Regina v Covill

[2000] NSWCCA 231

Reported Decision: 114 A Crim R 111

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Covill [2000] NSWCCA 231
FILE NUMBER(S):	CCA 60106/99
HEARING DATE(S):	6 June 2000
JUDGMENT DATE:	21 June 2000
PARTIES :	Regina v Kevin John Covill
JUDGMENT OF:	Giles JA at 1; Grove J at 62; Greg James J at 63

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0585 & 98/11/0409
LOWER COURT JUDICIAL OFFICER :	Coleman DCJ

COUNSEL :	M C Marien - Crown W C Terracini SC - Applicant
SOLICITORS:	S E O'Connor, Director of Public Prosecutions - Crown Saunders & Company - Applicant
CATCHWORDS:	MALICIOUS WOUNDINGS - conviction and sentence appeals - one conviction appeal upheld because of conceded misdirection as to appellant's election not to give evidence - RPS v The Queen (2000) HCA 3 referred to - other conviction appeal dismissed - no error in declining to give a direction as to the unreliability of particular evidence - Evidence Act s 165, R v Lewis (CCA, 8 September 1998) and R v Flood (1999) NSWCCA 198 referred to - no error in declining to give a direction as to an alternative case of self-defence - no miscarriage of justice because appellant asked in cross-examination whether he thought a Crown witness was motivated to tell lies, although question should not have been asked - R v Uhrig (CCA, 24 October 1996), Palmer v The Queen (1998) 193 CLR 1, R v Javanovic (1997) 42 NSWLR 520, R v AH (CCA, 27 November 1997), R v GET (CCA, 15 June 1998) referred to - jury's verdict not unreasonable or unsupportable having regard to the evidence - M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439, Fleming v R (1998) 158 ALR 379, R v McKnoulty (1995) 77 A Crim R 333 referred to - new trial as to one offence and need for resentencing on other offences.
DECISION:	As at the first trial - (1) On the Crown's concession allow the appeal; (2) Set aside the conviction and quash the sentence; (3) Order a new trial. As at the second trial - (1) Dismiss the appeal against conviction; (2) Grant leave to appeal against the sentence and the remaining sentences passed on the appellant, including the sentences passed following the pleas of guilty to the additional indictment; (3) Quash all the sentences; (4) Remit to the District Court of New South Wales the sentencing of the appellant.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60106/99

DC 97/11/0585 & 98/11/0409
GILES JA

GROVE J

GREG JAMES J

Wednesday 21 June 2000

R v COVILL

JUDGMENT

1    GILES JA: The court made orders at the conclusion of the hearing of the appeal, stating that reasons would be given later. These are my reasons for joining in the orders.

The trials

2    In a trial commencing on 5 August 1998 the appellant pleaded not guilty to alternative charges of wounding with intent to murder and maliciously wounding with intent to do grievous bodily harm, arising from the stabbing of Peter Priest on 7 June 1997. He was found not guilty on the first charge and guilty on the second charge. In an immediately following trial commencing on 12 August 1998 the appellant pleaded not guilty to a charge of kidnapping and to alternative charges of wounding with intent to murder and maliciously wounding with intent to do grievous bodily harm, arising from conduct towards and the stabbing of Anthony Whiteside on 8 June 1997. He was found not guilty on the first two charges and guilty on the third charge. He pleaded guilty to a fourth charge of possession of a firearm.

3    The appellant was sentenced contemporaneously in relation to these offences and two further offences involving armed robberies, to one of which the appellant had pleaded guilty, the other was taken into account. For the 7 June 1997 malicious wounding he was sentenced to a minimum term of 9 years penal servitude to commence on 8 June 1997, with an additional term of 4 years thereafter. For the 8 June 1997 malicious wounding he was sentenced to a fixed term of 6 years penal servitude, and for the possession of a firearm he was sentenced to a fixed term of 3 years imprisonment. For the armed robberies he was sentenced to two fixed terms of 4 years penal servitude, of which more later. All these other sentences were to commence on 8 June 1997.

4    The appellant appealed on conviction and sentence in relation to the two malicious woundings.

First trial - conviction

5    There were four grounds of appeal in the notice of appeal, and a further ground was raised in the appellant’s written submissions. Leave to argue the further ground was not opposed. The five grounds were, in summary -

(1) that the trial judge erred in not discharging the jury on application made after a witness referred to a robbery matter unrelated to the charges before the jury;
(2) that the trial judge’s failure to discharge the jury resulted in a miscarriage of justice;
(3) that the trial judge erred in the directions given to the jury concerning the appellant’s election not to give evidence;
(4) that the directions concerning the jury’s approach to assessing the reliability of a particular witness were inadequate; and
(5) that the verdict was unreasonable or could not be supported having regard to the evidence.

6    The Crown conceded the error in ground (3). The appellant abandoned ground (5). It was common ground that there should be a new trial consequent upon upholding ground (3) and that the remaining grounds of appeal, if upheld, would not result in acquittal. The Court was invited to order a new trial. In those circumstances there was and is no occasion to consider the other grounds of appeal, cf Jones v The Queen (1989) 63 ALJR 312. A brief explanation of the successful ground of appeal is, however, appropriate.

7    The evidence of Kevina Whitehead was important to the Crown case. She said that she accompanied the appellant to the Regent Street Methadone Clinic early on 7 June 1997, and described the clothing he was wearing. The appellant received his dose of methadone. As they were leaving the clinic Kevina Whitehead saw Peter Priest, whom she knew, and they exchanged brief words. Kevina Whitehead and the appellant then went to the McDonald’s restaurant at Haymarket. Peter Priest approached Kevina Whitehead at the McDonald’s, and an argument ensued. Kevina Whitehead told the appellant of the argument, he went over to Peter Priest, and Kevina Whitehead saw him stab Peter Priest. She identified a knife as a knife the appellant was carrying in his jacket pocket on that day. As they were leaving the McDonald’s the appellant told Kevina Whitehead that “everything was done in self defence”.

8    Peter Priest gave evidence of seeing Kevina Whitehead and another man at the methadone clinic early on the morning of 7 June 1997 and of exchanging words with them. He described the man and the clothing he was wearing. After Peter Priest received his dose of methadone he went to the McDonald’s at Haymarket. There was an argument with Kevina Whitehead, and a minute or two minutes later he was stabbed by the man he had seen with Kevina Whitehead at the methadone clinic. He denied offering violence towards the person who stabbed him.

9    Records of the methadone clinic showed that the appellant received a dose of methadone at 9.17 am on 7 June 1997 and that Peter Priest received a dose of methadone at 9.23 am on the same day.

10    Two other witnesses gave evidence of events at the McDonald’s, one of seeing a man “punch” Peter Priest in the back with the back of Peter Priest’s shirt being red, and the other of seeing a man shouting and swearing at another man sitting at one of the tables. They gave descriptions of the man, and in one case of the clothing he was wearing.

11    There was other evidence going to the appellant’s appearance, and to the clothing he was wearing and carrying in a backpack when apprehended by the police. Kevina Whitehead was with the appellant when he was apprehended, and she produced a knife. Blood was detected on the jacket the appellant was wearing when apprehended, but it did not match the blood type of Peter Priest. There was no blood found on the knife or other clothing. Evidence was given of the injuries suffered by Peter Priest, and that the knife could have caused his wounds.

12    The appellant did not give evidence or call any witnesses. The cross-examination of Kevina Whitehead included putting to her -

(a) that she went to the methadone clinic with the appellant and a person called Kane;
(b) that the appellant left after obtaining his methadone and she and Kane remained at the clinic to obtain pills from Peter Priest;
(c) that Kane was similar in appearance to the appellant; and
(d) that the appellant did not go to the McDonalds with her.

Kevina Whitehead did not agree with most of this. The thrust of the cross-examination was that someone other than the appellant, possibly Kane, had stabbed Peter Priest. A photograph of Kane was tendered.

13 The Crown Prosecutor suggested to the trial judge that it was an appropriate case in which to comment on the failure of the appellant to give evidence, pursuant to the power in s 20 of the Evidence Act 1995. After argument, and with reference to R v OGD (1997) 45 NSWLR 744; (1997) 98 A Crim R 151, the trial judge considered that he should do so.

14    The directions given appropriately emphasised the presumption of innocence and that the appellant was entitled to remain silent, including that his election not to give evidence could not be treated as an admission of guilt and that there were many reasons why an accused person might not want to give evidence. But they continued -

“In the present case however, you may when you are judging the value or the weight of the evidence which has been put forward by the Crown as establishing its case against the accused, take into account the accused’s election not to deny or contradict the matters about which he could have given direct evidence from his personal knowledge. That is ladies and gentlemen his whereabouts and movements from the time that he received his methadone dose at the Regent Street Clinic.
When you carry out that assessment ladies and gentlemen you will recall that the defence case is for reasons which Mr Patch put to you in some detail yesterday, that the Crown case as to the positive identification of the person who was at the scene who did the stabbing relied upon the evidence of Kavina [sic] Whitehead. Mr Patch put to you yesterday a number of reasons why you would not be satisfied with that evidence and would reject it.
You cannot use the election by the accused not to put forward any denial or contradiction in order to fill in any gaps which you might otherwise see in the evidence upon which the Crown relies. Its relevance relates only to the value or the weight which you give the evidence which the Crown witnesses have given.
The absence of any evidence from the accused as to the circumstances in which he left the methadone clinic after the time he received his dose, and that is not in dispute, also means that there is no evidence to support the particular version of that event which was put to the Crown witnesses, that is Kavina Whitehead, by Peter Patch when he cross-examined her. That version was denied by her as she denied that the other person, Kane, was with she and the accused when they walked to the Regent Street Clinic and that Kane left the Regent Street Clinic and walked to the McDonald’s Restaurant with her.
The accused has led no evidence to establish where he went and the suggestions put in cross-examination remain just that, suggestions. But Mr Patch says when you come to consider those suggestions you must balance them against the submissions that he made to you concerning the reliability of Kavina Whitehead.
Ladies and gentlemen I remind you that the accused may always make this election and by making this election there is no implied admission of his guilt and I have explained to you the reasons why that is so and the way in which you can use that particular fact.”

15    The appellant submitted that this part of the directions, in particular so far as it was said that the appellant’s failure to give evidence was relevant to the value or the weight to be given to the evidence of the Crown witnesses, went beyond the boundaries of permitted comment flowing from the later decision of the High Court in RPS v The Queen (2000) HCA 3.

16 By s 20(2) of the Evidence Act, the comment “must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned”. In RPS v The Queen the directions included that, in judging the value or weight of the evidence put forward by the Crown, the jury could take into account the accused’s election not to deny or contradict the matters about which he could have given direct evidence from his own knowledge. The directions in this respect, amongst others, were held to have been erroneous. It was said that the prohibition on suggestive comment had to be given full operation, and that in any event the directions were contrary to the fundamental feature of a criminal trial that it was for the prosecution to prove guilt beyond reasonable doubt and it would rarely be the case that the accused would be expected to give evidence.

17    The Crown conceded that the directions given by the trial judge concerning the appellant’s election not to give evidence were not in accordance with the reasons in RPS v The Queen, and were therefore erroneous. The concession no doubt had in mind the trial judge’s reference to the value or weight of the evidence of the Crown witnesses. In my opinion, we should act upon the concession.

Second trial - conviction

18    There were four grounds of appeal in the notice of appeal, one of which was abandoned, and a further ground was raised in the appellant’s written submissions. Again leave to argue the further ground was not opposed. The resulting four grounds were, in summary -

(1) that the trial judge erred in his directions as to the matters which might make the evidence of the principal Crown witnesses unreliable;
(2) that the trial judge failed to direct the jury on the availability of self defence if particular evidence of one of the Crown witnesses were accepted;
(3) that a miscarriage of justice was occasioned by the cross-examination of the appellant as to any motive for one of the Crown witnesses to lie; and
(4) that the verdict was unreasonable or could not be supported having regard to the evidence.

19    Other than police officers and a medical witness, the witnesses in the Crown case were Anthony Whiteside, Kevina Whitehead and Dennis Murphy. The Crown case presented through these witnesses was -

(a) Anthony Whiteside and Kevina Whitehead had over some years had a relationship sometimes described as a boyfriend/girlfriend relationship;

(b) a little time prior to 8 June 1997 the appellant formed a relationship with Kevina Whitehead;

(c) on about 6 June 1997 the appellant threatened Anthony Whiteside with a shotgun and a knife, telling him to stay away from Kevina Whitehead;

(d) on 8 June 1997, when Anthony Whiteside was staying with Dennis Murphy, the appellant went to the room where Dennis Murphy lived with the shotgun and a bag of knives and, pointing the shotgun at Anthony Whiteside, forced him to go to a nearby address where Kevina Whitehead was to be found;

(e) While at Dennis Murphy’s room the appellant told Anthony Whiteside that he, Anthony Whiteside, had to sort things out with Kevina Whiteside;

(f) Kevina Whitehead came out into the back yard of the address and tried to attack Anthony Whiteside; they both slipped on rubble; as Anthony Whiteside was regaining his balance, the appellant stabbed him.

20    It should not be thought from this summary that the evidence of the three principal Crown witnesses was consistent. It was not. There were differences between Anthony Whiteside and Kevina Whitehead, and discrepancies within the evidence of each, in their descriptions of the relationships in which Kevina Whitehead was the common party. There were differences between Anthony Whiteside and Dennis Murphy as to what was said and done at Dennis Murphy’s room, in particular in that on Anthony Whiteside’s evidence he was forced to go to the nearby address but on Dennis Murphy’s evidence the initial confrontation about Kevina Whitehead subsided to agreement that Anthony Whiteside should sort things out with her. Of particular significance at the trial was conflict in the evidence, including evidence emerging only in cross-examination, over whether Kevina Whitehead carried a knife when she came out into the back yard (she and Dennis Murphy said a bread and butter knife) and whether Anthony Whiteside had a knife which he had taken from Dennis Murphy's fishing box. It was suggested to the three witnesses that they had put their heads together to keep from the investigating police possession of these other knives at the time. There was also conflict in the evidence concerning whether Dennis Murphy engaged in the sale of Rohypnol and Rivotril pills, including to the appellant for Kevina Whitehead: the sale to the appellant was suggested as the occasion for his going to Dennis Murphy’s room, rather than a confrontation with the appellant over Kevina Whitehead’s affections.

21    The appellant gave evidence. It included that he had gone to Dennis Murphy’s room not for a confrontation with the appellant but to buy pills for Kevina Whitehead. For present purposes restricting attention to the stabbing, the appellant said that Anthony Whiteside pushed Kevina Whitehead to the ground, that he (the appellant) went to her and reached for the knife she had held and, that when turning to face Anthony Whiteside, he saw that Anthony Whiteside had a knife. The appellant told Anthony Whiteside to settle down, butAnthony Whiteside ran at the appellant with the knife and swung it at the appellant’s throat and face, and the appellant went to duck and swung the knife he was holding at Anthony Whiteside. According to the appellant, he was scared of being “stabbed and hit” by Anthony Whiteside, and acted in self defence.

Ground (1)

22    The credibility of the principal Crown witnesses, Anthony Whiteside, Kevina Whitehead and Dennis Murphy was very much in issue. The appellants submitted that the trial judge should have given two particular directions for which his then counsel had applied, namely -

“If, on the evidence, you consider that it might reasonably suppose [sic] that Kevina Whitehead/Tony Whiteside/Dennis Murphy deliberately concealed from the police the facts that Kevina Whitehead had a knife in her hand when she came out of her room and that she then attacked Tony Whiteside with that knife, then you should scrutinise her/his evidence with great care because it may be unreliable. Whether you approach the matter in that way is entirely a question for you to decide.”
“If on the evidence you consider that it might reasonably be supposed that Kevina Whitehead/Tony Whiteside/Dennis Murphy deliberately concealed from the police that Tony Whiteside had a knife or knives in his possession at the time he was wounded then you should scrutinise her/his evidence with great care because it may be unreliable. Whether you approach the matter in that way is entirely for you to decide.”

23 The application when made was founded on s 165 of the Evidence Act. That section provides -

“ 165 Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:


(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,

(b) identification evidence ,

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

(d) evidence given in a criminal proceeding by a witness , being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

(e) evidence given in a criminal proceeding by a witness who is a prison informer,

(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,

(g) in a proceeding against the estate of a deceased person evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to:


(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.


(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.”

24    Early in his summing-up the trial judge had directed the jury -

“Ladies and gentlemen the evidence which was given by the principal witnesses in the Crown case, and I will come to it in more detail later, was submitted to be unreliable and it was put to you ladies and gentlemen that you would reject their evidence because it had been demonstrated that they were to varying degrees telling lies about events that had happened on that particular day. When you come to consider the fact finding and the credit or the reliability of the witnesses who have given evidence in the case there are some matters that you might consider in relation to the reliability or unreliability of some of the witnesses once particular facts are established. If you were satisfied ladies and gentlemen that Kevina Whitehead had a knife in her hand and approached or went towards Anthony Whiteside in the back yard in an aggressive manner if you were satisfied of that ladies and gentlemen and crossed that particular threshold you would need to consider her evidence carefully and scrutinise it with some care because if that was the fact she may be a person who was criminally concerned in events which were taking place in the back yard, that is and it has never been part of the defence case was made absolutely clear by Mr Patch there was never any suggestion that she stabbed the accused, but she had a knife on the submissions you heard from Mr Patch and if you - it is not part of the defence case the stabbing of Anthony Whiteside was done by Kavina [sic] Whitehead, there is no suggestion that she stabbed anybody.
Now ladies and gentlemen if you are satisfied that she acted in the way that I have just described and went towards Anthony Whiteside it may be, it is a matter for you ladies and gentlemen, that her evidence is unreliable, but you would need to assess that very carefully. I am not suggesting that it is and you must not because I have given you that direction draw any inference or think that I am expressing any opinion I am not, I am merely directing your attention to material that you can take into account in your assessment once you are satisfied that that particular threshold has been crossed. Similar considerations apply in relation to the evidence of Anthony or Tony Whiteside. You will recall ladies and gentlemen that he denied very strongly that he had a knife in his possession during the events in the backyard. You heard evidence from Kavina Whitehead and from Dennis Murphy concerning their observations about a knife that was visible in Anthony Whiteside’s jeans or trousers or pants at the time that these events took place. If you are satisfied that he had a knife it may be ladies and gentlemen that you would consider his evidence may be unreliable because he may be attempting to minimise or conceal his involvement in the events and in particular any role which he might have had as the instigator or the aggressor. You should ladies and gentlemen consider whether that particular threshold has been crossed and if it is consider whether the evidence may be unreliable. Similarly, ladies and gentlemen there is evidence that Mr Dennis Murphy sold pills, Rohypnol and Rivotril. Mr Murphy denied that he did it at all. Tony Whiteside said that he had seen pills in Dennis Murphy’s possession. Kavina Whitehead and the accused both gave evidence of observing Dennis Murphy from time to time selling pills. There was evidence given of his involvement with the sale of pills at the Edward Eagar Lodge. If you are satisfied ladies and gentlemen that Dennis Murphy was involved in the sale of pills of that type it could reasonably be supposed that he was a person who had a criminal involvement in the events which led up to these particular offences. Now his involvement ladies and gentlemen is not directly and it is not suggested it is directly in the stabbing or as part of the kidnapping, but it is suggested that he was involved in a criminal activity which was the sale of pills, the accused’s case is that the purpose of his visit on that particular morning to Dennis Murphy’s house was to obtain pills for Kavina Whitehead.
If you are satisfied ladies and gentlemen that that particular threshold has been crossed you should consider whether his evidence, that is Dennis Murphy’s evidence, may be unreliable.
That is you should also ladies and gentlemen scrutinise his evidence with some care if you come to the conclusion that it may be unreliable.
Ladies and gentlemen if you reach the conclusion that the evidence of one or either or all of those witnesses is unreliable you might in respect of that particular witness come to the conclusion that that witness’ evidence is so unreliable that you reject it entirely or you might as I have said to you find that it is reliable in some parts, but unreliable in others.
The question of the credit or the believability of the witnesses and each of them is a matter for you and for you alone to determine and in giving the directions that I have just given you you must not because I have said imply that I am holding any opinion or hinting that I have any particular opinion in relation to those particular matters.
In relation to Dennis Murphy so far as his evidence is concerned, if you do consider it is unreliable I remind you that there is no suggestion that he was in any way generally concerned in either of the offences except that he was present at the time that each was committed.”

25 It was accepted that, here and elsewhere, the trial judge appropriately directed the jury as to unreliability because the witnesses might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings (see s 165(1)(d)). At a break in the summing-up counsel for the appellant submitted that there had to be -

“ … a direction about the possibility that the witnesses lied to the police about the knives and that is not necessarily a direction which should be couched in terms of criminal involvement. It’s unreliability in relation to another matter namely that they lied to the police”.

It was said that, although the kind of unreliable evidence involved in the submission was not to be found in s 165, the list in the section was not exhaustive. The Crown opposed the further direction, saying that “[t]his just gets right down to the issue of credibility of the witnesses”. There was fairly extensive discussion. The trial judge said that he did not propose to give the direction, but would direct as to the possibility that the witnesses lied to the police.

26    The directions thereafter given included -

“Ladies and gentlemen before you had your break for morning tea I gave you a direction on unreliability in certain thresholds and I will just add something with that, ladies and gentlemen, to amplify it. You must remember there is no obligation on the accused to prove anything. If on the evidence you consider it might reasonably be supposed that the particular witness might be criminally concerned in the events, then in addition to the consideration you would normally give that witness’ evidence, you must examine that evidence with great care because it may be unreliable. I remind you that I am not expressing or hinting that I hold any opinion and if you think I am, you must disregard it.”

“Anthony Whiteside did not mention to the police that he had a knife or that Kavina Whitehead had a knife in her hand when she came out of the premises. He denied that he had a knife in his possession in the backyard on that afternoon. There was evidence from Kavina Whitehead and from Dennis Murphy that he had a knife in his pants. There was also evidence from Dennis Murphy that he asked for that knife before he left Dennis Murphy’s house and Dennis Murphy also said that he discovered some time later that a knife had been missing from his fishing box and Anthony Whiteside told him that he had taken that knife as well. Detectives, when they took possession of Anthony Whiteside’s clothing at the hospital, found a knife in his possession.
Mr Patch put to you ladies and gentlemen that you would find that Anthony Whiteside had lied about the knife and that you would find that he had a knife in his possession in the back yard and that he lied to conceal his involvement in the offence and the fact that he was the aggressor. If you find that Anthony Whiteside lied about the knife, that is evidence that you must take into account on the question of his credit or his reliability. It is a matter for you ladies and gentlemen as to the way in which you deal with that evidence as the way in which you assess his credit or reliability as a result of that finding if you make it at all.”


“However, the accused’s case is as I have outlined to you and it is necessary for you ladies and gentlemen to consider the evidence which was given by the Crown witnesses who were present at that time, that is Kavina Whitehead, Dennis Murphy and Anthony Whiteside. The accused has submitted that those witnesses got their heads together and as a result of getting their heads together, no mention was made of the knife which Anthony Whiteside had or the fact that Kavina Whitehead came out of the room with the knife in her hand.
It was put to you by Mr Patch ladies and gentlemen, and I do not propose to repeat the very detailed analysis that he gave you, that there were reasons why each of those witnesses would have adopted that course and resorted to that particular tactic to shift the blame onto the accused. … “


“Ladies and gentlemen he [Dennis Murphy] was cross-examined about his failure to mention the fact that Anthony Whiteside had a knife in his possession at the time that he went into the backyard. He did not refer to it in his police statement and you heard evidence given by Dennis Murphy that a few days before the case he brought that matter to the attention of the Crown Prosecutor. He gave evidence ladies and gentlemen that there had been a discussion in hospital between him and Kavina Whitehead and Anthony Whiteside in which Dennis Murphy had told the other two that he would at the hearing mention the knife and give evidence about it.
Ladies and gentlemen that is evidence that you might like to consider when you come to consider the submissions made by Mr Patch concerning the fact that the witnesses had put their heads together because it was admitted by Mr Murphy that there had been a conversation between him and Kavina Whitehead and Anthony Whiteside concerning the knife that Dennis Murphy said that Anthony Whiteside had in his possession at the time that he went into the backyard and the fact that Anthony Whiteside would raise it at a later time.”

27    At the conclusion of the summing-up the trial judge was asked to give the two particular directions set out above. In declining to do so, he said that the application was “covered by the rulings I’ve made earlier”.

28 Section 165 applies to evidence “of a kind that may be unreliable”. The appellant did not suggest what kind of evidence in this case called for this categorisation, so as to require the particular directions sought. The terms of the directions sought involved that the entirety of the evidence of the witnesses be the subject of warning, it seems on the basis that the evidence of someone who has concealed material information from the police is of a kind that may be unreliable. There is no doubt that evidence of a kind not described in one of paras (a) to (g) in s 165(1) may be unreliable, and the kinds of evidence listed in s 165(1) are inclusive and not exhaustive (see for example R v Lewis (CCA, 8 September 1998, unreported). I doubt, however, that the evidence of the witnesses in question was to be categorised as of a kind that may be unreliable because of the possibility (it depended on the jury’s view of the facts) that they had concealed material information from the deceased. It may be accepted that that could have been a reason why the evidence of the witnesses should be viewed with caution, but it may not have made the evidence of the kind referred to in s 165.

29 It does not matter. Although the trial judge did not expressly refer to his power under s 165(3) to refrain from giving the statutory direction if there were good reasons for not doing so, he said that he would direct as to the possibility that the witneses lied to the police. The point of doing so was obviously that lying to the police would cast doubt on the reliability of their evidence. It seems to me that the situation was akin to that described by Spigelman CJ, with reference to authority and with the concurrence of Bell J, in R v Flood (1999) NSWCCA 198 at [16] -

“In a case such as the present, when the reliability of a single witness is the kernel of the Crown case, the issue of reliability is best handled in the circumstances by detailed directions rather than by the incantation of a statutory formula. This in my opinion is capable of constituting ‘good reasons’ for not giving a warning in the precise terms of s 165(2).”

30 The trial judge did give directions about the witnesses putting their heads together and lying to the police, plainly as matters going to the acceptability of their evidence. In my opinion the jury was made well aware that they should treat the evidence of Anthony Whiteside, Kevina Whitehead and Dennis Murphy with caution, and that they had to carefully assess its reliability, not only because those witnesses might reasonably be supposed to be criminally concerned in the events, but also because the jury might consider they failed to tell the police - indeed on the defence case deliberately concealed from the police - that Anthony Whiteside or Kevina Whitehead had a knife at the relevant time. I do not think there was failure to abide by s 165 of the Evidence Act or otherwise error in declining to give the specific directions sought.

Ground (2)

31    It was accepted that appropriate directions were given as to the appellant’s case that he acted in self defence and attacked Anthony Whiteside only in response to Anthony Whiteside himself lunging at the appellant with a knife. Counsel for the appellant applied for a further direction, speaking initially of the evidence of Kevina Whitehead -

“Well, if the jury accepts her - even if the jury don’t accept the accused’s evidence of what he did, if they accept that he had seen the knife and acted in self defence with having seen the knife with those earlier threats in mind, that could amount to self defence. That should be put to the jury.”

32    The references to acceptance of Kevina Whitehead and earlier threats was to evidence to the effect that Anthony Whiteside had made threats against the appellant which had been relayed to the appellant in the days preceding 8 June 1997, threats such as “when Tony sees you next you want to watch out”. The trial judge declined to give the direction, saying that he “had that matter in mind when I crafted my directions”.

33    I do not think that there was any error on the part of the trial judge.

34    The appellant’s evidence had been that he saw a knife in Anthony Whitehouse’s hand, he (the appellant) “sort of backed up a bit” and “said something like telling him to settle down”, but that -

“ … he just didn’t listen. He was yelling. He just come straight at me straight away.
Q. What was he doing with the knife when he came?
A. It moved to in front [sic] of him in his right hand. It moved in front of him. He just started running straight at me, swearing.
Q. With the knife in that position?
A. With the knife in that position.
Q. What did you do?
A. I took a few steps back to see he was coming towards me.

Q. What happened then?
A. He swang [sic] the knife at me.

Q. In what way? Describe how he swung the knife at you?
A. Well, the knife he had in his right hand, he swung it towards the top of my chest, in my throat area.
…
Q. When he swung that at you, what was [sic] his body movements?
A. He was coming forward, and he was coming straight at me forward.
Q. Where was the knife you got from Kevina Whitehead?
A. It was in my hand down my side.
Q. What did you do?
A. Swung the knife at him. I ducked when he swung the knife. I ducked. I am not sure. He swung the knife at me. I sort of ducked when I just swung the knife at him.
…
Q. So when you swung the knife at him?
A. Yes.
Q. You obviously did stab him. That’s clear enough.
A. Yes, yes, it’s obvious.
Q. What were you thinking when you did that?
A. I was scared.
Q. What were you scared of?
A. I was scared of being stabbed and hit by Tony.
Q. By Tony Whiteside?
A. Yes.
Q. By the knife you saw him [sic]?
A. Yes.”

35    Later in his evidence the appellant said -

“Q. When you stabbed Tony Whiteside, did you intend, what did you intend to do?
A. I don’t know. I didn’t think of stabbing him. It just happened. I didn’t attempt to do anything.
Q. Just you stabbed him as he came at you with the knife?
A. Yes.
Q. Why did you stab him?
A. Why didn’t I.
Q. Why did you stab him, are you able to say?
A. I can’t say. I didn’t think. I didn’t think to make to do it - I just - I don’t know. I can’t say why I did. I was scared, and he was running at me, and that’s why it happened.”

36    The appellant gave no evidence of being told of threats against him by Anthony Whiteside in the terms of which Kevina Whitehead gave evidence. He did say that he was told by Dennis Murphy that “Tony was spewing at him”, and was upset and wanted a few words. But he did not suggest that whatever he had been told had something to do with his conduct on 8 June 1997. The defence case was one of self defence in response to an immediate attack made upon the appellant by Anthony Whiteside, and to give the direction for which the appellant’s counsel applied would only have been confusing when there was not the foundation for it in the evidence.

37    Indeed, the alternative case of self defence suggested in the application was quite unreal. Self defence against an immediate attack by someone wielding a knife is just that, and injury to that person as protection against a possible future attack is something quite different. The impact of earlier threats, if known, is that they have materialised in the immediate attack, not that they might materialise in a possible future attack.

Ground (3)

38    In the course of his cross-examination, the appellant was asked -

“Q. Dennis was a friend of yours, isn’t that right?
A. Yes, that is right.
Q. Have you had some major falling out with Dennis since then?
A. Have I had a falling out with Dennis?
Q. Yes.
A. Yes, you could say that.
Q. Have you?
A. Yes.
Q. Do you think he is motivated for some reason that you can tell us about to tell lies to this jury?
A. Yes, I do.
Q. What do you think those reasons might be?
A. Well, its not for my place to say, its …
Q. What was your falling out with Dennis about?
A. Well, obviously about what he said about this case.
Q. When you became aware of what he was going to say about this case, when in due course you saw a copy of the statement that he had made to the police, is that right?
A. Yes, that is right.
Q. Until you had seen that you haven’t [sic] had a falling out with him had you?
A. Till I seen - no, that’s correct.”

39    No objection was taken to this questioning at the time, nor did the appellant’s counsel later ask for a direction with respect to the evidence.

40    Counsel for the appellant did, however, put to the jury that Dennis Murphy had a motive, indeed a number of motives, to lie to it. This appears from the summing-up -

“[Counsel for the appellant] then submitted that each of the principal Crown witnesses, that is, Kavina [sic] Whitehead, Anthony Whiteside and Dennis Murphy had lied to you. His submission was to one degree or another that they had tried to conceal the principal fact that the accused acted in self defence. … He put to you again Ladies and Gentlemen that each of the principal Crown witnesses was lying to protect themselves and to protect each other. He said Kavina Whitehead was lying to protect herself from the consequences of her attack on Tony Whiteside with the knife. He said Tony Whiteside was lying to cover up his attack on the accused and the fact that he was the aggressor and he put to you that Dennis Murphy had told lies because he wanted to cover up the fact that he was dealing with pills, that he owned the shotgun and that he gave the knife that Anthony Whiteside used to him before Anthony Whiteside left his room on that particular day.”

41    The cross-examination of Dennis Murphy had in substance included that he had lied about the stabbing because he did not want it known that his knife had been used; it was not expressly put that he had lied to cover up the fact that he was dealing with pills or the fact that he owned the shotgun, although both facts were put to him and denied.

42 The submission on appeal was that a miscarriage of justice had occurred because the Crown Prosecutor’s cross-examination was impermissible and tended to reverse the onus of proof. Leave was required pursuant to r 4 of the Criminal Appeal Rules.

43    In Palmer v The Queen (1998) 193 CLR 1 the accused had been cross-examined to the effect that he could not think of any reason why the complainant would make up her allegations. Brennan CJ and Gaudron and Gummow JJ said (at 7) -

“It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is "oath against oath". In such a case, to ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused.” (citations omitted)

44    Later their Honours said (at 9) -

“A firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry. Nevertheless, as the question is irrelevant to any issue in the case, it ought not be asked. As Hunt CJ at CL pointed out in R v Uhrig [CCA(NSW), 24 October 1996 at 15-16, unreported], to ask the question "Why would the witness lie?":
"invites the jury to speculate ... to the conclusion that, unless they are satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict. In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case."

45    After referring to the statement in R v Rodriguez (1997) 93 A Crim R 535 at 553 that, other things being equal, a complainant’s account is more likely to be true if a motive or possible motive for lying can not be discerned, their Honours continued -

‘With respect, a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished … The correct view is that absence of proof of motive is entirely neutral’.”

46    Their Honours held that, despite a direction to the jury about the possibility that the complainant was lying, the prejudicial effect of the relevant cross-examination was unlikely to have been neutralised, that “[h]aving acknowledged that he could offer no reason to impeach the credit of [the complainant] who had been showing her disbelief in his denials in evidence in chief, his protestations of innocence may well have rung hollow in the jury’s ears”, and that there may well have been a miscarriage of justice (at 11).

47    It does not follow that the jury can never be invited by the Crown to consider why the complainant would lie: see R v Uhrig (CCA, 24 October 1996, unreported), as approved in Palmer v The Queen at 10; R v Javanovic (1997) 42 NSWLR 520; R v AH (CCA, 27 November 1997, unreported); R v GET (CCA, 15 June 1998, unreported). Only when there is no direct evidence of a motive to lie and no evidence from which a motive to lie can reasonably be inferred is that precluded, although care must be taken that the issue of a motive to lie does not “divert the jury’s attention from the Crown’s central obligation to prove beyond reasonable doubt the alleged conduct of the accused” (R v Uhrig, per Hunt CJ at CL).

48    Nor does it follow that the accused can not be cross-examined in any way in connection with why the complainant might lie. As was recognised in Palmer v The Queen, at least when the complainant has been asked about them in cross-examination, if the facts from which an inference of motive might be drawn are facts the accused would know if they existed his lack of knowledge of the facts may be elicited to disprove those facts. The vice is seeking in cross-examination to show that the accused has no knowledge of any fact from which to infer that the complainant has a motive to lie, that being irrelevant and potentially prejudicial.

49    The questioning in this case did not fall precisely within the strictures in Palmer v The Queen. The central question was not in terms a rhetorical question, but purported to elicit reasons, at least as understood by the appellant, why Dennis Murphy might tell lies to the jury. The question was not well framed, and invited the appellant to speculate rather than give evidence of facts. Although the questioning did not get to the stage of the appellant’s inability to suggest a motive to lie inviting speculation at odds with the true onus of proof, there was a flavour of requiring the appellant to point to a motive to lie or have the evidence of Dennis Murphy accepted by the jury. The question should not have been asked in the manner it was asked.

50    But the questioning was after the conduct of the defence had clearly enough raised the issue of Dennis Murphy’s motivation to lie. That issue was urged on the jury by the appellant’s counsel in submissions. It was not a situation in which the jury was left without any facts from which to infer a motive to lie, and so far as the questioning went the jury was left with the appellant saying, not that he had no knowledge of any fact from which to infer that Dennis Murphy had a motive to lie, but that he knew of reasons why Dennis Murphy would lie. I do not think that, despite the flavour to which I have referred, there was a risk of the jury speculating that they should accept the evidence of Dennis Murphy unless satisfied by the appellant, in response to the Crown Prosecutor's questioning, that Dennis Murphy had a motive to lie. The questioning of the appellant as to Dennis Murphy’s motivations so far as it went was insignificant in his cross-examination, and on one view favourable to him. It may fairly be inferred, in my view, that the failure of the appellant’s counsel to object at the time reflected this, and demonstrates the absence of any peril to a fair trial. In my opinion, there was no miscarriage of justice.

Ground (4)

51    The appellant submitted that there were significant inconsistencies within and between the evidence of Anthony Whitehouse, Kevina Whitehead and Dennis Murphy. He instanced the evidence concerning possession of knives by Anthony Whiteside and Kevina Whitehead and, in connection with that, the extent to which a conscious decision had been made by the three persons to conceal the possession from the police; whether the appellant had gone to Dennis Murphy’s room for the “innocent” purpose of obtaining pills for Kevina Whitehead rather than the suggested purpose of confronting Anthony Whiteside; whether Kevina Whitehead had attacked Anthony Whiteside with a knife, and if so whether with the knife with which the appellant stabbed Anthony Whiteside; and who owned the shotgun. Further, it was said that the evidence of Dennis Murphy did not support that of Anthony Whiteside in relation to the charge of kidnapping, that the jury can not have accepted the evidence of Anthony Whiteside about movement from Dennis Murphy’s room under duress so that there had to be doubt about his credibility otherwise, and that Anthony Whiteside’s evidence was “undermined by his (at best) gross exaggeration of the events said to be relevant to such charge”.

52    The question is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty (M v The Queen (1994) 181 CLR 487 at 493-5; Jones v The Queen (1997) 191 CLR 439 at 450-2); more accurately, with regard to the language of s 6(1) of the Criminal Appeal Act 1912, whether the verdict of the jury was unreasonable or could not be supported having regard to the evidence (Fleming v R (1998) 158 ALR 379 at 383, 392). Full regard must be paid to the considerations that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury has had the benefit of having seen and heard the witnesses, and -

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." ( M v The Queen at 493-4)

53    See also Fleming v R at 392 posing the question in an appeal from a trial before a judge sitting alone, whether the nature and quality of the evidence at the trial was such that, acting reasonably, the trial judge ought to have had a doubt as to the guilt of the appellant.

54    In R v McKnoulty (1995) 77 A Crim R 333 this Court emphasised that the High Court had not said that the mere existence of discrepancies or inconsistencies in the evidence is sufficient to lead to the verdict being held to be (in the earlier language) unsafe or unsatisfactory, and that if they exist they must be of such a nature as to persuade the Court that there is “a significant possibility that an innocent person has been convicted”.

55    That the appellant stabbed Anthony Whiteside was not in dispute. The issue was whether the appellant stabbed Anthony Whiteside in self defence, or in an unprovoked attack on Anthony Whiteside in some manner flowing from a perceived rivalry for Kevina Whitehead’s affections.

56    There were inconsistencies in the evidence of Anthony Whiteside, Kevina Whitehead and Dennis Murphy, especially concerning the possession of knives. But it does not follow that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, more particularly that the stabbing was not in self defence.

57    Despite the inconsistencies, common to the evidence of Anthony Whiteside, Kevina Whitehead and Dennis Murphy was that Anthony Whiteside had not attacked the appellant with a knife but had been sitting or lying on the ground after falling in a scuffle with Kevina Whitehead when the appellant stabbed him. There was evidence of a knife being found in the appellant’s possession when he was apprehended on which there was blood with the same DNA profile as the blood of Anthony Whiteside. Kevina Whitehead said that the appellant carried the knife with him “all the time”: although this depended on Kevina Whitehead’s credibility, it might have been thought sound on the whole of the evidence and was not consistent with the appellant picking up a knife previously wielded by Kevina Whitehead. Explanations were given for the witnesses’ initial non-disclosure of possession of knifes, and the submission that there should be doubt on the basis that they had put their heads together to falsely implicate the appellant in the stabbing had the difficulty that the inconsistencies on which the appellant otherwise relied told against any concerted action against the appellant.

58    In other circumstances the verdict of not guilty on the kidnapping charge might have indicated that the jury had declined to accept the evidence of Anthony Whiteside and Dennis Murphy going to that charge, so that acceptance of their evidence going to the stabbing was undermined. But the evidence of Anthony Whiteside did not clearly support the kidnapping charge, and the evidence of Dennis Murphy was quite firmly against it. The verdict of not guilty is readily understandable without repercussions for the verdict of guilty. The jury was fully and emphatically directed as to reliability, and it was for the jury to assess the witnesses and find guilt or innocence having seen and heard all the evidence. I do not think that this ground of appeal has been made out.

Sentence

59    In the contemporaneous sentencing the trial judge said, “I have determined that the way to deal with the accused is by way of concurrent sentences and when I consider the whole of the criminality and I take totality into account I have come to the conclusion that I should deal with him in the following way … “. Where there must be a new trial on the 7 June 1997 malicious wounding, the appellant must be sentenced afresh on the other offences. Further, although it was not the subject of appeal it appears that the appellant was convicted and sentenced on one of the armed robbery matters which was to be taken into account in the sentencing for the other robbery offence as though it had been the subject of a separate plea, and the re-sentencing should correct this error.

60    It was common ground that we were not in a position to, and should not, re-sentence the appellant. The materials necessary to do so were not before us, and the re-sentencing could be affected by the outcome of a new trial.

The result

61    The orders made were -

As to the first trial -
(1) On the Crown’s concession allow the appeal.
(2) Set aside the conviction and quash the sentence.
(3) Order a new trial.

As to the second trial -
(1) Dismiss the appeal against conviction.
(2) Grant leave to appeal against the sentence and the remaining sentences passed on the appellant, including the sentences passed following the pleas of guilty to the additional indictment.
(3) Quash all the sentences.
(4) Remit to the District Court of New South Wales the sentencing of the appellant.

62    GROVE J: I agree with Giles JA.

63    GREG JAMES J: I agree with Giles JA.

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