accordingly, it is only if the evidence to which I have referred contained such discrepancies or otherwise so lacked probative force as to lead this Court to conclude that there was a significant possibility that an innocent person had been convicted, that this Court would be entitled to interfere and set the verdict aside.

43 After giving the matter due consideration, and making full allowance for the advantages enjoyed by the jury in seeing and hearing the witnesses, I have come to the conclusion that the evidence to which I have referred contains discrepancies and displays inadequacies such that, in my opinion, there is a significant possibility that an innocent person has been convicted. I have formed this view independently of, and without reference to, the serious irregularity constituted by the Crown Prosecutor's final address with respect to the evidence of the off-duty police witnesses which may well have influenced the jury on the very issue under discussion.

44 A reading of the cross-examination of these witnesses makes it clear that each adhered to what they said they observed and, in particular, that Mr Eggins was not arguing with the glass thrower immediately prior to the glass being thrown. In other words, there was no prior confrontation between them as suggested by Mr Foster. Nor was anything said by the Crown Prosecutor in his final address to the jury to suggest that there was something in the demeanour of these witnesses which would persuade the jury to accept Mr Foster's version of events over theirs.

45 It follows from the foregoing that the second ground of appeal should be upheld.

Conclusion

46 The effect of upholding the second ground of appeal is that the conviction and sentence must be quashed and a verdict and judgment of acquittal entered. However, even if that ground of appeal had not succeeded, I would not have ordered a new trial as a consequence of upholding the first ground of appeal.

47 Section 8(1) of the Criminal Appeal Act 1912 provides the power to order a new trial. In exercising the discretion to which that section refers it is necessary to have regard to "all the circumstances": DPP (Nauru) v Fowler (1984) 154 CLR 627 at 630. The relevant principle was recently restated by Ipp AJA (as he then was), with whom Wood CJ at CL agreed, in Regina v Pedrana [2001] NSWCCA at 66 where his Honour said [14]:

"Where, on this basis, a Court of Criminal Appeal determines that an appellant is entitled to a new trial, it may then be required to address the discretionary question whether an acquittal should be ordered. This would depend on whether any circumstances exist that might render it unjust to the appellant to make him or her stand trial again (remembering, however, that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused): King v The Queen at 427 and 433; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630. Should the interests of justice require that an appellant not stand trial again, the Court, as a matter of discretion, will enter a verdict of acquittal: Spies v The Queen (2000) 74 ALJR 1263 at 1283."

48 In Walton and Kennedy, one of the features that influenced this Court not to order a new trial was that the first trial had miscarried because of the Crown Prosecutor's conduct at trial. So in this case, it is the conduct of the Crown Prosecutor that has caused the trial to miscarry. That conduct was, as I have observed, directed to negativing any reasonable doubt the jury may otherwise have had in accepting the truth and accuracy of Mr Foster's evidence upon which the Crown's case either succeeded or failed. Given the important discrepancies between the evidence of Mr Foster on the one hand and that of Ms Eggins and Messrs. Eggins, Douglas, Wheeler and Archibald on the other, to which I have referred to above in dealing with the second ground of appeal, the impugned conduct of the Crown Prosecutor took on an even more critical dimension with respect to the issue of the jury's acceptance of the evidence of Mr Foster beyond reasonable doubt.

49 The events in question took place on 9 November 2001 and it is now 12 months since the trial. From a reading of the transcript it would appear that the evidence of the witnesses at the trial, at least to some extent, was affected by the lapse of time between November 2001 and March 2003. Furthermore, apart from Mr Wheeler, all the witnesses at the trial were affected by alcohol to some degree on the night in question. Their memories are unlikely to have improved by the time of any new trial and their recollections of the night in question are of critical importance. In any event it could hardly be said that the Crown's case was of overwhelming strength given the discrepancies in the evidence to which I have referred.

50 Furthermore, it has been a long-standing practice of this Court not to exercise the discretion to order a new trial when the sentence imposed as a result of the quashed conviction has been served: R v Hasenkamp [1998] NSWSC 40. So also, in the absence of special circumstances (and there are none here) where a suspended sentence has been imposed at the first trial.

51 In the present case, the appellant was sentenced to 18 months imprisonment which was suspended upon his entering into a bond to be of good behaviour under s 12 Crimes (Sentencing Procedure)Act, the sentence to date from 27 June 2003. Half of that 18 month period has now expired: cf R v Stavrinos [2003] NSWCCA 339 at [21], [25]. When that fact is taken in conjunction with the other matters to which I have referred, it seems to me that the interests of justice do not require the appellant to stand trial again.

52 Accordingly, when one considers all the relevant facts and circumstances including the personal considerations of the appellant and the overall justice of the case as well as the fair and impartial administration of justice, I would not as a matter of discretion order a new trial but would enter a verdict of acquittal.

53 I would therefore propose that the appeal be upheld, the conviction and sentence quashed and a verdict and judgment of acquittal entered.

54 ADAMS J: I agree with Tobias JA.

55 SMART AJ: I agree with Tobias JA.

**********

Last Modified: 04/23/2004