R v Toai Siulai - [2004] NSWCCA 152

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Toai Siulai [2004] NSWCCA 152

FILE NUMBER(S):
60385/03

HEARING DATE(S): 29/03/04

JUDGMENT DATE: 14/05/2004

PARTIES:
Regina
Toai Tess Siulai

JUDGMENT OF: Sperling J Kirby J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/31/0400

LOWER COURT JUDICIAL OFFICER: Latham DCJ

COUNSEL:
P G Ingram/M Seymour (Crown/Resp)
S Kluss (Appl)

SOLICITORS:
S Kavanagh (Crown/Resp)
R Hill (Appl)

CATCHWORDS:
Criminal Practice & Procedure
admissibility of Alibi Notice
lies
whether consciousness of guilt or credibility
whether notice should have been excluded
directions on lies
Rule 4
forensic advantage.

LEGISLATION CITED:
Evidence Act 1995
Crimes Act 1990
Criminal Appeal Act 1912
Criminal Procedure Act 1986

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60385/03
SPERLING J
KIRBY J
BELL J
Friday 14 May 2004

REGINA v Toai Tess SIULAI

Judgment

SPERLING J: The course of the trial is set out in Kirby J’s judgment.
Counsel objected to the tender of the alibi notice. In her judgment given on 14 August, her Honour decided that the notice should be admitted as evidence going to the credit of the accused, but not as evidence of consciousness of guilt. That, however, was on the understanding that the accused would both be giving evidence.
Immediately following the judgment, counsel said he could give no assurance that the accused would be called. Her Honour’s response was that, if the accused were not called, the jury would be instructed that the notice could be used as evidence of consciousness of guilt.
When the time came for tender of the notice, counsel said that at least one of the accused would be called. That left open the possibility that one would not. It was in these circumstances that her Honour then admitted the notice into evidence but deferred the question of what directions the jury would be given concerning its use.
In the event, Solomon Siulai, the appellant’s co-accused, gave evidence. The appellant did not.
No further submissions in relation to the alibi notice were made or invited before the summing-up.
It is apparent from the summing-up that her Honour had, by then, decided not to direct the jury that the alibi notice could be used as evidence of consciousness of guilt on the part of either of the accused, notwithstanding that the appellant had not been called. It is also apparent from the summing-up that her Honour believed that, having so decided, a direction of the kind referred to in Zoneff(2000) 200 CLR 234 would be appropriate.
Ground 1: The alibi notice should have been excluded
The relevant question is, of course, whether the notice should not have been admitted in the Crown case against the appellant.
I agree with Kirby J’s view that the notice was admissible as evidence of consciousness of guilt and ought to have been so admitted, with the usual Edwards directions. However, that does not justify the admission of the notice into evidence because it was a use which her Honour ultimately intended should not be left to the jury for consideration.
However, as Kirby J has said, the alibi notice was relevant and admissible as to credit. Solomon Siulai gave evidence in answer to the Crown case which was not only evidence in his own case, but also evidence in the appellant’s case. It was evidence on which the appellant relied for a different version of events. Solomon Siulai’s evidence was that he was present, but innocently. It followed that the notice was admissible against him pursuant to s106 of the Evidence Act 1995 because the notice was capable of being construed as a statement that he was not present at all.
As for the appellant, he did not give evidence but he had told the police, when interviewed, that he had no involvement and could not tell the police anything. The jury were entitled to treat that as evidence of innocence. The alibi notice was then relevant and admissible against him, pursuant to s108A of the Evidence Act, as going to his credit in relation to what he said to the police.
It is Kirby J’s opinion that, if the notice was not to be used as evidence of consciousness of guilt, her Honour was bound to exclude the notice altogether in the exercise of her discretion because of the risk that the jury might, unprompted, use the notice as evidence of consciousness of guilt without having received the full Edwards directions in that regard.
I assume, without deciding, that there was error in this regard.
I then note that, at no stage, either before or at the time of the admission into evidence of the notice, did counsel submit that the notice should not be admitted, even on the limited basis, because of such a risk.
The explanation for no submission having been made along those lines is obvious enough. Any such submission could well have precipitated a decision by her Honour that, irrespective of whether the accused or either of them gave evidence, the notice should be admitted as evidence of consciousness of guilt. That was a substantial risk. Not making the submission is explicable as a tactical decision by counsel. (The wisdom of the decision is borne out by what then occurred. The notice was not left to the jury explicitly as evidence of consciousness of guilt, even against the appellant, who did not give evidence, as it should have been and as might well have occurred if the submission had been made.)
There can have been no substantial miscarriage of justice by reason of the alibi notice having gone into evidence. The Crown case was overwhelming apart altogether from whatever use the jury might have made of the notice. Mr Stephen’s evidence was credible. Those respects in which it was shown to be inaccurate were not significant. The evidence of the 000 call was compelling. By contrast, Solomon Siulai’s account of events was absurd, as Kirby J has explained. Mr Young was discredited.
Kirby J has explained the limited way in which the alibi notice might have been misused as evidence of consciousness of guilt due to lack of the full Edwards directions.
In these circumstances, the admission of the alibi notice into evidence cannot have resulted in the appellant losing a chance of acquittal.
Rule 4 applies. Having regard to the foregoing considerations, leave should not be given to mount this argument on appeal.
There was no other reasonably arguable basis on which it could be said that the notice should have been excluded.
For these reasons, Ground 1 fails.
Ground 2: Her Honour erred in the directions given concerning the use to which the jury should put the evidence of the alibi notice and of denials of guilt by the accused
It was common ground on the hearing of the appeal that, because her Honour did not intend to leave the alibi notice to the jury for consideration as evidence of consciousness of guilt, the appropriate direction was that proposed by the High Court in Zoneff.
I agree, for the reasons given by Kirby J, that the directions given by her Honour did not conform in all respects with the model direction proposed in that case and that the departure constituted error.
However, I agree with Kirby J's opinion that leave to argue this ground of appeal should also be refused under r4, no redirection having been sought and there being no reasonable prospect that the result might have been different but for the error.

Ground 2 fails.
Result
For the foregoing reasons, I agree that the appeal should be dismissed.
KIRBY J: On 12 August 2002, Toai Siulai (the appellant) and his brother, Solomon Siulai, stood trial before Latham DCJ and a jury upon the following charges:
"Count 1: On 4 August 2001 at Mayfield ... he did break and enter the dwelling house ... and whilst therein did commit a serious indictable offence, namely steal ... in circumstances of aggravation in that at the time of the offence Solomon Siulai and Toai Tess Siulai were in the company of another person whose identity is unknown. (s112(2) Crimes Act 1900)
Count 2: On 4 August 2001 at Mayfield ... being in the company of another person whose identity is unknown he did assault Jim Lea Stephens with intent to rob him. (s97 Crimes Act 1990)"
Both the appellant and his brother pleaded not guilty to each charge. On 20 August 2002 the jury returned verdicts of guilty against both accused on both counts.
In the course of evidence an Alibi Notice was admitted against each accused (Exhibit J). The Grounds of Appeal by the appellant relate to that notice. They are:
1.The alibi notice, exhibit J, should in all the circumstances of the case (have) been excluded.
2.Her Honour erred in directions and the use to which the jury should put evidence as to the alibi notice and denials of guilt by the accused.
The Crown asserted that, even were the Court to find error, there had been no miscarriage of justice. The proviso under s6(1) Criminal Appeal Act 1912 should be applied.
The Crown Case.
Mr Jim Stephens and his daughters occupied part of a house in Mayfield. The house had been divided into units. At the rear of the premises there was a separate building, which had been converted into a further unit, which was occupied by Mr Earl Young.
On the evening of 4 August 2002, Mr Stephens was watching television. At about 11.40 pm he heard a knock at the door. He asked who was there and heard a muffled reply. He then opened the door and was confronted by three men. They forced their way into the house.
Mr Stephens said that he recognised one of the men. He described him as "an islander", and knew him as Toai. Mr Stephens said this: (T40)
"Q. How many times had you seen him before?
A. A few occasions. My daughter was friends with a little girl down the road and I think they were related somehow because he was usually there."
The second man was also "an islander", Toai's brother, Solomon. The third man was caucasian. He was smaller and had tattoos. According to Mr Stephens, Toai pushed him to the door of his bedroom. He then demanded drugs and money. Mr Stephens said that his immediate concern was for the safety of his daughters. He told the men that his wallet was downstairs in his car (although in fact he had no car).
The group then moved downstairs. Mr Stephens said that he was dragged by the shirt. The appellant and his brother were much bigger men. As he was passing the entrance to Mr Young's unit, Mr Young emerged. In cross examination Mr Stephens acknowledged that he may have knocked on his door. When Mr Young emerged he was holding a long screwdriver. According to Mr Stephens, Solomon Siulai told Mr Young to mind his own business. At the same time he took hold of the screwdriver, whereupon Mr Young retreated, shutting the door behind him.
According to Mr Stephens he then told his assailants that there was money in the laundry. The group moved towards the laundry, at which point Solomon Siulai held Mr Stephens with the screwdriver at his throat. However, at that moment the appellant said that someone was coming. The three then fled. Mr Stephens immediately escaped by jumping through a louvred window. Some of the louvres were broken as he did so.
Mr Stephens said that he ran down the street. From a position about four houses away, he hid under a trailer. He then rang 000. The transcript of that call was an exhibit (Exhibit A). The terms of the call were entirely consistent with Mr Stephens' account. He was whispering and in obvious fear. The transcript included the following:
"S.          Big tall kiwi blokes, one about 6 foot odd and one about 5 foot odd and one's Australian.
F.            Have you ever seen them before?
S.            Yes
F.            So you know them do you?
S.            Yes.
F.            OK. Are they after what money or something from you?
S.            Yes, yes."
Within ten minutes a number of police arrived. A search was made of the house to determine whether anything was missing. Two mobile phones had been taken. Mr Stephens gave a brief account to one police officer of what had happened. He later provided a more detailed statement.
Later that evening, after the police had left, Mr Stephens heard someone at the front of his house. The person yelled out: "Dog, don't go to the police". Mr Stephens said that he was terrified. He again complained to the police.
On 13 October 2001 Mr Stephens was shown a series of photographs. They included the appellant, whom he identified. On 19 October 2001 he was shown further photographs. He identified Solomon Siulai.
The Crown case depended upon an acceptance of Mr Stephens' evidence. He was cross examined at some length. In various ways, mostly minor, he departed from statements made to the police shortly after the incident. He said, for instance, that at one point the three men were in his bedroom, having entered his flat, whereas his account before the jury suggested that only the appellant was in the bedroom, just inside the threshold. More importantly, Mr Stephens said to a police officer on the night of the incident that, having been marched downstairs, he was "forced against the vehicle" in the carpark with a 12 inch screwdriver against his throat. His account before the jury suggested that the assault with the screwdriver occurred inside the premises. It had not involved a car.
The daughters of Mr Stephens were called. They did not add greatly to the picture. One had seen her father downstairs with three men.
When the appellant was arrested on 13 October 2001 he sought legal advice. He thereafter (as recorded on a video interview) declined to be interviewed. He also declined to participate in an identification parade. The video interview by Det Snr Const Irwin included the following introduction, describing the matter under investigation: (ERISP 1)
"Q4 As I have already explained to you, Detective Morley and I are making inquiries in relation to a home invasion at Unit 1, Number 2, Silsoe Street, Mayfield, on the 4th of August, 2001..."
The brief formal interview included the following: (ERISP 4)
"Q28      OK. Do you agree that you did not wish to be interviewed in relation to this matter as in your own words, you weren't involved?
A.           Yeah.
Q29        OK. So, hang on. Do you agree that the reasons why you are, didn't wish to be interviewed about the matter were that you had no involvement so you couldn't tell us anything?
A.           Yeah."
The Alibi Notice.
As mentioned, the offence occurred on 4 August 2001. Solomon Siulai was arrested on 8 October 2001 and his brother, Toai (the appellant), on 13 October 2001. Both were in custody at the time of the committal in Newcastle on 11 December 2001. Mr Graham of counsel was briefed to appear at the committal. Having spoken to each accused, the matter proceeded as a paper committal. Both were committed for trial.
On 13 December 2001, Mr Graham wrote to the Director of Public Prosecutions in these terms:
"These accused have been committed for trial and are to appear on arraignment on 31.1.02.
Please note that both intend to rely on alibis as follows:
(a) Toai Siulai
States that he was at the relevant time at home at 33 Margaret St, Tighes Hill. He will call Laine Gostini of that address in support. He only states this to the best of his belief. I have been unable to contact Ms Gostini to verify this and am informed that she may be on holiday in Queensland. If I am able to obtain further information I will immediately advise you.
(b) Solomon Siulai
States that he is fairly sure he was at home with his wife, Caroline Puru, and his 2 yr old son, 334 Ridley St, Charlestown. He intends to call Ms Puru in support of this."
During the trial, the appellant, on the advice of counsel, made an admission in these terms (s184 Evidence Act 1995):
"On 4th August, 2001 at about 11.40 pm Toai Tess Siulai attended the residence at Flat 1/2 Silsoe Street, Mayfield and spoke to Jim Lea Stephens."
The appellant's brother, Solomon, made a corresponding admission.
The Crown thereafter sought, as part of its case, to tender the Alibi Notice. Objection was taken on behalf of each accused. The notice was, however, admitted against both accused (Exhibit J).
The Defence Case.
The appellant, Toai Siulai, did not give evidence. His brother, Solomon, however, did so. He said that he, his brother and a caucasian male, Brendon Panowitz, went to Mr Stephens' home late on 4 August 2001. They knocked on the door, which was then opened by Mr Stephens. Toai Siulai said this: (T226)
"We are here to talk to you about certain things that have been going on in the area."
In cross examination there was an elaboration: (T241)
"We are here to talk to you concerning a neighbour who's name is Kelly Walters as she has made complaints to junkies being in the area, syringes laying around, also prostitutes being around and that's at all hours of the day."
Mr Stephens responded by suggesting that they go downstairs and talk. They moved to the garage area, which he described as a large empty area (of which there were a number of photographs). As they walked through this area they passed a door. It was the door to the unit of Mr Stephens' neighbour, Mr Earl Young. Mr Stephens knocked on the door. Mr Young emerged. He was then asked by Mr Stephens: "Can we come into your house?" Mr Young refused. He attempted to close the door but could not do so because the appellant had placed his foot in the door. Mr Young then picked up a screwdriver, pointing it in the direction of Toai Siulai. Toai Siulai stepped back. He said that he did not want trouble.
Mr Stephens, at this point, asked Earl Young for the keys to the back laundry, which Mr Young then gave him. Mr Stephens, the appellant and Solomon then moved to an area in the vicinity of the laundry, where they continued their conversation. There had been complaints about drug users in the laneway which children used to get to school. Syringes had been left in the laneway.
Part way through this conversation, Solomon Siulai walked away, returning to Mr Young's unit. According to his testimony, he then shared a cup of coffee with Mr Young for about 15 minutes. They then left the unit, walking towards the laundry where they again saw Mr Stephens and Toai Siulai. Mr Stephens did not look happy. Indeed, he appeared uneasy. Solomon Siulai heard his brother (the appellant) make the following comment to Mr Stephens as they parted: (T231)
"To snap out of it, with what's going on, because of the children and that within the area and also not to forget the rubbish, meaning the syringes."
Solomon Siulai denied having threatened Mr Stephens, or having held a screwdriver to his throat. He did not hear anyone threaten Mr Stephens. Neither his brother (the appellant) nor Mr Panowitz entered Mr Stephens' home. They had gone directly downstairs to have their discussion. No property had been taken from Mr Stephens' unit.
Mr Solomon Siulai also gave evidence concerning the Alibi Notice. He saw his counsel, Mr Graham, for the first time in December 2001, on the morning of the committal. They met in the interview area below the court. At that stage he had not seen the police brief. However, in the course of the day he did see the brief. His conference with counsel lasted no more than eight minutes. The offence was described as a home invasion. Counsel simply asked whether he and his brother had been "there". Solomon Siulai told counsel that he had not been there. He did not do it. They then discussed an application for bail. At no time was he shown the Alibi Notice.
The neighbour, Mr Earl Young, was then called in the defence case. He leased the back flat, which he had occupied for a short time before this incident, a matter of weeks. He had recently separated from his wife. Late on the evening of 4 August 2001, Mr Stephens knocked on his door. He asked if he could use the unit. Mr Young said he could not. He gave an account of having produced a screwdriver, which corresponded with that given by Solomon Siulai. Mr Stephens then asked to use the laundry. Mr Young provided a key. They then left.

Soon after Solomon Siulai returned to his unit. They had a cup of coffee in the kitchen. From the kitchen he could see Toai Siulai and Mr Stephens talking in the laundry. Nothing unusual happened during that conversation. He heard no raised voices. Later they all walked towards the front of the house and said goodbye.
When cross examined, Mr Young acknowledged that, at the time of these events, he was experiencing a major depression. He was going through a "very messy divorce". He said he had known Solomon Siulai a couple of weeks, although he had known of him for much longer. He was reminded of the terms of his police statement in which he had told the police he had known Solomon Siulai for eight years, which he denied (T270). He acknowledged that some months after the incident, and before he went to the police to make a statement (in January 2002), he met both brothers at the Cessnock Correctional Centre where he was an inmate. He denied that he was giving an untruthful account to assist each of the accused.
Mr Young was shown photographs of the premises. He agreed that he could not see the laundry from the kitchen. He said that he must have seen them talking when he went to the toilet.
Ground 1: The admissibility of the Alibi Notice.
A Voir Dire was undertaken in respect of the admissibility of the Alibi Notice. Mr Graham of counsel was called as a witness. The notes he had taken on 11 December 2001, during his conferences with Toai and Solomon Siulai, were tendered. None of this material ultimately found its way into evidence before the jury. The argument proceeded upon an assumption by her Honour and the Crown that both accused would give evidence. Counsel made a statement suggesting such a course early in the proceedings. Adopting that assumption, her Honour gave judgment, ruling that the Alibi Notice was admissible in the Crown case, and adding:
"... I can see on that basis, no relevant unfairness or unfair prejudice within the terms of s90, 135 or 137 of the Evidence Act which would cause me to exercise my discretion to exclude the alibi notice from evidence in the Crown case."
Her Honour then turned to whether a limitation upon the use of the document should be imposed under s136 of the Evidence Act 1995. She said this:
"There is, however, an issue to deal with, that is, the limit to which use of that evidence should be placed upon the Crown and if one looks to the terms of s136 of the Evidence Act, that provides that evidence may be limited in terms of its use if there is a danger that a particular use might be unfairly prejudicial. The particular use which the Crown seeks to make of the alibi notice is to allow the jury to use it as a lie going to consciousness of guilt, that is in proof of the charge brought by the Crown against each of the accused. In my view there is some unfair prejudice in that particular use by the jury of the alibi. That is because the issue in this trial has now resolved itself into whether or not Mr Stephens was robbed in the circumstances described by him by the accused or whether in fact the accused merely called upon Stephens to discuss matters which, according to the accused, included Mr Stephen's alleged drug dealing. In view of the fact that the issue in the trial really does not turn on the accused's presence on the evening in question or the movements from the house to the shed at the rear of the premises, I propose to limit the use which the Crown might make of the alibi notice and I propose to limit it to the issue of credit."
Her Honour said that such a course would not infringe the credibility rule, since that rule does not apply where the evidence "tends to prove that a witness made a prior inconsistent statement" (s106 Evidence Act 1995).
Having given judgment, the following exchange then occurred between counsel appearing for both accused (Mr Stewart) and her Honour: (T187/8)
"STEWART: Just one issue your Honour. If this evidence is only to be admitted on the issue of credit, there is an issue as to whether it should be allowed to be tendered on the Crown case because ...
HER HONOUR: Well I know that, that is why, I mean I did discuss whether or not it would be proper to allow the Crown to split its case because the convention is, if the Crown has notice then all of these matters should be tendered in the Crown case.
STEWART: Yes I was just concerned that at this point in time credit is not in issue, the credit of the accused is not in issue and if it was going to be allowed to be used for the issue of guilt or innocence, well clearly it would be able to be tendered in the Crown case but if it is used as evidence in regard of the credit of the accused, at this point of the trial, during the Crown case the credit of the accused is not in issue."
The discussion continued in these terms: (T189)
"HER HONOUR: Mr Stewart let's cut to the chase shall we, you indicated at the beginning of the trial that both your clients were going to give evidence. Are you resiling from that position?
STEWART: Your Honour it's a matter that I'm reconsidering.
HER HONOUR: Well you see all of these rulings were made on the basis that the Crown was on notice and you indicated, and certainly without any prompting from me, you indicated that both your clients would be giving evidence."
There followed a discussion between her Honour and counsel. In the course of that discussion the following was said by her Honour: (T189/190)
"HER HONOUR: So if you were to take the position that your clients would not be called, then I would take the position that the evidence of the alibi notice was admissible and would be capable of use by the Crown as a lie going to consciousness of guilt because in the absence of any contrary version the issue before the jury is not one of credit, really, it is one - it comes back to whether or not the Crown has proved its case through Mr Stephens.
You see I was - my ruling was entirely premised on the fact that at the end of the day the jury would have evidence of a conversation that your clients had with Mr Stephens which was entirely of a different nature. And that's why I made a ruling to the effect that the issue of this trial would turn substantially upon the credit of Mr Stephens because they would have a contrary version with which to contrast Mr Stephens' evidence.
And that's why I said that the alibi notice on that basis would only be properly capable, or would only be fairly capable of being used by the jury on the question of credit. But if your clients don't give evidence, where's the evidence - where is the evidence of the competing account?
STEWART:          Yes.
HER HONOUR:    You can't have it both ways can you? You can't go to the jury and say look in fact Mr Stephens - well you can go to the jury and say Mr Stephens is a liar, and you wouldn't believe him, but you can't go to the jury and say Mr Stephens is a liar and what's more my clients have explained to you what in fact happened that night.
STEWART:          No, I appreciate that I couldn't say that. Because the matters that I put to him were not adopted.
HER HONOUR:    Yep.
STEWART:          I would be in a position where I would merely say that you would not accept his version beyond a reasonable doubt. But your Honour had indicated to me that ...
HER HONOUR:    In which event ... it would then be a matter for the jury whether or not the alibi notice was a lie going to consciousness of guilt because they'd have no other explanation for the alibi notice.
STEWART: Yes. Yes.
HER HONOUR: You see that's the problem.
STEWART: If your Honour allowed that to be admitted, yes. And your Honour has indicated what your position would be and I will take that on board."
(emphasis added)
The trial then continued. Detective Irwin was called and, in the absence of the jury, there was a further discussion concerning the admission of the Alibi Notice. It was in these terms: (T210/11)
"HER HONOUR: Well we need to determine the tender of the alibi notice.
CROWN PROSECUTOR: I've got to tender that before I finish in chief because I want to ask the police officer about the investigations.
HER HONOUR: About the investigations.
CROWN PROSECUTOR: Yes.
HER HONOUR: All right, well, Mr Stewart, when the alibi notice is tendered I'm going to have to give some direction to the jury so what is the position? Have you determined whether or not your clients are going to go into evidence or not?
STEWART: At least one will.
HER HONOUR: At least one will. Does that mean only one will?
STEWART: Well, your Honour the ruling or the ruling that you foreshadow ...
HER HONOUR: Well I've made a ruling, the ruling is the alibi notice is going in.
STEWART: Yes.
HER HONOUR: The only issue is how is the Crown permitted to use it.
STEWART: Yes, yes, I understand.
HER HONOUR: If you want me to defer giving them directions about that until at the end of the trial then I will.
STEWART: Yes, I'd prefer that at this stage, well no, no, so your Honour would be indicating that you would be directing the jury that it would be evidence that goes to the guilt or innocence of ...
HER HONOUR: Well I'm not going to give the full Edwards direction now, I will be giving it in the course of the summing-up, if I give it. The only reason that I would say anything at all to the jury would be to prevent them from speculating about the use of the alibi notice as anything other than going to the credit of - I would be limiting the use to which the jury can put the alibi notice if it was the case that your clients were going to be giving evidence of their account. But look, I don't think that I can safely say anything at this stage because I don't think the position is clear. So I think we'll just have to let the Crown tender the alibi notice through the Detective, and when we know what the position is I'll give the appropriate directions at that time.
STEWART: Perhaps your Honour could indicate to the jury that you will be giving directions as to the use that can be made of this ...
HER HONOUR: Yes I will, I'll say that, yes.
STEWART: At the time of the tender.
HER HONOUR: At the appropriate time. Yes."
(emphasis added)
Counsel for the appellant had no objection to the Alibi Notice being tendered in the Crown case in chief (T214) (see also: supra para 64). The Alibi Notice was then tendered (Exhibit J). Her Honour said this to the jury: (T214/15)
"HER HONOUR: Yes, I'll read it. Ladies and gentlemen I'll give you some directions later on about the use to which the alibi notice might be put. It's referred to as an alibi notice because there's a provision in the laws of this State to the effect that if accused persons wish to raise alibi evidence then they should notify the authorities so the authorities have a chance to make inquiries based on that notice. Anyway this alibi notice reads on the letterhead of Jeffrey J Graham, Barrister, dated 13 December 2001.
EXHIBIT J READ TO JURY."
Thereafter Solomon Siulai, but not Toai Siulai (the appellant), gave evidence. In doing so he provided a version which Toai Siulai could also rely upon. Her Honour then summed up, attempting to confine the relevance of the Alibi Notice to the issue of credit, as she had foreshadowed in her judgment.
On this appeal it was submitted that the Alibi Notice should have been excluded, so far as the appellant was concerned, upon the following bases (as set out in the written submissions):
"1.          it was not relevant
2.            it was likely to be misused by the jury
3.            it was by its nature and contents equivocal
4.it was not a statement of the appellant but hearsay in nature
5.            it has not been adopted by the appellant
6.it was likely to divert the jury from the issues in the trial the accused having made an admission as to his attendance at the premises"
Alternatively, it was suggested the notice should have been limited to an attack upon the credit of Solomon Siulai.
The notice was plainly relevant. It was capable of being regarded as a deliberate lie told through a consciousness of guilt (Edwards v The Queen (1993) 178 CLR 193). If accepted as a lie, it was an attempt to provide a false alibi. It was also (if accepted as a lie) capable of affecting the credibility of Toai Siulai (in the section of the notice dealing with his whereabouts) and the credit of Solomon Siulai (in that part of the notice dealing with his whereabouts). The admissibility of the notice did not depend upon it having been expressly adopted by the appellant. The notice had been given by Mr Graham of counsel. There was a rebuttable presumption that the notice had been given with the authority of the accused (s48(6) Criminal Procedure Act 1986).
The notice in each case included a qualification. In the case of Toai Siulai that qualification was in these terms:
"(a) Toai Siulai
States that he was at the relevant time at home at 33 Margaret St, Tighes Hill. He will call Laine Gostini of that address in support. He only states this to the best of his belief. ..." (emphasis added)
No doubt it was a jury question whether a notice in these terms could be regarded as a deliberate lie. That issue did not render the document irrelevant.
The Alibi Notice was a statement by the appellant (made through his agent) which included a representation as to his whereabouts "at the relevant time". It was hearsay if tendered to prove the truth of that representation. However the Crown had in mind a different purpose (cf s60 Evidence Act). The statement was not tendered for its truth. Rather, the Crown sought to contrast the admission made by the appellant in the course of the trial (acknowledging his presence at Mr Stephens' home late on the evening of 4 August 2001) with the assertion in the notice that he had been elsewhere. It was arguably a statement inconsistent with that admission.
Should the notice have been excluded under the discretion given in s135 or s137 of the Evidence Act, or limited by s136? Her Honour thought that, because both accused ultimately acknowledged their presence at Mr Stephen's home, that unfair prejudice would attend the use of the notice as a lie told with a consciousness of guilt. With respect, I disagree. In my view, notwithstanding the admission, the Crown was entitled to prove the lie and assert that it was told with a consciousness of guilt. The appellant had made the representation in the Alibi Notice at a time that he had been apprised of the allegations against him. He had responded by asserting a belief that he was elsewhere. That was very different from saying that he was there, but that nothing of the kind alleged by Mr Stephens had taken place. In my view the notice had significant probative value, notwithstanding the qualification. It was, as I have said, capable of being regarded as a false alibi.
Unfair prejudice arises where there is a real risk that the evidence will be misused by the jury in some unfair way, by, for instance, provoking an irrational or emotional response, or, where it is liable to be given more weight than it deserves (Papakosmas v The Queen (1999) 196 CLR 297, per McHugh J at 325, quoting Hunt CJ at CL in R v BD (1997) 94 A Crim R 131 at 139).
Here, there was no unfair prejudice in the admission of the notice as a document capable of being regarded as a lie told with a consciousness of guilt. In my view, there was no basis to exclude the notice, either under s135 or s137, nor (on the basis of unfair prejudice) to confine its use to the issue of credibility.
Accepting that her Honour did not deal with the notice in that way, should the notice have been admitted where it was confined to the issue of credit? Part 3.7 of the Evidence Act deals with evidence relevant to credibility. Such evidence is not admissible (s102 Evidence Act), unless it falls within one of a number of defined exceptions. Her Honour referred to the exception created by s106(c) where the credibility rule does not apply to evidence tending to prove that a witness has made a prior inconsistent statement. She did so at a time when it was assumed that both accused would give evidence. That exception justified the reception of that part of the notice dealing with Solomon Siulai, who was a witness. However, the appellant did not give evidence. He was not a witness. Section 106 had no application to him. Nonetheless, the following provision of the Evidence Act, in my view, justified the reception of the notice against the appellant in relation to his credibility, subject to the discretion under s135 and s137, and assuming always that there was an issue as to his credibility.
"s108A   Admissibility of evidence of credibility of person who has made a previous representation
(1)          If:
(a)          because of a provision of Part 3.2, the hearsay rule does not apply to evidence of a previous representation; and
(b)          evidence of the representation has been admitted; and
(c)          the person who made the representation has not been called, and will not be called, to give evidence in the proceeding;
evidence that is relevant only to the credibility of the person who made the representation is not admissible unless the evidence has substantial probative value.
(2)          Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a)          whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and
(b)          the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation."
However, since the appellant did not give evidence, was his credibility an issue? It will be remembered that the appellant's response to Det Snr Const Irwin in the video interview, included the following: (ERISP 4)
"Q29 OK. So, hang on. Do you agree that the reasons why you are, didn't wish to be interviewed about the matter were that you had no involvement so you couldn't tell us anything?
A. Yeah." (emphasis added)
Although brief, that was a version from the appellant which the jury may add to any doubt which may exist as to his guilt. Even if Toai Siulai did not give evidence, during the Crown case it was clear that his credibility would be an issue. The admissibility of the Alibi Notice was not dependent upon him giving evidence.
Discretion to exclude.
Should the evidence, if admitted upon the basis of credibility, have been excluded as being unfairly prejudicial? There were a number of difficulties in approaching the issue as one going only to credit. The Crown cannot split its case (Shaw v The Queen (1952) 85 CLR 365; Killick v The Queen (1981) 147 CLR 565; The Queen v Chin (1985) 157 CLR 671; and Soma v The Queen (2003) 212 CLR 299). It must present such evidence as it intends to rely upon in chief before the accused can be called upon to decide the course he intends to follow (Soma v The Queen (supra) Gleeson CJ, Gummow, Kirby and Hayne JJ at 309-310). If the Crown intends to rely upon statements by the accused which are relevant and incriminatory, they must be proved in chief. Only in very exceptional circumstances will the Crown be permitted a case in reply. In this context, relevantly, that required proof that at the time of the notice Mr Graham had been retained as Toai Siulai's counsel, that he had taken instructions from him, and that the notice had been sent to the prosecuting authority.
Where evidence simply goes to credit, there is, during the Crown case, one aspect which may present an inhibition to the tender of such evidence. The Crown cannot know, at that point, whether the accused will give evidence. If the accused were to give evidence, then obviously the credibility of his version would need to be determined by the jury. The fact that he made a prior inconsistent statement may be relevant to that issue. In these circumstances, before the close of the Crown case, it may (as happened here) invite the accused to disclose whether he intends to give evidence, to enable a ruling to be made. However, the accused may or may not make that disclosure. In many cases the accused may not know whether he will give evidence before the close of the Crown case. If the accused is invited to make a disclosure, and either refuses or is unable to say what he will do, that will be relevant to whether the Crown is permitted a case in reply.

However, the real difficulty in treating the notice as being relevant only to credibility was the nature of the alleged lie. It was a lie (or was capable of being so regarded) in respect of a central issue, namely the appellant's presence at the scene on the night of the home invasion. It was, as stated, capable of being regarded as a false alibi. That really is not a credibility issue. If it was a lie, it betrayed a consciousness of guilt. It would be difficult for a jury not to so regard it. If they were to find that the notice was a deliberate lie, there was a real risk that they would misuse that finding as evidence from which guilt may be inferred. On the issue of credibility, therefore, there was the danger of unfair prejudice. It outweighed the probative value. If the notice were confined to the issue of credibility, it should, in my view, have been excluded under s137.
On this basis, I would be prepared to find error. However, the issue having evolved in the way described, and the appellant having elected not to give evidence, no application was made to exclude the Alibi Notice from the evidentiary material available against the appellant. Rule 4 applies. I will postpone, for the moment, a consideration of whether leave to appeal should be given.
Ground 2: The directions on the Alibi Notice.
The Crown made the following submission upon the Alibi Notice in his final address: (T313)
"I'd suggest to you, members of the jury, that the alibi notice is a pathetic attempt by them to put themselves away from the scene of the crime. They've later realised it wasn't going to work. Mr Stephens had identified them. They had to come up with plan B, and that's what Solomon Siulai has said in this Court."
Her Honour dealt with Solomon Siulai's credibility in her summing up, he having given evidence. She drew the jury's attention to the issue of whether the statement in the Alibi Notice, qualified as it was, could be regarded as a lie. She said this: (S/U 11-12)
"Can I just say something further whilst I am on the subject of Mr Solomon Siulai's credibility. You will recall, as I said, that the Crown Prosecutor cross examined Mr Siulai and in effect suggested that he was telling a pack of lies in his evidence. In particular, the Crown Prosecutor suggested that Mr Solomon Siulai's instructions to his then counsel in October of 2001, that he was at home with his defacto spouse on the evening of 4 August, was obviously a lie because it is clear that he is now admitting that he was at the premises on that night. Can I just say this. You will make up your own mind about whether he was telling lies, either then when he said that he was at home, or now when he acknowledges that he was there, albeit that something entirely different from Mr Stephen's account occurred. So you make up your own mind about whether he was telling lies, and if he was, whether he was doing so deliberately. It is important that you take into account that it may not have been in Mr Solomon Siulai's mind to deliberately lie in establishing through the alibi notice, that he was with his defacto spouse. You will recall that there was some submissions made about the fact that he never asserted with absolute certainty that he was at home with his defacto spouse, but that it was expressed in terms of, 'I'm fairly sure'."
Her Honour then gave directions as to the significance of the lie, if the jury were to so find: (S/U 12)
"But in any event, you will determine whether or not you think that that was a lie and whether it was deliberately told. It is for you to decide what significance those suggested lies might have in relation to the issues in the case. But the point I am making about all of this is that it is very important that you do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that that is evidence of guilt. It does not automatically follow that just because a person lies, therefore he is guilty of the offence with which he has been charged."
Immediately thereafter her Honour dealt with the Alibi Notice. Her directions substantially mirrored the directions already given in respect of the credibility of Solomon Siulai, as set out above. She said this: (S/U 12-13)
"The same caution should be used when you consider the significance of the alibi notice, which is an exhibit in the trial, and it is evidence against both of the accused. So both of the accused in that sense gave instructions to their legal representative that resulted in that alibi notice being sent to the Crown in mid-December 2001. Can I just, at the risk of repetition, indicate that the Crown relies on the alibi notice in order to suggest that if each of the accused were prepared to offer the alibi in December, it demonstrates a preparedness on their part to give a deliberately false account. The Crown says that you now know it was a false account because they have made a formal admission, which again is an exhibit in this trial, that they were both at the premises that night, albeit for a different purpose than had been alleged by the Crown."
Her Honour then dealt with the significance of a lie, if that is what the jury found, in respect of a particular accused. She said this: (S/U 13)
"If you were to conclude that the alibi notice was, in effect, a deliberately false account, and that is a matter for you, then you may think it has some significance. But again, I warn you, do not automatically conclude that either or both of the accused are guilty of one or both of these charges just because they may have told an untruth on some prior occasion."
The only other direction given by her Honour, which was directly relevant to the Alibi Notice, was the following: (S/U 17)
"Could I just indicate, and I have said this already, that the alibi notice which is an exhibit in the trial, that is evidence against both of the accused. It is available to you in the way that the Crown has suggested, namely, the Crown says that the alibi notice is evidence of the accused, both of the accused, being prepared to give an account which is subsequently proved to be false, and proved to be false by the admissions that they made where with respect to their presence at Mr Stephens' house on 4 August 2001."
In dealing with the arguments of counsel, her Honour again referred to the Crown position in these terms: (S/U 40)
"Of course the Crown says that you will take into account the fact that these accused, in terms of the alibi notice, have given a false account of their movements on some prior occasion."
At the end of the summing up, her Honour invited submissions from counsel on any redirections sought. The following exchange took place with counsel for the appellant: (S/U 43)
"STEWART: Nothing in law. ... Your Honour, one matter which arose in cross examination when my learned friend was questioning Mr Solomon Siulai in regard to the alibi notice, one important matter which I'd submit arose which was bearing on his mind when he was considering this during the conference, that he was thinking that he wasn't involved in a home invasion.
HER HONOUR: Well you have heard that, ladies and gentlemen, so that may be an explanation that you wish to take into account."
Had the Alibi Notice been tendered as material from which the jury could infer a lie told with a consciousness of guilt, a direction in accordance with Edwards v The Queen (supra) would have been required. Such a direction requires that the jury are told that they must be satisfied that the accused told a deliberate lie. The lie must relate to a material issue (that is, it must be concerned with some circumstance or event connected with the offence), and must be a lie told in circumstances where the explanation for the lie was that the accused knew that the truth would implicate him in the offence (Edwards v The Queen (supra) at 210). Such a direction should be accompanied by an elaboration on the last of these requirements, along the following lines (Edwards v The Queen (supra)): ( at 211)
"Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt (see eg Lonergan v The Queen [1963] Tas SR 158 at p 160; Broadhurst v The Queen [1964] A C at p 457). A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission."
The direction by her Honour plainly did not satisfy those requirements. It was not intended to do so. Her Honour had already ruled that the Alibi Notice should not be received as a matter from which the jury (if they found the lie) might use the lie as evidence from which guilt could be inferred.
It was common ground during the hearing of this appeal that, having finally limited the Alibi Notice to the issue of credibility, her Honour should have given the direction suggested by the High Court in Zoneff v The Queen (2000) 200 CLR 234 (the "Zoneff direction").
It was asserted by the Crown, and denied by the appellant, that the directions in fact given by her Honour reproduced the "Zoneff direction". Zoneff was, as the Court said, an unusual case. The accused represented himself. He was cross examined by the Crown. On various issues, the Crown suggested that he was lying. However, the cross examination neither expressly nor by implication suggested that the lies had been told through a consciousness of guilt. Gleeson CJ, Gaudron, Gummow and Callinan JJ said, in these circumstances, that it was unnecessary, and indeed undesirable, that a direction of the kind with which Edwards was concerned should be given (p245 para 20). In Zoneff, the trial Judge was, apparently, concerned that there may be a serious risk that the jury might engage in an impermissible process of reasoning were they to conclude that Mr Zoneff had lied (p245 para 22). To address that concern, their Honours suggested the following direction: (p245 para 23)
"You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt."
Although her Honour plainly had that direction in mind, she departed from the formulation in a number of respects. When dealing with the evidence of Solomon Siulai (supra: para 87) her Honour accurately reproduced the "Zoneff direction", but then added these words: (S/U 12)
"It does not automatically follow that just because a person lies, therefore he is guilty of the offence with which he has been charged."
The additional words may suggest that in some circumstance (not defined), you may infer guilt from the lie. If that occurred, then such a direction would have been misleading because it did not conform with the limitations her Honour had imposed upon the relevance of the notice, namely, that it went only to the issue of credibility. An inference directly from the notice (assumed to be a lie) to the guilt of the accused would be appropriate only where the lie was capable of being regarded as one told through a consciousness of guilt (assuming there is other evidence to support such an inference). The additional words, however, on one view, are not very different from the formulation suggested by the majority in Zoneff ("that just because a person is shown to have told a lie about something that is evidence of guilt"). In respect of the directions given concerning the Alibi Notice, in the context of Solomon Siulai, I would not find error.
Moving to the directions given in respect of the Alibi Notice itself (Exhibit J), her Honour referred to the Crown's contention that the Alibi Notice demonstrated a preparedness by each accused to give a deliberately false account of his whereabouts. In Zoneff the High Court suggested the jury should be told that if they found the accused had lied, they should then decide the significance of such lies, having regard to the issues in the trial. Her Honour, on the other hand, said this: (S/U 13)
"If you were to conclude that the alibi notice was, in effect, a deliberately false account, and that is a matter for you, then you may think it has some significance." (emphasis added)
The direction which followed did not include the words which had been given moments before (in the context of the credibility of Solomon Siulai) which were important, and which were taken directly from Zoneff, namely: (S/U 12)
"But the point I am making about all of this is that it is very important that you do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that that is evidence of guilt."
Instead, her Honour made the following statement, again arguably leaving open the possibility of consciousness of guilt reasoning. She said: (S/U 13)
"But again, I warn you, do not automatically conclude that either or both of the accused are guilty of one or both of these charges just because they may have told an untruth on some prior occasion."
The issue of credibility was different in the case of each accused. The direction, with respect, did not identify the different ways in which the issue arose. Solomon Siulai had given evidence but had not provided an interview, whereas Toai Siulai had provided a brief interview but had not given evidence. If the lies were relevant simply to credibility, and the jury determined that a particular accused had lied, then the lie could only be used in determining whether the version of that accused was to be believed. If he were not believed, his evidence should be put to one side. The question would still remain: has the Crown proved its case beyond reasonable doubt? The jury could not, as a matter of reasoning, move directly from a determination that there was a lie to an inference of guilt.
The direction did not, to my mind, conform with these requirements. Error has been demonstrated.
Application of Rule 4.
Accordingly, two errors have been demonstrated, one in respect to the admission of the Alibi Notice, (by not excluding it once its use had been limited to the issue of credibility), and the other in respect of the directions given concerning that notice in the summing up.
Counsel for the appellant (then also appearing for his brother, Solomon) certainly objected to the admission of the Alibi Notice. He interrupted his cross examination of the main Crown witness, Mr Stephens, to announce the admissions which each accused was prepared to make, namely that they were at the premises at the relevant time (T86) (Exhibit 1). It was within that context, and on the assumption that both accused would be called to give evidence, that her Honour determined that the Alibi Notice should be admitted but limited to the issue of credibility (supra para 62).
Unquestionably that was a very favourable ruling from the viewpoint of each accused. Having obtained that ruling, counsel then indicated his uncertainty as to whether either accused would give evidence (supra para 65). He questioned whether their credibility would be relevant if they were not called. Her Honour responded by saying that if they were not called, the notice may be admitted on the basis of consciousness of guilt (supra para 66). There the matter was left, to be revisited, if the need arose, once counsel had determined the course his clients wished to take.
In the result, Solomon Siulai gave evidence but not the appellant. Yet counsel did not, at that point, return to the issue of the Alibi Notice, and its relevance to Toai Siulai (the appellant). No application was made to have the notice excluded, so far as the evidence against the appellant was concerned. He did not suggest that the appellant's credibility was not, relevantly, an issue, nor that the admission of the Alibi Notice might give rise to unfair prejudice, in that the jury may impermissibly use it as a basis for consciousness of guilt reasoning (cf s137) (supra para 84).
It is instructive to enquire what might have happened had counsel made an application to exclude the notice from the case against the appellant. Her Honour had already foreshadowed her likely response (supra para 66). She had said, admittedly in the context of a suggestion that neither accused may give evidence, that, in that event, she would permit the Crown to use the notice as evidence of consciousness of guilt. In that context, the appellant had elected not to give evidence.
Rule 4 of the Court of Criminal Appeal Rules provides that no direction (or omission to direct) or decision as to the admission or the rejection of evidence shall, without the leave of the Court, be allowed as a ground of appeal unless objection was taken at the trial to the direction or decision. It has been said that the Rule is not a "mere technicality which may be simply brushed aside" (Hunt J in R v Abusafiah (1991) 24 NSWLR 531 at 536). In R v Moussa (2001) 125 A Crim R 505, Howie J said this: (at 521)
"It may well be the case that, if the failure to seek a direction or warning was a result of a considered and competent decision made for tactical reasons, it would be virtually impossible for the appellant to obtain leave to rely upon the point because no miscarriage of just could have occurred."
The Court is often provided with an affidavit from counsel who appeared at the trial, explaining decisions made in the course of the trial. Indeed, Sully J in R v Hines (1991) 24 NSWLR 737 said this: (at 743)
"For my own part, I consider that it should become the fixed practice of this Court that in a case where the person who is to appear for the appellant on the hearing of the appeal did not appear for the appellant at the trial, there should be filed an affidavit which puts before this Court such explanation as it might be desired to advance for the failure to take, at the proper time and in the proper form, at trial an objection upon which it is sought to rely on the hearing of the appeal. I feel very strongly that a failure on the part of this Court to take such a stand will detract seriously from the efficient administration of criminal justice according to law. That efficient administration of criminal justice requires imperatively -- although, no doubt, amongst other things -- the affording by the legal profession of proper assistance to trial judges. A fundamentally important aspect of that professional duty of assistance is the duty to take at the proper time and in the proper way proper objections to the trial judge's summing-up in a particular case."
Here, there was no affidavit from counsel who appeared for the appellant at the trial. Had an application been made to exclude the Alibi Notice in the case against Toai Siulai, it is likely to have provoked a re-examination of the basis upon which the notice was to be admitted (not only against the appellant, but also perhaps against Solomon Siulai). The appellant, and perhaps Solomon Siulai, were at risk of the notice being admitted as evidence capable of exhibiting a consciousness of guilt. Were that to occur, her Honour would have been obliged to give a full "Edwards direction", as she recognised (supra para 67). Necessarily that would have given prominence to the Alibi Notice and the issue of whether the appellant had told a deliberate lie through a consciousness of guilt. More than that, were the notice admitted upon that basis, it was capable of being regarded as evidence independent of Mr Stephens which supported an inference of guilt. Here her Honour gave what may be termed a "Murray direction" (R v Murray (1987) 11 NSWLR 12) emphasising that the Crown case depended upon an acceptance of the evidence of Mr Stephens (S/U 8). Had there been evidence independent of Mr Stephens, the summing up would have been somewhat different. Whilst obviously Mr Stephens would still have been the backbone of the Crown case, the impact of the "Murray direction", if given, may have been diluted by reference to the evidence which did not depend upon Mr Stephens.

There were sound tactical reasons, therefore, why counsel for the appellant should have refrained from making such an application. It is plain from the numerous exchanges which have been set out above that counsel was well aware of these issues. I would therefore infer that no application was made for tactical reasons.
Moving to the second error, made in the course of the summing up, again no redirection was sought. The error was more subtle. It depended upon an appreciation of the differences between the direction given in the context of Solomon Siulai (supra paras 87, 88) and that in respect of the Alibi Notice itself (supra paras 89, 90). It is not possible to say that counsel refrained from objecting for tactical reasons. Nonetheless, no redirection was sought.
Did either or both errors result in the possibility of a miscarriage of justice? Here the Crown case substantially depended upon an acceptance of Mr Stephens (and a rejection of the possibility that Solomon Siulai may have provided a truthful and accurate account). There were aspects of Mr Stephens' evidence where you would have expected corroboration, and yet none was provided. Mr Stephens said, for instance, that he threw his keys over his neighbour's fence to prevent his assailants re-entering the house and endangering his daughters. After his return to the house, once his assailants had gone, he said he searched for his keys (it being dark). The search was made whilst the police were there.
The Crown called Snr Const Sullings, who was the officer who spoke to Mr Stephens shortly after the incident. In cross examination Snr Const Sullings said this: (T197)
"Q. And you did not or Mr Gallagher did not assist him to look for something such as a set of keys in the garden next door?
A. Not that I recall."
There were a number of police present. However, none was called to support this aspect of Mr Stephens' account which suggested that he was in fear.
Mr Stephens also said that, after his assailants fled, he escaped through the laundry window, breaking a number of louvres. The owner of the premises was called. He did not corroborate that assertion, although it was acknowledged that ultimately the window had been replaced.
Nevertheless, the account of Mr Stephens was handsomely supported by the 000 call to the police. He whispered his urgent message over the phone, providing an account consistent with the evidence he gave before the jury. The evidence of Solomon Siulai also corroborated aspects of Mr Stephens' account. He said that he was one of three men who had gone to the front door of Mr Stephens' home very late on 4 August 2001. He went with his brother, Toai, and another man, who was caucasian. They went downstairs where they encountered Mr Earl Young. Mr Young produced a screwdriver after the appellant placed his foot in the door. The group then moved to the laundry.
It may be noted that there was evidence in the Crown case which contradicted aspects of Mr Stephens' account. The front door had a deadlock. He said that as he left the house he closed the door to safeguard his daughters. One daughter and the police, however, said the front door was open. Moreover, Mr Stephens' first account to the police suggested an assault with a screwdriver when he was forced against a motor vehicle, which he later denied.
On the other hand, the account given by Solomon Siulai was inherently absurd. It involved three men going to Mr Stephens' home at 11.40 pm to discuss a matter of community concern. Mr Stephens made the suggestion that they move downstairs, no doubt because the issue was one of some delicacy and there was a need for privacy. Having moved downstairs, through areas large enough to hold a public meeting, Mr Stephens, according to Solomon Siulai, asked his neighbour of three weeks, Mr Young, whether they might enter his flat, presumably so they could continue their discussion. And once that was refused, and a screwdriver produced, Mr Stephens, it was said, selected a small laundry as their meeting place, again by-passing more spacious alternatives.
What prejudice is it suggested the appellant suffered by reason of the errors? The prejudice was that the jury may resort to consciousness of guilt reasoning if they found that the account in the Alibi Notice was a deliberate lie. The jury did not have the benefit of the warning, which was part of the "Edwards direction" (supra para 94) that there may be many reasons for telling a lie, apart from a realisation of guilt. Lies may be told out of panic, or to escape an unjust accusation, or to protect some other person, or for some other reason. No doubt such a direction is especially important where a person is confronted at the scene, or soon after the event, where allegations are put, and a spontaneous response provided. That, of course, was not this case. Here, the notice was given four months after the incident. It was given whilst the appellant and his brother were in custody, having been arrested on this offence some time earlier. It was given after consultation with their counsel. There was no question of panic. The real issue was whether, by reason of the description given to the offence (home invasion) and the passage of time, they may have been mistaken about the particular occasion and where they were. That was an issue which, in the summing up of her Honour, was well and truly before the jury. It was not an issue in respect of which the Edwards warning was especially relevant.
I am not persuaded that there was the possibility of a miscarriage of justice. I would apply Rule 4 and refuse leave to raise the issues which the appellant now seeks to canvass.
I would therefore propose that the appeal be dismissed.
BELL J: I agree with the orders proposed by Kirby J generally for the reasons his Honour gives, subject to the qualifications expressed by Sperling J, with respect to ground one. In relation to ground one I agree with the reasons of Sperling J.

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LAST UPDATED: 14/05/2004