Robinson v The State of Western Australia - [2006] WASCA 90

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ROBINSON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 90

CORAM: WHEELER JA
ROBERTS-SMITH JA
BUSS JA

HEARD: 10 MARCH 2006

DELIVERED : 29 MAY 2006

FILE NO/S: CCA 207 of 2004

BETWEEN: LLOYD EDWARD ROBINSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
Citation  :THE STATE OF WESTERN AUSTRALIA v ROBINSON
File No  :IND 1864 of 2002

Catchwords:

Criminal law - Drug offences - Appeal against conviction - Joint trial of accused - Crossexamination of accused as to criminal record and bad character - Accomplice warning - Turns on own facts

Legislation:

Criminal Code (WA), s 624, s 570
Criminal Procedure Act 2004 (WA), s 133

Evidence Act 1906 (WA), s 8(1)(e)(ii) and (iii), s 8(1)(f)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D G Grace QC
Respondent: Mr J Mactaggart

Solicitors:

Appellant: David Manera
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

McKinney v The Queen (1991) 171 CLR 468
R v Demirok [1976] VR 244
R v Palmer [1969] 2 NSWR 13
R v Pinkstone & Ors [2001] WASC 137
Robinson v The Queen (No 2) (1991) 180 CLR 531
Salehi v The Queen [1999] WASCA 279
Webb v The Queen (1994) 181 CLR 41
Winning v The Queen [2002] WASCA 44

Case(s) also cited:

Cotic v The Queen [2003] WASCA 14
Cushing v The Queen [1977] WAR 7
Matthews v The Queen [1973] WAR 110
Phillips vThe Queen (1985) 159 CLR 45
R v Britman & Hall [1983] 1 WLR 350
R v Henning, unreported; CCA SCt of NSW; 11 May 1990
R v Lewis (1998) 103 A Crim R 304
R v Lowe [2004] QCA 398
R v Perrier (No 1) [1991] 1 VR 697
R v Sultana (1994) 74 A Crim R 27
Tabe vThe Queen [2005] HCA 59; (2005) 79 ALJR 1890

WHEELER JA: This is an appeal against conviction pursuant to leave granted by Steytler P on 14 October 2005. The factual background is as follows.
In November 2004, the appellant and his co‑offender, Emma Jane Whinray, were convicted of having in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply to another. Each had pleaded not guilty.
The evidence at trial was that on 14 February 2002, premises occupied by the appellant and Whinray were searched by police pursuant to a warrant. Both were present at the time of the search. A workshop or shed, which was monitored by a TV camera security system, was one of the areas searched. The police evidence was that on entering the shed, they found small bags of drugs in a freezer compartment of a fridge in the shed; scales, plastic bags and sterile swabs; and (in due course) a safe. The evidence was that the safe was not easy to see, it being necessary to bend down to locate it. Police also found on the property a considerable quantity of jewellery; quantities of electrical equipment, such as a play station (the quantities and condition of which suggested that they were stolen); other drugs not the subject of the indictment; and two guns.
In relation to the safe, a witness described as "Operator 3" gave evidence that when the appellant was instructed to put his hands behind his back by another officer, he removed a set of keys from the appellant's right hand, and placed them on the ground. The exhibits officer saw the keys on the ground next to the appellant. The exhibits officer had some training in relation to locks, being a former prison officer, and he considered that one of the keys looked like the key to a Chubb safe. He took possession of the key and drew it to the attention of Constable Slyns, who appears to have been in charge of the search. That was the key which was able to open the safe. When the safe was opened, it was found to contain 180.4 grams of methylamphetamine of 51 per cent purity in a large plastic bag, five smaller envelopes containing methylamphetamine of varying weights and purity, a pouch containing further amounts of methylamphetamine of very low purity, and other illicit drugs unrelated to the indictment.
Police also seized from the property a notebook which contained hand‑recorded details of what the State alleged were "past sales" of drugs. There were notations such as "one bag weight" or "two bags weight" in relation to some names; there were other names which had references to jewellery or other equipment against them (it being the State's case that these should be understood as exchanges of goods for drugs) and so on. The book contained an inscription which the State alleged was a message from the co‑accused Whinray to the appellant, and it also contained, on one page in large writing, the notation "Pay fines today".
In a taped record of interview with police, Whinray said that, although she had previously used the safe to store jewellery, she had given the appellant the key to the safe, which she said was empty at the relevant time, shortly before the search. She gave evidence at trial that the book was the appellant's and that the appellant had previously provided her with methylamphetamine. In the taped record of interview, she told police she had packaged methylamphetamine at the appellant's premises, but at trial her evidence was that she was "infatuated" with the appellant and had exaggerated her involvement to attempt to "take the rap off" the appellant. She admitted, and in due course pleaded guilty, to possession of stolen goods in relation to some of the jewellery.
In his cross‑examination of Ms Whinray, counsel for the appellant suggested that she had been selling drugs from the house and that both the book and the safe were hers. The appellant's evidence at trial was that he had not had any involvement with the drugs or other items consistent with drug use which were found. He said that Ms Whinray had brought the safe when she moved into his house and that he had never used it. He denied ever having a key to the safe on his key‑ring. During the course of his cross‑examination, he said that he could not say that the drugs were Ms Whinray's because he did not know, but that they were not his.
The appellant's counsel, in cross‑examination of Constable Slyns, put to the constable allegations that he had brought empty syringes to the premises to attempt to implicate the appellant, that he had "planted" one of the guns found, that he had brought other drugs to the premises to plant them, that he had opened the safe at some point earlier than that recorded on the search video, and that he had told the appellant that he would only take the appellant's young sons to school when the appellant admitted to possessing the firearms which he knew were not the appellant's. He also put to the constable that certain drugs which were said to be found in a tobacco tin found in the appellant's possession were planted there, and that Constable Slyns had coerced the appellant into lying about them. The appellant's evidence supported those allegations, particularly about the planting of the guns and the drugs in the tobacco tin, and the suggestions that the police had coerced him into lying.
Leave was granted to both Whinray's counsel and counsel for the State to cross‑examine the appellant as to his previous criminal history and character pursuant to s 8(1)(e)(ii) and (iii) of the Evidence Act1906 (WA). Leave is not, of course, required: see s 8(1)(f). However, it is generally sought (as in this case) so that the Judge may consider whether to exercise the general discretion to exclude unduly prejudicial evidence. That cross‑examination was as follows.
So far as counsel for the co‑accused Whinray was concerned, the appellant was asked about, and admitted to smoking, marijuana and speed. It was put to him, and he admitted, that he had been "in trouble with the police" before, whereas Whinray had not. The appellant said that that meant simply that she was "cleverer than me". He was asked about previous drug convictions, and admitted a conviction for amphetamines about six to eight months before these offences. He said he had been fined $2000 and that he admitted the offence because "I smoked the stuff". In further cross‑examination, he admitted that there were also counts of possession of cannabis to which he had pleaded guilty. He was asked about whether he had been charged in relation to other drugs found on the premises at the time of the search, and said that he did not know that there were other drugs found and did not think that he had been charged in relation to them. He agreed that he had been charged in relation to the tools, but said that "[i]f they care to ring up that person or speaking to that person whose name it is [on the tools] they'll find that they're not stolen". He said the guns were not his. He agreed he had a previous conviction for possession of an offensive weapon, being nunchakus, but that that was in November 1987. He said he had had those for training purposes, since he did martial arts. It was put to him that he had a conviction for damage in 1988, but he said that he did not recall that offence. It was put to him that he had been charged with grievous bodily harm and he replied, "Pure allegations". There was some discussion about the alleged circumstances of that charge, and it was put to him that a person ended up in hospital as a result of those events, but he said that he did not know. Counsel then changed course somewhat, and cross‑examined him about whether he had a "memory impairment", on the basis that he did not recall serious allegations made against him.
So far as counsel for the State was concerned, there was very little cross‑examination of relevance to this ground. The appellant was asked whether he had been charged by a police officer completely unconnected with this indictment, with respect to a further charge of possession of a prohibited drug with intent to sell or supply. He agreed that he had. He was reminded of the convictions for possession of prohibited drugs in 2001, which he had admitted during the course of cross‑examination by Whinray's counsel. The point of the reminder at that stage, however, was that there was the entry in the notebook, to which I have referred, reading, "Pay fines today", and it was put to him that that was a reminder he had written for himself in relation to the fines which he incurred for those offences.

Ground 1 - Failing to sever indictment

This ground alleges that her Honour erred in law in failing to sever the indictment, and in not ordering a separate trial for the appellant, following the cross‑examination by counsel for his co‑accused which I have described, which was said to give rise to "incurable prejudice".
At the time at which the trial took place, s 624 of the Criminal Code (WA) provided relevantly that:
"When 2 or more persons are charged in the same indictment ... the court may at any time during the trial, on the application of any of the accused persons, direct that the trial of the accused persons, or any of them, shall be had separately from the trial of the other or others of them .... " (Emphasis supplied)
There was in this case no application to sever the indictment, either prior to or during the trial. Unlike s 133 of the Criminal Procedure Act 2004 (WA), which replaced it, s 624 did not on its face give the Judge power of his or her own motion to direct that an indictment be severed. There is a suggestion in a decision of this Court that a Judge would be entitled to do so: Salehi v The Queen [1999] WASCA 279 at [42]. However, it was not necessary in that case to decide the point, since the view was taken that, in the absence of an application, it would be "rare indeed" that a Court of Criminal Appeal would hold that a Judge should have severed an indictment.
Assuming, without deciding, that it would have been open to her Honour of her own motion to have severed the indictment, it would obviously be rare for this Court to hold on an appeal that such a course should have been taken in the absence of an application. Prima facie, joint offences should be tried jointly. There are a number of advantages which stem from a joint trial, including saving of public expense and of inconvenience to witnesses. However, the primary advantage of a joint trial is that it enables conflict or differences in the accounts of accused persons to be resolved by the same jury at the same trial, in a manner which avoids the possibility of inconsistent verdicts: Webb v The Queen (1994) 181 CLR 41, at 88 ‑ 89 per Toohey J (Mason CJ and McHugh J agreeing); R v Palmer [1969] 2 NSWR 13, at 20 per Lee J; R v Demirok [1976] VR 244, at 254 (the Full Court).
In some cases, it will appear either prior to or during the course of the trial that the prejudice to one or more accused persons resulting from the joint trial is likely to be, or has become, so great that it would not be reasonable to expect a jury, even if carefully instructed, to consider properly the case against that accused or those accused persons: see R v Pinkstone & Ors [2001] WASC 137, at [56] ‑ [72] (Roberts‑Smith J). If prejudice of that kind had become apparent, one would expect counsel for the accused person to notice, and to make an appropriate application. The fact that no such application was made is relevant.
Some, but probably not all, of the cross‑examination of the appellant by counsel for Whinray, would also have been permissible cross‑examination by counsel for the State, for reasons which I explore in relation to ground 2. It is therefore the case, that severing the indictment would have removed the effect of some, but by no means all, of the allegedly prejudicial cross‑examination. That fact alone tends to suggest that this is not a case in which it would have been appropriate for her Honour to have severed the indictment of her own motion, or at all.
So far as the effect of the cross‑examination was concerned, certain portions of it were potentially capable of being used for a purpose other than simply that of the evaluation of the appellant's credit. For example, the fact that the appellant had previous drug offences, while Ms Whinray did not, could have been taken into account by the jury as pointing to a conclusion that (leaving aside for the moment possible joint possession, or the improbable "set up" by Constable Slyns) as between Ms Whinray and the appellant, the appellant was more likely to have had possession of the drugs (Winning v The Queen [2002] WASCA 44). However, her Honour directed the jury favourably, so far as the appellant was concerned, in this respect. At pages 440 ‑ 441 of the transcript, she directed the jury that it was for them to consider the matters the subject of cross‑examination and "determine how they affect your judgment of Mr Robinson's credit". Her Honour then went on to warn the jury that the prior drug‑related conviction could not be used for the purpose of determining whether he had committed the present offence. The jury was left with cross‑examination which they were able to use, then, only for the purpose of evaluating the appellant's credit.
When one turns to consider what the prejudicial effect upon the appellant is said to have been, it is simply that as a result of the cross‑examination, the jury would have been unlikely to believe a word he said. That, of course, is the purpose of cross‑examination as to credit. It is not a ground for appeal that such cross‑examination has been successful, unless its success may be the result of some impermissible process of reasoning. No such impermissible process has been demonstrated here.
In the case of this particular cross‑examination, its effectiveness would appear to stem more from the attitude and demeanour of the appellant in response (which appears to have been evasive and belligerent) than from the propositions put to him and the evidence elicited. That is because much of the cross‑examination was directed to charges resulting from the discovery of the other items found at the premises, and added little to the evidence which was admissible quite apart from s 8. It would have been obvious to the jury in any event that it would be likely that the appellant would be charged with other offences as a result of the discovery of the various items such as guns and apparently stolen property on his premises. Evidence of the discovery of those items was relevant to the case against the appellant for a variety of purposes. Some items, such as the guns, the surveillance cameras, the bags and so on, could plainly be used to support an inference that there was a large‑scale drug business being operated from those premises, and therefore as supporting an inference of possession with intent to sell or supply. Other apparently stolen items would help to explain the references in the book to items of property, it being put to the appellant by the prosecutor, in effect, that some items were swapped for drugs.
Other parts of the cross‑examination, such as that directed to the alleged charge of grievous bodily harm, simply elicited denials from the appellant. Had he confined himself to bare denials, it is difficult to see that any prejudice could have resulted. Unfortunately for him, the flavour of his responses tended at times to suggest that such matters were not of any importance. The jury is likely to have been unimpressed by such a response, but that does not render the questions impermissible, or the cross‑examination unduly prejudicial.

Ground 2 - Cross‑examination by State

This ground alleges that her Honour erred in allowing the prosecutor to cross‑examine the appellant as to his bad character, thereby giving rise to a substantial miscarriage of justice.
The ground primarily attacks the decision to permit counsel for the State to cross‑examine, rather than dealing with the effect of the cross‑examination.
The fundamental proposition is that, the appellant submits, where an accused's case involves an allegation of police corruption, and the accused has a prior criminal history, weight must be given to the predicament of such a person in conducting his defence. It is submitted that "[t]he police officer's good character may defend itself, however the accused is subject to substantial forensic disadvantage, of [sic] which there is no cure".
The problem with this proposition is that a police witness is a witness like any other. Where there is a substantial attack on the character of a witness for the prosecution, putting that witness' credit in issue, the principle underlying provisions such as s 8(1)(e) of the Evidence Act, is that it is appropriate in those circumstances for the jury to be able to evaluate the character and credibility of the person making the allegations. There is no general presumption that jurors have such a substantial prejudice in favour of police officers that in all circumstances a police officer's character is able to "defend itself".
The appellant's counsel cites in this context McKinney v The Queen (1991) 171 CLR 468, as illustrating the disadvantaged position of an accused person who needs, as part of a legitimate defence, to raise such allegations. However, that case was decided in a context very different from the present regime governing the admissibility of confessional statements of accused persons. The present practice is to videotape, as in this case, significant portions of police searches, and in accordance with s 570D of the Criminal Code, any portion of an interview with a suspect which it is thought may result in a confessional statement. That imbalance which was perceived to exist between police officers and accused persons, in cases such as McKinney, has been affected by the use of videotaping.
In the present case, as I have noted, very serious allegations were made in relation to Constable Slyns. They included that he had somehow obtained possession of a significant quantity of methylamphetamine of high purity, and had planted it on the appellant's premises, as well as an allegation that he had planted on those premises a loaded firearm (thereby endangering the lives not only of the appellant and Ms Whinray, but of the officers searching with him). The appellant's own admissions on the videotape were, it was alleged, procured by improper conduct on the part of Constable Slyns who, it was alleged, had used the appellant's concern for his children, and his embarrassment and humiliation at being questioned by police in front of them, in order to obtain those admissions.

In that context, the questions asked of the appellant by counsel for Whinray, to the effect that the appellant had "been round the traps" - that is, that he had some familiarity with the process of investigation of crime, and showing how that familiarity arose - were matters which not only went to his credit generally, but were also relevant to the jury's evaluation of his account of how he came to make admissions. That familiarity would make it less likely that the appellant's distress and embarrassment at being questioned would cause him to lose his self‑possession in the way he had described, so as to be relatively easily lured into making false admissions against his own interest. Those questions were not only relevant to Whinray's defence, but were also questions which, as a matter of fairness, the State could have been permitted to ask in order to put the appellant's account into context.
The prosecutor asked the appellant about only two issues pursuant to the leave given under s 8(1)(e) of the Evidence Act. The first matter was to remind him of his earlier evidence in cross‑examination by Whinray's counsel about being fined for the possession of drugs. The fact of his having been fined was relevant to cross‑examination of him about the contents of the notebook which had been found. It was therefore not strictly cross‑examination pursuant to s 8(1)(e)(ii); rather, the fact of the fine was relevant to show that the appellant "is guilty of the offence wherewith he [was] then charged" (s 8(1)(e)(i)). The question for that purpose could, of course, have been put by omitting any reference to the nature of the offences for which the fine was imposed. Compared to the offence with which he was charged, however, those offences were not of a serious nature, as the jury must have understood from the penalty. Counsel for Whinray had already asked about those offences, and even if one assumes, for the purpose of this ground, that he had not, it is difficult to see the revelation of the nature of the offences as being substantially prejudicial.
The only other question of relevance to this ground was whether the appellant had been charged with offences by officers other than Constable Slyns. The purpose of that question seems to go not only to the appellant's credit, but also to be intended to suggest that any difficulties in which the appellant found himself could not be explained away simply as a result of a campaign against him by a "rogue" police officer.
Counsel for the State also cross‑examined the appellant as to his character in ways quite unrelated to the leave given pursuant to s 8. Counsel put to him, for example, that he was a person who found it very easy to make things up against people and that he did not care who those people were. He suggested that the television monitors monitoring the shed were there for the purpose of protecting a lucrative drug‑dealing business being operated from the shed. Questions of that kind were entirely proper, and were likely to have been of much greater significance in this trial than the questions asked pursuant to s 8.
There is no reason in this case either to find that her Honour's decision to permit cross‑examination by the State was in error, or to find that the result of that decision, as the evidence emerged, was unduly prejudicial.

Ground 3 - "Accomplice warning"

This ground alleges that her Honour erred in failing to direct the jury adequately that the accomplice warning given in respect of the appellant's evidence only related to the use of his evidence against his co‑accused and that it had no application to the evidence of the appellant in his own defence.
The appellant's counsel submits that "a question arises" as to whether an accomplice warning ought to have been given at all in this case. It is pointed out that in Webb v The Queen (supra), the High Court held that there is no inflexible rule concerning the warning, where an accomplice giving evidence against an accused person is himself or herself an accused giving evidence in his or her own case. The question of whether a warning should be given, and if so in what terms, is one to be answered with reference to the unique circumstances of the particular case.
However, it is not really suggested by the appellant in the present case that no accomplice warning of any kind should have been given. That is, no doubt, for the very good reason that counsel for the appellant at trial appeared to invite her Honour to give such a warning, as did counsel for Whinray. Counsel for the appellant, in his submissions to the jury, said, in relation to Whinray's evidence:
"You heard her Honour say what she [Whinray] said in the transcript is not evidence against Lloyd or Robinson. What she says here [in court] is admissible but there's one thing and I'm sure her Honour, with due respect, will direct you and that's the law in this state. There are inherent dangers or potential dangers in acting on the evidence of an accomplice in convicting the accused and that's the law here. The law has evolved over the years and there are many reasons why. So whatever she said you have to act with extreme caution because she has got things to gain."
The reference to Whinray having "things to gain" may, perhaps, have caused a jury to wonder whether Robinson, too, had "things to gain" from an untruthful account of how the methylamphetamine came to be in the safe, but counsel obviously considered that the potential advantage of the warning to the appellant outweighed any potential danger.
Where such a warning is given in respect of a co‑accused, however, it is necessary that the Judge make it clear that the warning is restricted to those parts of the evidence of an accused person which inculpates the co‑accused. As was said in Webb v The Queen per Brennan J (at 65):
"It is essential in the interest of the accused who gives the evidence that the warning should be restricted in terms to those parts of the evidence which inculpate any co‑accused. It must be made clear to the jury that the warning is to be applied only when they are considering the case against the co‑accused. It must not be left open to them to believe that the warning might attach to the accused's evidence in his own case.
Deane J, in the same case, said (at 81):
"[T]he critical thing is that it be made clear that the relevant comments relate only to the use of the evidence as against the co‑accused."
In the present case, her Honour's direction to the jury seems to me to have been very carefully structured, to separate out the evidence of each accused against the other, from the evidence each gave in his or her "own case". As to the former, her Honour said:
"Now, ladies and gentlemen, I have to give you an important warning in this trial. It applies to the evidence that Ms Whinray gave against the accused Mr Robinson, and it also applies to the evidence Mr Robinson gave against the accused Ms Whinray, and it's necessary that I give you this direction and you consider it very carefully. It is what we call an accomplice warning. At law, an accomplice is a person who shares in the guilt of a crime.
That person may share in the guilt by being the one who committed it, the one who planned it or helped to prepare it, or participated in it. In this case you know that both Ms Whinray and Mr Robinson are charged with being in possession of this large amount of methylamphetamine that police located in the safe. Each of them is charged with that, and although it's a question for you to consider, they would, as a matter of law, be regarded as accomplices. It is a finding you would be likely to make that they are accomplices.
Because they are accomplices, ladies and gentlemen, I warn you that you must treat the evidence of an accomplice against another alleged offender with great caution.
There may be all sorts of reasons for an accomplice to tell lies and to try to implicate other persons. Because of that interest that accomplices may have in lying in order to implicate others, I have to warn you that it's dangerous for a jury to act on the evidence of an accomplice unless you find that that evidence is corroborated in some way.
It is the experience of the law that the evidence of accomplices is frequently unreliable. Accomplices seek to justify their own conduct, and in seeking to do so they shift blame wholly or partly onto others. In the process it has been the experience of the law that accomplices construct untruthful stories tending to exculpate the guilty and implicate the innocent." (Emphasis supplied)
Her Honour then turned briefly to the execution of the search warrant and the location of what she considered the jury could well be satisfied was a substantial quantity of methylamphetamine, and noted that there were two people present at the premises that day and that, in the course of the trial, each had alleged that the other was the one who was dealing in the drug. She then explained what corroboration was in conventional terms, and continued:
"I'm going to give you a list of the evidence. First of all, there in this case - in relation to Ms Whinray's evidence against Mr Robinson, there is evidence which is capable of corroborating Ms Whinray's evidence, that is, independent evidence that is capable of corroborating or supporting her evidence against Mr Robinson." (Emphasis supplied)
Her Honour then listed the evidence which she said was corroborative of what Ms Whinray had had to say about the appellant. Similarly, her Honour, having concluded that review of the evidence, said: "In the case of Mr Robinson's evidence against Ms Whinray" he had made certain allegations and she pointed to what support there was for those allegations. At the conclusion of that review, she reminded the jury that, when they considered "that evidence" (being the appellant's evidence that it was Ms Whinray who was using and dealing in the methylamphetamine), it was dangerous to rely on the evidence of an accomplice. In context, that could be understood only as being dangerous to rely on the appellant's evidence to implicate Whinray. The portion of the direction dealing with the evidence of each accused against the other concludes at page 439 of the transcript.
Her Honour then turned to certain submissions which had been made to the jury by counsel for the appellant and the evidence of the appellant about the conduct of the police. Her Honour said in that context:
"Even if you don't prefer Mr Robinson's evidence, if it does raise a reasonable doubt in your minds as to his guilt, then you would have to acquit him .... "
It is clear from the structure of her Honour's direction that she carefully confined the warning that she gave to the use which could be made of the evidence of each accused as against the other. There was no suggestion during the course of that discussion that the evidence of each accused should be regarded with caution when it came to the "case" of the accused giving that evidence. So far as the appellant was concerned, the remarks just quoted could only have been understood by the jury as meaning, not that they should approach his evidence in his own defence with "caution", but, on the contrary, that it was sufficient if his evidence in his own defence gave rise to reasonable doubt.
It is true that her Honour did make certain general observations, such as that it was "dangerous to act on the evidence of an accomplice", but those observations were plainly in the context of, and governed by, her introductory remarks about her warning being one which applied in relation to each accused in respect of the evidence given against the other, and would, in my view, have been understood in that context. The fact that each accused had an interest in implicating the other in that situation would, in any event, have been blindingly obvious to the jury.
Having dealt with the evidence of each accused against the other, her Honour then reminded the jury of the police evidence against each. Finally, she turned to each accused person's "own case", commencing so far as the appellant was concerned at page 457. In that context, she told the jury that in relation to the question of whether the appellant had been in possession of the key, "even if you do not prefer Mr Robinson's evidence, you could not find this issue against him if his evidence raises a reasonable doubt about whether he had the key to the safe .... " (page 457 transcript).
In this portion of the direction, her Honour reminded the jury that Ms Whinray's evidence against the appellant was "subject to the warning that I gave you about accomplice evidence". Her Honour also in this portion of the direction referred to the appellant's evidence, including reminding the jury of certain assertions he had made implicating Ms Whinray, without any suggestion that that evidence was to be regarded as in any way suspect.
Her Honour's direction can be criticised, if at all, only to the extent that she did not specifically say to the jury that the warning which she gave in relation to the evidence of each accused insofar as it implicated the other, was not to be taken as applying in relation to the evidence of that accused person when considering the accused's evidence in his or her own case. In my view, there would have been dangers in such a course. The danger would be that of specifically raising for the jury the question of whether the warning should apply in relation to the evidence in the accused's own case. As a matter of logic, it would not be readily apparent to the average juror why it should not, once the issue had been specifically raised. An addition of this kind would potentially be likely to confuse, rather than to clarify.
While such an additional direction could not have been criticised, in my view, it would be going too far to say that it would be essential. As Deane J said in Webb (at 81), " ... the critical thing is that it be made clear that the [accomplice warning] relate[s] only to the use of the evidence as against the co‑accused." What her Honour did in this case, was to show the jury, in detail, how they could appropriately reason, by separating out, in the structure of her direction, the evidence of each accused against the other from the evidence each gave in his or her own defence. That seems to me to have been a practical approach to the potential difficulty here.
I am fortified in that view by an analysis of the direction given in Webb, which the High Court considered was not one which prejudiced the co‑accused in that case. It is to be found at pages 62 ‑ 64 of the decision, set out in the reasons of Brennan J. It is apparent that the Judge in that case began his summing up on this topic with a general observation that any person in the position of the accused (referring to the accused Hay who gave evidence):
" ... will obviously be under a strong temptation ... to play down his or her own part in the matter, if need be, at the expense of the co‑accused. So you must bear in mind the possibility of that kind of distortion in a trial of this kind, even to the point of deliberately false evidence."
The observations there made, as Brennan J pointed out, were contrary to the principles stated in Robinson v The Queen (No 2) (1991) 180 CLR 531, at 535 ‑ 536.
His Honour in Webb then redirected the jury, having considered an objection to the general remarks to which I have just referred. He advised the jury that he was not intending in any way to suggest that Ms Hay was a suspect witness or that her evidence would be subjected to any different kind of scrutiny from that of any other witness. He advised the jury that his purpose was to lead into the topic which his Honour then discussed. In relation to the accomplice warning, the warning was:
" ... that it is dangerous to convict a person in a case like this, if the only evidence against him or her is the uncorroborated evidence of an accomplice ... The evidence of such a witness is always to be scrutinized with care .... If, in this case, you find there is no corroboration ... you should not place any reliance upon anything that Ms Hay says ... in implicating Mr Webb, unless you are convinced the evidence is reliable."
His Honour then went on to explain the warning further by advising the jury that it had been found from experience:
" ... that there are certain classes of witnesses, whether they are accused persons or not, whose evidence is inherently suspect for one reason or another. One type of witness who falls into that category is the accomplice .... "
In my respectful view, her Honour's direction in this case was somewhat clearer in its structure than that given in Webb. The latter, in attempting to deal at the one time both with Ms Hay's evidence in her own defence and her evidence against Webb, fell almost into

self‑contradiction. In this case, her Honour dealt in an entirely separate and self‑contained way with the evidence of each co‑accused as it implicated the other, and in a different part of her direction with the "case" of each accused in his or her own defence.

Conclusion

I would dismiss the appeal.
ROBERTS-SMITH JA: I have read the draft reasons of Wheeler JA. I agree with those reasons and have nothing to add.
BUSS JA: I agree with Wheeler JA.