R v Wanganeen

[2006] SASC 254

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WANGANEEN

[2006] SASC 254

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)

23 August 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP

Appeal against conviction – appellant convicted by jury of manslaughter – appeal on grounds that trial Judge failed to adequately warn the jury about evidence of key prosecution witness and erred in answering jury question regarding reasonable doubt – leave to appeal sought on ground that trial miscarried as a result of refusal to permit defence counsel to re-open cross-examination of key witness – whether Judge adequately directed the jury – whether Judge erred in exercise of discretion to refuse to allow further cross-examination – whether Judge directed the jury correctly as to reasonable doubt – leave to appeal on additional ground refused - appeal dismissed.

R v Sinclair and Dinh (1997) 191 LSJS 53; Bromley v The Queen (1986) 161 CLR 315; Longman v The Queen (1989) 168 CLR 79; McKinney v The Queen (1991) 171 CLR 468; Pollitt v The Queen (1997) 191 LSJS 53; R v Johnson (2004) 89 SASR 294; R v RWB (2003) 87 SASR 256; R v Macaskill (No.2) (2001) 81 SASR 155; R v Carabott (2002) 83 SASR 293; Director of Public Prosecutions v Faure [1993] 2 VR 497; R v Gassy (No 3) (2005) 93 SASR 454; Green v The Queen (1971) 126 CLR 28; The Queen v Wilson (1986) 42 SASR 203; R v Pahuja (1987) 49 SASR 191; R v Forrest (2004) 236 LSJS 265; Jenkins v The Queen (2004) 211 ALR 116; R v Johnson (2004) 89 SASR 294; R v Sinclair (1997) 190 LSJS 53; R v GNK [2004] NSWCCA 114; Wakeley & Bartling v R (1990) 93 ALR 79; Wilde v R (1988) 164 CLR 365, considered.

R v WANGANEEN
[2006] SASC 254

Court of Criminal Appeal:       Bleby, Gray and Anderson JJ

BLEBY J:

1. As to ground eight of the appellant’s grounds of appeal relating to the refusal of the trial Judge to allow Ms Pike to be recalled for further cross- examination, I agree with the reasons of Gray J that there is no substance in this ground of appeal.  I would refuse leave to appeal on that ground.

2. As to ground nine of the grounds of appeal relating to the trial Judge’s directions on the burden of proof, I agree with Gray J, for the reasons that he gives, that this ground should be rejected.

3. I turn to ground one and the trial Judge’s alleged failure to warn that it was dangerous to rely on the uncorroborated evidence of Kellie Pike.  In my opinion this ground of appeal also fails.  I agree generally with the reasons given by Gray J and add some further observations of my own.

4. Ms Pike did not fall into a category of witnesses for whom a corroboration warning was required.  Rather, she fell into that category described by Cox J in R v Sinclair and Dinh[1].  After reviewing a number of cases including Bromley v The Queen[2], Longman v The Queen[3], McKinney v The Queen[4] and Pollitt v The Queen[5].  Cox J said:[6]

   The general principle applicable here, in my view, is that implicit in Longman and Bromley – that where there is some particular reason, such as bad character or hostility or self-interest, to question seriously the bona fides of a Crown witness, the trial judge should give the jury such warning as is appropriate of the possible danger of basing a conviction on the unconfirmed testimony of that witness.  He might also have to give the warning where the confirmation comes from a similar questionable source.  The kind and degree of the warning will depend on the circumstances of the case including the degree to which the need for it will or will not be obvious to the jury.  There is no prescribed formula for the warning and it will often be sufficient to give it in brief and unelaborated terms.  Its purpose will usually be to share with the jury the courts’ “sharpened awareness” (to use Brennan J’s expression in Bromley) of the danger of acting on the uncorroborated evidence of such witnesses.  If, from their general knowledge and common sense and the evidence they have heard, the jury will inevitably be well aware of any potential unreliability in a witness, it may not be necessary for the judge to do any more than remind the jury of the evidence.  As I understand it, that is the way that the case of the bad character witness has generally been dealt with in criminal trials in this Court.  Exceptional cases apart, it will be enough to remind the jury of the discrediting evidence and that will necessarily have the effect of alerting the jury to the possible danger of acting on that witness’s evidence.

   Debelle J agreed with Cox J.  That passage was cited with approval by Duggan J, with whom Besanko and Anderson JJ agreed, in R v Johnson.[7]   As in the case of a Longman warning[8], the warning to be given will depend on the circumstances of the case and, in particular, the jury’s awareness of the issues which call in question the reliability of the witness in question.

   [1] (1997) 191 LSJS 53.

   [2] (1986) 161 CLR 315.

   [3] (1989) 168 CLR 79.

   [4] (1991) 171 CLR 468.

   [5] (1992) 174 CLR 558.

   [6] (1997) 191 LSJS 53 at 60.

   [7] (2004) 89 SASR 294 at 303.

   [8] See the discussion on this topic in R v RWB (2003) 87 SASR 256 per Bleby J at 257-258; Besanko J at 268-271; Sulan J at 272-275.

5. I will not repeat all the relevant directions given by the trial Judge in this case.  They are set out in full by Gray J in his reasons.  What the trial Judge said about the assessment of witnesses and, in particular, about the evidence of Ms Pike, must be read in the context of the whole trial, the way it was conducted and the addresses of counsel, including the opening address of the prosecutor.  From all that it was quite clear to the jury that the success or otherwise of the prosecution case turned on the acceptance of Ms Pike’s evidence as to the spiking of the deceased’s drink.

6. The prosecution position from the outset of the case was that, unless the jury could be satisfied beyond reasonable doubt as to the truth of what Ms Pike said as to the spiking of the drink, the prosecution case must fail.

7. It was clear that Ms Pike’s mental illness, her suggested but vigorously denied self-interest, her consumption of alcohol and marijuana on the day in question and her inconsistent statements were all substantial issues on which the defence relied to discredit her.  Those factors were discussed at length by the trial Judge in circumstances where the jury could only have regarded the directions as applying to Ms Pike.

8. In the end, on more than one occasion, the trial Judge gave his own firm direction to the jury, not relying merely on the submissions of the prosecutor, but making it quite clear with the weight of judicial authority, that the jury could not convict the appellant unless they were satisfied beyond reasonable doubt as to the accuracy and truthfulness of Ms Pike’s account as to the placing of the methadone in the deceased’s drink.

9. The directions must also be viewed in the context that, despite suggestions put to Ms Pike in cross examination that she had in fact spiked the deceased’s drink herself, an allegation which she vigorously denied, there was no evidence beyond her presence in the room at the time which would implicate her in the spiking of the drink.  This was not a case where other circumstances pointed to the possibility that the witness was implicated in the offence charged[9] or otherwise had a motive and opportunity to kill the deceased.[10]

   [9] See for example R v Macaskill (No. 2) (2001) 81 SASR 155 and R v Carabott (2002) 83 SASR 293.

   [10] See for example Director of Public Prosecutions v Faure [1993] 2 VR 497.

10. This was a case where great caution was required in assessing the evidence of Ms Pike, and the jury was directed accordingly.  By the trial Judge’s summing up, the jury was fully alive to the dangers associated with and the weaknesses in Ms Pike’s evidence.  They were warned that, bearing in mind those dangers and weaknesses, the jury had to be satisfied that the crucial assertion in her evidence that the accused spiked the drink was true, and that they had to be so satisfied beyond reasonable doubt.

11. This was not a case where the dangers and weaknesses might not have been sufficiently apparent to the jury that a warning should be given that it was dangerous to rely on the uncorroborated evidence of Ms Pike.  It was not a case where the Court would have had any sharpened awareness beyond that of the jury in this case of the danger of acting on her uncorroborated evidence.  The dangers were fully exposed by the trial Judge.  In the words of Brennan J in Bromley v The Queen[11], it was not a case “when the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence as to the witness’s mental disorder are such that the jury may not have fully perceived or the jury’s attention may have been diverted from the danger”, thus requiring a further warning.  The same may be said of the other weaknesses in the witness’s evidence.  The directions given were appropriately tailored to suit the circumstances of the case.

    [11] (1986) 161 CLR 315 at 325.

12. In my opinion, the appeal should be dismissed.

    GRAY J

    Introduction

13. This is an appeal against conviction.

14. Lydia Gayleen Wanganeen, the appellant, was charged with the manslaughter[12] of Abdi Giire, by spiking the latter’s drink with a quantity of methadone.  On 14 December 2005, the appellant was convicted by jury verdict.  The trial was conducted before Judge and jury in this Court and concluded within seven days. 

    [12] The appellant was alternatively charged with the offence of administering methadone to the victim.

15. On Friday 20 June 2003, Mr Giire and the appellant went to the home of Kellie Pike, the appellant’s cousin.  Ms Pike arrived a short time later.  The Crown case alleged that during the evening the appellant placed methadone into the deceased’s drink whilst he was out of the room.  Ms Pike gave evidence that she witnessed the appellant place methadone into Mr Giire’s drink and that she was present when he consumed it.  Mr Giire later died.  Ms Pike was the only witness to give evidence directly implicating the appellant.  Ms Pike’s credibility and reliability were principal issues in the case.

16. On appeal, the appellant complained that the learned trial Judge did not adequately warn the jury about the evidence of Ms Pike.  Counsel submitted that the circumstances required a strong and specific warning arising from Ms Pike’s mental illness, intoxication and suggested self-interest.  Counsel also drew attention to her inconsistent statements.  Counsel further contended that the Judge erred in his answer to a question from the jury concerning the meaning of reasonable doubt.  Finally, counsel sought leave to appeal on the ground that the trial miscarried as a result of the Judges refusal to allow Ms Pike to be re-called for further cross-examination. 

    Crown Case

17. During the evening of 20 June 2003, the appellant, Mr Giire and Ms Pike were all socialising at Ms Pike’s residence.  They consumed several bottles of whisky.

18. It was the Crown case that the appellant was a drug addict.  She was on a methadone program to help her overcome her addiction.  A dispensing pharmacist gave evidence that, earlier on 20 June 2003, the appellant had obtained two “take-away” doses of methadone from the pharmacy.  The pharmacist stated that methadone was regularly provided by the pharmacy to the appellant.  It was the Crown case that the appellant had taken the two methadone bottles to Ms Pike’s and placed them on top of the refrigerator. 

19. The pharmacist identified two methadone bottles found on 23 June 2003 by the police at Ms Pike’s home to be the bottles he earlier filled with methadone and provided to the appellant on 20 June 2003.  The evidence of the pharmacist was not challenged.

20. The police found one methadone bottle on the table in Ms Pike’s lounge.  In regard to the label on this bottle, the pharmacist gave evidence as follows:

    A.[I]t is methadone syrup diluted, contains 70 milligrams, ‘Take on 27 June 2003. Lydia Wanganeen.  Caution may cause death or serious injury if injected or taken by another person.’ And then has ‘Keep out of reach of children’ and our details, ‘Broadbent’s Croydon Pharmacy’, the address, phone number, fax number.

    Q.What I will call ‘the warning’ on that label, is that always put on the methadone bottles that are given as takeaways.

    A.On every takeaway bottle that is dispensed.

    The police found the other methadone bottle in a rubbish bin in the kitchen.

21. It was the Crown case that during the evening, Mr Giire left the room.  Whilst he was absent, the appellant placed methadone into Mr Giire’s drink for the purpose of putting him into a state where she would be able to steal from him.  Ms Pike told the appellant not to do so.  The appellant paid no heed to her advice.  Ms Pike took no further action to stop the appellant.  Ms Pike claimed that she could not stop the appellant, nor could she stop Mr Giire from consuming the methadone, as the appellant’s “devil eyes” paralysed her.  Mr Giire unknowingly consumed the methadone. 

22. Mr Giire fell from his chair on a number of occasions that evening before finally, according to Ms Pike, “passing out” on the floor.  The following morning, 21 June 2003, it became clear to Ms Pike that Mr Giire was dead.  She left Mr Giire on the floor.  She did not call the police until the early hours of Monday 23 June 2003. 

23. It was the Crown’s case that a combination of alcohol and methadone caused Mr Giire’s death by respiratory failure.  Professor Roger Byard, a forensic pathologist, gave evidence of Mr Giire’s post-mortem examination.  He was of the opinion that Mr Giire died on or about 20 June 2003 and that the cause of death was the combination of alcohol and methadone.  He said that Mr Giire had suffered no other form of trauma, injury or disease that could have caused his death.  This evidence was not challenged.

24. The police conducted an investigation of Ms Pike’s home.  That investigation disclosed that there were no fingerprints or fingermarks located on the two methadone bottles.  The police obtained DNA profiles from the appellant, Ms Pike and Mr Giire’s body.  The two methadone bottles were DNA tested.

25. Thomas Christopher Sobieraj, a forensic scientist at the Forensic Science Centre, gave evidence with respect to the DNA evidence.  Mr Sobieraj stated that a swab was used to sample the exterior portion of the spout of the methadone bottle found on the table in the lounge.  It was Mr Sobieraj’s opinion that the appellant was greater than 1 billion times more likely to be the source of the DNA profile obtained from the swab than any other unknown, unrelated woman, assuming that the appellant was the source of the DNA. 

26. Ms Pike was excluded as a source of the DNA on the methadone bottle.  Mr Sobieraj said:

    A.Yes, the reference DNA profile to Kellie Pike is different to the reference DNA profile that has been obtained from Kellie Pike, therefore Kellie Pike can be excluded as being the source of the DNA we have recovered from this swab.

    Q.Because there is differences you can say categorically she can be excluded.

    A.    Yes.

27. Mr Sobieraj then directed his attention to the methadone bottle found in the rubbish bin in the kitchen.  Mr Sobieraj gave evidence that a sample was taken for DNA testing from the exterior spout of the bottle and from the interior portion of the white cap on the bottle.  Mr Sobieraj stated that a mixed DNA profile was obtained, indicating that DNA from at least two people were found.  The appellant could not be excluded as the possible source of the DNA.  Mr Giire could be so excluded.  None of this evidence was challenged.

28. Critical to the Crown case was the evidence of Ms Pike.  As earlier observed, Ms Pike gave evidence that she witnessed the appellant place methadone in Mr Giire’s drink, saw Mr Giire “pass out” on the floor, and found Mr Giire dead the following morning, still in the same position as the night before.  Ms Pike’s evidence was the only evidence that directly implicated the appellant.

29. Counsel for the appellant did not dispute the other elements of the alleged crime.  The real question to be tried was whether the jury was prepared to accept beyond reasonable doubt the evidence of Ms Pike.  The jury needed to be satisfied about her credibility and reliability.  Consequently, critical to the Crown case was the jury’s assessment of her evidence.  The prosecutor made it clear to the members of jury that they needed to accept Ms Pike’s evidence beyond reasonable doubt in order to be satisfied beyond reasonable doubt that the appellant was guilty.

30. Four matters touching Ms Pike’s credibility and reliability arose – her consumption of marijuana, alcohol and prescriptive medication, her poor mental health, her suggested self-interest and her prior inconsistent statements.  Each of the above matters was extensively canvassed in the Crown opening, the examination in chief and cross-examination of Ms Pike and during the closing addresses of both counsel.  The prosecutor submitted that, by the end of the prosecution’s final address, the jury was aware of each of the issues that went to Ms Pike’s credibility and reliability and also of the critical importance of Ms Pike’s evidence to the Crown’s case. 

31. The importance of Ms Pike’s evidence and the jury’s assessment of her credibility and reliability were the subject of specific and extensive comment during the final address of the prosecutor:

    It is the prosecution’s contention that if you accept beyond reasonable doubt what Kellie Pike has told you about the events in the dining room or living area at her house, the elements of the offence of manslaughter will all be made out.

    …

    Members of the jury, very much fundamental to proof of this charge, and indeed it is not very much fundamental, it is fundamental, is your assessment of Kellie Pike as a witness. 

32. The final words of the Crown’s closing address to the jury were:

    If you accept [Ms Pike’s] evidence beyond reasonable doubt this charge will be proven.

    Defence Case

33. It was the defence case that Ms Pike’s evidence was fantastic and that her inconsistent accounts were inconceivable.  Ms Pike, on the defence case, was of fragile mental faculties and could not be considered either credible or reliable.  She suffered delusions and was under the influence of prescriptive medication, marijuana and alcohol at the relevant time.  On the defence case, it was more likely either that Ms Pike placed the methadone into Mr Giire’s drink and was setting up the appellant for the offence, or that as a result of her mental illness, she had forgotten that she spiked had Mr Giire’s drink.  Ms Pike emphatically denied these suggestions during cross-examination.  During cross-examination, Ms Pike confirmed her alcohol and drug use, mental illness and a number of her prior inconsistent statements. 

34. To support these assertions, defence counsel pointed to Ms Pike’s numerous inconsistent statements and other inconsistencies in her evidence, the absence of fingerprints on the two methadone bottles and the fact that she knowingly left Mr Giire dead and lying on her floor for the weekend before calling the police.  On the defence case, Ms Pike was suffering from delusions evidenced by her belief that she was a healer and that the appellant had “devil eyes” that paralysed her.  Attention was drawn to Ms Pike’s claim that she saw the appellant cutting at the clothes of the deceased, a claim unsupported by the evidence. 

1. The defence called two witnesses.  Both were prominent members of the Ngarrindjeri community.  They gave evidence that they had not heard of a Ngarrindjeri healer or peacemaker, nor had they heard of any power that could paralyse a person by giving them “devil eyes”.  Ms Pike was known to one of the witnesses.  That witness gave evidence that she did not know the appellant to be a healer and peacemaker within the Ngarrindjeri community, as Ms Pike had claimed in evidence.  The appellant did not give evidence.

2. The final address of defence counsel concentrated primarily on Ms Pike’s evidence.  That address included the following:

   The evidence the Crown presented in relation to [the alleged offence] rests …heavily on the evidence of Ms Pike…

   There are a number of things that I want to say about Ms Pike’s evidence and let me classify perhaps some of the weaknesses in the evidence that you’re asked to rely on to find something proven beyond a reasonable doubt.

   Ms Pike’s evidence had at time elements of pure fantasy.  There are elements in her evidence of lies, there are elements in her evidence of her story changing from one day to the next or one recounting to the next, and indeed, one or two notable examples where it changed minute by minute within the same set of testimony, in front of your eyes as it were.  There is also the element, we would say various odd elements, odd parts, her evidence doesn’t add up, it doesn’t make sense, it’s odd.  Lastly there are certain parts of her evidence that simply leave mysteries that we can’t resolve on the account that she has given…

   In due course, it is my intention to suggest to you you cannot place any faith on the evidence of Ms Pike, so much so that you will very confidently come to the conclusion I would suggest, that the case cannot be taken as proven beyond a reasonable doubt.  One simply, I would suggest to you, cannot rely on the evidence of Ms Pike.

3. Counsel then proceeded, in some detail, to outline to the jury the matters that were said to adversely affect Ms Pike’s evidence, including mental illness, suggested self-interest, consumption of alcohol and marijuana and inconsistent statements.  The jury were reminded of the evidence relevant to each topic.

4. In these reasons, reference is made to the suggested self-interest of Ms Pike.  No evidence was led that implicated Ms Pike in spiking Mr Giire’s drink.  She repeatedly denied defence counsel’s assertion.  Those assertions were not supported by any evidence.  Hence the reference in these reasons to Ms Pike’s suggested self-interest.

   Trial Judge’s Summing Up

5. As earlier observed, the principal issue on this appeal is the adequacy of the directions given by the Judge with respect to Ms Pike’s evidence.  The summing up should be considered in the context of a short trial, where both the prosecution and defence had canvassed extensively the criticisms of Ms Pike’s reliability and credibility.  The members of the jury were well aware that the defence case was that Ms Pike spiked Ms Giire’s drink.  It is against this background that the complaints directed to the Judge’s summing up should be considered.  To understand the summing up, and the way in which the Judge addressed the issues, close attention to the detail of that summing up is required.  This is necessarily a lengthy process.

6. During the summing up, the Judge gave conventional directions as to the Crown bearing the onus of proof, and the obligation of the Crown to prove the appellant guilty beyond a reasonable doubt.  The Judge later repeated the directions in response to a question from the jury.  I will discuss this aspect of the Judge’s directions later in these reasons.

7. At the outset of the summing up the Judge made plain to the jury members that they were the assessor of facts:

   There is a division of labour in this court between the judge and jury.  Counsel each has had an important role to play and you have seen them discharge their respective roles over the last few days during the course of the trial.  The role of the judge and jury is to work together.  It is my duty to direct you on the law and you are bound to follow my directions.  However, you are the sole judges of the facts.  It is for you and you alone to weigh up the evidence that has been presented to you and decide what are the facts established in the case.  Any comments made by counsel or by me about the facts should be treated as suggestions only.  If I say anything about the facts with which you do not agree, ignore what I say and act upon your own judgment.  The facts and the way in which they are to be interpreted are your responsibility and no one, neither the judge nor counsel, can exercise that responsibility for you.  The final decision in this cases rests entirely with you.

8. The Judge then gave general directions about the importance of the jury assessing a witness’s credibility and reliability. 

   You have been put here as 12 people coming from different walks of life, able to sum up the evidence, to decide how much notice you are prepared to take of a particular witness and to consider the evidence that has been presented to you. Each of you should use your own experience of life in assessing the witnesses and in this case in particular, the witness Kellie Pike. You are asked to do no more than call on that expertise and your sound commonsense in arriving at your decision. So you must not be frightened to draw conclusions from the evidence which appeal to you and appeal to your commonsense. You have the absolute right as jurors to believe or disbelieve.

   In considering the evidence you will take into account that in human affairs people react and say things for many reasons. Sometimes they exaggerate, sometimes they are mistaken. Sometimes they are convinced that something occurred or it occurred in a particular way and they are clearly wrong in their recollection. Sometimes they get their timing wrong. Sometimes they openly lie. You must use your own judgment and commonsense in assessing the witnesses and assessing the evidence given in this court.

   In making your assessment you may decide that a witness is truthful but in respect of some of that witness’s evidence the evidence is inaccurate. You may decide that you cannot rely on any evidence that a witness has given you or you may accept part of a witness’s evidence and reject other parts. It is entirely a matter for you to make the assessment. The mere fact that there are parts of a witness’s evidence that you are not prepared to accept does not mean that you would necessarily reject that witness’s evidence out of hand. It is a matter of making an assessment.

   This is an important case for the assessment of the credibility of witnesses, in particular Kellie Pike. In making that assessment you should have regard to your own impressions of her whilst she was giving evidence. You should have regard to the intrinsic likelihood of the story given and the manner in which she gave her evidence, how her story stood up to cross-examination and how her evidence fits in with other evidence in the case which you find convincing or compelling.

   It should be noted that the Judge directed the jury to consider how Ms Pike’s evidence “fits in with other evidence in the case”.  The Judge then dealt with each of the principal matters that went to credibility and reliability. 

9. Counsel for the appellant accepted that in the circumstances of the present case these general directions could have referred only to Ms Pike and that the jury would have so understood these directions, including the following direction as to mental illness: 

   At the end of the day it is your obligation to take a cold, dispassionate, impartial view of the evidence that has been presented in the case, ignoring any questions of your own prejudices or emotions.

   That of course does not mean that you are not entitled to have regard to what you conclude might be a person’s mental state at the time that the events occurred and at the time that they gave evidence.  If, for example, your were to conclude that somebody who gave evidence suffers from delusions or that at the time of the alleged offence they were highly intoxicated or mentally disturbed, that is a factor to which you are entitled to have regard when considering whether you can rely on that person’s evidence.  It may be that taking all matters into account you are prepared to rely upon the evidence even though a person may suffer from some form of mental disorder.  On the other hand, you may decide when considering that person’s evidence and considering it against other evidence in the case, or because you consider the evidence given by the person is highly improbable, that you will not give any weight to that evidence.  In considering a witness’s evidence you have the absolute right to believe or disbelieve the whole or any part or parts of that witness’s evidence.  For example, you may conclude that a witness is generally telling the truth but on a particular subject or topic that witness has not been truthful.  It does occur that witnesses who are genuinely attempting to tell the truth will not be entirely truthful on a particular subject because they believe wrongly or rightly, that if they tell the truth that may affect their credibility, or they may want to hide something from people close to them and therefore they are not entirely frank about their movements or why they acted in a particular way.  They may, for example, not wish a person close to them to know exactly what they were doing or where they were at a particular time.  So they are not entirely truthful about that.  But when it comes to giving evidence about the events they observed, a jury could still be satisfied that they are telling the truth.

10. The Judge then continued and gave directions about three further matters relevant to credibility – intoxication, delay and prior inconsistent statements:

    The second aspect of considering evidence is that once you accept that a witness is genuinely willing to tell the truth on a subject, you have to ask yourselves is the witness’s evidence accurate, could they be mistaken or are there factors which might have affected their observations or their recall.  For example if a witness was intoxicated it may affect their recall or their understanding of what occurred.  If there has been a lengthy delay between a witness giving their evidence and the incident occurring, memories do fade and people’s minds do play tricks.  If it has been established that a witness has told an inconsistent story on a previous occasion to the story that the witness is telling in the witness box, again that is a factor to which you are entitled to have regard.  But the mere fact that a witness may have told a different story on a different occasion does not necessarily mean that you will disregard the witness’s evidence in this court.  The inconsistency, if you find it exists, may be of a peripheral nature.  It may be explained away by the effluxion of time.  If it is significant, then you may have regard to it in deciding whether you can rely on the witness’s recall of events as related to you by the witness in the witness box.

11. The Judge drew to the jury’s attention to Ms Pike’s prior inconsistent statements and the effect they could have on her reliability.  The Judge then continued by reminding the jury of the central issue and the burden on the Crown:

    Ultimately you must ask yourselves whether you can rely upon Ms Pike’s evidence and in particular whether you can rely upon her evidence that it was the [appellant] who put the methadone into the drink of Mr Giire…You may have little doubt in concluding that someone put methadone into Mr Giire’s drink.  Was it the [appellant] or was it Ms Pike?  Before you can convict the [appellant] you have to be satisfied beyond reasonable doubt that she was the person who put the methadone into the drink consumed by Mr Giire. 

    …

    You should draw no conclusion adverse to the [appellant] because she exercised her right not to give evidence.  However, that leaves you only with the evidence of Ms Pike as to what occurred in the house that fateful night.  When you finally consider your verdicts you might decide that you cannot rely on Ms Pike as a witness.  Then you would have to ask yourselves whether there is any evidence from which you can conclude that the [appellant] put methadone in Mr Giire’s drink.  You might decide, ladies and gentleman, that on balance you do accept Ms Pike’s evidence but that is not enough.  You must go the next step and ask yourselves having regard to your conclusion that you accept her evidence, and having regard to all the evidence, can you be satisfied beyond reasonable doubt of the accuracy and truthfulness of Ms Pike’s account about who put the methadone in Mr Giire’s drink.

12. The Judge then turned to Ms Pike’s suggested self-interest: 

    In assessing Ms Pike’s evidence you should have regard to the way in which she gave her evidence.  You should have regard to the fact that the situation with which she was confronted was very distressing.  You might have regard to her explanations as to why she did and did not do certain things on the night in question.  You might have regard to her demeanour in the witness box, having considered her health problems and her background, and you might also have regard to the fact that she might have a motive to point a finger at the [appellant].  You might think that what is certain in this case is that the deceased died and that his body was in Ms Pike’s home for approximately three days.  She was the one who called the police but you might think that she had a reason of her own to minimise her own conduct on that night.  Someone spiked the deceased’s drink.  Do you think that Ms Pike was lying and pointing the finger at [the appellant] in order to take the heat of herself and avoid the accusation that it was her that caused the death of the deceased?  They are questions you might consider.  You should scrutinise Ms Pike’s evidence with care.  It is crucial evidence in this case.

    It should be noted that the Judge reiterated to the jury both the need to scrutinise Ms Pike’s evidence with care and the fact that it was crucial evidence in the case. 

13. The Judge then discussed the elements of the offence and the evidence before the jury.  In the course of reminding the jury of the evidence given by Ms Pike, the Judge pointed out to the jury the specific matters which the defence said were destructive of Ms Pike’s credibility and reliability.  These were, namely, her mental illness, her inconsistent statements and her suggested self-interest:

    [Ms Pike] then said that during the night she got up to go to the kitchen for a drink and she saw the man lying in the same spot and she saw the [appellant] bending over him cutting into his clothes.  She said it looked like scissors.  Ladies and gentlemen you heard [defence counsel’s] criticism of that evidence and you will take note of it and give it consideration.

    You will remember the evidence of Detective Kern who said that the shirt of the deceased had not been cut.

    Ms Pike said that when she saw the [appellant] over Mr Giire she asked her what she was doing and she replied “Burnda” which means money.  She said that she then went to bed.

    She was cross-examined about her account of seeing the [appellant] over the deceased when she got up in the middle of the night.  It is also an agreed fact that when she was interviewed by Detective Kern at 8:30am on the Monday morning, after police had attended at her home, she told him this at Crammond House…This is what she said to Detective Kern: ‘I then decided to head off to bed and said to [the appellant] that she shouldn’t have done it.  As I walked off to bed I saw [the appellant] checking his shirt pocket.  I told her “Don’t do that, money’s not that important”.  She told me “keep quiet”.  I was too scared and went to bed.  It was about 11 p.m. I stayed in bed until I woke around 7.50 a.m. the next morning, which was either Friday or Saturday.’

    That account is inconsistent with her evidence in this court.  You will consider how does the inconsistency affect her reliability on the crucial part of her evidence that she saw the accused put methadone into Mr Giire’s drink.

    You also heard her cross-examined about her health and in particular her admission that from time to time she had to go to Crammond House suffering from depression.  You heard that she takes medication.  It has been put to you that you cannot rely upon her evidence.  Well it is a matter for you ladies and gentlemen.  Of course, just because someone suffers from mental illness does not of itself make them unreliable.  And ladies and gentlemen you heard what [the prosecutor] put to you, that you have got to consider Ms Pike as a witness giving evidence in this court after some years, giving evidence about events which in anybody’s mind would have been very distressing, in circumstances where she undoubtedly would have been very distressed on the Monday morning, and weigh up the inconsistencies in her evidence, which are established, with the circumstances with which she was confronted.  So you will have regard to all of those matters.

    On the other hand, you will have regard to [defence counsel’s] trenchant criticisms of her and his suggestion ‘Look, this woman is not a truthful witness, she is pointing the finger at my client’, he says, ‘Because she was the one who committed this offence and she has to point the finger at my client’.  When you weigh up all her evidence…you will remember the points that [defence counsel] made to you this morning.  He listed them one after the other.  You will remember [the prosecution’s] response to all of that and you will give those submissions whatever weight you consider they deserve.

    After discussing the events that followed the appellant and Ms Pike discovering that Mr Giire was dead, the Judge reminded the jury of particular aspects of Ms Pike’s evidence:

    Ms Pike told you that at that time, perhaps because she was in a state of panic, she did nothing because she wanted [the appellant] to take responsibility for [the appellant], she says, had done.  On the other hand, if she had done it, that is Ms Pike had done it, you might think well she was panicking and did not know what to do.  What you can draw from any of that is a matter for you, but whatever view you take of it, ladies and gentlemen, you might think that what happened after they discovered the body of Mr Giire, that he was dead, was bizarre.  They are matters that you will have to take into account. 

14. The Judge then continued and returned to the evidence that, according to the defence’s submission, demonstrated that Ms Pike was neither credible nor reliable.  The Judge paid particular attention to Ms Pike’s inconsistent statements and her suggested self-interest:

    You will recall [Ms Pike’s] evidence in cross-examination.  I again remind you of the fact that she made a number of statements to the police, some of which it has been established were inconsistent with her evidence in this court and I remind you of my directions about that.

    You will recall the cross-examination by [defence counsel] about the spell that Ms Pike said was over her and about how the [appellant] fixed her with devil’s eyes which paralysed her from acting.  You will also recall that Detective Kern said that she said nothing to him about devil’s eyes, she said nothing to him about being paralysed and she said nothing to him about getting up in the middle of the night and seeing the [appellant] over the deceased cutting his clothing with the scissors.

    Detective Kern told you that he did not see any evidence of cutting to the clothing of the deceased.  There are a number of inconsistencies between the account that Ms Pike gave you and the account she gave to Detective Kern.  You will have to ask yourselves what do you make of those, how do they affect your judgment of her in this case?  Well, you will have to ask yourselves do you think that she has deliberately lied to you about these questions?  Do you think she has recently invented these explanations or perhaps did she not say anything to Detective Kern about it because she was in a state of shock and distress?  Do you think she has been making this up?  Do you think she is shifting the blame away from herself to the [appellant] and that it was her, Ms Pike, that was responsible for spiking Mr Giire’s drink?  If you think that that is a reasonable possibility and it was not the [appellant], then the [appellant] must be found not guilty.

    I remind you of Ms Pike’s evidence and the cross-examination of her, that the reason she did not stop the [appellant] from putting the methadone in the deceased’s drink or warn the deceased that his drink had been spiked was because she was under the spell of the [appellant].  I remind you about the cross-examination and the defence case, that Ms Pike has just invented the concept of devil’s eyes and used it as a convenient excuse to explain why she did not act to prevent Mr Giire from consuming the laced drink.  The defence suggestion is that this had been made up just as her evidence about the [appellant] putting the methadone into Mr Giire’s drink has been made up.  Well, ladies and gentlemen, you will consider that submission.

    …You might think it does not follow from the evidence of [the two Ngarrindjeri witnesses] that necessarily there was no basis in Ms Pike’s mind for the belief that she claimed she had.  Ultimately you have to make an assessment of Ms Pike’s evidence and an assessment of Ms Pike and ask yourselves can you be satisfied beyond reasonable doubt about her evidence implicating the [appellant] in the placing of methadone in Mr Giire’s drink?

    Toward the end of the summing up, the Judge again reminded the members of the jury of what had been put to them by counsel:

    Ladies and gentlemen, I remind you just quickly of what [the prosecutor] put to you.  He asked you to look at a number of matters about Ms Pike, to ask yourself firstly about her honesty and secondly, about her reliability.  He said that just because she suffered from depression and mental illness – and she told you quite frankly about that – that is not a reason for not accepting her evidence.  He said just because she had given certain inconsistent evidence from earlier statements is not in itself a reason to disbelieve it or doubt the accuracy of her evidence.  He put to you that witnesses sitting in the witness box in a very strange atmosphere being cross-examined by skilful cross-examiners being asked many questions, may well give inconsistent accounts; it does not necessarily follow that the account that the witness gives should not necessarily be relied upon.  He pointed out to you the suggestion that she was a prostitute and that she was a drug addict was a suggestion which he submitted to you was a suggestion just to blacken her character in your eyes and there is no evidence to support that position and she denied it emphatically.

    …

    [Defence counsel] talked about the fantasies, the lies, how she changed her evidence, how she told inconsistent stories, how she changed her evidence in the witness box.  He pointed out a number of matters which he submitted to you were very odd and he pointed out what he said to you were mysteries.  He submitted to you that this idea of devil’s eyes was just a mere fantasy, a fantasy in the eyes of Ms Pike which she was running to explain her inaction.  He said that she was a fragile woman who could not be relied on.  She changed the story.  She had given evidence which was very odd.  Her explanation of why she did not Mr Giire her explanation of going for a drink in the middle of the night, were just matters that were very odd which should lead you to a position where you can’t rely upon her.  He said in two very important respects she told lies and that, first was the allegation she made of seeing the [appellant] over the deceased cutting the deceased’s shirt and her evidence that she tried to knock the glass out of the [appellant’s] hand.  You will recall his submissions to you about that.

    …

    [U]ltimately you have to really ask yourselves can you be satisfied beyond reasonable doubt about Ms Pike’s evidence about who put the methadone in the drink, can that can [sic] be relied upon.

    [Defence counsel] went as far as to say that this was a set up.  I think he said the fact that there are no fingerprints on the bottles of methadone suggest that Ms Pike set this all up and was blaming the innocent [appellant].  Well, ladies and gentlemen, they are matters for your consideration.

1. At the conclusion of the summing up, neither counsel sought any further directions to the jury in relation to Ms Pike’s evidence. 

   Issues on Appeal

2. On the hearing of the appeal, counsel for both parties agreed that the Judge was required to give a strong direction about the need to scrutinise Ms Pike’s evidence with particular care and to draw the jury’s attention to those matters that made her a potentially unreliable witness.  This included Ms Pike’s suggested self-interest.  Counsel for both parties further agreed that the Judge pointed out to the jury the relevant parts of Ms Pike’s evidence that were considered unreliable.  The question on the appeal was whether the directions given by the Judge in relation to Ms Pike’s evidence were sufficient

3. Before coming to discuss the principal issue on appeal, I will first deal with the other discrete grounds of appeal:  first, defence counsel’s application to recall Ms Pike for further cross-examination and secondly, the Judge’s further direction to the jury on reasonable doubt.

   Application to recall Ms Pike

4. Counsel for the appellant sought leave to appeal on the ground that the Judge erred by not allowing defence counsel to recall Ms Pike for further cross-examination. 

5. Following the conclusion of Ms Pike’s evidence and her release, defence counsel made application for her to be recalled for further cross-examination.  Ms Pike’s availability to be recalled, if required, was not an issue.  Defence counsel wished to cross-examine Ms Pike further to put to her an alleged out-of-court statement that suggested that, due to her mental illness, she had a predilection at least to talk about hurting other people.  Defence counsel submitted that not only did it go towards demonstrating the lack of credibility of Ms Pike, but that it also demonstrated both the way in which she thought when she was mentally unwell and the fact that she was capable of harming people. 

6. Defence counsel informed the Judge that, although he was previously aware of the material, he had not raised the topic during Ms Pike’s cross-examination, as he could not call a witness to prove the fact of the alleged out-of-court statement.  This was not a case of oversight.  Defence counsel made a deliberate decision not to cross-examine on this topic. 

7. In Gassy,[13] Bleby and White JJ observed:[14]

   A decision to recall a witness whose evidence has been concluded for further cross-examination, or to allow further cross-examination of a witness still in the witness box after the re-examination has been completed, involves an exercise of discretion by the trial judge.[15]  That discretion is to be exercised having regard to the requirements of the interests of justice in the circumstances of the case.[16] ...

   Where in a criminal trial a judge has refused to require a witness to be recalled for further cross-examination, or to allow further cross-examination after completion of the re-examination, the first question on appeal is whether the exercise of the discretion of the trial Judge in that respect has miscarried.  The principles governing appellate review of a discretionary decision are applicable.[17]  The discretion may be found to have miscarried if the judge acts on a wrong principle or if extraneous factors have influenced the decision.

   [13] R v Gassy (No 3) (2005) 93 SASR 454.

   [14] R v Gassy(No 3) (2005) 93 SASR 454 at [318]-[319] (footnotes original).

   [15] Brown v Petranker (1991) 22 NSWLR 717 at 728.

   [16] Brown v Petranker (1991) 22 NSWLR 717 at 728.

   [17] House v The King (1936) 55 CLR 499 at 508; Brown v Petranker (1991) 22 NSWLR 717 at 728.

8. Defence counsel failed to provide any satisfactory explanation as to his failure to cross-examine more comprehensively earlier.  He acknowledged that he had made a deliberate decision not to do so.  His suggested reason for not doing so could be described as disingenuous: he had already extensively cross-examined the witness, including as to character and credit.

9. The topic on which defence counsel sought to cross-examine Ms Pike further went only to character and credit.  As such, it could only be relevant to a collateral issue.  It only went to an out-of-court statement by a witness.  As the Judge pointed out to defence counsel, the witness could not have been called in any event as the alleged evidence could only go to character and credit. 

10. This was a matter entirely within the discretion of the Judge.  I can identify no error in legal principle in regard to his decision to refuse leave to re-open cross-examination.  The Judge has not overlooked any material fact or had regard to any immaterial consideration.  The Judge had an undoubted discretion with respect to the application.  No basis had been identified to suggest that his discretion miscarried.  The refusal of the application did not give rise to a perceptible risk of a miscarriage of justice.  There is no substance to this complaint.  Leave to appeal on this proposed ground should be refused.

    Reasonable Doubt

11. As earlier observed, the Judge gave clear and conventional directions to the jury as to the Crown bearing the onus of proof and to the obligation of the Crown to prove guilt beyond reasonable doubt.  Those directions included the following:

    An accused person comes into this court with a presumption of innocence.  The law regards an accused person as innocent, unless and until their guilt has been proved to the satisfaction of the jury, beyond reasonable doubt.  The burden of proof lies upon the prosecution and lies wholly upon the prosecution.  When an accused person puts forward a defence that person does not have to prove it, it is for the prosecution to disprove it, otherwise the prosecution will not have proved its case.

    Furthermore, nothing short of proof beyond reasonable doubt will do.  It is not enough for the prosecution to show a mere suspicion of guilt or to show that an accused person is probably guilty.  An accused person is not to be convicted unless their guilt has been proved to your satisfaction, beyond reasonable doubt.  Each element of each charge or charges which you have under consideration must be proved beyond reasonable doubt.  I will shortly direct you about the elements of the charges.

    You cannot convict an accused person so long as you have a reasonable doubt as to any essential element of the crime charged.  If at the end of the case you are left with a reasonable doubt about the guilt of the accused with respect to any charge, then you must give her the benefit of the doubt and find her not guilty of the charge.  When in the course of my summing up I tell you that something must be proved or you must be satisfied of something you must understand on each occasion I mean proved or satisfied beyond reasonable doubt.

12. During the jury’s deliberation, the members of the jury asked the Judge:

    Please define for us again beyond reasonable doubt.  Does it mean that we have to be 100% sure that the defendant is guilty?

    The Judge responded as follows:

    The answer to the second part of that question is no, it does not mean you have to 100% sure that the defendant is guilty.

    Secondly, a reasonable doubt is a doubt that you, as reasonable people on the jury, would consider to be a reasonable doubt.  I can’t put it any higher than that. 

    The Judge then went on to re-read the part of his summing up that dealt with reasonable doubt.

13. Counsel for the appellant submitted that the Judge erred in informing the members of the jury that they did not need to be 100% sure that the appellant was guilty.  Counsel submitted that the Judge should have directed the jury that a judge cannot give a quantitative or arithmetical indication of what amounts to a reasonable doubt. 

14. In Green,[18] the High Court discussed the concept of reasonable doubt and the appropriate terms in which a judge should direct a jury.  The Court observed:[19]

    A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. "It is not their task to analyse their own mental processes": Windeyer J., Thomas v. The Queen.

    [18] Green v The Queen (1971) 126 CLR 28.

    [19] Green v The Queen (1971) 126 CLR 28 at 32-33.

15. In Wilson,[20] King CJ made reference to these passages and then offered the following observations:[21]

    As was stressed in Green's case, judges have been admonished time and time again to adhere to the conventional formula that the burden is on the prosecution to prove the charge and each ingredient of the charge beyond reasonable doubt. No attempt should be made to explain or define reasonable doubt. If amplification is desired it should go no further than to tell the jury that a reasonable doubt is one which they, as reasonable persons, are prepared to entertain. The judge may, in an appropriate case, warn the jury against resorting to fanciful or unreasonable possibilities as affording reasons for doubt, but if he does so, he should be careful, in my opinion, to add that if the jurors, at the end of their deliberations, as reasonable persons are in doubt about the guilt of the accused, the charge has not been proved beyond reasonable doubt.

    [20] The Queen v Wilson (1986) 42 SASR 203.

    [21] The Queen v Wilson (1986) 42 SASR 203 at 206-207 (footnotes omitted).

16. In Pahuja,[22] King CJ clarified his observations in Wilson:[23]

    The Solicitor-General considered that that case might be interpreted as laying down that any attempt to explain the concept of reasonable doubt must necessarily be a misdirection. That interpretation would not be correct. The expression "reasonable doubt" is a composite expression meaning a doubt which would be entertained by a reasonable person in the circumstances, or as Latham CJ put it in Burrows v The King (1937) 58 CLR 249 at 256, "a doubt such as would be entertained by reasonable men, recognising their responsibility to the accused and to the law". An explanation which conveyed that meaning accurately to a jury would not be a misdirection. But although an explanation of the meaning of reasonable doubt which is accurate cannot be a misdirection, such explanations are not to be encouraged. This has been emphasised in many cases and it is necessary only to recall Green v The Queen (1971) 126 CLR 28. The purpose of the passage in my judgment in Wilson to which the Solicitor-General referred, was twofold. First it sought to reiterate the admonition to judges not to depart from the conventional formula and not to attempt explanations which so often lead to error. The second was to draw attention to the point for which Green is authority, namely that "jurymen themselves set the standard of what is reasonable in the circumstances" and that, therefore, "a reasonable doubt is a doubt which the particular jury entertain in the circumstances".

    [22] R v Pahuja (1987) 49 SASR 191.

    [23] R v Pahuja (1987) 49 SASR 191 at 194.

17. In Forrest,[24] this Court addressed these authorities and reminded trial Judges of their obligations in the following terms:[25]

    Trial Judges have been repeatedly discouraged from giving to a jury during a summing up an explanation of what constitutes reasonable doubt.  That has been expressed in a number of cases:  Brown v The King (1930) 17 CLR 570; Thomas v The Queen (1960) 102 CLR 584; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971) 126 CLR 28; R v Wilson (1986) 42 SASR 203; The Queen v Pahuja (1987) 49 SASR 191. We can only repeat the warning and encourage its observance in order to avoid otherwise unnecessary appeals and possible retrials.

    [24] R v Forrest (2004) 236 LSJS 265.

    [25] R v Forrest (2004) 236 LSJS 265 at [9].

18. No complaint was made about the Judge’s directions as to reasonable doubt and onus of proof in his summing up.  The complaint is limited to what the trial Judge said in answer to the question raised by the jury.

19. The jury’s question was posed in terms of a percentage; did the jury need to be “100% sure” that the appellant was guilty?  The response of the Judge was correct: beyond reasonable doubt does not mean “100% sure”.  The Judge then, having correctly answered the question, proceeded to remind the jury of the meaning of reasonable doubt in accepted conventional terms.  The Judge’s response to the jury question was entirely appropriate.  There is no substance to this complaint.

    Adequacy of Warning on Credibility and Reliability

20. As earlier observed, the principal issue on appeal was the adequacy of the Judge’s directions to the jury with respect to the evidence of Ms Pike.  Before coming to discuss counsels’ submissions, it is helpful to review a number of the relevant authorities.

    Legal Principles

21. The purpose of a warning is to ensure that the minds of the jury members are turned to the facts that may make a witness’s evidence unreliable, as well as to the danger of acting upon such evidence.  There is no technical formula; the strength of the warning will depend upon the circumstances of the case. 

22. In Jenkins v The Queen,[26] the High Court observed:[27]

    The common law imposes on trial judges a duty to warn of the danger of convicting on evidence which is potentially unreliable.  Because of the variety of the circumstances that might exist, in general the law has endeavoured to avoid inflexible rules, and has left it to judges to sum up in the manner best suited to the facts of the particular case.  Judicial experience, however, was regarded as identifying certain, limited, kinds of case which required a departure from that general approach, and which called for a particular kind of warning based upon categorisation of a witness rather than upon some particular feature of the circumstances.  Relating unreliability to classes of person, rather than to the circumstances of cases, involved stereotyping of a kind which is now out of favour.  Rules developed which obliged a trial judge to warn of the danger of convicting upon the uncorroborated evidence of an accomplice, the victim of a sexual offence, and a child.  These were regarded as “cases where the evidence suffers from some intrinsic lack of reliability going beyond the mere credibility of a witness”.  In 1988, the view was expressed in this court that those categories ought to be regarded as closed, and that, in general, the interests of justice would benefit from allowing trial judges the freedom to tailor a summing up to the exigencies of the case.  In 1982, the Supreme Court of Canada changed the common law in that country to do away with the rigidity of the previous rules.

    [26] Jenkins v The Queen (2004) 211 ALR 116.

    [27] Jenkins v The Queen (2004) 211 116 at [25] (footnotes omitted).

23. Gibbs CJ, with whom Mason, Wilson and Dawson JJ concurred, discussed this principle in the following way in Bromley v The Queen:[28]

    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.

    [28] Bromley v The Queen (1986) 161 CLR 315 at 319 (footnotes omitted).

24. Counsel for the appellant submitted that the circumstances of this case required a strong warning that directed the jury to scrutinise Ms Pike’s evidence with particular care, at the same time as it drew the jury’s attention to those matters that made her a potentially unreliable witness.  The culmination of factors in the submission made by counsel for the appellant - the importance of Ms Pike’s evidence, the lack of corroborative evidence, her mental health, her intoxication at the time and her suggested self-interest, gave rise to the need for the Judge to give a special warning to the jury. 

    Self-Interest

25. Counsel for the appellant submitted that the Judge’s directions and warnings to the jury fell short of the type of warning discussed in the authorities above.  Counsel argued that the Judge had couched his statements that could be construed as a warning in terms and explanations that diluted the content of the warning so as to render them inadequate.  Counsel claimed that the Judge did not deal with the matters of particular concern - Ms Pike’s mental health, intoxication, suggested self interest and inconsistent statements – together, as a whole, to point out directly to the jury that those matters could affect her credibility and reliability. 

26. Counsel for the appellant submitted that the authorities supported the conclusion that not only was a special warning about the suggested self-interest required in the circumstances of the present case, but that the warning the trial Judge gave was inadequate.  It was counsel’s submission that Ms Pike was in a similar position to the witnesses in Macaskill,[29] Faure,[30] and Carabott.[31]

    [29] R v Macaskill (No.2) (2001) 81 SASR 155.

    [30] Director of Public Prosecutions v Faure [1993] 2 VR 497.

    [31] R v Carabott (2002) 83 SASR 293.

27. Macaskill concerned the question of whether a Judge had given a sufficient warning with respect to a husband who gave evidence against his wife who was charged with the manslaughter of their daughter.  Only the husband and the wife had access to the child on the day in question.  The husband was initially jointly charged with his wife; however, the proceedings against the husband were discontinued. 

28. Nyland J (with whom Doyle CJ and Besanko J agreed) held that the warning given by the Judge was not sufficient for a witness who was only one of two people who could have killed the deceased.  Her Honour observed:[32]

    On the facts of this case, [the husband] was the only other contender for the commission of this crime.  In that circumstance, it was not enough for the judge only to caution the jury in the context of the defence case and the arguments put by defence counsel in the course of his closing address.  The judge was required to give a very strong warning, supported by the weight of judicial authority about the need to scrutinise [the husband’s] evidence with particular care and drawing the jury’s attention to those matters which made [the husband] a potentially unreliable witness, such as the fact that he had initially faced charges, his obvious motive to exculpate himself, and the other matters which I have previously mentioned.

    [32]Rv Macaskill (No.2) (2001) 81 SASR 155 at [25].

29. In Faure, the witness in question was the principal witness against the defendant on trial.  The case was conducted on the basis that it was either the defendant or the witness who had killed the deceased.  The court concluded that, whilst the witness was not an accomplice, she was a witness in respect of whom a warning was required.  Hampel J (with whom Smith and Phillips JJ agreed), in determining that a warning was needed to avoid a miscarriage of justice, observed:[33]

    While no particular formula is appropriate, a warning in a case such as the present should be one which is given by way of a direction to the jury from the trial judge and with the force of his authority.  It should be more than a general comment about the need to scrutinise evidence of important witnesses carefully.  It is not sufficient that counsel have put the matters in argument which raise the considerations relevant to the assessment of tainted witnesses and that such arguments are repeated by the judge.  Nor is it sufficient to say that care and careful scrutiny are desirable as a matter of common sense.

    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.

    What warning is appropriate and adequate depends on the circumstances of the particular case.  The stronger the warning given with the authority of the judge and the more it deals with the specific factors which affect the evidence of the tainted or potentially unreliable witness, the more confidence exists that the jury has considered those matters in reaching its verdict and the further any risk of a miscarriage of justice is reduced.  That, after all, is a most important consideration and one which has moved the courts to extend the requirement of judicial warnings beyond the cases involving accomplices to cases involving prison informers, identification evidence, disputed confessions by people in custody to police officers, mentally disabled witnesses and other cases in which the witness is significantly tainted or for some other reason the evidence is inherently unreliable.

    [33] Director of Public Prosecutions v Faure [1993] 2 VR 497 at 504.

1. Faure was cited with approval in Macaskill and in Carabott.  In Carabott, this Court held that it was incumbent on the Judge, in that case, to give a specific direction to the jury, due to the critical nature of the witness’s evidence to the prosecution case.  This was so because the witness had his own interest to serve, and in the circumstances there was no evidence providing corroboration of his evidence:[34]

   There are a number of problems with the judge’s further direction.  The judge told the jury that they may come to the conclusion “…that the car was [the witness’s] and so were the drugs found in the car…”.  This conclusion or even the reasonable possibility of such a conclusion would have entitled the appellant to a verdict of acquittal.  The judge did not direct the jury in these terms.  Instead he said that the conclusion may lead them to consider that [the witness] had some purpose of his own to serve.

   The relevant matter to bring to the jury’s attention was the significance of [the witness] having his own interest to serve.  That consideration called for [the witness’] evidence to be carefully scrutinised.  In the circumstances of this matter the jury should also have been warned about the dangers of acting on his evidence in the absence of independent support.  No such direction or warning was given.

   [34] R v Carabott (2002) 83 SASR 293 at [17]-[18].

2. Applying these observations to the present case, it is to be observed that the Judge gave a clear and strong warning to the jury about the need to scrutinise Ms Pike’s evidence with care, and that the Judge then drew the jury’s attention to each of the matters that made Ms Pike a potentially unreliable witness. 

3. It would appear that the trial Judge had specific regard to the type of warning spoken of in Faure.  The Judge would also appear to have attended to each of the matters identified in Macaskill, Faure and Carabott.  The Judge specifically directed the jury to scrutinise Ms Pike’s evidence carefully and then, as earlier observed, made detailed reference to each of the matters of significance.  The Judge also pointed out to the members of the jury that they should look to see how Ms Pike’s evidence fitted in with the other evidence in the trial.  The Judge was plainly making a reference for the need to look for supporting material. 

4. The directions the Judge gave to the jury with respect to the suggested self-interest of Ms Pike could be described as favourable to the defence.  It is important to recall that there was no evidence that pointed to Ms Pike being involved in the spiking of Mr Giire’s drink.  At all times, she denied the suggestion that defence counsel put to her during her cross-examination.  Ms Pike’s statement to the police did not implicate her in those events. 

5. In Johnson,[35] this Court addressed a similar situation.  After discussing the factual circumstances of Macaskill, Faure and Carabott, Duggan J (with whom Besanko and Anderson JJ agreed) observed:[36]

   In each of these cases there was some basis in the evidence for the submission that the witness might have a purpose to serve by reason of his or her possible involvement in the offence.

   However, it is my view that a warning is not called for simply because the defence suggests that the witness might have been involved in the offence.  In the present case, there was no evidence which pointed to B being a participant in the murder.  She said she was told by the appellant that the car was at a location not far from her house.  The police had earlier retrieved it from that location.  The defence submitted that the fact she knew where the car was implicated her.  This was no more than a possible explanation for her knowledge about the car raised by the defence.  The appellant suggested possible motives for B killing the deceased, but there was no evidence to support any of them.  One of the suggestions raised was that the deceased might have owed money to B for the purchase of drugs.  B had supplied drugs to the deceased.  However, she denied selling drugs to her.

   [35] R v Johnson (2004) 89 SASR 294.

   [36] R v Johnson (2004) 89 SASR 294 at [52]-[53].

6. In the present case, the assertions of defence counsel that Ms Pike spiked Mr Giire’s drink were denied.  Those assertions are not evidence of the truth of those assertions.  The appellant did not give evidence.  There was no other evidence to support those assertions.

7. As earlier observed, the Judge specifically and repeatedly drew the jury’s attention to the defence contention that Ms Pike was the person responsible for spiking Mr Giire’s drink.  The Judge made repeated references to the suggested self-interest of Ms Pike, to the need for the jury to consider carefully both that aspect of her evidence as well as, in particular, how it might affect her credibility and reliability.  Given the focus on Ms Pike’s evidence throughout the trial, it is difficult, if not impossible, to contemplate that the jury members were other than acutely aware of the defence contention.

8. In my view, the Judge properly directed the jury.  The Judge’s summing up on this topic was more than adequate, to the extent that the Judge’s directions were probably unduly favourable to the appellant on this topic. 

   Ms Pike’s Mental Health

9. Counsel for the appellant contended that the Judge did not emphasise adequately to the jury Ms Pike’s mental illness.  Counsel submitted that, whilst the Judge referred to Ms Pike being admitted to Crammond House, the Judge put only to the jury that this was due to Ms Pike suffering from depression, without specifically mentioning the psychotic features of her illness. 

10. Counsel for the appellant submitted that the Judge did not adequately draw to the jury’s attention the evidence of Ms Pike that suggested she may have been delusional.  This evidence included her statements that she had heard voices, seen the appellant cutting into the clothes of the deceased and believed that the appellant had “devil eyes” that paralysed her from moving. 

11. Earlier in these reasons, the relevant parts of the summing up on this topic are set out. 

12. The Judge’s summing up on Ms Pike’s mental illness was adequate.  Had the Judge said more, he would have assumed the role of an expert.  It should be emphasised that no medical evidence was before the jury with respect to any illness suffered by Ms Pike.  There was no medical or other evidence, for example, that Ms Pike had been diagnosed as psychotic.  It is helpful to recall the observations of Brennan J in Bromley:[37]

    The reasons why a person suffering from a mental disorder might be led to give untruthful evidence depend, I suppose, on the nature and severity of the mental disorder.  The effects of various kinds and degrees of mental disorders on a witness’s capacity to observe, to recollect and to express accurately the matters he is to depose to and on his willingness to give truthful evidence are, I imagine, quite diverse.  But the courts have no scientific knowledge about the danger of acting on evidence given under the influence of mental disorders of various kinds and degrees, nor have they acquired any experience of the danger of acting on evidence given by persons suffering from a mental disorder wider than the experience of the general public.

    [37] Bromley v The Queen (1986) 161 CLR 315 at 324.

13. As earlier observed, the Judge reminded the jury of the important aspects of Ms Pike’s apparently delusional evidence.  The Judge made particular reference to her evidence concerning the cutting of the clothes and the appellant’s “devil eyes”.  The Judge directed the jury adequately in regard to this aspect of the case. 

    Intoxication

14. The evidence of Ms Pike with respect to her consumption of alcohol, marijuana and prescriptive medication was unclear.  Ms Pike claimed that she had consumed significantly less whisky than the others and had not felt affected by alcohol; but she could not specify the amount she had consumed.  There was no evidence as to the amount of marijuana Ms Pike had consumed during the day, nor to the effect it had had upon her.  Ms Pike gave evidence that she felt “just normal” and was not affected.  Ms Pike stated that she was on prescriptive medication at the relevant time and implied that it was for her mental illness.  However, Ms Pike could not specify what medication she was taking, or in what amounts she was taking it.  Neither prosecution nor defence led or sought any further evidence on any of these issues.  Consequently, given the ambiguity of Ms Pike’s evidence, the directions by the Judge in the summing up with respect to the effects of alcohol and intoxication were adequate to warn the jury in that respect.  The Judge directed the jury properly.

    Inconsistent statements

15. As earlier observed, the Judge addressed the inconsistent statements of Ms Pike in some detail.  Her inconsistent out-of-court statements had been addressed comprehensively throughout the trial, including in the final addresses of counsel.  In the course of summing up, the Judge addressed the topic of inconsistent statements in detail and provided assistance to the jury by a discussion of the particular inconsistencies in Ms Pike’s evidence. 

16. The Judge’s summing up with respect to Ms Pike’s prior inconsistent statements and other inconsistencies in her evidence was adequate.  The Judge directed the jury properly.

    Strength of the warning diminished

17. As earlier observed, counsel for the appellant accepted that the Judge’s general warnings could have referred only to Ms Pike, and that the jury would have understood that those references related to Ms Pike.  However, it was counsel for the appellant’s contention that the general warnings were standard directions - not special warnings - about Ms Pike’s evidence.  Furthermore, counsel claimed that statements that gave possible explanations for Ms Pike’s conduct minimised any of the Judge’s comments which could have otherwise been described as a warning. 

18. The passages earlier referred to from the summing up demonstrate that the Judge not only gave a general warning that could be understood only as referring to Ms Pike, but that the Judge, in addition, gave special warnings about Ms Pike’s evidence in respect of a number of matters.  Those warnings included a specific direction to the jury to scrutinise Ms Pike’s evidence with care.

19. There is no substance to this complaint.

    The need for overall warning

20. Counsel for the appellant submitted that in the circumstances of this trial, the warning to be given by the Judge should have brought together all of the matters that went to the credibility and reliability of Ms Pike, so that the jury could be assisted by assessing their cumulative effect at the one time.

21. The authorities earlier referred to all indicate that there is no particular methodology to be followed in the giving of warnings with respect to the credibility and reliability of a witness.  Those authorities make it plain that the jury must be given proper and sufficient directions to enable them to decide the real issue (or issues) in the case.  A degree of specificity is required in the summing up so that there is confidence that the jury is aware of and will properly address those real issues. 

22. In the present case, the Judge devoted a major part of the summing up to Ms Pike’s evidence.  This was unsurprising as it was clear from the outset of the trial that Ms Pike’s evidence was crucial to the prosecution case.  Furthermore, as earlier observed in these reasons, the Judge from time to time in the summing up drew the threads - of Ms Pike’s mental impairment, intoxication, possible self-interest and inconsistent statements - together. 

23. The problems associated with giving warnings as to credibility and reliability were addressed by Brennan J in Bromley:[38]

    The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer “partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind”…If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given…

    When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted.  In such a case, there is a miscarriage of justice warranting the quashing of the conviction: R v Bassett.  Because a Court of Criminal Appeal may and frequently does quash a conviction when no warning is given with respect to he evidence of a witness in one of the accepted categories, the rule of practice requiring a warning might be thought to have acquired the force of law: cf. Kelleher.  But in truth the rule of practice acquires only such force as is needed to ensure that, in the circumstances of the particular case, there is no miscarriage of justice: cf. Chamberlain v The Queen [No. 2].  When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given.  The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content.  It cannot be said that a conviction on the uncorroborated evidence of a person suffering from a mental disorder, whatever the kind or degree of the disorder may be, is generally, in the absence of a warning pointing out the danger, a miscarriage of justice…

    It follows that there is no universal rule of practice that a trial judge should give a warning – much less a warning according to a prescribed formula – whenever a jury might convict on the uncorroborated testimony of a witness who is suffering or who has suffered from some form of mental disorder.  It may be that the circumstances will require some caution to be given – not because of a particular rule of practice affecting witnesses suffering from some form of mental disorder but because a warning is necessary to put the defence case fully and fairly.  Perhaps no more can be said than this: when the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence as to the witness’s mental disorder are such that the jury may not have fully perceived or the jury’s attention may have been diverted from the danger, a warning should be given.

    [38] Bromley v The Queen (1986) 161 CLR 315 at 324-325 (footnotes omitted).

24. These observations are of particular relevance to the present case.  This was a relatively short trial, in which the jury were made aware from start to finish of the critical nature of Ms Pike’s evidence.  Even without the Judge’s warnings, it is difficult to contemplate that the members of the jury would not have been aware of the need to scrutinise Ms Pike’s evidence carefully.  They had been told by the prosecution and defence that her evidence had to be accepted beyond reasonable doubt before they could convict the appellant.  Having had the benefit of both addresses, the jury would not have been surprised to hear the trial Judge provide each of the warnings about aspects of Ms Pike’s evidence that went to her credibility and reliability.  The Judge did so in clear terms.  As observed earlier, if the trial Judge had given further or stronger directions, it would have been almost to the point of over-saturation.  The summing up was entirely adequate. 

25. In the present case, the Judge dealt with each of the matters said to affect the evidence of Ms Pike.  The passages from the summing up referred to earlier demonstrate the care with which the Judge proceeded in ensuring that the members of the jury were in a position to consider fully each of the matters said to go to Ms Pike’s lack of credibility and reliability.  It is difficult to contemplate a more detailed direction than those the Judge gave without those directions having become unduly repetitive, and without the Judge having raised the risk of over-saturation. 

    Conclusion

26. For the foregoing reasons, this appeal should be dismissed.

    ANDERSON J

    Introduction

27. This is an appeal against a conviction of manslaughter following a trial by jury.  Leave to appeal was granted on Ground 1 of the proposed grounds of appeal. The applicant also appeals as of right on Ground 9 on a matter of law. The appellant, Ms Wanganeen, seeks leave to argue Ground 8, leave to appeal on this ground having previously been refused by a single Judge of this court.

    Facts

28. On 14 December 2005 Ms Wanganeen was convicted of manslaughter.  During the evening of 19 June 2003, Ms Pike, the key prosecution witness, came home to find Ms Wanganeen and the deceased, a Mr Giire, drinking alcohol in her living room.  Ms Pike had not previously met the deceased.

29. Ms Pike and Ms Wanganeen were first cousins.  They had known each other all their lives.  Ms Pike was older than Ms Wanganeen.  As they grew up they spent a lot of time together and stayed in contact to the extent that they saw each other almost every day.  They were very close.

30. After she returned to her home, Ms Pike commenced drinking whisky with Ms Wanganeen and the deceased.  Some time during the course of that evening, when the deceased left the room, Ms Pike said that she saw Ms Wanganeen put some of her methadone into the deceased’s drink. This methadone, when combined with the substantial amount of alcohol that had been consumed, caused the deceased to collapse onto the floor.

31. The deceased later died.  However, the time of death or even an approximate time is not known as the deceased remained on the floor of Ms Pike’s living room until 3 a.m. on Monday 23 June, three days later, when Ms Pike called an ambulance.  The autopsy report showed that the deceased had died as a result of the consumption of methadone combined with the large amount of alcohol consumed as evidenced by a very high blood alcohol concentration of 0.259 percent.

32. Present in the house at the time that Ms Pike said that Ms Wanganeen added methadone to the deceased’s whisky, were Ms Wanganeen’s two children aged seven years and six months respectively, Ms Pike, and of course the deceased. 

33. Ms Pike testified to seeing Ms Wanganeen pour the methadone into the deceased’s drink.  She then watched the deceased consume the drink.  She claimed that she was paralysed from making any movement or action to warn the deceased by Ms Wanganeen’s “devil eyes”.  She said that she felt paralysed by Ms Wanganeen’s eyes, and this prevented her from knocking the drink out of Ms Wanganeen’s hand.  She claimed that these beliefs were part of her Aboriginal cultural heritage and that Ms Wanganeen had power over her.  She described how she regarded herself as being effectively paralysed from either moving or talking at that time.  Soon after this incident, Ms Pike went to bed.  In the middle of the night she awoke and went to get a glass of water, and she said that she saw Ms Wanganeen crouched over the deceased cutting his clothes.

34. When asked by Ms Pike what she was “doing”, Ms Wanganeen said “bunda”, the Aboriginal word for money.  Ms Pike went on to testify that on the following day, she was woken up by a  Mr Warrior knocking on her door.  This was at about 8 a.m.  Mr Warrior saw the deceased on the floor and told Ms Pike and Ms Wanganeen that he was dead.  No one did anything in relation to the body at that time and no one contacted the police.

35. Later that day Ms Pike went with Ms Wanganeen, Mr Warrior and ms Wanganeen’s children to a nearby house to obtain some drugs. They then went to another house where the drugs were consumed before Ms Pike and Mr Warrior returned to Ms Pike’s house where they spent the night.  It seems that at least at some earlier time prior to this incident, Ms Pike and Mr Warrior may have been in some form of relationship. 

36. On her own account, Ms Pike had consumed quite an amount of alcohol prior to the events she described.  She had also used cannabis earlier that day.  She said that neither had an effect on her.  She was the only witness whose evidence implicated Ms Wanganeen.  Unless the methadone was self-administered by the deceased, Ms Pike was the only other person who could have committed the crime. 

    The Grounds of Appeal

    Ground 1 – No sufficient warning given regarding Kellie Pike

    The learned trial Judge erred in failing to warn that it was dangerous to rely on the uncorroborated evidence of Kellie Pike. Such a warning was necessary because:

    (a)     of the role of Ms Pike in the offending;

    (b)     her use of the cannabis, alcohol and prescription medication at the relevant times;

    (c) her longstanding and continuing serious mental illness which included “hearing voices”.

1. The court heard submissions from Ms Davey, counsel for Ms Wanganeen.  Ms Davey submitted that in relation to this ground, although the learned trial Judge gave a warning about the evidence given by Ms Pike, the warning was not adequate.  She argued that given the fact that at all relevant times Ms Pike had been drinking alcohol, had earlier used cannabis, and was at the time taking prescription medication and suffering from a mental illness in the nature of a psychosis which caused auditory hallucinations, the jury required in those circumstances a strong or clear warning directing them of the dangers of convicting on the basis of Ms Pike’s uncorroborated evidence. 

2. Added to this was the somewhat unusual evidence which showed that Ms Pike had left the body of the deceased on her living room floor for three days before she contacted the police.

3. It was also submitted that the trial Judge erred by failing to draw the jury’s attention to particular aspects of her evidence which made her a potentially unreliable witness.  In this regard it was suggested that the Judge was required to draw the threads together for the jury because of the many inconsistencies in Ms Pike’s evidence.   I will deal with some of those circumstances later in these reasons.

   The Summing Up

4. The trial Judge, in his summing up, addressed the evidence of Ms Pike a number of times.

5. The first of these references is at [10] of AB1 168.  His Honour said:

   This is an important case for the assessment of the credibility of witnesses, in particular Kellie Pike.  In making that assessment you should have regard to your own impressions of her whilst she was giving evidence.  You should have regard to the intrinsic likelihood of the story given and the manner in which she gave her evidence, how her story stood up to cross-examination and how her evidence fits in with other evidence in the case which you find convincing or compelling.

6. There is nothing in that part of the summing up that treats Ms Pike any differently to any other witness who might be referred to in any general summing up.

7. The next reference is at [14] where his Honour says at AB 1 169:

   That of course does not mean that you are not entitled to have regard to what you conclude might be a person’s mental state at the time that the events occurred and at the time that they gave evidence. If, for example, you were to conclude that somebody who gave evidence suffers from delusions or that at the time of the alleged offence they were highly intoxicated or mentally disturbed, that is a factor to which you are entitled to have regard when considering whether you can rely on that person’s evidence. It may be that taking all matters into account you are prepared to rely upon the evidence even though a person may suffer from some form of mental disorder. On the other hand, you may decide when considering that person’s evidence and considering it against other evidence in the case, or because you consider the evidence given by the person is highly improbable, that you will not give any weight to that evidence.

8. In my view, that direction does not go far enough and relate her illness to an actual psychosis and the fact that it was affecting her at the very time the incident occurred where she described Ms Wanganeen placing methadone in the deceased’s drink.  Ms Pike says in her evidence that at that time she was hearing voices.

9. There is then a general direction, which does not relate particularly to Ms Pike, contained in his Honour’s summing up at [16] at AB 70.

10. His Honour then goes on to say at AB 1/73 at [27]:

    In assessing Ms Pike’s evidence you should have regard to the way in which she gave her evidence. You should have regard to the fact that the situation with which she was confronted was very distressing. You might have regard to her explanation as to why she did and did not do certain things on the night in question. You might have regard to her demeanour in the witness box, having considered her heath problems and her background, and you might also have regard to the fact that she might have a motive to point a finger at the accused. You might think that what is certain in this case is that the accused was the one who called the police but you might think that she had a reason of her own to minimise her own conduct on that night. Someone spiked the deceased’s drink. Do you think that Ms Pike was lying and pointing the finger at Ms Wanganeen in order to take the heat off herself and avoid the accusation that it was her that caused the death of the deceased? They are questions you might consider. You should scrutinise Ms Pike’s evidence with care. It is crucial evidence in this case.

11. That part of the summing up is in fact the strongest warning that is given to the jury in relation to accepting the uncorroborated evidence of Ms Pike but it is prefaced by the neutralising comment that she found herself in a stressful situation. 

12. Then at AB 1/85, the trial Judge again addresses the evidence given by Ms Pike.  He says at [90]:

    You also heard her cross-examined about her health and in particular her admission that from time to time she had to go to Crammond House suffering from depression. You heard that she takes medication. It has been put to you that you cannot rely upon her evidence. Well it is a matter for you ladies and gentlemen. Of course, just because someone suffers from mental illness does not of itself make them unreliable. And ladies and gentlemen you heard what Mr Pearce put to you, that you have go to consider Ms Pike as a witness giving evidence in this court after some years, giving evidence about events which in anybody’s mind would have been very distressing, in circumstances where she undoubtedly would have been very distressed on the Monday morning, and weigh up the inconsistencies in her evidence, which are established, with the circumstances with which she was confronted. So you will have regard to all of those matters.

13. In my view, this is not a sufficient warning in the circumstances of this case, and again it has the effect of neutralising the effect of any direction to carefully scrutinise.  In particular there is no mention of any mental illness other than a depression for which she was taking medication.  Unfortunately depression is common in our society but the jury would have been well aware that it can be controlled and abated by medication.  A psychotic illness including auditory hallucinations is something quite different.

14. The remainder of the references to Ms Pike in the summing up are his Honour’s summation of the submissions made by both counsel for the prosecution and for the defence.  They do nothing more than merely repeat counsel’s submissions and comment on those submissions and are not directions containing a warning. 

15. There is no doubt that in this case, on the evidence, the only people who could have committed the crime were Ms Wanganeen or Ms Pike.

    The Relevant Law

16. The evidence of Ms Pike does not specifically fall into one of the defined categories of evidence which require a warning as a matter of law.  Counsel for Ms Wanganeen complained that the inherent unreliability of the evidence meant that a much stronger warning was required than the one given by the Judge. In particular, it was submitted that the jury’s attention should have been drawn to the particular factors that rendered Ms Pike’s evidence potentially unreliable and therefore what weight should be given to her testimony.  It was argued that a warning in strong terms was required because of the combination of a motive for Ms Pike to exonerate herself and because of the inherent unreliability of her evidence.

17. In Bromley v R (1986) 161 CLR 315 the High Court was hearing an application for special leave to appeal. The prosecution case in that matter had relied largely on the testimony of one Gary Carter who was a schizophrenic and who, on the night of the alleged murder, had suffered from an episode of his illness and had in fact been admitted to a mental hospital.

18. In Bromley  Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed, at [319] stated that:

    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.

19. Brennan J said at [325]:

    It follows that there is no universal rule of practice that a trial judge should give a warning – much less a warning according to a prescribed formula – whenever a jury might convict on the uncorroborated testimony of a witness who is suffering or who has suffered from some form of mental disorder.  It may be that the circumstances will require some caution to be given – not because of a particular rule of practice affecting witnesses suffering from some form of mental disorder but because a warning is necessary to put the defence case fully and fairly.  Perhaps no more can be said than this: when the danger in acting  upon the evidence is real and substantial and when the conduct of the trial and evidence as to the witness’s mental disorder are such that the jury may not have fully perceived or the jury’s attention may have been diverted from the danger, a warning should be given.  This was such a case.

20. R v Johnson (2004) 89 SASR 294 was a case in which Duggan J reviewed a number of leading decisions including Bromley.  His Honour’s detailed analysis of the cases appears from [44] to [62].  This case is quite different from Johnson.  In Johnson, a witness, Regan, had been a patient at Glenside Hospital and had been suffering from depression.  He was taking medication at the time he gave evidence but importantly there was no evidence in that case that he suffered from delusions.  Accordingly it was held that in those circumstances there was no requirement that the jury be given a specific warning apart from the general comment that the medication may have an effect on memory.

21. Duggan J cited a passage from Cox J in R v Sinclair (1997) 190 LSJS 53 and in particular what Cox J said at [60].

22. In my view, this is not a case, to use the words of Cox J with respect, where “the jury will inevitably be well aware of any potential unreliability in a witness”.  It is my view that the unreliability should have been illustrated by the factual examples set out later in these reasons at [142] and coupled with a strong warning.

23. In my view, it is also instructive to set out the summing up used by the trial Judge in Bromley in respect of which special leave to appeal was being sought.  In that case the trial Judge said in his summing up:

    Whilst on the subject of witnesses, I want to say something about Gary Carter.  He undoubtedly has a mental illness; undoubtedly, as Mr. Borick said, he was more affected by that illness on the night in question than he was when he gave evidence before you.  You must, therefore, approach Gary Carter’s evidence with considerable caution, especially bearing in mind as the Crown, Mr. Martin, put to you that his evidence is so crucial to the Crown case.  You must scrutinize his evidence with special care.  It is open to you to act on his evidence if you are convinced of its accuracy, and you should not do so without first giving careful heed to the warning that I am now giving you.  There is no doubt that in some important respects he is mistaken.  I say ‘mistaken’ because I do not think that anyone seriously suggests that he was lying.  He was clearly mistaken, you may well think, in believing that all of Docoza’s clothes were removed.  He was clearly mistaken in believing that the accused, Bromley, laboured Docoza with the barbell.  You may decide that he was right in saying that Bromley picked it up, that he may have been struck one or more glancing blows, but the fact remains that Dr. Manock’s evidence undoubtedly proves that Carter was mistaken as to the use made by Bromley of the barbell.

24. In that matter the trial Judge, in conjunction with a strong warning, illustrated some of the frailties inherent in the evidence.  He drew the threads together for the jury.

25. It is my view that the trial Judge’s warning set out earlier at [125] in these reasons did not sufficiently explain the danger in accepting Ms Pike’s uncorroborated evidence.  The summing up alludes to broad areas of concern, which might apply to any potential witness.  The jury was told simply to scrutinise the evidence with care and that it was crucial evidence.

26. In addition, Ms Pike’s evidence was potentially unreliable, in my view.  She was suffering from and was being treated for a psychosis.   She said that she was hearing voices at the time of the incident she described.  She had been an inpatient receiving treatment prior to the incident and again immediately after the incident she was admitted to Crammond House where she remained a patient for three months. 

27. The Judge does not mention the psychotic aspects of Ms Pike’s illness and simply calls it depression.  It was much more significant than depression and was highly relevant to the evidence she gave which, on its face, called for very careful scrutinising because of its unusual nature.

    Matters of Fact

28. I am concerned that there are matters of fact which, when looked at cumulatively, required the trial Judge to highlight them to the jury in conjunction with a warning of the type suggested by Gibbs CJ in Bromley.

29. Not in any particular order, the matters which concern me are as follows:

    ·Her consumption of marijuana during the day, albeit that she says she was not affected.  Further, the prescription medication that she was taking and the effect that it would have had on her when combined with alcohol and marijuana.

    ·Her version of not being able to move or speak because Ms Wanganeen’s devil eyes paralyzed her.  As against this, we have the evidence from two Ngarrindjeri Elders who dispute this as part of their cultural beliefs.

    ·There is also a significant amount of inconsistency in Ms Pike’s testimony as to the effect that the “devil eyes” had on her. That is for how long was she affected and to what extent.

    ·The inconsistencies in her story about waking up and getting a drink of water.  On the one hand, seeing Ms Wanganeen crouched over the deceased cutting his clothes with scissors in the lounge room, when on another occasion she said it was in the kitchen.  In fact there were no marks indicating any cutting when the clothing was forensically examined.  She hinted that robbery was the motive.  She must have been mistaken or delusional about this aspect.

    ·There was no discussion by anyone about what to do with the body, that is, what should be done in relation to the body of a dead stranger in her house for two to three days.

    ·There was also no real explanation as to why the body was left on the floor for the two to three days following Ms Pike being affected by the “devil eyes”.

    ·As to the question of her being affected by alcohol, the situation is probably that she must have been to some extent but she says she wasn’t.  She had earlier consumed marijuana.

    ·She was taking medication at the time and had been a patient of Crammond House at various times for a psychotic disease.  She was hearing things at the time of the offence.  She took a lot of medication daily.

    ·For the first time in her evidence to the court, she said that Ms Wanganeen made an admission as to the killing in front of her sister-in-law and another person.  She had not mentioned this earlier in three statements she had made to the police.

30. In my view, these points above illustrate the nature of the unreliabilities that should have been highlighted to the jury.  It was important that these aspects be drawn together in conjunction with a strong warning because there was no evidence capable of amounting to corroboration.

31. In summary, it is my view that the warning to “scrutinize Ms Pike’s evidence with care”, is not sufficient.  There was no mention of a psychosis, and that part of the psychosis was the hearing of voices, and moreover that she was suffering from that psychosis at the time.  When these two matters are considered in conjunction with the matters set out earlier, it is my view that the warning did not sufficiently emphasize the dangers of convicting on the unconfirmed evidence of Ms Pike. 

    Ground 9

32. Counsel for Ms Wanganeen complains in Ground 9 of their proposed ground of appeal that the learned trial Judge erred in the directions given to the jury in response to a question as to the burden of proof. (Pages 24-27 Summing Up).

33. After having retired, the jury inquired of the Judge, by a note delivered to the Judge as follows:

    Please define for us again beyond reasonable doubt.  Does it mean that we have to be 100% sure that the defendant is guilty?

34. The Judge answered:

    The answer to the second part of that question is no, it does not mean you have to be 100% sure that the defendant is guilty. 

35. His Honour then went on:

    Secondly, a reasonable doubt is a doubt that you, as reasonable people on the jury, would consider to be a reasonable doubt.  I can’t put it any higher than that.  But I will read to you again the passage that I read to you – that I directed you earlier about it: ‘It is not enough for the prosecution to show a mere suspicion of guilt or to show that an accused person is probably guilty.  An accused person is not to be convicted unless their guilt has been proved to your satisfaction beyond reasonable doubt.  Each element of each of the charges which you have under consideration must be proved beyond reasonable doubt.  I will shortly direct you about the elements of the charges.  You cannot convict an accused person so long as you have a reasonable doubt as to any essential elements of the crime charged.  If, at the end of the case, you are left with a reasonable doubt about the guilt of the accused with respect to any charge, then you must give her the benefit of the doubt and find her not guilty of the charge.’

36. The complaint made by counsel for Ms Wanganeen is that his Honour was incorrect in answering ‘no’ to the second part of the question.  Counsel contended that although the next passage discussing reasonable doubt was appropriate, the Judge should have said that it was inappropriate to deal with the second part of the question.  The argument is that the jury should have been directed that a Judge cannot give a quantitative or arithmetical indication on this issue. 

37. It is my view that although it may have been preferable to answer the jury’s question in the manner suggested by counsel for Ms Wanganeen, the fact that the learned trial Judge chose to answer it in a different form is not indicative of any error.

38. I would dismiss this ground of appeal.

    Ground 8 – Recall of Witnesses

39. In Ground 8 counsel for Ms Wanganeen complains that the learned trial Judge erred in refusing the defence application to recall and further cross-examine Ms Kellie Pike.  (T 196-198).

40. On this ground Ms Wanganeen seeks leave to appeal after having had leave refused previously by a single Judge of this court.  Towards the end of the trial, the defence applied to further cross-examine Ms Pike after she had completed her evidence, after she was released, but while she was still in the precincts and just outside the court.  After having asked the court for a brief adjournment to take instructions, defence counsel wanted to put to Ms Pike that she had a predilection to at least talk about hurting other people.  (T 197).  The learned trial Judge refused the defence counsel’s application stating at T 198 that, “You couldn’t recall the witness anyway.  It only goes to credit.”

1. Counsel for Ms Wanganeen complains that, in light of the seriousness of the charge, the minimal inconvenience to the witness, the nature of the evidence and the importance of the witness, further cross-examination should have been permitted.

2. In response, the Director of Public Prosecutions submitted that, the topic on which the defence counsel sought to further cross-examine Ms Pike was a topic that only went to credit and thus refusal of the application did not give rise to a perceptible risk of a miscarriage of justice.

3. Counsel for Ms Wanganeen relied on R v Gassy (No 3) (2005) 93 SASR 454 and in particular the statement by Bleby and White JJ at [318]- [319]:

   A decision to recall a witness whose evidence has been concluded for further cross-examination, or to allow further cross-examination of a witness still in the witness box after the re-examination has been completed, involves an exercise of discretion by the trial judge. That discretion is to be exercised having regard to the requirements of the interests of justice in the circumstances of the case. Ordinarily, the interests of justice would favour the grant of leave where the evidence sought to be adduced has been overlooked and no prejudice would be occasioned to the other party.  Some authorities have gone further and held that generally speaking a judge should always accede to a request to have a witness recalled for cross-examination upon a point of substance which has been overlooked – however incompetently – unless real and incurable prejudice may be occasioned to the opposing party. Obviously practical considerations may also intrude: the availability of the witness and the ease with which he or she may be located so as to be recalled will all be relevant matters.

   Where in a criminal trial a judge has refused to require a witness to be recalled for further cross-examination, or to allow further cross-examination after completion of the re-examination, the first question on appeal is whether the exercise of the discretion of the trial Judge in that respect has miscarried. The principles governing appellate review of a discretionary decision are applicable. The discretion may be found to have miscarried if the judge acts on a wrong principle or it extraneous factors have influenced the decision.

4. Ms Wanganeen’s counsel submitted that the learned trial Judge fell into error when exercising his discretion by stating that the further cross-examination went only to credit or collateral issues.  Kirby J in the New South Wales Court of Criminal Appeal, in the case of R v GNK [2004] NSWCCA 114 states at [31] -[32] that:

   The desirability of an accused being afforded an opportunity to put his case must be given considerable weight…

   A trial Judge faced with such an application should be slow to refuse unless it is in some way unfair to the complainant. Even then justice may require that the accused be given opportunity to place before the jury the material which Counsel believes in important to his defence.

5. The trial Judge has a wide discretion and any appeal can only be upheld in relation to the exercise of the trial Judge’s discretion if it has resulted in a miscarriage of justice.  The miscarriage may be as a result of acting on a wrong principle or an extraneous factor.  When exercising a judicial discretion, a Judge should put considerable weight on defence counsel’s submissions that the evidence is potentially probative and relevant to a question of guilt. 

6. It is established from cases such as Wakeley & Bartling v R (1990) 93 ALR 79 that if counsel gives an undertaking that the further cross-examination is relevant to their case then that is sufficient for it to be considered relevant.

7. The court consisting of Mason CJ, Brennan, Deane, Toohey and McHugh JJ affirmed the duty of counsel to ensure that the discretion to cross-examine is not misused.

8. The court went on at page 86 to state:

   That duty is the more onerous because counsel’s discretion cannot be fully supervised by the presiding judge.  Of course, there may come a stage when it is clear that the discretion is not being properly exercised.  It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensure procedure of hearing and determining a case.  But until that stage is reached – and it is for the judge to ensure that the stage is not passed – the court is, to an extent, in the hands of cross-examining counsel.

9. And further at page 87 the court said that:

   The subsequently discovered information merely emphasises the necessity for a trial judge to abstain from too ready an intervention in cutting off lines of cross-examination.

10. In this case, Mr Richards, counsel for Ms Wanganeen, put to Ms Pike in cross-examination that her mental illness, in particular her psychosis, had affected her memory.  She admitted that this was so.  Later, in his application to recall the witness, Mr Richards told the court that he had a statement from a witness upon which he wished to cross-examine Ms Pike.  The topic was a suggested predilection to talking about hurting other people when suffering from her illness. 

11. The proposed topic of cross-examination was, in my view, relevant to more than a collateral issue as it went to a possible motive for the witness to exculpate herself from the crime. This is particularly relevant given the trial Judge’s summing up.  It may also have been relevant to a possible reason why the police were not called for three days.  It has relevance which is not limited to issues of credit or character, and in my view it would be relevant to a state of mind.

12. I have re-read the transcript and I do not believe that allowing further cross-examination could have resulted in any inconvenience to either the court or the prosecution. I believe that the trial Judge, in the exercise of his discretion, erroneously considered the matter relevant to credit or a collateral issue only.  I am not satisfied that no substantial miscarriage of justice resulted from the trial Judge’s ruling. (Wilde v R (1988) 164 CLR 365).

13. Given the views I have expressed on Ground 1, I would therefore give leave on Ground 8, and for the reasons expressed, allow the appeal on that ground as well.

14. I would therefore grant leave to appeal on Ground 8, allow the appeal, quash the conviction and order a new trial.