R v Tran & Tran
[2009] SASC 327
•23 October 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN & TRAN
[2009] SASC 327
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Anderson and The Honourable Justice White)
23 October 2009
CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - POTENTIALLY UNRELIABLE WITNESS OR EVIDENCE GENERALLY
Appellants convicted of taking part in the sale of heroin - X had been jointly charged with the appellants but had pleaded guilty and was sentenced - X sentenced on the basis that he would give evidence in the trial of the appellants - some aspects of the evidence given by X were untruthful as evidenced by a statement of agreed facts - X gave evidence which indicated that he had a mental illness - trial Judge gave accomplice warning to the jury, warning that it would be dangerous to convict on the uncorroborated evidence of X, and drawing the jury's attention to possible reasons why an accomplice's evidence may be unreliable - trial Judge drew instances of the appellant's untruthfulness to the attention of the jury, but did not give a warning that it would be dangerous to convict on the uncorroborated evidence of X on that basis, nor did the trial Judge give a warning that it would be dangerous to convict on the uncorroborated evidence of X on the basis that he suffered from a mental illness - whether failure of the Judge to give warnings constituted error.
Held (by majority Bleby and Anderson JJ, White J dissenting): further warnings regarding the dangers on convicting on X's evidence due to the proved untruths in his evidence and his mental illness unnecessary in the circumstances of the case - the Judge gave sufficient direction as to how X's untruthfulness could properly affect the jury's assessment of his evidence - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(d); Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
R v Miletic [1997] 1 VR 593, applied.
R v Hunt [2002] SASC 195; Director of Public Prosecutions v Faure [1993] 2 VR 497; Hart v The Queen [2000] WASCA 103; R v Carabott [2002] SASC 283, distinguished.
Bromley v The Queen (1986) 161 CLR 315; Crampton v The Queen (2000) 206 CLR 161; Palmer v The Queen (1998) 193 CLR 1, discussed.
Piddlington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; R v Connolly [1991] 2 Qd R 171; R v Stewart (2001) 52 NSWLR 301; R v Turner [1975] QB 834; Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213; R v Baker (2000) 78 SASR 103; R v Humble [2009] SASC 51; R v Booth [1982] 2 NSWLR 847; Carr v The Queen (1988) 165 CLR 314; Longman v The Queen (1989) 168 CLR 79; McKinney v The Queen (1991) 171 CLR 468; Domican v The Queen (1992) 172 CLR 555; Pollitt v The Queen (1992) 174 CLR 558; M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439, considered.
R v TRAN & TRAN
[2009] SASC 327Court of Criminal Appeal: Bleby, Anderson and White JJ
BLEBY J: The key to this appeal is the adequacy of the trial Judge’s directions to the jury as to the approach they should take to the assessment of the evidence of a key prosecution witness, and whether a warning was necessary that, because of the proven lies told by the witness, it would be dangerous to convict on the witness’s evidence alone.
There are certain warnings such as the conventional “accomplice” warning and like warnings where a jury is required to be told that it would be dangerous to convict unless, after carefully scrutinising the evidence, they are convinced of its truthfulness, or that some form of corroboration is necessary. The reason for such warnings is to inform the jury of the need to take the relevant precautions because the experience of the Courts – an experience of which the jury may not otherwise be aware – is that such precautions need to be taken.
However, where a witness has been lying or is shown to be unreliable for reasons which apparently have little bearing on his own involvement in the case, and where the usual directions are given as to the assessment of witnesses and the effect that proven lies may have on the remainder of the witness’s evidence, it is not always necessary to warn the jury of the dangers of relying on that witness’s other evidence. The dangers are obvious, and something which juries as members of the community are capable of assessing without any added warning of the type which the appellants advocated in this case. But where a special warning is necessary, it will usually be accompanied by some explanation from the Judge as to the reason why the warning is necessary.
As to the need and reasons for and the nature of such warnings I respectfully adopt what the Full Court of the Court of Appeal of the Supreme Court of Victoria said in their joint judgment in R v Miletic:[1]
We readily acknowledge that there are rules prescribing the directions that a judge must give in particular classes of case. The warning required with respect to the evidence of an accomplice is a familiar example. But such rules should not be unduly expanded. A trial judge should retain the flexibility to deal with the almost infinite range of factors that affect criminal trials. Where there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.
There are four aspects of that general principle that we desire to mention. First, we emphasise the words “necessary and practical” and “perceptible”. A perceptible risk is one that is real or of substance, as opposed to a risk that is insignificant or theoretical. Secondly, we are speaking of directions that require the authority of the judge’s office. The factors calling for the warning must be of such a character that it is unsafe to leave the jury to rely on the arguments of counsel. Thirdly, an appellate court will attach weight to the judge’s assessment of what was required and, in appropriate cases, will infer from counsel’s not taking an exception that the direction in question was not required. Fourthly, the consequences of failure to give the direction will depend upon whether, in the event, there has been a miscarriage of justice. …
Where there is no specific rule requiring a direction, there must be an identifiable factor or group of factors calling for a direction to be given. It is not for an appellate court to make its own evaluation, for it is not equipped to do so. Counsel for the applicant must identify a specific factor or group of factors that could not safely be left to trial counsel to deal with in his address but required a direction that had the authority of the judge’s office. When it is said in the authorities that the necessity for a direction arises from the circumstances of the case, what is meant is that those circumstances must include such an identifiable factor or group of factors and that the form of the direction must be tailored to the facts of the case: see, for example, R. v. Omarjee.[2]
In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be apparent to the judge: cf. Bromley v. R. (1986) 161 C.L.R. 315 at 324-5 and Carr v. R. (1988) 165 C.L.R. 314 at 330. Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel’s addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury.[3]
[1] [1997] 1 VR 593, 605-606.
[2] (1995) 79 A Crim R 355, 369.
[3] See also Crampton v The Queen [2000] HCA 60, [126], (2000) 206 CLR 161, 208; R v Stewart [2001] NSWCCA 260, [83], (2001) 52 NSWLR 301, 317.
The facts of this case and the relevant directions of the trial Judge are adequately described in the reasons for judgment of White J. I will not repeat them. Like White J, I shall refer to the witness as “X”. However, before assessing the adequacy of the directions of the trial Judge, it is necessary to review a number of cases relied on by the appellants.
In Director of Public Prosecutions v Faure[4] the appellant was convicted of murder. It was the prosecution case that a motive for the killing arose out of a dispute between the deceased, on the one hand, and the appellant and his wife, on the other hand. The appellant’s wife was the principal prosecution witness. The case was conducted on the basis that its was either the applicant or his wife who actually shot the deceased. The applicant’s wife had given inconsistent statements to the police about the events surrounding the shooting, including a change of story which was unfavourable to the accused after a domestic argument. She had not been charged as an accomplice to the murder. There were a number of features of her evidence which, the Court held, warranted a particular warning about her evidence. They were summarised by Hampel J as follows:[5]
In my opinion the combination of factors in this case provided the need for a warning by the trial judge. I list a number of them. There was evidence of a stormy relationship between Mrs. Faure and the applicant, including a number of separations and her desire as well as her attempts to be rid of him and even have him killed. Her statement implicating the applicant and attributing a confession to him was made just after she had accused him of interfering with her daughter which resulted in an argument and her leaving. The confession she alleged he made was when he was in custody. There was evidence that she had access to the firearm, she had a motive to confront the deceased and had the opportunity to shoot him. She was also familiar with the general area where the firearm was found buried and where she said the applicant told her it was. In her original account to the police she did not tell what she later claimed was the truth. There was no corroboration of the main features of her evidence, namely her sighting of the applicant in the vicinity of the deceased’s house with a gun and of the alleged confession. Most significantly, the case was conducted on the basis that it was either the applicant or Mrs Faure who killed the deceased. While she was not on trial, she was the main witness against the applicant and clearly had an interest in inculpating him denying that she was responsible. She had, according to the applicant, told him when they had come to Melbourne together, that it was she who killed the deceased.
[4] [1993] 2 VR 497.
[5] Ibid 503.
Hampel J said of the required warning in that case:[6]
The warning should include a reference by the judge to matters of significance which are relevant to the assessment of the evidence of such witnesses. The jury’s attention should be drawn to the dangers inherent in such evidence and at least to the desirability of, if not the need for, the search for supporting material.
[6] Ibid 504.
His Honour acknowledged, however, that what warning is appropriate and adequate depends on the circumstances of the particular case.
Hampel J referred to and discussed a number of cases where warnings have been required as to the danger of convicting on the evidence of a particular witness unless corroborated or without the jury being convinced of its accuracy or being required to scrutinise the evidence with particular care. Examples given included where the sole evidence against the accused was a disputed uncorroborated oral confession;[7] where there was uncorroborated evidence of the victim of a sexual offence when the offence was alleged to have occurred many years before;[8] where the sole evidence for the prosecution was the disputed confession or statement given by a vulnerable accused in custody at the time;[9] as to the unreliability of certain evidence of identity and as to the factors which may affect the consideration of that evidence and its reliability;[10] as to the evidence of a prison informer;[11] and where an important witness suffered from a mental disability which could well affect the witness’s capacity to give reliable evidence.[12]
[7] Carr v The Queen (1988) 165 CLR 314.
[8] Longman v The Queen (1989) 168 CLR 79.
[9] McKinney v The Queen (1991) 171 CLR 468.
[10] Domican v The Queen (1992) 173 CLR 555.
[11] Pollitt v The Queen (1992) 174 CLR 558.
[12] Bromley v The Queen (1986) 161 CLR 315.
In the case of the prison informer Deane J expressed a number of reasons why the evidence of such a person would require a particular warning. He said:[13]
One such reason is that such evidence is easily concocted. Another is that, where such evidence is concocted, an accused will ordinarily be denied the possibility of corroboration of his denial of it. Another reason is that it is likely that a "prison informer" will be of bad character. Another is the likelihood that a prison informer may be motivated to fabricate such evidence either by a perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury.
[13] Pollitt v The Queen (1992) 174 CLR 558, 586.
The significant factors which required the warning in Faure included the nature of the relationship of the witness with the accused, the evidence of her desire to be rid of the accused, evidence of the motive on her part to commit the crime herself, her progressive release of statements damning the accused and her obvious interest in inculpating him in the crime.
In Hart v The Queen[14] three men were jointly charged with doing grievous bodily harm to the victim. There was no doubt that the victim was savagely attacked by at least four men. He was unable to identify his attackers. The issue at the trial related to identity of the accused. The Crown relied solely on the uncorroborated evidence of an accomplice, P, who admitted to being an accomplice by preventing another witness from going to the victim’s assistance. He admitted that he had lied to the police and on oath at the preliminary hearing in order to falsely implicate one of the accused who was in fact acquitted on P’s evidence at the trial, and that he had lied at the preliminary hearing in order to exculpate another person charged, which person was discharged after the preliminary hearing. He admitted that he had lied as to the circumstances of the offence. An accomplice warning was given in conventional terms, together with directions that the jury should “take into account” his previous inconsistent statements in assessing the witness’s credibility, and that the jury must have regard to “a clear self-interest motivation and that in assessing his evidence you must have regard to that”.[15]
[14] [2000] WASCA 103.
[15] Ibid [17].
Although he was a self-confessed accomplice, the Western Australian Court of Criminal Appeal held that his reliability as a witness because he was a liar “was the larger consideration affecting his credit and the capacity to prove the appellant’s guilt beyond reasonable doubt”.[16]
[16] Ibid [19].
That was a case where the witness’s acknowledged lying went to the very issues in the case and assumed much greater influence on his reliability than the fact that he was also an accomplice. It was the nature of the lies and the circumstances of their telling that required the warning. The warning given was inadequate because:[17]
It did not focus upon the fact that [P] was a confessed liar, even upon his oath, and for the purpose of manipulating the evidence so as to inculpate a person against whom he had a grievance and exculpate others when he was of a contrary mind.
[Emphasis added].
[17] Ibid [23].
In R v Carabott[18] the accused was charged with two counts of possession of a drug for sale. The drugs were found in a car that he was driving, along with equipment associated with drug use and the drug trade, a bayonet, a replica pistol, a knife and two mobile telephones. The accused told the police that the car was owned by K. One of the mobile telephones was leased by K’s wife. K was a vital witness for the prosecution. His evidence was that he did not own the vehicle but that the appellant did. The car was registered in his name at the appellant’s request, and he had never driven the vehicle and knew nothing about the drugs. He had previously told a police officer that he was in the process of selling the vehicle to the appellant – a statement which, in evidence, he denied having made. He admitted that the bayonet was his but claimed that it had been removed from his house unlawfully. He was unable to explain the presence in the car of the mobile telephone in his wife’s name. He admitted that he was addicted to morphine.
[18] [2002] SASC 283 (2002) 83 SASR 293.
In that case the warning was necessary because of “the significance of [K] having his own interest to serve”.[19] It was held that an appropriate warning should have been given that his evidence required careful scrutiny and warning of the dangers of acting on his evidence in the absence of independent support.
[19] Ibid [18], 298.
Finally, in this review of the cases, R v Hunt[20] is a case of some significance. It was a case of murder by joint enterprise to which the witness W was a party, and indeed fired the rifle which killed the victim. W had pleaded guilty to murder and was the principal prosecution witness against the accused. The weapon was provided by the accused, and the common purpose or joint enterprise was that the rifle would be used to intimidate people in a house, the allegation being that the accused contemplated that if the occasion arose the rifle would be fired at someone. The accused also gave evidence. W was obviously his accomplice if he was found guilty. He had good reason to play-down his own involvement and to play up that of others.
[20] [2002] SASC 195.
W’s evidence at the trial maintained what was described as a “consistent core”. He admitted the consumption of cocaine, marijuana and alcohol on the day in question. He admitted fairly long-term drug abuse. He agreed that he had experienced hearing voices when he was affected by drugs. He agreed that cocaine and marijuana had an adverse effect on his memory. There were inconsistencies and a change of story between what he told the police and what he said in evidence as to the material events surrounding the murder. There were other discrepancies in his evidence.
When speaking of the warnings required, Doyle CJ with whom Perry and Lander JJ agreed, said:[21]
The Judge had to give the jury a direction of the kind required when the prosecution case relies on the evidence of an accomplice.
The other aspects of Mr [W] and his evidence identified by me required a separate warning to the jury about the potential unreliability of Mr [W]’s evidence, a reminder about the reasons for that unreliability and the consequent need for caution when considering his evidence, and a direction that it was dangerous or unsafe to act on Mr [W]’s evidence unless it was confirmed or supported by other evidence. I will on occasions refer to this further warning as the second warning.
I have described the requirements of the second warning in general terms. What I have said is not intended in any sense as a script. The second warning is required for the reasons identified by the High Court in R v Bromley (1986) 161 CLR 315 and in Longman v The Queen (1989) 168 CLR 79. I refer also to R v Pahuja (No.1) (1987) 49 SASR 191 at 195-200 King CJ; at 213-215 Cox J; at 221-222 Johnston J; and to R v Miletic [1997] 1 VR 593 at 604-606. As those cases indicate, it was for the Judge to fashion the terms of the second warning according to the circumstances of the case, and considerable discretion is to be allowed to the trial Judge in that respect. But in the circumstances there clearly was a need for a clear warning, more than just a comment.
[21] Ibid [21]-[23].
The Chief Justice then described the course of the trial Judge’s summing up and the “first warning” based on the witness as an accomplice to murder, followed by a direction as to what would amount to corroboration. What the Chief Justice described as the “second warning”, which was held to be sufficient, was in the following terms:[22]
“Ladies and gentlemen, if you take the view that the evidence to which I have referred does tend to confirm [W]’s account implicating the accused, then you may put aside the special warning that I gave you, which the law gives you, as to the evidence of accomplices, but I would still advise you in this case to carefully scrutinise [W]’s evidence because of the other matters that I have mentioned – his sheer unreliability as a witness which he disclosed here in the witness box, and the other maters affecting his character – drug taking, etc.
He is obviously a witness, on any view, to be treated with caution. Of course, your view of him may be influenced if you think that his evidence is confirmed to a significant extent, and, of course, like any other witness, it is open to you, if you see fit, to accept portions of his evidence, even if you think he is generally unreliable if, for any reason, you think they are convincing and command conviction in your eyes.”
[22] Ibid [28].
The direction was to “carefully scrutinise” W’s evidence because of his unreliability, but it continued in the nature of a general direction as to the ability to accept portions of the witness’s evidence if the jury thought it was convincing. It did not include a warning that it would be dangerous to convict on W’s uncorroborated evidence. The Chief Justice said, of the second warning:[23]
The Judge had reminded the jury on numerous occasions of the changes in Mr [W]’s evidence and in his statements out of court, of the inconsistencies in his evidence and statements, and of matters that might make Mr [W] unreliable. … True enough, to some extent it necessarily stands in the shadow of the accomplice warning. If the jury had found that Mr [W]’s evidence was corroborated in a material particular, that was likely to affect their assessment of his evidence. There was no point in trying to avoid that result. But I consider that the Judge adequately brought home to the jury the need for caution quite apart from the danger that arose from the fact that Mr [W] was implicated in the crime.
Some judges might have given greater emphasis to the second warning, but I consider that in all the circumstances the warning was sufficient. In the circumstances it was not necessary to tell the jury that they should look for confirmation of or support for Mr [W]’s evidence in other evidence. In a case like this that usually would be said. But in this case the accomplice direction really covered that, because the Judge had told the jury that they should look for corroboration in any event.
[23] Ibid [30]-[31].
X’s proven lies in this case related principally to his past use of, contact with and court appearance in respect of the use of heroin, and previous statement to the police as to who had the keys to the house. X’s credit was attacked not by exposing lies as to his version of events as they affected the appellants or by proving lies from which a motive to implicate the appellants might be inferred. His credit was attacked by way of what I would describe as a peripheral attack on his credibility. His proven lies were not such as to distance himself from this crime or, in themselves, to demonstrate inconsistency in the evidence relating to the actions of the appellants. He did deny any involvement in the packing of heroin, notwithstanding the evidence of heroin found in the scrapings from his fingernails, and his lies about his previous involvement with heroin can be seen as casting doubt on that part of his evidence. But his proven lies had no direct bearing on the proof of guilt of the appellants. There was disputed evidence as to the conversation that X had with the police outside the house and as to delays before the police went into the house, but they were not proven lies, and the evidence had little, if any, direct bearing on the circumstantial evidence implicating the appellants.
There was evidence from X himself indicating a history of mental illness. That evidence has been set out in the reasons of White J. There was no medical evidence as to the nature and extent of his mental illness and there was nothing to suggest that his ability to observe and recall the events in question on that day was affected in any way by that illness. This was a far cry from the situation that confronted the Court in Bromley v The Queen.[24] There the witness was schizophrenic and was shown to have had, on the night in question at a time after the alleged murder, an episode of the illness that required admission to a mental hospital. In that case it was held that a clear warning, appropriate to the circumstances of the case, should be given of the possible danger of basing a conviction on the witness’s unconfirmed evidence.
[24] (1986) 161 CLR 315.
The actual directions given by the Judge in this case are set out in the reasons of White J, although there is one additional direction to which it will be necessary to refer.
The problem of X’s lies and the importance of his evidence had been highlighted by the Judge when speaking of the evaluation of the oral evidence and of the reliability of witnesses. Examples of his proven lies were given with specific reference to X’s evidence and its importance in the case. A direction had been given on the need for the jury to be satisfied that there was corroboration of his evidence had been given in the unexceptional direction concerning his capacity as an accomplice, including a direction that it would be dangerous to convict on his evidence unless the jury was satisfied that was corroborated. X’s truthfulness, the significance of it and the need for the jury to be satisfied as to its truth was mentioned again when the Judge spoke of the immunity granted to the witness by the DPP and the basis of that immunity, namely that he give truthful evidence. The Judge said:
You have heard that the immunity granted to Mr [X] was expressly on the basis that he would give truthful evidence. The question for you in this trial is whether he has done that. More specifically perhaps, are you satisfied beyond reasonable doubt that in material respects he has been truthful. Is what he says about the involvement of each of the accused truthful?
[Emphasis added]
The need for the jury to be satisfied as to the truthfulness of X’s evidence was again brought to the attention of the jury when the Judge summarised the submissions of counsel and the jury were again reminded of the obvious untruths in some aspects of X’s evidence.
The question in this case is whether the Judge should have given any further warning of the dangers of convicting on X’s evidence by reason of the proven untruthfulness of some parts of his evidence not directly related to the events implicating the appellants. The cases relied on by the appellants, and to which I have referred, as justifying a warning based on the unreliability of a significant prosecution witness’s evidence were all cases where there was good reason to question the evidence of the significant witness on which the prosecution case relied because of proven lies or unreliability of the witness with respect to disputed evidence of the events constituting the crime, or of events highly material to the accused’s guilt, or where the lies in themselves were indicative of a motive to implicate the accused over and above any inference to be drawn from the fact that the witness was an accomplice. On that basis, cases such as Director of Public Prosecutions v Faure,[25] Hart v the Queen,[26] and R v Carabott[27] are to be distinguished.
[25] [1993] 2 VR 497.
[26] [2000] WASCA 103.
[27] [2002] SASC 283, (2002) 83 SASR 293.
X was not shown to have had a motive to lie in what he told the Court about the movements and activities of the appellants beyond the usual caution applicable to an accomplice. His evidence as to the events and his relationship with the appellants was not disputed.
Apart from being an accomplice, his evidence required no different treatment from that of any other witness who was shown to have told lies on previous occasions, which lies might affect the credibility of the witness as to the other matters of which he gave evidence. As to that, there was sufficient and repeated direction given as to how X’s untruthfulness might properly affect the jury’s assessment of his core evidence, even to the point of directing the jury that they would have to be satisfied beyond reasonable doubt of his truthfulness as to those events if they were to convict.
The situation is not dissimilar from that in R v Hunt,[28] where the accomplice warning had been given and where the trial Judge adequately brought home the need for caution in assessing X’s evidence apart from the danger arising from the fact that X was implicated in the crime as an accomplice. If X had not been an accomplice, it might have been necessary to give a stronger direction than was in fact given in relation to his unreliability. It was not necessary to tell the jury again that they should seek confirmation of X’s evidence in other evidence that had been led. The accomplice direction sufficiently covered that. In my opinion there was absent from this case any reason which required any additional warning arising out of X’s unreliability beyond the directions that were given.
[28] [2002] SASC 195.
In my opinion this conclusion also effectively answers any argument that the verdict was unsafe or unsatisfactory. It was open to the jury, on the whole of the evidence, to be satisfied of the guilt of the appellants beyond reasonable doubt.[29] The jury was in a position to be able to assess whether, given the acknowledged weaknesses in X’s evidence, they accepted his evidence, along with the other circumstantial evidence, which together was capable of justifying a verdict of guilty. It is not for this Court to usurp the functions of the jury.
[29] M v The Queen (1994) 181 CLR 487, 492-493; Jones v The Queen (1997) 191 CLR 439, 450-451.
In my opinion the appeal should be dismissed.
ANDERSON J. It is my view that the appeal should be dismissed. I agree generally with the reasons of Bleby J for dismissing the appeal. Because both he and White J have reached different conclusions, I will briefly set out my reasons for agreeing with Bleby J.
The facts are fully dealt with by White J. Both he and Bleby J have summarised and analysed the leading authorities.
In this matter the key issue relates to the unreliability of one witness, X, who was the main witness for the prosecution. He was an accomplice in the commission of the crime. He was granted immunity from prosecution on the condition that he give truthful evidence. He was clearly an unreliable witness because of inconsistencies between what he said in his evidence and the facts which were agreed by the prosecution and the defence.
X told lies and the jury was directed by the judge in relation to those lies. They were directed as to the need to be satisfied with the truthfulness of X’s evidence. In addition, both counsel spent some time on the question of X’s truthfulness. The topic of the unreliability of X as a witness was something which the jury clearly had in mind. In my view it must have been the main focus for the jury.
The judge gave the usual warning about the process of evaluating a witness as to the witness’s reliability. He then gave a warning specifically related to X and referred to the criticisms which had been made of X’s evidence. He gave two examples of X being untruthful, and summarised counsels arguments as to how the jury should deal with X’s untruthfulness.
His Honour then gave the accomplice warning. It focused on the fact that X was giving evidence which could be tainted.
White J in his reasons indicates a concern that the judge
… did not at any stage warn the jury, directly or indirectly, that it would be dangerous to act on the evidence of X, by reason of his untruths or mental illness, without having considered it carefully, and without being satisfied that it had some corroboration.
I consider that the judge did adequately warn the jury of the dangers of relying on the evidence of X. The question of his untruthfulness was a focus of both the judge’s directions and his reference to counsels’ submissions.
I further agree with Bleby J that the topics of the lies told by X were not of fundamental importance to the key aspects relevant to determining the guilt or innocence of the accused. The lies relate to his use of heroin in the past, what he told a doctor about his use of heroin, who had keys to his house and what was said at the time police officers arrived at the scene when they made the arrests.
There was also the question of X’s mental illness. White J would not have required an extra or second warning on this basis alone.
White J takes the view that the jury may not have realised the significance of the prosecution and defence agreeing facts and that it was unusual. I consider that the agreed facts in fact highlighted for the jury the areas of X’s unreliability. I consider that a further direction as suggested by White J was unnecessary.
It seems to me that a point is reached in giving such directions to a jury where it is possible to create an overload of information for the jury. It would have been such an overload and potentially confusing and unnecessary, in the view I take, for a second warning to have been given on the facts of this matter. The trial judge must be allowed an exercise of discretion in deciding whether the second warning is appropriate in the circumstances of the case: see Doyle CJ in R v Hunt [2002] SASC 195 at [23].
I therefore would dismiss the appeal.
WHITE J: On 22 January 2005, the police searched a house in Golding Street, Beverley. In the lounge room they found a plastic bag containing 348.4 grams of white powder under a sofa cushion. Later analysis indicated that the white powder was 57 per cent pure heroin. The police also found, underneath the same sofa, a small balloon containing 6.72 grams of powder, 1.26 grams of which was pure heroin. In the kitchen of the house, the police found paraphernalia associated with the pressing and packing of heroin for sale.
As a result of the items found by the police, the appellants and the occupant of the house were charged with the offence of taking part in the sale of heroin.[30] The occupant of the house pleaded guilty to the offence of possessing heroin for the purpose of sale[31] and was sentenced in April 2007. He was the principal prosecution witness at the trial of the two appellants. The suppression orders made at the trial in relation to his evidence remain in force. Accordingly, I will refer to him as “X”.
[30] Contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA) as it stood at the relevant time.
[31] Contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) as it stood at the relevant time.
The first appellant (Mrs Tran) is the mother‑in-law of the second appellant (Mr Tran).
The appellants were convicted by a jury and now appeal, on identical grounds, against their convictions. They complain that the trial Judge failed to direct the jury appropriately as to the assessment of the evidence of X. Clear and strong warnings were required, it was said, not only because X was an accomplice, but also because X had been untruthful (as acknowledged by the prosecution at trial) in aspects of his evidence and because of his history of mental illness. In addition, the appellants contend that the jury verdict is unsafe and unsatisfactory.
Background Circumstances
The police attended at the Golding Street house at approximately 5.30 pm on 22 January 2005. They spoke to X in the front yard. He acknowledged that he was the occupant of the home and permitted the police to enter the house. They saw Mrs Tran sitting on a single seater in the lounge room, within reaching distance of the sofa in and under which the bag and balloon containing heroin were found. While the police were at the property, Mr Tran arrived in a BMW. The police conducted a search both of the house and of the BMW.
In addition to the bag and balloon already mentioned, the police found in the kitchen three sets of scales (each with a residue of white powder which later analysis indicated was heroin), some plastic bags, a bag containing a kitchen blender, two bags of 30 party balloons, some latex gloves, two bags of glucose powder, a thin circular metal disc, and a small plastic sandwich bag which was also found to have traces of heroin in it.
Elsewhere in the house, the police found a car jack, sometimes called a “bottle jack” (on which was located a fingerprint matching that of Mr Tran) and some componentry which, together with further componentry found in the BMW, could be made up into a heroin press.
The police took scrapings from underneath the fingernails and swabs from both hands of Mrs Tran, Mr Tran and X. On later analysis, heroin was detected in both the swabs and fingernail scrapings from Mrs Tran’s right hand and in the swab taken from the left hand of X. Heroin was not detected on any of the swabs or fingernail scrapings taken from Mr Tran.
The prosecution case was that the appellants and X were involved in a joint enterprise to prepare a parcel of heroin for sale by mixing the heroin with the glucose and then repackaging it. The press was to be used to compress the heroin into the shape of a puck or a cake. The prosecution case was that the appellants had commenced the process when they realised that some of the parts for the press were missing. Mrs Tran then directed Mr Tran to go and obtain the missing parts. He was doing this at the time the police arrived at the premises.
The Evidence of X
The evidence-in-chief of X was to the following effect. He was 40 years old and came to Australia from Vietnam in 1994. He had come to know Mrs Tran before arriving in Australia and regarded her as being like an older sister.
In June 2005 he and his wife were renting a house in Golding Street, Beverley. He told Mrs Tran of a debt he owed and of his difficulty in paying it. About three or four weeks before 22 January 2005, Mrs Tran offered to pay him $500 in exchange for him allowing her the use of the Golding Street house for a period of about two hours. He agreed and absented himself on that occasion from the house for that period. On his return, he saw Mrs Tran and another person and some componentry being packaged up. The componentry was similar to that which the police found in the home on 22 January 2005.
Mrs Tran made a similar request two or three days before 22 January 2005. On this occasion, he was to be paid $1,000 for the use of his house. That day he drove Mrs Tran in her car to his home. At Mrs Tran’s request, he took from the boot of her car a bag containing “tools” and carried them into his house. He and Mrs Tran then drove back to Mrs Tran’s home. They were joined there by Mr Tran and all three drove in the BMW back to the Golding Street house. Mrs Tran carried a black plastic bag into his home.
At the request of Mrs Tran he weighed the contents of the black plastic bag (contained within a white plastic bag). It was about 360-370 grams, which Mrs Tran described as “sufficient”. He made an enquiry of Mrs Tran about the weight of the package and she responded with words to the effect “this is very expensive”. Mrs Tran then told him to go outside and watch the street. He complied with that request. However, he heard Mr Tran, who was unpacking the bag of tools, say that it was incomplete. Mrs Tran then told Mr Tran to go and get the remainder. Mr Tran left in the BMW.
After Mr Tran left, X went back inside. He asked Mrs Tran what the white package was. She told him that it was very expensive (“in the hundreds and thousands or so”).
X went outside again and was there when the police arrived. He permitted them to enter the house and said that it was then that he first saw the heroin.
X was arrested and along with the two appellants was charged with the offence of taking part in the sale of heroin. In late 2006, X decided to plead guilty and offered to give a statement to the police about the events that occurred on 22 January 2005. Subsequently he was interviewed and provided statements to the police.
X was sentenced in the District Court on 17 April 2007. A sentence of three years’ imprisonment with a non-parole period of two years was imposed. That sentence was suspended. The prosecution supplied a “letter of comfort” at the time of the sentencing. In addition, the prosecution gave X an immunity from prosecution in relation to any offences he may disclose in evidence at the trial of the appellants, provided that he gave truthful evidence.
Neither of the appellants gave evidence at the trial. It was put to X in cross-examination that he was the one who was preparing the heroin for sale and that the appellants were simply visitors who happened to be at his home at the time of the police attendance.
Untruths in the Evidence of X
A statement of agreed facts (Exhibit P13) tendered at the trial indicated that X had told a number of untruths in his evidence.
In his evidence-in-chief, X said that he had never used heroin in the past and had never touched or carried heroin. He could remember only one occasion prior to 22 January 2005 when he had appeared in court. He maintained those answers in cross-examination and, in particular, denied any previous court appearance for a heroin offence.
The statement of agreed facts indicated that X had been arrested on 5 December 2000 after the police found a small white rock of heroin in his sock. X told the police at that time that the substance was heroin and that he knew that it was an offence to have possession of it. X was sent to the Drug Assessment and Aid Panel for rehabilitation and the charge was discontinued in court in accordance with the provisions of the Controlled Substances Act 1984 (SA) then in force.
It was also agreed at the trial that in April 2002 X had told a doctor at the South Australian Mental Health Service that he was an ex-heroin user but had not used heroin for six months and that, in March of 2003, he had given a doctor at the Port Adelaide Mental Health Service a history of alcohol and heroin abuse.
In addition it was an agreed fact that the counsel who made submissions on behalf of X in relation to his sentencing for the offence committed on 22 January 2005 told the sentencing Judge, in the presence of X, that he “had previously used heroin, shortly after arriving in Australia”. Counsel had also told the sentencing Judge that X “did use some heroin in 1998 but his then psychiatrist counselled him against the use of heroin, that is Dr Newson who counselled him at the time”.
The statement of agreed facts indicated that the denials by X of his previous use of, or contact with, heroin, and of any previous court appearance for a heroin offence were untruthful.
The statement of agreed facts indicated another untruth in the evidence of X. After X agreed to provide a statement to the police, he was interviewed by Detective Halliday in December 2006. In his cross-examination at trial, X denied that he had told Detective Halliday that, as at 22 January 2005, his wife and her boyfriend, a man named Long, had keys to the Golding Street house. However, it was an agreed fact at the trial that X had made that statement to Detective Halliday when interviewed in December 2006.
On two aspects, the evidence of X was also contradicted by the police officers who first attended at the Golding Street house. X said in evidence that he was told by the police officers, when he first spoke to them in the front yard of the property, that there was heroin in the house. He also said that the police officers delayed entering the house for about 30 minutes after their arrival. Both the police officers who first spoke to X at the Golding Street house said that they had attended there for an unrelated reason, and that, until they entered the house, they had had no knowledge at all of any heroin that might be there. They also denied that some 30 minutes elapsed before they entered the house, saying that the entry occurred within a few minutes of their first arrival.
The Mental Illness of X
There was no formal medical evidence at the trial that X suffered from a mental illness. However, in the course of her opening at the trial, the prosecutor told the jury that they would hear evidence that X had a history of mental illness. The prosecutor led evidence from X of a condition for which he had been taking medication for approximately ten years:
Q.Did you have this problem back in January 2005?
A.Yes.
Q.Were you taking medication for your problem back in January 2005?
A.Yes, that’s correct.
Q.Can you tell us how your problem makes you feel if you don’t take your medication?
A.If I do not take medicines for let’s say two days, then within the two days … I would develop dizziness, headache and those symptoms would cause me terrible discomfort. Secondly, if I do not take medicines my mind would not work in the normal way and I would be very prone to be seduced by further people into doing silly things.
Q.Have you ever been in the hospital for your problem?
A.Yes.
Q.Has your problem ever caused you to have delusions or hallucinations?
A.Yes.
Q.Has your problem caused you to want to hurt yourself?
A.Yes.
In cross-examination X acknowledged that if he did not take the medication, he would hear voices in one ear which he knew were not real. X did not acknowledge that a diagnosis of schizophrenia had been made by the doctors treating him. As already noted, there was no evidence of any particular psychiatric diagnosis which had been made.
In her closing submissions, the prosecutor told the jury that they could regard X as a person with a “serious mental disability” and reminded the jury that this is something which they would have to consider.
The Appellant’s Submissions Concerning the Warnings Required
The appellants submitted that in the circumstances of this case, the Judge should, in addition to the required accomplice warning,[32] have warned the jury about the dangers in acting on the evidence of X. This was so because of the acknowledged untruths in his evidence and because of his mental illness.
[32] See R v Baker [2000] SASC 407; (2000) 78 SASR 103.
At the hearing of the appeal both appellants sought permission to add a separate ground of appeal complaining of the Judge’s failure to direct the jury on the dangers of acting on the evidence of X in the circumstances of his mental illness.
The Directions of the Judge
The Judge gave a conventional direction to the jury about the evaluation of witnesses and about the matters which the jury may take into account in doing so. He told the jury that it was for them to evaluate whether the witnesses were telling the truth, whether they were reliable, and that it was open to the jury to accept part of a witness’ evidence and to reject other parts. The Judge then continued in relation to X:
[7]Because [X’s] evidence is important in this case and because of the criticisms that have been made of his evidence, I think I should say something further on this topic. What I have to say is little more than an extension of what you would understand from your everyday lives. Witnesses can be wholly reliable, wholly unreliable, or they may be somewhere in between. By reliable, I am referring to accurate information and accurate evidence. Because a witness is unreliable about one aspect of their evidence does not mean that they are unreliable necessarily about all of their evidence. You will have to apply that reasoning to the evidence of [X]. It may be, though, that reliability is less of an issue than truthfulness. Like reliability, witnesses can be wholly truthful, wholly untruthful or somewhere in between. Ms Griffith has conceded that in some respects [X’s] evidence has been untruthful. I will come to those aspects in more detail later.
[8]To take just two examples, he was untruthful about using heroin. He said that he had not used heroin but the agreed facts make it clear that he has. He denied ever being arrested for a heroin offence but we know from the agreed facts that he has been. Ms Griffith submits that while he has been untruthful in some respects, that should not lead you to conclude that he has been untruthful when he speaks of the involvement of each of the accused in aspects of preparation of heroin for sale. On the other hand, both defence counsel have said that [X] has so comprehensively lied to you that you cannot believe anything he says. You will have to weigh up those competing arguments but you will certainly have to consider the effects that lies [X] has undoubtedly told, how they bear on contested aspects of his evidence.
It can be seen that in these two paragraphs the Judge told the jury that they would have to consider, in their assessment of the evidence of X, the fact that it had been conceded that he was untruthful in his evidence about some matters. He told the jury that they would have to consider the effect which the lies which X had undoubtedly told had on contested aspects of his evidence, and he reminded the jury of the submission of defence counsel that X had lied so comprehensively that the jury should not believe anything he said.
In the last sentence of paragraph [8] the Judge said that he would address in more detail those aspects of the evidence of X which the prosecutor had conceded were untruthful. The Judge did this when summarising the submissions made by counsel for Mrs Tran.
These remarks of the Judge cannot be likened to a warning. They were a direction about the process of evaluation of evidence. That they cannot be regarded as equivalent to a warning is made apparent by the Judge’s comment:
[W]hat I have to say is little more than an extension of what you would understand from your everyday lives.
The Judge later gave an accomplice warning in the following terms:
Experience of the courts has shown that evidence of accomplices can be unreliable. Accomplices have interests of their own to serve. They may wish out of malice to implicate others. They may be seeking to shift the blame or part of the blame for their wrongdoing to others. They may be seeking to curry favour with the authorities in order to improve their own situation. Each of these allegations has been put to [X] by defence counsel.
The evidence from a person who has himself been involved in a crime comes, therefore, from a tainted source. [X] was sentenced on the basis that he lent his house to the first defendant so that she and the second defendant could carry out the crime of preparing the heroin for sale and he helped in some specific ways, such as transporting and carrying the press components and helping weigh the heroin. By pleading guilty and by agreeing to give statements and evidence against the accused, [X] has received leniency from the sentencing judge.
For those reasons, I warn you that it is dangerous to convict on the evidence of an accomplice unless that evidence is corroborated. Corroboration is evidence from a source independent of the witness to be corroborated which implicates the accused in the crime charged by tending to show both that the crime was committed and that the accused committed it. The question is, therefore, is there evidence in this case capable of amounting to corroboration. I direct you as a matter of law as to the evidence that is capable in law of amounting to corroboration.
It can be seen that the Judge warned the jury that it would be dangerous to convict on the evidence of an accomplice unless the evidence was corroborated and why that was so. The Judge went on to identify for the jury evidence which was capable of amounting to corroboration in relation to each of the appellants (in the case of Mrs Tran, the evidence of the heroin found on her right hand and, in the case of Mr Tran, the evidence of his fingerprint on the bottle jack). The Judge then told the jury that even if they accepted that those items of evidence were corroborative it was still necessary for them to “examine [X’s] evidence with care bearing in mind the warning I have just given you”. The appellants accepted that the accomplice warning given by the Judge was appropriate.
Later in the course of summarising the prosecution case, the Judge reminded the jury that X was an accomplice, that he had been given leniency by the Judge who sentenced him on account of the cooperation which he was providing, and that the prosecution had granted him an immunity from further prosecution. The Judge then said:
You have heard that the immunity granted to [X] was expressly on the basis that he would give truthful evidence. The question for you in this trial is whether he has done that. More specifically perhaps, are you satisfied beyond reasonable doubt that in material respects he has been truthful. Is what he says about the involvement of each of the accused truthful?
Ms Griffiths submitted that the prosecution case is that despite [X’s] clear motive to implicate the other accused and the clear benefit which he has obtained from doing so, that despite the untruths that he has told he is still a witness whose evidence on the question of why and how the heroin and the press components were in the house, is credible, and upon that evidence you can found a conviction.
The jury’s assessment of the credibility of X formed a prominent part of the submissions of each of the appellants’ counsel. In summarising the submission made by counsel for Mrs Tran, the Judge identified a number of the matters on which the prosecution had conceded that X’s evidence had been untruthful:
[Mr Edwardson] was particularly critical of [X’s] evidence which he said was riddled with inconsistencies. He pointed out that [X] had a motive to shift the blame from himself to the two accused. …He pointed out that [X] did not in his evidence admit that he was deliberately and knowingly packaging heroin. Rather, he minimised his involvement by saying that he did not know that it was heroin until he was told by the police.
Mr Edwardson suggested that the Crown case relied upon [X] and that without that testimony the Crown’s evidence was incapable of proving Mrs Tran’s guilt beyond reasonable doubt. He told you correctly that it is your assessment of the reliability and credibility of witnesses that is critical. He foreshadowed correctly that I would tell you that it was your right to believe the whole of a witness’s evidence, a part of it, or none of it. He then moved to aspects of [X’s] evidence which are plainly not true. He reminded you that [X] denied using heroin but agreed fact No 8 is to the effect that a submission was made by his counsel that he had used heroin but that he had given it up when counselled to do so by a psychiatrist. You each have a copy of the agreed facts.
Mr Edwardson drew attention to [X’s] denial that he had been arrested in December 2000 for being in possession of heroin. Agreed fact No 7 demonstrates that is untrue.
He then took you to [X’s] account that the police told him that they knew heroin was being taken into the house by Mrs Tran before they arrived there. Senior Constable Mitchell said that the police did not know that. Their intelligence was rather that the Housing Trust had become aware of reports that there were bars on the windows of [X’s] house and that people were coming and going at odd hours. The police also contradicted [X’s] evidence that he remained with them outside the house for some 30 minutes before going in.
Mr Edwardson drew attention to an inconsistency between [X’s] evidence and something he told Detective Halliday in his interview. He had told Detective Halliday that his wife had provided her boyfriend, Mr Long, with keys to the house. In his evidence he denied telling Detective Halliday that. Agreed fact No 10 is to the effect that he had told Detective Halliday what Mr Edwardson put to him.
The Judge did not at any stage warn the jury, directly or indirectly that it would be dangerous to act on the evidence of X, by reason of his untruths or mental illness, without having considered it carefully, and without being satisfied that it had some corroboration. Counsel submitted that the circumstances of the case required the Judge to do more than simply remind the jury of the submissions of counsel. In order to understand the basis for the submission, it is necessary to refer to some of the authorities.
Relevant Principles
The general principle governing the requirement for warnings when the evidence is potentially unreliable is that stated by Gibbs CJ in Bromley v The Queen:[33]
What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is “Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?”. There is nothing formal or technical about this rule.[34] [Citation omitted]
[33] (1986) 161 CLR 315.
[34] Ibid at 319.
In R v Miletic[35] the Court of Appeal in Victoria cautioned against expanding unduly the classes of case in which the law should require a warning to be given saying:
A trial Judge should retain the flexibility to deal with the almost infinite range of factors that affect criminal trials. Where there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.
There are four aspects of that general principle that we desire to mention. First, we emphasise the words “necessary and practical” and “perceptible”. A perceptible risk is one that is real or of substance, as opposed to a risk that is insignificant or theoretical. Secondly, we are speaking of directions that require the authority of the judge’s office. The factors calling for the warning must be of such a character that it is unsafe to leave the jury to rely on the arguments of counsel. Thirdly, an appellate court will attach weight to the judge’s assessment of what was required and, in appropriate cases, will infer from counsel’s not taking an exception that the direction in question is not required. Fourthly, the consequences of failure to give the direction will depend upon whether, in the event, there has been a miscarriage of justice.
…
In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge … Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel’s addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury.[36][Citations omitted] [Emphasis added]
The passage emphasised indicates that a particular warning is less likely to be required in those circumstances in which jurors can reasonably be supposed, in the light of their own general experience, to understand the need for caution before acting on particular evidence.
[35] [1997] 1 VR 593.
[36] Ibid at 605-6.
The importance of warnings in those circumstances in which the courts are, through experience, aware of some danger which may not be readily appreciated by a jury is apparent in other authorities. In Crampton v The Queen,[37] Kirby J explained the purpose of a judicial warning and a judicial comment as follows:
[126]Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. …[38]
Similarly in R v Stewart[39] Howie J said:
[83]However, a warning reflects the special experience of the law with a matter of which the jury may have little knowledge or understanding … So in a warning it is not sufficient for the trial judge merely to refer to a submission about the matter made by counsel in addressing the jury. The authority of the trial judge must be used to impress the significance of the matter on the collective mind of the jury.[40] [Citation omitted]
[37] [2000] HCA 60; (2000) 206 CLR 161.
[38] Ibid at [126]; 208.
[39] [2001] NSWCCA 260; (2001) 52 NSWLR 301.
[40] Ibid at [83]; 317.
The appellants referred to three cases involving circumstances somewhat similar to the present in which it was held that a separate warning was required, and that the assessment of the evidence in the absence of such a warning was not to be left to the general experience of the jury.
In R v Hunt[41] the prosecution relied upon the evidence of an accomplice at the trial of a charge of murder. Although considering that there was a reasonably consistent core to the account given in evidence by the accomplice, Doyle CJ also considered that there were aspects which were confusing and inconsistent, as well as inconsistent with earlier statements which he had given to the police. There was evidence that the accomplice was a person of bad character, having committed a number of previous offences and, apparently, of low intelligence. His reliability as a witness was also affected by long-term use of drugs and there was evidence that he was affected by drugs at the time of the murder. This meant that his perception of events when they occurred, and his memory of events, had to be regarded with caution. In the course of his evidence the accomplice acknowledged that earlier versions which he had given of the crime were untrue in some respects.
[41] [2002] SASC 195.
In relation to the warnings which were appropriate in the case, Doyle CJ said:
[21]The Judge had to give the jury a direction of the kind required when the prosecution case relies on the evidence of an accomplice.
[22]The other aspects of Mr Weetra and his evidence identified by me required a separate warning to the jury about the potential unreliability of Mr Weetra's evidence, a reminder about the reasons for that unreliability and the consequent need for caution when considering his evidence, and a direction that it was dangerous or unsafe to act on Mr Weetra's evidence unless it was confirmed or supported by other evidence. I will on occasions refer to this further warning as the second warning.
It can be seen that Doyle CJ considered that other aspects of the accomplice and of his evidence required a warning which was separate to the accomplice warning. Doyle CJ described this as “the second warning”. In the circumstances of R v Hunt the Court was satisfied that the warning given by the trial Judge was sufficient but the point made by Doyle CJ (with whom the other members of the Court agreed) is that there are circumstances in which a warning separate from an accomplice warning is required. Doyle CJ emphasised that it is for a trial judge to fashion the terms of the second warning according to the circumstances of the case, and that considerable discretion is to be allowed to a trial judge in that respect.[42]
[42] Ibid at [23].
The appellants referred next to Director of Public Prosecutions v Faure.[43]In that case the Court of Criminal Appeal in Victoria allowed an appeal against a conviction for murder because of the failure of the trial Judge to give the jury a warning about the dangers of acting upon the evidence of the accused’s wife who was the principal prosecution witness. The Court accepted that the wife was not an accomplice. However, there was evidence that, by reason of her motive, opportunity and means, the wife may herself have been responsible for the murder. In addition, there was evidence that she and the accused had a stormy relationship and evidence of attempts by the wife to get rid of the accused and even to have him killed. The Court held that a specific warning of the dangers of acting upon the uncorroborated evidence of the wife was required and that its absence meant that a miscarriage of justice had occurred.
[43] [1993] 2 VR 497.
The third authority to which the appellants referred was Hart v The Queen[44] in which the appellant appealed against his conviction of the offence of doing grievous bodily harm. At trial the prosecution case rested solely on the evidence of a witness who was an accomplice. In the course of his evidence, the witness admitted to lying about the circumstances of the assault when he was interviewed by the police and when giving his evidence under oath at the preliminary hearing. The trial judge warned the jury in conventional terms that it was dangerous to act upon the uncorroborated evidence of the accomplice by reason of his admitted complicity, but did not give an additional warning that it would be dangerous to act on his evidence because of his admitted lies and perjury.
[44] [2000] WASCA 103.
The Court of Criminal Appeal in Western Australia held that an additional warning should have been given. The Court said:
[19]The direction given adequately put to the jury the danger of acting upon the evidence of Parfitt having regard to the fact that he was an accomplice and so may have had a purpose of his own to serve. But it did not specifically warn the jury of the need to question closely Parfitt's reliability as a witness and his truthfulness having regard to the fact that he was a confessed perjurer and a confessed liar out of court to the police, lies motivated frankly by a desire to implicate those who may not have been involved and exculpate others who might have been offenders. In the circumstances of this case where Parfitt was a confessed accomplice who was apparently not hiding the fact that he was implicated, although he had not been charged, the question of Parfitt's reliability as a witness because he was a liar was the larger consideration affecting his credibility and the capacity to prove the appellant's guilt beyond reasonable doubt.
[20][I]n our opinion it was necessary that the jury be specifically warned of the danger of acting upon Parfitt's evidence, having regard to his confessed perjury, without careful scrutiny of his evidence and careful evaluation of his motives for lying on the former occasions. The jury clearly felt satisfied to rely upon Parfitt having regard to his role as an accomplice. They may have picked up the other issue and given it proper consideration, but on the other hand they may have thought that the fact that his Honour referred merely to inconsistency between what Parfitt said on other occasions and his evidence, meant that in the eyes of the Judge the issue of Parfitt's lies was not of the same degree of importance as the fact that he was an accomplice whose evidence was uncorroborated.
One of the reasons given by the Court of Appeal for the necessity of a separate warning was that the accomplice warning, by itself, may have caused the jury to concentrate upon the risks arising from the witness’ complicity in the crime and to divert their attention from a consideration of other matters affecting his potential unreliability as a witness.[45]
[45] Ibid at [23].
These authorities indicate that generally a warning additional to a conventional accomplice warning will be required when there are other significant features in the evidence indicating the potential unreliability of a key prosecution witness.
Consideration
In the present case, the jury could hardly have been in any doubt that the credibility of X was a major issue in the trial. It had been highlighted by the prosecutor in the course of her opening. The very nature of the cross-examination of X must have made it very apparent to the jury that the appellants impugned his honesty and reliability. The prosecutor reminded the jury of the issue in her summing-up and made some remarks to the jury about their assessment of the credibility of X. Counsel for each of the appellants made trenchant submissions to the jury about the credibility of X. Counsel for Mrs Tran described him as “unequivocally a proven liar and perjurer”. Counsel for Mr Tran said that it was “gob-smacking” that the jury was being asked to rely upon X as a witness of truth and described him as a person who “couldn’t lie straight in bed”.
In short, it could be said that the manner in which the trial was conducted and the submissions of all counsel could have left the jury in no doubt about the importance of their assessment of the reliability of his evidence about the events occurring on 22 January 2005. It could also be said that the significance of the untruths told by X was a matter which was “within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsels’ addresses”. The drawing of a conclusion to that effect would be reinforced by the statement made at the hearing of the appeal by senior counsel for Mrs Tran that, at the trial, “I didn’t think anyone would believe a word [X] had to say”. Taken together these matters suggest that while a “second warning” may have been desirable, it was not essential in order to avoid a possible miscarriage of justice.
However, in my opinion, appropriate directions in this case did require the Judge to do more than to remind the jury of the submissions of counsel concerning the credibility of X and of the fact that they would need to take into account the admitted untruths by X when they assessed his evidence on contentious topics. That is because the jury may not have realised how unusual it was for the prosecution to agree facts demonstrating the untruthfulness of several aspects of the evidence of a key prosecution witness. Secondly, as in Hart, the specific warning relating to the status of X as an accomplice may have caused the jury to focus upon the dangers involved in accepting his evidence derived from that circumstance and diverted their attention from the dangers arising from his accepted untruthfulness. The Judge’s statement that his remarks about evaluating the evidence of X were “little more than an extension of what you would understand from your everyday lives” may have contributed to this effect.
I also observe that the features of the evidence of the prosecution witness to which the Courts referred in Hunt, Faure and Hart appear to have been of a kind which must have been well apparent to the jury in each case, and yet it was still held that a separate direction was required.
There is a certain tension between the obviousness of the potential unreliability of the evidence, on the one hand, and the need for a warning about that evidence, on the other. It could be said that the more apparent the potential unreliability, the more likely it is that its assessment can be safely left to the jury’s own experience, aided by the submissions of counsel. However, it can also be said that the greater the potential unreliability the greater is the need for a direction carrying the authority of the Court.
At the trial, each of the appellants was represented by experienced counsel, Mrs Tran by senior counsel. It may be surprising that neither sought a redirection from the Judge on a matter now said to be so fundamental that it gave rise to a miscarriage of justice. As noted earlier, this was a feature to which the Court of Appeal in Miletic referred. However, in the circumstances of this case, I do not consider that much significance should be attached to the omission of counsel to seek a redirection. Counsel for Mrs Tran had, in a discussion with the Judge prior to the close of the prosecution case, sought a special direction regarding the evidence of X. He said specifically that it was not a matter which could be left simply to the addresses of counsel. There was some debate as to the nature and extent of the direction required which appears to have been inconclusive, but it cannot be said that counsel was silent on the matter. Further, if the “second warning” was required in order to avoid a possible miscarriage of justice, it should not be regarded as having been waived by the omission of counsel to raise the issue. There are other possible explanations for counsel not having sought the redirection, including oversight.
The evidence of the mental illness of X should be mentioned separately. If the Judge’s failure to give a warning directed to the mental condition of X was the only alleged deficiency in the summing-up, I would not have found that there was a miscarriage of justice. The evidence did indicate that X suffered from some form of mental illness. However, it was not, at any stage, suggested that X was affected by the mental illness as at 22 January 2005 and there was no other evidence to that effect. The very generalised evidence of the existence of a mental illness in this case was not, in my opinion, of the kind to which Gibbs CJ referred in Bromley.[46]
[46] (1986) 161 CLR 315.
For the reasons given above, I consider that the omission of the Judge to give a “second warning” in the circumstances of this case was erroneous.
A Point of Evidence
Before considering the possible application of the proviso, I mention a point of evidence which arose in the course of submissions of counsel on the appeal.
Counsel for Mr Tran submitted that it had not been open to the prosecution to lead evidence-in-chief concerning the mental health of X. That evidence went only to the credibility of X, it was said, and not to any fact in issue. Accordingly, it was for the appellants to adduce that evidence in cross-examination if they considered that it undermined the evidence of X.
The general principle is that evidence may not be led for the sole purpose of establishing the credibility of a witness. This rule is sometimes referred to as the “bolster rule”. In Palmer v The Queen, McHugh J said that the bolster rule “stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked…”[47] McHugh J cited with approval the statement of the Court of Appeal in R v Turner that “in general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up”.[48] The principle was also stated clearly by Thomas J in R v Connolly;[49]
Only facts in issue should be led in chief. A witness may not lift himself by his own bootstraps to enhance his credit. If the fact which he states is challenged by the adverse party then that will be made apparent during cross-examination. The witness’s reasons for doing the act or his purpose in doing so may then quite properly be asked, because it might help to show whether he should be believed in relation to that particular fact (ie on the question of credit). But it is for the cross-examiner, not the party calling the witness, to raise matters that go to credit. When this happens it may be permissible in re-examination to adduce evidence of the witness’s state of mind when he did the act or made the observation or statement. …Unfortunately the practice of anticipation of such a challenge and the premature attempted rebuttal of the challenge has become widespread. The present case affords a good example of why it should cease.[50]
[47] [1998] HCA 2 at [49]; (1998) 193 CLR 1 at 21-2.
[48] [1975] QB 834 at 842.
[49] [1991] 2 Qd R 171.
[50] Ibid at 173-4.
However, evidence which is relevant to a fact in issue may be led in chief even though its effect is also to bolster the credit of the witness. So, for example, evidence which bears upon the opportunity or capacity of the witness to observe the events in question is admissible even though the evidence may incidentally add to the credibility of the witness’ evidence. This was the point made by Latham CJ in Piddington v Bennett & Wood Pty Ltd[51] when he said:
It is always permissible to give evidence as to the facts which are in issue between the parties and as to facts relevant to the facts which are in issue. When a witness describes himself as an eye-witness of events constituting the facts which are in issue, his presence and capacity to observe those events are facts relevant to the facts in issue. No witness would be permitted to go into the box and simply to depose that certain events happened at a certain time and place without saying that he was then and there present, and observed the events.[52]
Similarly, evidence of the interest, or absence of interest, of a witness in the outcome of litigation is admissible.[53]
[51] (1940) 63 CLR 533.
[52] Ibid at 545.
[53] Wren v EmmettContractors Pty Ltd (1969) 43 ALJR 213 at 221 per Windeyer J.
There are also well recognised exceptions to the rule. The law permits a complainant in a sexual assault case to give evidence of recent complaint.[54] It is appropriate for the prosecution to lead evidence that a witness is an accomplice, of the extent of his or her complicity, and of the way in which the accomplice has been dealt with by the prosecuting authorities, even though those are matters going to credit. It is the duty of a trial judge to warn the jury about the evidence of accomplices. This generally makes it appropriate for the prosecution to lead evidence about those matters.[55]
[54] R v Humble [2009] SASC 51 at [3].
[55] R v Booth [1982] 2 NSWLR 847.
In the present case, the evidence of the mental illness of X was potentially relevant to his capacity to observe, and his perception of, the events occurring on 22 January 2005. This suggests that it was an appropriate matter to be led by the prosecution. If the submission of the appellants to the effect that the mental illness of X by itself required a special direction was accepted, this too would provide an additional rationale for the prosecution having properly led evidence of the mental illness in chief. However, my rejection of that submission makes it unnecessary to consider that basis for the admission of the evidence further.
Conclusion
This is not a case for the application of the proviso in s 353(1) of the Criminal Law Consolidation Act 1935 (SA). It is not possible for this Court to be satisfied that no substantial miscarriage of justice has occurred. Although the prosecution relied upon a number of items of circumstantial evidence in addition to the evidence of X, it cannot be said that that evidence was so strong that, even without the evidence of X, the jury must have convicted the appellants.
In my opinion, permission should be granted to each of the appellants to amend the notices of appeal to add a ground relating to the absence of a direction concerning the mental illness of X. Permission to appeal on that additional ground should be granted. I would then allow both the appeals and set aside the conviction of each appellant.
I would order a retrial of the Information.
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