Sidaros v The Queen (No 2)

[2020] ACTCA 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Sidaros v The Queen (No 2)

Citation: 

[2020] ACTCA 39

Hearing Date: 

21 May 2020

Decision Date: 

29 July 2020

Before: 

Elkaim J, Robinson and Crowe AJJ

Decision: 

The appeal is allowed. The appellant’s convictions are quashed

and a new trial is ordered.

Catchwords: 

APPEAL – CONVICTION – Errors in Admitting Evidence and Jury Directions – Whether representation constituted an Edwards lie – whether evidence was improperly or illegally obtained – discretion to exclude admissions – jury directions on

circumstantial evidence and evidence of prison informers

Legislation Cited: 

Evidence Act 2011 (ACT) ss 84, 85, 85, 90, 137, 138, 139, 165,

dictionary, pt 3.4, pt 3.11

Cases Cited: 

Barca v The Queen (1975) 133 CLR 82
Duke v The Queen (1989) 180 CLR 508
Edwards v R (1993) 178 CLR 193
EM v The Queen [2007] HCA 46; 232 CLR 67
R v Baden-Clay [2016] HCA 35; 258 CLR 308
R v Cornwell [2003] NSWSC 97; 57 NSWLR 82
R v Lane [2011] NSWCCA 157; 221 A Crim R 309
R v Lee (1950) 82 CLR 133
R v Sidaros [2019] ACTSC 177
R v Sidaros (No 2) [2019] ACTSC 348
R v Swaffield [1998] HCA 1; 192 CLR 159
Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
Sidaros v The Queen [2020] ACTCA 11

Texts Cited: 

Australian Law Reform Commission, Evidence (Interim) (Report
No 26, August 1985)
Australian Law Reform Commission, Evidence (Report No 38,
June 1987)
J D Heydon, Cross on Evidence (LexisNexis Australia, 11th ed,
2017)

Parties: 

Axel Sidaros (Appellant)
The Queen (Respondent)

Representation: 

Counsel

B Walker SC (Appellant)

S Drumgold SC (Respondent)

Solicitors

Kamy Saeedi Law (Appellant)
ACT Director of Public Prosecutions (Respondent)

File Numbers: 

ACTCA 57 of 2019

Decision under appeal: 

Court:	Supreme Court of the ACT
Before:	Murrell CJ
Date of Decision:	5 December 2019
Case Title:	R v Sidaros
Court File Numbers:	SCC 312 of 2018; SCC 313 of 2018

ELKAIM J: 

Introduction 

1.       I have read the judgments in draft of Robinson AJ and Crowe AJ. I agree with the orders proposed by Robinson AJ but reach the same conclusion by a different route.

2.       There are four grounds of appeal. My comments relate only to the first ground, which is that the learned trial judge erred in admitting the representations by the appellant to Detective Senior Constable Norman on 1 September 2018. I agree with Robinson AJ in respect of the remaining grounds.

3.       On 1 September 2018 the appellant was extradited from Victoria to the ACT. Before he boarded the flight, Detective Norman gave the appellant a caution. A short time later the Detective provided the appellant with a copy of the Statement of Facts. The Statement contained this passage:

Forensic firearms comparison of the defendant’s Adler shotgun and cartridge cases recovered

from 20 Carter Crescent, Calwell confirmed that they were fired from that weapon.

4.       After apparently reading the Statement the appellant said to the Detective:

I have in the past left my guns around the house inappropriately in the past. My dad will confirm that.

5.       The Detective cautioned the appellant again, after which the appellant said:

Someone stole my guns that night. That’s all I’m going to say.

6.       The above statement about the forensic firearms comparison is the subject of decisions by Mossop J on 7 August 2019 (R v Sidaros [2019] ACTSC 177) and the Court of Appeal on 28 February 2020 (Sidaros v The Queen [2020] ACTCA 11). Mossop J found that the

comment by the forensic examiner was admissible in the appellant’s forthcoming trial.

The Court of Appeal disagreed and said the opinion was not admissible. The Court found

that the expert’s evidence was limited to an opinion that the cartridge shells found at the

scene of the crime were consistent with shells that might have been fired from the

accused’s Adler shotgun.

7.       Before the commencement of the trial, on 19 November 2019, the appellant made an application to the trial judge, Murrell CJ, that the above statements made by the appellant not be admitted into evidence.

8.       On 20 November 2019, her Honour dismissed the application and therefore allowed the Crown to rely on the evidence (R v Sidaros (No 2) [2019] ACTSC 348).

9.       The reason the Crown wished to rely on the above statements is because it asserted that, at least, the second statement was a lie indicating a consciousness of guilt.

10.     The appellant says the evidence should not have been admitted. The argument was put in three stages:

(a)	The statements made by the appellant were not lies of the type required by Edwards v R (1993) 178 CLR 193;
(b)	If they were qualifying lies they should have been excluded under s 138 of the Evidence Act 2011 (ACT) (the Evidence Act); and
(c)	Again, if they were qualifying lies, but not excluded under s 138, they should have been excluded under s 90 of the Evidence Act.

Was the lie an ‘Edwards lie’?

11.     It is first of all necessary to record a conversation that had occurred at the appellant’s

home with the police on 26 July 2018. This conversation occurred in the course of the
police executing a search warrant.

12.     Three guns had been located in the house. The following exchange occurred:

Q 115	All right. Does anybody else use those firearms?
A	No.
Q 116	Has anybody else every [sic] used those firearms?
A	Like out in the range or ---
Q 117	At all?
A	Yes.
Q 118	When was the last time somebody else used them?
A	At the range a mate fired one of them at the double S double A range.
Q 119	Which one?
A	The twenty-two.

13.     When the Statement of Facts was shown to the accused on 1 September 2018 the original statement by the forensic expert had not yet been ruled inadmissible. The result

was that the Statement, as shown to the appellant, contained a ‘misleading’ assertion

that the cartridges found at the scene of the crime had been fired from his shotgun.

14.    No allegation of deceit is made against Detective Norman. When he showed the Statement to the appellant it reflected the then admissible opinion of the forensic expert.

1. Her Honour’s judgment on the admissibility of the evidence about the conversation in the

aircraft does not provide any analysis of whether or not the statements, in particular the
second statement, were lies.

16.     The absence of an analysis is not the product of any omission by her Honour. It plainly arose because of the approach taken by the parties in the argument before the Chief Justice. As appears from the transcript, although the issue was faintly raised, it was

certainly not the focus of the appellant’s argument. The focus was on the discretion to

exclude the evidence under either s 138 or s 90 of the Evidence Act.

17.     Notwithstanding the approach taken before her Honour, no objection was taken to the issue being raised on the appeal. In fact it was fully argued by both sides.

1. I do not think the lie was an ‘Edwards lie’, for two reasons.

19.     Firstly, I think the lie must relate to a material fact in the case. The expert’s opinion, as to the fact that the bullet at the scene came from the accused’s gun, would undoubtedly

have played a major part in the case. As evidence directly linking the accused to the
crime scene, its importance cannot be overestimated.

20.     In Edwards, in the joint judgment of Deane, Dawson and Gaudron JJ at 209, the following was said:

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must

be explicable only on the basis that the truth would implicate the accused in the offence with

which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that "if he tells the

truth, the truth will convict him”.

(Emphasis added; citations omitted)

1. Once the source, or background, to the accused’s ‘lie’ was removed from the case then

   the relationship of the lie to a material fact in the case also fell away.

22.     Secondly, in order to achieve the status of a lie (or the capacity to have been a lie) the statement needed to have been made deliberately. In my view scrutiny of the conversations on 26 July 2018 and then on 1 September 2018 do not permit such a conclusion, or at least a conclusion that the lie was of the type envisaged in Edwards.

1. At first sight the statement that “someone stole my guns that night” has the hallmarks of

a deliberate lie especially when it is observed that the guns were in the safe on 26 July
2018 so that any thief must have returned the guns.

24.     The statement that the guns had been stolen must be viewed against the background of the appellant reacting to the Statement of Facts telling him that the cartridges at the scene of the crime had come from his gun. Thus even if he invented the tale of a theft that tale was equally consistent with the appellant seeking to avoid the import of the Statement of Facts as with a consciousness of guilt. The appellant submitted that his words were consistent with a spontaneous reaction by an innocent person faced with a statement that his gun had been involved in the crime.

25.     My view is therefore that the evidence should have been excluded before reaching any decision under the Evidence Act. If I am wrong then, as stated above, I agree with the conclusions reached by Robinson AJ on the application of ss 138 and 90.

26.     Whether for the reasons stated above or the reasons given by Robinson AJ, there should be a new trial.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 4 February 2021

ROBINSON AJ:

27.     Axel Sidaros (the appellant) stood trial before Murrell CJ (the trial judge) and a jury on eight counts arising out of an internal dispute between persons associated with the ACT Chapter of the Comancheros Outlaw Motorcycle Gang (COMG). The counts, the subject of the indictment, all occurred on 28 June 2018 when it was alleged by the Crown that the appellant and three other unidentified persons travelled to residential premises at Calwell. That was the home of Peter Zdravkovic. Mr Zdravkovic had been a previous president of the ACT Chapter of the COMG, but had severed his connection to the organisation at this time.

28.     On day 14 of the trial, the jury returned the following verdicts:

(a) Count 1: The accused and unknown persons attempted to murder Peter

Zdravkovic—guilty;

(b) Count 2: The accused and unknown persons intentionally inflicted grievous

bodily harm on Peter Zdravkovic—guilty;

(c)	Count 3: The accused and unknown persons attempted to destroy or damage
by means of fire or explosive property with intent to endanger the life of another

person by that destruction or damage—guilty;

(d) Count 4: The accused trespassed with intent to commit an offence in the building that involved causing damage to property, namely arson, and was in company with unknown persons and at the time had an offensive weapon with

him—guilty;

(e) Count 5: The accused and unknown persons caused damage by fire to three

vehicles and intended to cause or was reckless about causing damage—guilty;

(f) Count 6: The accused and unknown persons intentionally and unlawfully discharged loaded firearms so as to cause another person reasonable

apprehension for their safety—guilty;

(g) Count 7: The accused dishonestly rode in a motor vehicle belonging to someone

else and the vehicle was dishonestly taken by someone without consent—guilty;

and

(h) Count 8: The accused recklessly discharged a firearm with unknown persons—

not guilty.

Appeal

29.     On the appeal, Mr Walker SC and Mr Pararajasingham appeared for the appellant with Mr Drumgold SC appearing for the respondent. Neither senior counsel appeared at the trial.

30.     The issue at trial was the identification of the appellant as an actor in what took place on the night in question.

31.     By an Amended Notice of Appeal, the appellant appeals against his convictions.

32.     There is no appeal on sentence.

33.     The appeal is confined to four grounds of appeal which, directly or indirectly, are relevant to the identification of the appellant as an actor on that night. These are:

(a)	Ground 1: The learned trial judge erred in admitting the representations by the appellant by Detective Senior Constable Norman on 1 September 2018;
(b)	Ground 2: The learned trial judge erred in her direction to the jury concerning circumstantial evidence;
(c)	Ground 3: The learned trial judge erred in her direction to the jury concerning the manner in which the jury were to approach the evidence of the witness, who will be referred to as AB; and
(d)	Ground 4: The learned trial judge erred in her direction to the jury concerning the evidence of prison informers.

34.     No defence case was called at trial.

Background

35.     Prior to dealing with the individual grounds, it is appropriate to briefly set out the background of the offending so as to place the grounds of appeal in context. The

summary which follows is taken from the appellant’s written submissions on appeal.

36.     At approximately 10:30pm on 28 June 2018, the appellant and three unknown males attended premises at 20 Carter Crescent, Calwell, ACT. Residing at this property were Peter Zdravkovic, his partner and their three-year-old son. At the time, Mr Zdravkovic was the former commander of the ACT Chapter of the COMG and had been involved in an ongoing dispute with members of the COMG. Having accessed the premises, two of the males spread petrol throughout the garage and car port area. The two other males, one of whom was the appellant on the Crown case, approached the rear glass sliding door to the residence and discharged multiple firearms in the direction of Mr Zdravkovic (Counts 1 and 6). As a result, Mr Zdravkovic lost part of the middle finger of his left hand (Count 2). The males then set fire to part of the premises (Counts 3 to 5). Having departed 20 Carter Crescent, the males fired shots at 38 Carter Crescent, where Mr

Zdravkovic’s parents lived (Counts 7 and 8).

Ground 1

37.     The offences occurred on 28 June 2018.

38.     On 26 July 2018 police executed a search warrant at the appellant’s premises. This included a police search of the appellant’s gun safe with the appellant being present.

When police arrived the gun safe was locked. It was unlocked by the appellant. A conversation ensued. That conversation is taken from a transcript of the execution of the search warrant:

Q115	All right. Does anybody else use those firearms?
A	No.
Q116	Has anybody else every (sic) [ever] used those firearms?
A	Like out in the range or ---
Q117	At all?
A	Yes.
Q118	When was the last time somebody else used them?
A	At the range a mate fired one of them at the double S double A range
Q119	Which one?
A	The twenty-two.

39.     The appellant was later arrested in Melbourne in connection with the offences. On 31 August 2018, Detectives Norman and Waring travelled to Melbourne. On that day Detective Norman appeared before Magistrate Brear in Victoria and obtained the extradition of the appellant to the ACT on the charge of attempted murder.

40.     On 1 September 2018, the appellant was transported by aeroplane from Melbourne to the ACT. Prior to boarding the flight, Detective Norman cautioned the appellant. Within minutes of boarding the flight, Detective Norman provided the appellant with a copy of a Statement of Facts which had been used to swear the first instance warrant for his arrest and extradition.

41.     The provision of the document was not solicited by the appellant.

42.     One critical fact asserted in the Statement of Facts was:

Forensic firearms comparison of the defendant’s Adler shotgun and cartridge cases recovered

from 20 Carter Crescent, Calwell confirmed that they were fired from that weapon.

43.     The evidence tendered on the voir dire, taken from Detective Norman’s statement,

continued:

About 1.10pm I provided Mr SIDAROS with a copy of the Statement of Facts as used to swear the first instance warrant for his arrest, and I told him what that document was. I did not question Mr SIDAROS in relation to the offence. Whilst reading the document, Mr SIDAROS made a spontaneous utterance.

Mr SIDAROS said: “I have in the past left my guns around the house inappropriately in the past. My dad will confirm that.”

I repeated the criminal caution to Mr SIDAROS and confirmed that he understood. I repeated that I would not be asking him questions about the offence at that time as it was not appropriate, because he would not have access to a lawyer and we could not record the conversation.

Mr SIDAROS continued to read the Statement of Facts then made a further spontaneous utterance.

Mr SIDAROS said: “Someone stole my gun that night. That’s all I’m going to say.”

I then made notes about the conversation in my Official Diary number D13594 on pages 125 and 126.

44.     For the purposes of the trial a significant event occurred on 4 November 2019 when the Court of Appeal (Sidaros v The Queen [2020] ACTCA 11) delivered its decision (reasons on 28 February 2020) in an interlocutory appeal as to whether Clive Roberts, a forensic

firearms and tool mark examiner, could give evidence at the appellant’s trial that the

cartridge cases located at 20 Carter Crescent were fired from the appellant’s Adler

shotgun. The Court of Appeal reversed an interlocutory decision (R v Sidaros [2019] ACTSC 177 per Mossop J) and permitted the witness to only give evidence to the effect

that the cartridge cases were consistent with having been fired from the appellant’s

Adler shotgun.

45.     The effect of the decision by the Court of Appeal as to what evidence could be led at trial became inconsistent with the fact asserted in the Statement of Facts handed to the accused on the aeroplane.

46.     I interpolate here to record that an opinion of a firearms and tool mark examiner incorporated into a document does not render false a statement made in the document if a Court of Appeal subsequently limits the evidence that a person can give at a forthcoming trial. However, on the application before the trial judge, the parties took up the practical effect and operation of the sequence of events as they might affect the appellant being given, and reading, the Statement of Facts on the aeroplane.

47.     How this practical effect matter went to the jury is best illustrated by setting out how the

issue was dealt with in the trial judge’s charge to the jury on the issue of consciousness

of guilt. The trial judge said:

You need to consider whether the accused was motivated to make the statement because he felt guilty about the offence or he may have lied for another reason including the ones I have referred to, panic or fear. In this case, the defence says that how this statement came about was that the accused had been arrested and then he was confronted with the document containing the police allegations including a wrong allegation, an allegation that was wrong because it was wrong about the shotgun.

The application

1. An application was made to the trial judge at the start of the appellant’s trial to exclude

the representations made by the appellant to Detective Norman on the aeroplane. The
application sought exclusion under either s 138 or s 90 of the Evidence Act.

49.     The trial judge recorded the fact that the Crown wished to rely upon the statements made by the appellant on the aeroplane, particularly the second statement, as a lie evidencing a consciousness of guilt. The application before the trial judge proceeded upon the basis of the Crown’s contention that the statements evidenced an Edwards lie (as referred to

below) and not that they merely affected his credit.

50.     Detective Sergeant Norman (the rank to which he was promoted during the course of these events) was not required for cross-examination on the application before the trial judge. The absence of cross-examination meant that there was no direct evidence that Detective Norman sought to elicit any response from the appellant by the provision of the Statement of Facts. On this issue, the trial judge made the finding at [25]:

The accused submitted that the Court should infer that the police were deliberately attempting to undermine the caution that they had just given to the accused. There is no evidence whatsoever to support that proposition. It is entirely speculative, and it is not a conclusion that I would readily reach. Rather, I would infer that the statement was provided to the accused because the police considered that he had a right to know the basis for his arrest.

51.     It was not sought to disturb this finding on the appeal.

Representation as being capable of being a deliberate lie

52.     There is no direct finding by the trial judge that the statements made by the appellant on the aeroplane were capable of constituting a lie evidencing a consciousness of guilt.

Such a finding is, however, implicit in the trial judge’s reasons for judgement and is

consistent with an examination of the transcript of the application.

53.     On appeal, the appellant first challenged this implicit finding.

54.     It was not in dispute between the parties that the case of Edwards v The Queen (1993) 178 CLR 193 at 210 and 211 sets out the relevant law:

A lie can constitute an admission against interest only if it is concerned with some

circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of "a

realization of guilt and a fear of the truth”.

(Footnotes omitted)

55.     It is necessary to keep in mind that the trial judge was making an assessment of the capacity of the representations to constitute lies. As Simpson J pointed out in R v Lane [2011] NSWCCA 157; 221 A Crim R 309 at [60]:

The decision in Edwards was primarily concerned with the directions to be given to the jury once the evidence has been admitted, and permitted to be used for the purpose of showing consciousness of guilt. Whether:

• a statement is false;

• a false statement is a deliberate lie;

• a deliberate lie relates to a material issue;

• a deliberate lie was told out of a realisation of guilt and a fear of the truth (and to avoid the consequences of that)

are all questions of fact, and within the province of the jury. The task of the trial judge, in determining whether the evidence may be used in this way, is to determine whether it would be capable of meeting those tests - that is, whether it would be open to the jury to find affirmatively that it did. If the evidence is capable of meeting those tests, then it is admissible, and, subject to discretionary considerations, or considerations raised by, for example, s 137 of the Evidence Act, the prosecution is entitled to have the evidence admitted as part of its circumstantial case. If admitted, it is the task of trial judge carefully to direct the jury in accordance with the four propositions stated in Edwards. The evaluation remains the task of the jury.

56.     At the hearing of the appeal both the appellant and the Crown put forward textual

analyses of the comparison of the conversation at the gun safe with the appellant’s words

on the aeroplane. Those textual analyses persuade me that the appellant’s representations had the capacity to constitute Edwards lies. I agree with the trial judge’s

implicit finding in this respect. I would add, from J D Heydon, Cross on Evidence
(LexisNexis Australia, 11th ed, 2017) (Cross on Evidence) at [15220], that:

A statement can be proved to be a lie on a particular point without direct evidence of the truth on that point. The inference that it is a lie may be drawn from its inherent improbability;

57.     I am of the view that it would be open to the jury on the evidence to find that the appellant’s representations to Detective Norman were Edwards lies.

Exercise of discretion under s 138

58. The second basis relied upon for excluding the evidence before the trial judge was under s 138 of the Evidence Act.

59.     That section provides:

138          Exclusion of improperly or illegally obtained evidence

(1)

Evidence that was obtained—

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law; must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)

Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person

conducting the questioning—

(a)	did, or omitted to do, an act in the course of the questioning even though the person knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)	made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under

subsection (1), it must take into account—

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f)	whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)	whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)	the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

60.     On appeal and after some refinement, counsel for the appellant contended that the provision to the appellant of the Statement of Facts, with a false (contrary to fact) assertion contained in it, amounted to an impropriety within the section. Counsel submitted, in this context, that impropriety is an:

inappropriateness to the process in question. It’s improper to do something alien to the process. It is alien to the process to give…a person who has been arrested, to explain why he

is arrested, something which is false. It is inappropriate, out of order, unfit whether or not you
know it to be false

As counsel pointed out, impropriety is not confined in this statutory context to deliberate or reckless actions or omissions.

61.     There is no definition of impropriety in the Dictionary to the Evidence Act.

62. At [16]–[22], the trial judge made findings on s 138(1). Her Honour found:

16. Under s 138, the first question is whether the evidence of the representation was obtained improperly or in contravention of an Australian law or in consequence thereof.

17.      I am not satisfied that the evidence was obtained improperly or in contravention of an Australian law or in consequence thereof.

18.      First, the police were merely providing the accused with a statement of facts. The provision of information to an accused person is rarely the topic of adverse comment. Usually, it is the reverse. It was not inappropriate for the police to provide the accused with material that had supported his arrest in circumstances where they were effecting his arrest.

19.      Second, at the time that the statement was provided to the accused, the arresting police did not know that it was false. It accorded with the evidence that was available to the police at that time; the ballistics expert had expressed an opinion that there was a direct relationship between the accused's shotgun and the cartridge shells found at the scene.

20. The fact that the statement reflected the evidence at that point in time is not a complete answer to an assertion of impropriety, but it is a matter that is very important in relation to the exercise of the balancing test under s 138.

21.      Had the statement provided to the accused been correct, it would have said that the cartridge shells found at the scene were consistent with or similar to shells that may have been fired from the accused's shotgun. It is debatable whether, in the mind of the accused, that statement would have been substantially different from the statement provided.

22.      For these reasons I am not satisfied that the evidence of representation was obtained in consequence of an impropriety.

63.     I do not agree with the reasoning in the approach taken by her Honour. At [17], her Honour announces her conclusion that she is not satisfied there was any impropriety. At

[18]–[19], her Honour finds that the conduct in question by the police was not motivated

to achieve any improper outcome. However, at [20], her Honour finds that the fact that the statement in the document reflected the evidence at that time was not a complete answer to an assertion of impropriety. I agree that it was not a complete answer. At [21], her Honour then finds that it is debatable whether, if the correct statement had been given to the accused, he would have given a statement which would have been substantially different from the one provided. I do not think this is the correct question to ask in the process of reasoning on this issue. Whether or not the accused would have given a different statement is not to the point in analysing the existence of an impropriety. It is, of course, relevant to the related issue of whether the statement was a consequence of the impropriety.

64.    There seems to me no doubt that the statement made by the appellant was a consequence of the provision to him of the document with the now impugned assertion. His representation is paired with the impugned assertion. He could have made a number of different statements in response. However, I am concerned only with the statement he actually made that day. I am of the view that the statement actually made by the appellant was a consequence of the impropriety. I do not think that the fact that the appellant could have made a different response completes the matter to a full answer to the assertion of impropriety.

65.    Necessarily, impropriety requires a factual determination to be made of particular conduct in particular circumstances. However, to some extent, the case of R v Cornwell [2003] NSWSC 97; 57 NSWLR 82 provides some guidance. In that case, police observations about a person of interest in connection with particular premises were found to be inaccurate in that the person of interest was not actually observed to leave the premises on the nominated morning. The particular observations were incorporated into an affidavit for the purposes of obtaining a warrant for the use of a listening device on private premises. The trial judge was prepared to accept, for those purposes, that any misstatement of fact in an affidavit in support of a warrant for the use of a listening device on private properties may be an impropriety within s 138, notwithstanding that the misstatement was not intended by the person preparing the affidavit to influence the officer who was to act upon that material in determining whether to issue the warrant.

66. At [23]–[26] the trial judge made an alternative finding under s 138(3):

23.      However, if I am wrong, then the question is whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

24. In considering this question, the Court must take into account the matters in s 138(3). I have had regard to all those matters. In this case, the most significant of those matters are the gravity of the impropriety or contravention (if it existed at all, it was trivial) and whether any impropriety was deliberate or reckless.

25.      The accused submitted that the Court should infer that the police were deliberately attempting to undermine the caution that they had just given to the accused. There is no evidence whatsoever to support that proposition. It is entirely speculative, and it is not a conclusion that I would readily reach. Rather, I would infer that the statement was provided to the accused because the police considered that he had a right to know the basis for his arrest.

26.      Consequently, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained.

1. The appellant contended that the error in approach to the finding on “impropriety”

   infected her Honour’s assessment of its gravity when she was minded to proceed under

s 138(3). Counsel at the appeal hearing did not elaborate on this submission to any
degree.

68.     In the circumstances which she found, her Honour regarded two factors as significant amongst the eight mandatory considerations she was obliged to consider. She found the gravity of the impropriety or contravention was trivial and that any impropriety was not deliberate or reckless. I do not agree that the impropriety was trivial. The purpose of the provision of the Statement of Facts was to inform the appellant of the case against him, which case had been used by the police as the basis for the issuing authority to issue the warrant for his arrest and extradition.

69.     On the other hand, it is clear that there was no deliberate or reckless impropriety.

70. Under s 138, there must be a focus on how the evidence to be admitted was obtained once it has been found that there has been an impropriety and the evidence obtained is thereby contingently liable to exclusion against the party seeking its admission.

71. I have considered afresh the exercise of the discretion under s 138. The undecided position on the correct standard of review is not engaged. I have taken into account the probative value of the evidence obtained, the importance of the evidence to the proceeding, the nature of the criminal offending alleged, the gravity of the impropriety found by me and the fact that the impropriety was not deliberate or reckless in any way. I regard the three further mandatory considerations as having no material relevance to the question to be answered.

72.     In my view the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way in which the evidence was obtained. The mandatory considerations are incommensurate. However, I have considered that the probative value of the evidence is high as is its importance to the proceedings because it is not duplicated by other evidence. Further, the nature of the alleged criminal offending points to the evidence being admitted and being before the jury for its deliberations. The impropriety was not trivial. On the other hand, the degree of departure from proper conduct was not high. It assumed its importance because it was adverse to the interests of the appellant in this particular case. A strong factor in the balance of considerations was that the impropriety was not deliberate or reckless.

Exercise of discretion under s 90

73. The third basis relied upon for excluding the evidence was under s 90 of the Evidence Act.

74.     That section provides as follows:

90            Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an

admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is presented by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

1. The trial judge’s decision under s 90 was concise:

   30. As I have indicated in relation to s 138, I do not consider that, having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence. The evidence was obtained in circumstances where, according to the police statement (and the police have not been cross-examined on this point), the accused had been cautioned twice before making the asserted admission.

   31.      The accused’s statement was made in the context that he had been provided

   information concerning the evidence as the police believed it to be at the time. There is no evidence to support the proposition that the police were in any way deliberately attempting to undermine the caution that they had just given or disrespect the accused's right to silence.

   32.      Consequently, I decline to exercise my discretion under s 90 to refuse to admit the evidence.

76.     The trial judge has focused on the voluntariness of the admission. The appellant was cautioned twice and those cautions were not undermined. I have no doubt that the admission was made in the exercise of a free choice to speak or be silent. (R v Lee (1950) 82 CLR 133). For reasons I set out below, I do not think that her Honour comprehended the full import of the provision and its possible application.

77. It is not entirely clear on the face of s 90 how this provision sits and interacts with other provisions of the Evidence Act, covering what appear to be the partially overlapping fields of Parts 3.4 and 3.11 of that Act. However, substantial guidance on this issue for the present case can be taken from EM v The Queen [2007] HCA 46; 232 CLR 67 (EM v The Queen).

78.     It is clear that an examination of the circumstances under which the admission was made must be undertaken. Thereafter, there must be an evaluation, against those circumstances, as to the unfairness to the defendant of the use of the evidence.

79.     The case of R v Swaffield [1998] HCA 1; 192 CLR 159 is instructive in setting out the common law at the time that the model Evidence Act came into existence.

80.     The majority judgment in the High Court (Toohey, Gaudron and Gummow JJ) said at

188 – 189:

…Four bases for the rejection of a statement by an accused person are to be discerned in

decisions of this Court. The first lies in the fundamental requirement of the common law that

a confessional statement must be voluntary…

…

The second, third and fourth bases for the rejection of a statement made by an accused person proceed on the footing that the statement was made voluntarily. Each involves the exercise of a judicial discretion.

The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on consideration of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice.

81. It is not the case that the model Evidence Act simply codified the common law. It intended to bring about change. I approach the matter on that basis.

82.     From textual considerations in the Evidence Act, s 90 contemplates that the admission under consideration for exclusion will be a voluntary admission and that will be the starting point of the enquiry under that provision. It was clear enough that the analogue discretion identified at common law could be engaged to reject a confession made voluntarily: see for example Duke v The Queen (1989) 180 CLR 508 at 526 and 527 per Toohey J. This is continued under s 90 of the Evidence Act as made clear in EM v The Queen above.

83.     Report No. 26 (Interim) on Evidence was published by the Australian Law Reform Commission in 1985. At [150], the Commission identified the discretion to exclude confessional evidence on the grounds of unfairness. At [967] the Commission recommended against retaining that discretion. The Commission wrote:

Abolition. It is not proposed to retain the fairness (‘Lee’) discretion. The reasons include:

• ‘fairness’ is a vague concept and the courts have failed to define precisely the

principles behind it or considerations relevant to it…

• each possible rationale for the discretion can be satisfactorily met by one of the

proposed rules – reliability of the admission, reliable evidence of the admission,

balancing conflicting public interests, balancing probative value and prejudice;

• retention of the discretion would mean an additional unnecessary and unsatisfactory complication to the law relating to evidence of admissions;

• the psychological comfort induced by a discretion based on fairness may well be

illusory…

84.     By 1987, the Commission had received submissions on its proposals. In Report No 38, Evidence, at [160], the Commission wrote:

…

(b) Absence of the Lee unfairness discretion. Several commentators made the point that the Lee discretion has been used to deal with the situation where the accused has chosen to speak to the police but on the basis of assumptions that were incorrect, whether

because of untrue representations or for other reasons. The proposed ‘circumstances test’ mentioned above does not deal with that situation. It is concerned with circumstances

affecting the truth of the admissions, not the choice whether or not to make the admission. The interim proposals included a discretion enabling the judge to exclude evidence obtained illegally or improperly. That discretion is capable of dealing with the matter but not in the way that the Lee discretion does. The Lee discretion focusses on the question whether it would be unfair to the accused to admit the evidence. The discretion to exclude illegally or improperly obtained evidence requires a balancing of public interests. It would, therefore, be less effective than the Lee discretion in the situation where the confession was obtained because the accused proceeded on a false assumption. There is a need for a discretion to enable the trial judge to exclude evidence of admissions that were obtained in such a way that it would be unfair to admit the evidence against the accused who made them. Such a discretion should be added to the proposal.

(Footnotes omitted)

85.     In a footnote to this paragraph, the Commission gave five examples of cases which it said were best addressed by the Lee discretion. It can be seen that four of those five examples were cases where the accused was under a misapprehension of law or fact. The footnote reads:

• The accused was questioned, after proper caution, in relation to his alleged involvement in a cannabis plantation. He exercised his right to remain silent. Several weeks later, after it was discovered that a homicide had occurred at the same plantation, the accused was again questioned. The questioning proceeded on the basis that it was alleged that the accused was involved in the homicide. After caution, he denied any such involvement. The questioner then switched to the topic of the plantation itself without administering another caution. It was held that the admissions had been unfairly obtained and should be excluded in the exercise of discretion because the accused answered the questions relating to his involvement in the plantation in the context of an interview about a homicide without it being brought to his attention that the questions regarding the plantation were distinct from the suggestion that he may have been involved in the homicide.

• The accused had given evidence at his previous trial. At that time the law was understood to be that, once the Crown established that he was in physical possession of prohibited imports (drugs), he had to prove that he had a good excuse. On appeal, the High Court held that the Crown carried the burden of proving the mental element of the offence and upheld his appeal. As his re-trial, the question arose whether the Crown could lead evidence of sworn evidence given at the first trial. It was held that, although his previous

evidence was voluntary, it should be excluded under the Lee discretion…

• A woman was questioned, she thought, about an assault. She was subsequently charged with rape. On appeal it was held the confession should have been excluded in the exercise of the Lee discretion.

• The interviewers did not tell the suspect that the victim of the shooting in question had died. The suspect thought he was talking about a wounding. The admissions were excluded in the exercise of the Lee discretion.

• A person was interviewed for thirty minutes and repeatedly stated he did not want to answer questions. Later a further attempt was made to get answers but he still refused to answer. A third attempt was made and he finally gave answers and allegedly made admissions. They were excluded under the unfairness discretion.

86. The Commission in that Report proposed a form of the draft discretion in its draft bill annexed to its Report. That proposal formed the basis of s 90 in the Evidence Act 1995 (Cth), which is mirrored in the ACT legislation.

87.     In EM v The Queen, the joint judgement of Gleeson CJ and Heydon J observed at [56]:

The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. Whether or not the appellant was correct to submit that the primary focus of s 90 was on incorrect assumptions made by accused persons, there is no doubt that it is one focus of s 90, and it is one which is relevant to the way in which counsel

submitted the appellant’s incorrect assumption should be viewed. In any particular case, the

application of s 90 it is likely to be highly fact-specific. Certainly it is on the facts of this particular
case that the result must turn.

88.     On the above approach to s 90, it would then be appropriate to consider different circumstances to those considered by the trial judge.

89.     At the time in question, the appellant had been arrested and was being extradited from Melbourne to Canberra. He was in police custody on an aeroplane. An unsolicited Statement of Facts was given to him to set out the justification for his arrest and extradition by the police officer in charge of the investigation of his case. That statement had been put before non-police authorities to seek his arrest and extradition by that police officer. The statement may be regarded as containing a material error. It was an error which overstated the strength of the Crown case. The appellant did not contribute to the error. The appellant was under no pre-existing mistaken assumption as to the content of the document. The admission made was one directly touching upon and concerning the material error. At the time, it is clear enough that the appellant would be under a misapprehension of the true strength of the police case alleged against him. It is correct that the appellant was cautioned twice and that caution was not undermined. The terms of the caution warn that a person does not have to say or do anything but that anything the person does say or do may be used in evidence. That caution does not state anything regarding the accuracy of the contents of the document given to the appellant.

90.     The correct question which must be formulated is to ask whether in those circumstances it would be unfair to the appellant for the admission to be used against him at his trial. This may come down to the proposition as to whether the Crown should have the benefit of the admission at the trial where the admission was made as a consequence of responding to a passage in the Statement of Facts which overstated the strength of the

Crown case and which was described in the trial (at [47] above) as a “wrong allegation”.

91.     I do not think the trial judge addressed the correct question in the application before her. It is not necessary to consider the standard of review of the exercise afresh of the discretion.

92.     Fairness is not defined in the Dictionary to the Evidence Act. It is an evaluative concept.

93.     In my view, having the matters in [89] in mind, I find that the appellant has discharged the onus of showing that discretion should be exercised in his favour. The representations made to Detective Norman should be excluded.

94.     I do not regard the holding in EM v The Queen and my decision upon the discretion contained in s 138 of the Evidence Act as precluding a favourable exercise of discretion under s 90. Although related, they are different battlegrounds.

95.     This ground of appeal is made out.

Grounds 2 and 3

96.     These two grounds of appeal are linked together. I will approach the grounds together as the appellant did in his submissions. The appellant isolated the complaint in respect

of these two grounds of appeal in the trial judge’s summing up at 847–850 of the trial

transcript.

97.     A central part of the trial was concerned with CCTV footage depicting three males each wearing hoods and masks. It was the Crown case that it was the appellant who was shown in this footage. That person was designated, for the purposes of the trial, as

“Offender 2”.

98.     The trial judge told the jury that the Crown case was essentially based on two different types of evidence. The first was circumstantial evidence and the second was the evidence of AB. AB gave evidence that the accused, in effect, had admitted to him that

he was one of the offenders. The trial judge referred to AB’s evidence as “direct evidence”. The trial judge told the members of the jury that firstly she was going to instruct

them on circumstantial evidence and how that was approached and thereafter, she was going to instruct the jury and give it directions about the evidence of AB and how the jury should approach it.

99.     An extract of the summing up illustrates this demarcation and how the trial judge dealt with it:

So, insofar as it is a circumstantial evidence case, the prosecution has sought to establish certain facts or circumstances and to argue that the only rational explanation for those circumstances is that Offender 2 was the accused. In other words, that the established circumstances show beyond reasonable doubt that the accused committed the crime. Now, I

am at this stage only talking about the Crown’s reliance on the circumstances. As I have

already mentioned, the Crown also relies upon the evidence of [AB]. So let us just say that where circumstantial evidence is critical to a case, you cannot find an accused guilty unless there is no rational explanation for the established circumstances other than the accused is guilty of the crime.

At this point I don’t know and perhaps you don’t know whether the circumstantial evidence in

this case will be critical. This will depend upon whether, and to what extent, you accept the evidence of [AB], because that is not circumstantial evidence, that is a different type of

evidence…

So when we have a circumstantial evidence case, and to the extent that we have a circumstantial evidence case here, the first thing that you must decide is what circumstances

are established by reliable evidence. These circumstances don’t have to be established

beyond reasonable doubt, but they have to be established by reliable evidence. So you have got to feel a level of confidence that these facts or circumstances existed. So once you work out and decide what circumstances - or what facts are established by reliable evidence then you look at those established circumstances together.

Not one at a time, but you put all the established circumstances in together and you ask yourselves whether, having regard to the established circumstances and any direct evidence that you consider you should attach some weight to - and this is a reference to whether or not

you end up attaching weight to [AB]’s evidence. Whether, having regard to all those matters -

that is the established circumstances and any other evidence - you are satisfied that the only
rational inference is that the accused is guilty.

100.  The appellant submits that the demarcation was an erroneous distinction. He contends that the evidence of AB was another circumstance in the Crown case and the jury was

required to consider it, along with all other circumstances, as a whole, and “not in a piecemeal fashion”. The appellant’s submission contended that, when it is realised that

AB’s evidence was a circumstance, then the trial judge’s summing up failed to comply

with the direction required by such cases as R v Baden-Clay [2016] HCA 35; 258 CLR
308 (Baden-Clay) at [47]:

…Further, “in considering a circumstantial case, all of the circumstances established by the

evidence are to be considered and weighed in deciding whether there is an inference

consistent with innocence reasonably open on the evidence”. The evidence is not to be looked

at in a piecemeal fashion, at trial or on appeal.

(Original emphasis; footnotes omitted)

101.  In Cross on Evidence, at [1110], the author sets out the distinction between direct and circumstantial evidence.

Circumstantial evidence is usually contrasted with “direct evidence”-a term which is employed

in two senses. In its first sense “direct evidence” is testimony, as contrasted with hearsay, and

may therefore be defined as an assertion made by a witness in court offered as proof of the truth of any fact asserted by the witness, including the witnesses own mental or physical state

at a given time. In its second sense, “direct evidence” means a witness’ statement that the

witness perceived a fact in issue with one of the five senses, or was in a particular mental or physical state if that is in issue; and the contrast is with circumstantial evidence. When someone testifies to having seen an alleged murderer carrying a bloodstained knife, the evidence is direct in the first sense, but not in the second.

102.  The way which the trial judge crafted her summing up needs to be evaluated against whether the jury was instructed correctly on the process whereby it was to find the facts and apply the matters of law to them. The trial judge clearly regarded the case as not wholly circumstantial. There may be more than one approach in a case where the facts presented to the jury do not fit neatly into a wholly circumstantial case.

103. In this case whether the admissions were made or not made was not straightforward. They were alleged to have been made to a prison informer and in circumstances where a direction under s 165 of the Evidence Act concerning unreliable evidence would be, and was, given.

104.   As Murphy J observed in Barca v The Queen (1975) 133 CLR 82 at 111:

It is not the evidence presented but what is accepted of it by the jury which is to be considered in relation to any hypothesis, whether of guilt or innocence. To justify conviction, the jury must be satisfied beyond reasonable doubt that the evidence accepted by them is inconsistent with the hypothesis of innocence.

This case illustrates the difficulty in the ordinary criminal trial of a simple application of the

process of reasoning referred to in Peacock’s Case. Once the facts are established, it is

generally not difficult to apply that approach, but in almost every criminal case, there is
conflicting evidence.

The application of this approach depends upon the resolution of the conflicts in the evidence. For example, the jury might refuse to accept the evidentiary bases for the hypothesis of innocence advanced, or might reject the hypothesis because it accepted the admissions to the police as accurate and truthful confessions of guilt.

105.   As is obvious, the jury would be required to evaluate the evidence given by AB at some point in the process of determining what facts, and their evaluation of those facts, it would

take into its ultimate consideration as to whether the Crown had proved the appellant’s

guilt beyond reasonable doubt.

106.   As counsel at the trial pointed out to the trial judge, post-offence conduct is ordinarily but a species of circumstantial evidence which is to be taken with all of the other

circumstances making the Crown’s case a wholly circumstantial case.

107.  I am not persuaded that the charge to the jury had the effect of diverting the jury from evaluating the totality of the evidence consistently with the circumstantial evidence direction such as set out in cases such as Baden-Clay. I do not regard the trial judge as charging the jury in any way differently to that of ultimately considering together all of the evidence it accepted and the extent to which the jury accepted it in order to determine whether they were satisfied that the only rational inference is that the accused was guilty.

108.   Ultimately, any finding of guilt is to be drawn from the concatenation of circumstances. I do not believe the jury was diverted from this task.

Standard of proof

109.  I decline to give leave to raise this issue as a ground of appeal. Insofar as it might be

contended that “standard of proof” is indirectly attached to an existing ground in the

Amended Notice of Appeal, then I would not give leave under the rules to rely upon it. No complaint was made at the trial concerning it from experienced counsel, then appearing for the appellant, who were very properly extremely diligent in scrutinising the

trial judge’s charge to the jury.

Ground 4

110.   In the course of her charge to the jury, the trial judge gave particular directions about the evidence given by AB. She commenced these directions:

I want to give you some directions about the evidence of [AB]. Remember that as I explained to you the Crown case about offender two being the accused depends upon circumstantial

evidence and/or the evidence of [AB]. [AB]’s evidence is not circumstantial evidence, it is

different evidence. It is evidence of what [AB] says were admissions made to him, that the accused admitted to [AB] that he, the accused, was involved in the offences. [AB] was what we call a prison informer. That is, a prisoner who gave evidence implicating someone in an offence.

111.   Thereafter, the trial judge addressed the following matters, amongst others:

(a)	The traditional position that courts are cautious about accepting the evidence of prison informers;
(b)	The circumstances where AB and the appellant were in adjacent cells in lockdown for 23 hours a day;
(c)	A warning that AB’s evidence may be unreliable;
(d)	AB had a long criminal history;
(e)	The incentives which may motivate a prison informer;
(f)	Reference to the matters that may have incentivised AB to make up false allegations;
(g)	The fact that AB did receive a lesser sentence for the offences which he had committed;
(h)	That AB may be locked into a story;

(i)       A reference to the fact that the lesser sentence related to assistance provided to the police both in relation to the appellant and also in relation to another person;

(j)	A reference to the quantum of the sentence given to AB;
(k)	Directions on how to approach the evidence given by AB;
(l)	A suggestion that, in deciding whether to accept AB’s evidence and what weight it should be accorded, the jury consider whether and to what extent that witness’

evidence is supported by other evidence; and

(m) A reference to the characterisation of AB as a deplorable character by counsel then appearing for the appellant (incorporating many of the above matters).

112.  At the request of counsel then appearing for the appellant, the trial judge added to her directions. The trial judge told the jury:

…Next matter, concerning [AB], the prison informer. I explained to you about how a person

who provides information to the police to assist police in their enquiries may get a sentence discount in relation to sentences that are imposed upon them and you will recall that [AB] said he did get a lesser sentence because of the information that he had provided regarding the accused and other people including a Mr Sharp.

What I neglected to go on to tell you is that if a person provides information to the police and then when they are called to give evidence in court they do not repeat that information, or in other words they fail to live up to proof, they fail to live up to the proof of evidence that they have given, then they can be re-sentenced and, in effect, the lesser sentence that they had received can be reversed. That is potentially an incentive to continue to live up to the evidence or the statement of evidence that you have provided to police in the first place.

113.   The submission developed on the hearing of the appeal by counsel was:

The key to our complaint is that her Honour did not add what the system required her to add, which is the authority of her judicial direction, as opposed to her reminder to pay regard to what counsel had argued. Sure, my predecessor in brief put forceful argument to this effect. That is not the point. What our client was entitled to was more than the jury attending to what

his counsel had to say on the very important matter of [AB]’s reliability.

114. Section 165 of the Evidence Act deals with unreliable evidence. By s 165(1)(e), this includes evidence given in a criminal proceeding by a witness who is a prison informer.

115. Under s 165(2), a judge, if requested by a party to do so, must:

(a)	Warn the jury that the evidence may be unreliable; and
(b)	Tell the jury about matters that may cause it to be unreliable; and
(c)	Warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it.

116.  That section does not affect any other power of the judge to give a warning to, or to inform, the jury.

117.   No particular form of words need be used in giving the warning or information.

118. The trial judge’s charge to the jury complied with the requirements of s 165(2). I have

had regard to the observations of Spiegelman CJ in Robinson v R [2006] NSWCCA 192;

162 A Crim R 88 at [3]–[19] and the requirement for any warning to meet the

circumstances of the case at hand to give effect to the overriding principle of a fair trial.

119.   In the circumstances of this case, I am unable to find any error in the trial judge’s direction

or any omission on this issue. I do not agree that her Honour failed to inform the jury as to why prison informers, as a class of witnesses, may be unreliable. Nor do I regard the

trial judge’s directions as being a reminder to pay regard to what counsel had submitted in his address to the jury on this issue. Nor do I find that the Court’s authority was not

behind the directions given. The directions were not given as observations which the jury could choose to take into account if it wished to do so. They were given as matters which the jury had to consider in their deliberations.

120. I dismiss this ground of appeal.

121. I propose the following orders:

(a)	The appeal be allowed;
(b)	The convictions be quashed; and
(c)	There be a new trial.

I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.

Associate:

Date: 4 February 2021

CROWE AJ:

122. I have read the draft opinions of Elkaim J and Robinson AJ. I agree with the contents of the judgment of Robinson AJ, except the conclusion reached in relation to the issue regarding s 90 of the Evidence Act.

123. I accept that the reliance of the primary judge on her analysis of the s 138 application for her conclusion that the use of the representations at the trial would not be unfair to the appellant must necessarily have led her Honour to an evaluative error. This is most apparent when regard is had to the conclusions that there was no impropriety, and that if there was it did not cause the appellant to make the representations.

124.  On any view of the test of review to be applied here it is necessary for this Court to re-exercise the power or discretion given by s 90.

1. It is to be remembered that the appellant bore the onus of satisfying the court that “having

   regard to the circumstances in which the admission was made, it would be unfair to (him) to use the evidence”: see EM v The Queen [2007] HCA 46; 232 CLR 67 (EM v The

   Queen) at [63].

126.   In EM v The Queen, Gummow and Hayne JJ said of s 90 at [109]:

When it is "unfair" to use evidence of an out‑of‑court admission at the trial of an accused

person cannot be described exhaustively. "Unfairness", whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many

cases in which the use of evidence of an out‑of‑court admission would be judged, in the

exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or "safety net" provision.

127.  Their Honours, in that case, pointed out that where an applicant in a criminal matter seeks to have evidence excluded under s 90, he or she does so on the premise that the relevant out of court admission to police officers was not to be excluded under any of ss

84, 85, 86, 137, 138 and 139 of the Evidence Act: see [96]–[97].

128. That approach is important in the circumstances of this case, having regard to the decision made in this Court in relation to the s 138 application. As their Honours made clear at [119] and [120], questions as to the impropriety of the way in which the admission was obtained, including the significance of any such impropriety, are to be determined under s 138, not s 90. Their Honours concluded:

121. It also follows from the conclusions just expressed about the operation of s 138 that to begin examination of the operation of s 90 from a premise which attaches determinative significance to the fact that the appellant had the mistaken belief (caused or contributed to by the police) that what he said was not being recorded and would not be admissible in evidence would be erroneous. It would be erroneous because that would not take the operation of provisions like ss 85 and 138 into account. The relevant questions presented by the Act (in particular, by ss 85 and 138) are about the reliability of the admissions made to police, and the lawfulness and propriety of the methods used to obtain the admissions. Showing that the person making the admission acted under some misapprehension is not to the point.

129.  The two other members of the Court in EM who formed part of the majority appear, in assessing the issue of unfairness under s 90, to have been equally (if not more) dismissive of the fact that the admissions in that case were made by the accused when he was labouring under a significant mistake of which the relevant police officers were

aware: see per Gleeson CJ and Heydon J at [77]–[78].

130.  Kirby J dissented. He did so on the basis that he saw the admissions as having been obtained as the result of a deliberate decision by police not to provide a full caution to

the accused and what his Honour saw as “trickery”: see [208]–[217] and [218]–[219].

131.  It seems to me that the unfairness relied upon by the appellant here is the fact that he was misled by the incorrect information provided by police into providing an admission (it being accepted by the majority in this Court that the representations was capable of amounting to an Edwards lie) which he would not otherwise have made.

132.   Having regard to the approach taken by the majority in EM, subject to one reservation, I find that the appellant failed to discharge the onus of satisfying the court that it would be unfair to the appellant for the prosecution to use the evidence of his representations. In that context it was relevant that the erroneous information in the Statement of Facts was provided inadvertently, and without Detective Norman knowing (or even being able to know at that time) that it was erroneous. While voluntariness was an issue which, if of primary importance, should have been dealt with under s 84 or perhaps s 138 of the Evidence Act, it was also relevant that the appellant was clearly cautioned by Detective Norman when he was given the Statement of Facts and during the consequent conversation.

133.  The reservation which I have relates to the fact that the erroneous statement about the

shotgun shells would have to be taken into evidence if the evidence of the appellant’s

representations was going to be admitted. However, I note that after the application before the primary judge, counsel who was then appearing for the appellant indicated the need for a direction to be given to the jury highlighting the fact that the erroneous statement was just that. So far as I can see such a direction was given on 3 December 2019. Moreover, the appellant makes no complaint in this appeal about that aspect of the direction.

134.   It follows from the above that I would dismiss the appeal.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.

Associate:

Date: 4 February 2021