Skondin v R

[2005] NSWCCA 417

CITATION:	Skondin v R [2005] NSWCCA 417
HEARING DATE(S):	28 November 2005
JUDGMENT DATE:	8 December 2005
JUDGMENT OF:	Studdert J at 1; Whealy J at 85; Howie J at 86
DECISION:	Appeal allowed; the verdict of guilty is quashed absolutely; no new trial is ordered.

CATCHWORDS:	Criminal law - failure to give notice of alibi in prescribed period - leave to introduce alibi evidence refused - whether trial miscarried - whether verdict of jury reasonable - whether trial miscarried through intervention of trial judge and restriction of cross examination.
LEGISLATION CITED:	Criminal Procedure Act, s 150
CASES CITED:	The Queen v Apostilides (1984) 154 CLR 563 M v The Queen (1994) 181 CLR 487 Jones v The Queen (1997) 191 CLR 439 R v Hasenkamp (unreported, NSWCCA, 24 February 1998)
PARTIES:	Mark Shane Skondin v Regina
FILE NUMBER(S):	CCA 2005/500
COUNSEL:	M. Ramage QC (Applicant) D. Frearson SC (Crown)
SOLICITORS:	C. Jeffreys (Applicant) S. Kavanagh (Crown)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0453
LOWER COURT JUDICIAL OFFICER:	Dodd DCJ

2005/500

STUDDERT J
WHEALY J
HOWIE J

Thursday 8 December 2005

MARK SHANE SKONDIN v REGINA

Judgment

1 STUDDERT J: The appellant, Mark Shane Skondin, appeals against his conviction for an offence of malicious wounding. Following conviction the appellant was sentenced to a fixed term of imprisonment of three years, which sentence has now been served. The appeal is an appeal against conviction only.

2 Denis Lovric (the victim) was stabbed and sustained multiple injuries involving his kidney, his spleen and his liver. The penetrating injury affected both sides of the victim’s stomach, both sides of his colon and his diaphragm. The stabbing occurred in Arthur Park, Kings Cross on the night of 12 October 2002.

3 The real issue at the appellant’s trial was whether or not he was the attacker. The victim identified the appellant as such and the Crown also relied upon a DVD surveillance recording movement at the doorway of a newsagency, in which recording the victim asserted, and the jury was invited to conclude, a person who appeared was the appellant. According to the victim, he entered that newsagency after meeting the appellant in the street and shortly before he was stabbed.

4 The appellant gave evidence at his trial to the effect that he knew the victim, but he did not stab him. He denied attending Arthur Park on the day in question. As to the DVD footage, he was unable to say whether he was shown in the footage or not.

5 Whilst the central issue at the trial was a narrow one, namely was the appellant the attacker, it is submitted that the trial miscarried for a number of reasons recorded in amended grounds of appeal.

THE GROUNDS OF APPEAL

Ground 1: The trial miscarried

6 No discrete error is identified for the purposes of ground 1. Rather, it is submitted the trial miscarried by reason of errors identified in other grounds to which I now direct consideration. I propose to consider grounds 3-12 before returning to ground 2.

Ground 3: The judge erred in not discharging the jury after the Crown Prosecutor’s opening

7 The Crown, when opening the case, referred to the relationship between the victim and the appellant. He did so in the following passage which forms the basis of the first ground:

“The Crown case as I expect it to be will be that the alleged victim in this matter, and his name is Denis Lovric, he is a self admitted drug user. Or was at the time of this offence I should say. He met the accused in 1999 in the Marrickville/Sydenham area and at the time he knew the accused as Skondo. He would meet up with the accused about three times a week in the Sydenham/Marrickville area and they would purchase and use drugs together. They ceased contact or they lost contact at the end of 1999.” (T 84)

8 Following the opening, counsel for the appellant complained about the reference to the appellant as a drug user. It was submitted that that reference created incurable prejudice and the trial judge was asked to discharge the jury. The judge declined to do so.

9 At the time that ruling was given, the Crown case as outlined was going to be that on the night of the offence the victim met the appellant at a time when the victim was in the company of a man named Troy Gilmour and that the three men each proceeded to purchase a cap of heroin from the same source. According to the victim, the three men used some of that drug prior to the commission of the offence.

10 The Crown has submitted that the extent of the relationship between the victim and the appellant was relevant as bearing upon the plausibility of the alleged meeting on the night of the offence and the allegation that the offender, the victim and Gilmour each purchased and used heroin before the wounding occurred.

11 In declining to discharge the jury, his Honour stated his reasons very shortly:

“As I understand it, the evidence is going to be that he is a drug addict and it does not seem to me that any prejudice is added to that by saying that he was a drug addict in 1999 as opposed to being a drug addict in 2002. So I refuse the application for a discharge.”

12 I am not persuaded that the decision to refuse the discharge application before the evidence began amounted to error in the exercise of the judge’s discretion, or that the decision then taken caused the trial to miscarry.

Ground 4 The judge erred in not discharging the jury after the evidence of Mr Lovric

13 The victim was asked to describe the person he knew as “Skondo” in 1999 and proceeded (T 7, 16 October 2003) to give this description:

“Well, medium build, sort of blondish/brown-ish hair, pointy nose, kind of ravaged by drug use pretty much.”

14 Neither before that description was given nor subsequently did the Crown seek to adduce from the victim evidence consistent with the opening that he met the appellant three times a week in 1999 and that they bought and used drugs together.

15 This is explicable having regard to what the trial judge said before Lovric commenced his evidence. Notwithstanding the ruling of the judge on the first discharge application, his Honour asked the Crown why it was necessary to introduce the issue of drug use by the appellant in 1999, and the Crown responded (T 2, 16 October 2003):

“The Crown says it is probative because it goes to the identification of the accused by virtue of the victim’s relationship with who we say is the accused, knew him, and their relationship was a drug based one. They met up in Kings Cross for the purposely solely of using drugs together. So it links, on the Crown case, the accused, or the person we say is the accused, with the person that Mr Lovric knew in 1999.
HIS HONOUR: Oh, I don’t think you need to do that. I think you can introduce the evidence of Lovric’s knowledge of the accused without referring to the accused’s drug taking…you will need to speak to Mr Lovric about that. You will have time to do that. But that raises the question then whether you really need to go into Mr Lovric’s drug use at all, I suppose.”

16 When counsel for the appellant complained about the description given by the victim as to the appellant’s drug ravaged appearance (T 26), the judge indicated that the description was unresponsive to the question asked but that he proposed to deal with the matter by giving a very firm direction to the jury concerning any potential prejudice about the accused being a drug user on the night in question “so as to avoid them using that as a basis for a finding of guilt.” Counsel for the accused complained that any direction would only emphasise it (T 27).

17 It is common ground that no direction was later given to the jury such as his Honour contemplated. Neither, however, did counsel for the appellant seek a direction and, presumably, this is because it was considered that a direction would not help but would only tend to emphasise the evidence about the introduction of the subject of complaint.

18 The evidence as to the alleged drug-ravaged appearance of the appellant ought not to have been given and it was, indeed, non-responsive. However, I am not persuaded that the trial judge was in error in refusing to discharge the jury when the description came out in the manner in which it did and since no complaint was made about the judge’s failure to address that piece of evidence in his summing-up, r 4 applies. I am not persuaded that a miscarriage resulted from the introduction of the evidence as to the appellant’s appearance, and, indeed, Mr Ramage did not contend that, viewed alone, it did so.

Ground 5: The trial judge erred in restricting and/or preventing cross examination

19 The only positive evidence identifying the appellant as the person who stabbed the victim came from the victim himself. Then there was the DVD recording which the victim said captured the image of the appellant. The victim’s companion, Mr Gilmour, did not identify the appellant as the victim’s attacker, and I will refer more closely to the evidence that deals with the issue of identification when I return to consider Ground 2.

20 However, before evidence was led in front of the jury, counsel appearing for the appellant at the trial, informed the trial judge that the nature of the police investigation would be in issue (T 32, 15 October 2003). Hence, in cross examination of police officers, counsel for the appellant sought to explore the question as to whether the police stopped making other inquiries once the victim named the appellant.

21 Against this background, it is submitted that the trial miscarried when the trial judge rejected questions asked of Inspector Fletcher and Det. Constable Morrison. Before either of officers was called, Mr Gilmour had given evidence that he was shown the DVD and that he had told the police and the Crown that the person with the backpack in the DVD was not the person who had stabbed the victim, and that he was 100 percent sure of that. He said that the person who stabbed the victim did not resemble the man with the backpack in the DVD.

22 Later, when Inspector Fletcher was called and gave evidence concerning the identification process in which the victim identified the photo of the appellant as being a photo of his assailant, counsel for the appellant, having been granted leave to further cross examine the inspector, asked this question (T 206, 22 October 2003):

“Q. Sir, in a situation where the identity of the suspect is a matter in question, is it the situation that you, as a matter of practice, would invite witnesses to the incident to view a presentation?”

23 The Inspector was then asked a series of questions in which the cross examiner endeavoured to elicit details of procedures of police investigations. The judge did not allow evidence as to this to be elicited (T 205-208).

24 Det. Constable Morrison was the witness next called after Inspector Fletcher. Det. Constable Morrison was the officer in charge of the investigation. She was asked in cross examination whether a statement was taken from a Mr Ruchman, who indicated that he had seen a person in the park. The police officer responded in the negative. Counsel then sought to cross examine the police officer as to whether inquiries had been made of Mr Ruchman. It did emerge in further cross examination that a police officer other than Constable Morrison has spoken to Mr Ruchman on the evening of 12 October and that he was not spoken to after that.

25 A reading of the cross examination of this police witness does not convey that the trial judge prevented the cross examiner from eliciting any admissible material concerning the person named as Mr Ruchman.

26 Then, the cross examiner sought to ask Det. Constable Morrison about what information Ms Woolbank (relevant to Grounds 6 and 7), gave as to the whereabouts of the appellant at the time of the stabbing. The judge refused such cross examination, and this was unquestionably a correct ruling.

27 The witness who was called immediately prior to Inspector Fletcher was Constable O’Leary. He attended Arthur Park shortly after the stabbing where he saw four people standing around the victim. He spoke to people in the vicinity. In cross examination he identified those persons. One of those persons was Mr Ruchman. He was cross examined about the course of his investigation that evening, which he said included speaking to Mr Ruchman, who, he agreed when this was put to him by counsel, appeared to be a homeless person sleeping in the bus shelter.

28 Having read the transcript concerning the cross examination of Inspector Fletcher and Det. Constable Morrison, I am of the opinion that there was no ruling in the course of that cross examination preventing the cross examiner from eliciting admissible and relevant evidence from either witness. Ground 5 fails.

Ground 6: The trial judge erred in failing to request or direct the calling of a witness

Ground 7: The judge erred in ruling that he would not permit evidence of alibi to be called

29 It is convenient to deal with these two grounds together. Each of these two grounds involves the person Monique Woolbank.

30 Monique Woolbank is the cousin of the appellant, and a statement was taken from her by the police on 29 October 2002. According to her, the appellant was known to her as “Skondo” and the statement recorded in a police notebook contained these paragraphs:

“On 27th September 2002 my cousin, Shane Skondin, whose date of birth is 10/5/1972 got out of gaol. He came and saw me and I said he could come and stay with me. He came back that night with his gaol stuff. The next day he picked up some bags from his grandmother’s place with his clothes. He put those in the spare room at my place. Up until Shane got locked up at Sutherland on 14 October ’02, he was staying with me.
He used to go and visit Natasha Maher from Coogee and also Rebecca Grey at Redfern. When Shane got arrested by police at Sutherland he had stayed at my house almost every night for the previous week.”

31 A copy of that statement was served with the Crown brief and it did not express an alibi, although it certainly invited inquiry of Ms Woolbank on behalf of the appellant as to whether she was in a position to afford the appellant an alibi. However, nothing was done to address this issue before the appellant’s trial began. No notice of alibi was given prior to the trial, and although Ms Woolbank was present at court during the trial, she was not called to give evidence. For the purposes of these two grounds it is necessary to understand why she did not enter the witness box.

32 Affidavit evidence was introduced on the hearing of this appeal from the Crown Prosecutor and from trial counsel for the appellant. There is some conflict in the evidence from these sources as to what happened concerning this witness after the trial began. Prior to the commencement of the evidence, the jury had been alerted concerning the possibility that that witness would be called or, at least, to the possibility that her name might be mentioned in the course of the evidence. However, according to the prosecutor, once it became apparent at the commencement of the trial that the appellant did not dispute his prior association with the victim, a decision was made by the prosecutor that Ms Woolbank’s evidence was not required. The Crown had apparently earlier perceived that it would have been desirable to have her evidence that the appellant was called “Skondo”, affording some support for the victim’s assertion that he had known “Skondo” since 1999.

33 This trial began on Wednesday 15 October 2003. The summing up began on Thursday 23 October, and the jury returned with its verdict on Friday 24 October 2003. Prior to the close of the case for the prosecution, the prosecutor informed trial counsel for the appellant that it was not proposed to call Ms Woolbank. It appears that that advice was given on the morning of Wednesday 22 October. On the previous Friday trial counsel for the appellant had interviewed Ms Woolbank and in the course of that interview Ms Woolbank stated that the appellant had stayed at her home from 27 September 2002 to 14 October 2002.

34 Summarising what Ms Woolbank told counsel on 17 October 2002, the appellant lost his key to her flat early in his stay and Ms Woolbank declined to give him a replacement key. Instead, she required him to be home by 8.00 pm to 9.00 pm at night. Ms Woolbank had recently had a baby, and she did not wish him disturbing her after 9.00 pm by ringing the buzzer to gain entry to the flat.

35 Ms Woolbank did not then directly assert that the appellant was at home with her on the night of the stabbing but when the Crown Prosecutor approached the witness at court on the morning of 22 October 2003 and advised her that she was not required as a witness, Ms Woolbank told the prosecutor that she had informed trial counsel for the appellant that the appellant was at home with her on the night of the stabbing. The prosecutor then repeated this to the appellant’s counsel.

36 At this stage in the proceedings, no notice of alibi had been given.

37 I have set out this history of events in some detail because it affords the background to what led up to the rulings giving rise to these two grounds of appeal.

38 On 22 October 2003, trial counsel for the appellant, proceeded to assert in front of the jury: “The Crown’s aware of an alibi that this witness has and the Crown has chosen not to call her [Ms Woolbank]” (T 241). This was an inappropriate comment.

39 The following exchange then occurred (T 243):

“HIS HONOUR: Has notice been given of an alibi?
[TRIAL COUNSEL]: No your Honour, I didn’t know anything about it.
HIS HONOUR: How can you have the effrontery to say that in front of the jury that the Crown is aware of an alibi.
[TRIAL COUNSEL]: Because the Crown informed me this morning that they would not be calling Ms Woolbank. She was a witness that was proposed to be called by the Crown and attended here pursuant to a request of the Crown to give evidence. The Crown informed me--
HIS HONOUR: [Counsel] you know the rules about alibi.
[TRIAL COUNSEL]: Yes, this is a very different situation.
HIS HONOUR: Why did you raise the question of alibi in front of the jury when you have not given notice of alibi
[TRIAL COUNSEL]: I was not going to take the witness to that material. I was trying to indicate the relevance of it.
HIS HONOUR: [Counsel]--
[TRIAL COUNSEL]: The material as to the investigation--
HIS HONOUR: [Counsel]--
[TRIAL COUNSEL]: -- and the whole way in which the police have approached this matter has been something that has not been a situation that has been fair and appropriate to the accused. The Crown were aware of this witness and have chosen not to call her.
It is material that was anticipated in the Crown case. It’s the Crown’s evidence that the Crown has decided not to call. It’s not the accused’s evidence.
HIS HONOUR: [Counsel], if you want to abide by the rules you have got to give notice. You haven’t given notice. The Crown is not therefore on notice of any alibi. The Crown is not obliged to call witnesses it doesn’t wish to call. You know that.
[TRIAL COUNSEL]: This is an Apostolidis situation.
HIS HONOUR: You haven’t raised an Apostolidis situation…”

40 Then (at T 245-247):

“HIS HONOUR: [Counsel] tell me what your application is?
[TRIAL COUNSEL]: That the evidence of Ms Woolbank will be admitted.
HIS HONOUR: You can call her if you want to.
[TRIAL COUNSEL]: She is relevant and appropriate and gives evidence pertinent to the allegations in the Crown case
HIS HONOUR: That doesn’t--
[TRIAL COUNSEL]: The Crown case opened that they would call her.
HIS HONOUR: That does not prevent you from calling her.

[TRIAL COUNSEL]: It doesn’t prevent me, but it is appropriate that the Crown calls the appropriate witness.
HIS HONOUR: You know that I can’t ask the Crown to call her, if that’s what you’re asking me to do.
[TRIAL COUNSEL]: I am not asking your Honour to force the Crown to, but I am indicating to your Honour that pursuant to Apostolidis that this evidence is within the parameters of the Crown--
HIS HONOUR: It’s no good. If you make the application to tell the Crown to call her you know that I can’t do that.
[TRIAL COUNSEL]: I think your Honour can tell the Crown.
HIS HONOUR: Is that what you’re asking me to do? You are asking me to order the Crown to call Ms Woolbank.
[TRIAL COUNSEL]: Yes, your Honour.
HIS HONOUR: Let me read this very carefully.
[TRIAL COUNSEL]: Your Honour needs me to --
HIS HONOUR: -- Just let me read it very carefully first of all. I have read that; [counsel] there is absolutely no basis in that statement upon which I could possibly take the drastic step of ordering the Crown to call that witness. If in fact I had any such power and it certainly not a situation where I would cause the calling of Ms Woolbank myself, so your application is refused.
[TRIAL COUNSEL]: Further, I don’t wish to cavil with your Honour’s ruling, but--
HIS HONOUR: Good.
[TRIAL COUNSEL]: -- But I will indicate to your Honour that the statement, there is additional material to the statement, that being that Ms Woolbank would say, as I understand it, that on 12 October that she was at home with her child and that the accused was at home with her. And I perused the material, in the expectation as I have been informed by the Crown, that that would be the evidence that she would give.
CROWN PROSECUTOR: Let’s be clear. Apparently this is what Ms Woolbank told [counsel] last week and that I was informed of this morning. If the basis of the application is to in fact call the alibi evidence, which appears to be the first application that should be made, if your Honour which the Crown would oppose because it doesn’t accord with the legislation, if your Honour did allow the adducing of alibi evidence then the Crown would call her, but based on the evidence given in the statement by Ms Woolbank last year there is nothing material in that statement to this case.”

41 The judge correctly informed counsel that he was not prepared to allow cross examination of Constable Morrison as to evidence that Ms Woolbank might be able to give. Thereafter counsel for the appellant sought a ruling on the admissibility of alibi evidence and the Crown indicated its opposition (at T 248):

“[TRIAL COUNSEL]: Your Honour should rule about on the question of the admissibility of the alibi.
HIS HONOUR: We haven’t got to your case yet.
[TRIAL COUNSEL]: Your Honour it is appropriate and I appreciate that notice has not been given until now at this point in time. But it is still within the Crown case and, as I understand it, any material to be led by the Crown contradicting any alibi needs to be done during the Crown case. And if I am to be permitted to lead evidence about it, then the fact is that your Honour has to provide leave in these circumstances for the evidence to be called. And being still in the Crown case it would be appropriate for any case in reply so far as the material concerned to be led in the Crown case. So in my respectful submission it is appropriate for your Honour to deal with the admissibility of any alibi question now.
HIS HONOUR: What do you say Madam Crown?
CROWN PROSECUTOR: Well, your Honour, the Crown having not been provided with the notice of the alibi in accordance with the Criminal Procedures Act that being 21 days before the date when the trial date was set, the Crown would oppose the leading of the alibi evidence. And it is not as though it is something that would not have come to the attention of the accused certainly back when notice was required to be served.
[TRIAL COUNSEL]: That is because it was indicated to be a Crown witness…”

42 His Honour treated what had occurred as being an application by counsel for leave to adduce evidence in support of an alibi. His Honour refused leave for the proposed alibi evidence to be given, and in the course of his reasons identified the grounds of his refusal:

“It is common ground that notice of the alibi in accordance with the statutory requirements was not given. The reasons given for the defence not giving that notice are: firstly that the accused himself has no idea where he was on that night; and secondly that the precise evidence of Ms Woolbank as to the alibi did not become available until during the course of this trial. It is also put that there is no prejudice to the Crown in the evidence now being called because no further investigation by the police could, or would have been possible.
As to the latter I am entirely unconvinced. It may be in certain cases that further investigation by the police will not reveal any further material. But I am of the view that in this case further investigations may have been possible by the police both in the form of further questioning of Ms Woolbank and in the form of questioning of others, and in particular, neighbours of Ms Woolbank, and in fact other people as well, depending upon answers received to further questioning of those people.
However, the telling aspect, in my view, in respect of this application is that nothing was done in response to the serving of the statement of Ms Woolbank. The defence was on notice from an early stage that Ms Woolbank would say that the accused had stayed at her house almost every night for the week previous to 14th of October 2002. It was a simple step from there to ask her whether she had any recollection as to the night of the 12th of October 2002.
That should have been done if there was any intention to rely upon an alibi of the nature that is now proposed. And the fact that it was not done, and that the proposed evidentiary material emerges only now during the course of the case, combined with the possible prejudice to the Crown, is in my view fatal to the application. Accordingly I refuse leave for the proposed alibi evidence now to be called.”

43 In short, his Honour took the view that since the appellant was aware from 2002 that Ms Woolbank would say he was staying with her at the relevant time, there was ample opportunity well before the trial for the appellant to have ascertained from Ms Woolbank that she could afford evidence of an alibi. In my opinion, the judge was correct to so conclude.

44 It is the second reason given by the judge which leads me to conclude that the exercise of judicial discretion miscarried. The Crown did not advance any specific evidence of prejudice. It did not refer to opportunities for investigation that had been lost.

45 In order to introduce the evidence in support of an alibi, the appellant was required by s 150 of the Criminal Procedure Act to give notice “before the end of the prescribed period”: s 150(2). The “prescribed period” was defined in s 150 as meaning “the period commencing at the time of the accused person’s committal for trial and ending twenty-one days before the trial is listed for hearing”: s 150(8).

46 Had the appellant given the prescribed notice twenty-one days before the trial was listed for hearing, leave to introduce evidence of the alibi would not have been required. Whatever investigations that could have been taken by the Crown twenty-one days before the trial could presumably have been taken during the trial, had leave been granted, without significant disruption of the trial. Ms Woolbank was certainly available for questioning, and the Crown did not assert there was any particular avenue of inquiry that had been lost to it.

47 A court should be slow to refuse a leave application under s 150(2) unless prejudice arises such as is incapable of being addressed without significant disruption of the trial. In my opinion, in the circumstances of this case the judge erred in the exercise of his discretion in refusing leave to introduce evidence of alibi.

48 Ground 7 has been established.

49 Ground 6, however, has not been established. The application made to the judge, as the extract of the transcript set out above discloses, was an application that the judge direct the Crown to call the witness, Ms Woolbank. It was not for the judge to direct the Crown to call Ms Woolbank, and his Honour made no error in declining the application to do so: see The Queen v Apostilides (1984) 154 CLR 563.

50 The significance of the ruling concerning alibi evidence is to be assessed by reference to what has been referred to in the amended grounds of appeal as

Ground 12: “Fresh evidence”.

51 This Court was asked to receive evidence from Monique Woolbank and from her de facto husband, Theo Mouhtaris.

52 Monique Woolbank made an affidavit on 17 August 2005 and was cross examined before this Court. Her evidence was that the appellant went to stay with her in her flat on 27 September 2002 and that he stayed with her until his arrest after the date of the stabbing. He had no key to the flat and, according to the witness, could only gain access to the flat when she let him in. Her child was born on 13 August 2002. The witness said she was at home at night and in bed by 8.00 pm or 9.00 pm at the latest. The appellant did not use the buzzer to gain access at night. Moreover, according to Ms Woolbank, the appellant was on crutches and injured his hand, and, according to Ms Woolbank, did not go out at night after 8.00 pm after he was injured. There were medical records introduced into evidence which supported the assertion that the appellant suffered injury in early October, certainly before 12 October. These records included an x-ray report of 6 October 2002 which showed that the appellant had a fracture of the proximal fifth metacarpal shaft in the right hand and at that time x-rays were taken of the left ankle, although they showed no abnormality.

53 According to Ms Woolbank, Theo Mouhtaris was living in the flat off and on in October 2002 and he had a key. The cross examination of Ms Woolbank gave rise to the possibility that Theo Mouhtaris could have let the appellant into the flat whilst Ms Woolbank was sleeping, or have lent his key to the appellant.

54 However, Theo Mouhtaris was called to give evidence. He said he never provided the appellant with the key to Ms Woolbank’s unit.

55 In my opinion, the evidence introduced in this Court and reviewed above is capable of belief. The evidence of the appellant at trial was that he was not with the victim on the night that the victim was stabbed, and the alibi evidence which Ms Woolbank could have given would have supported the appellant’s case. It seems to me that there exists a significant possibility that the jury acting reasonably would have acquitted the appellant had the evidence which this Court has heard been introduced before it. I reach that conclusion having regard to the evidence I will review when shortly considering Ground 2.

56 It seems to me therefore that there has been a miscarriage of justice at the trial by reason of the refusal of the judge to permit the introduction of the alibi evidence. Hence, the conviction ought not be permitted to stand. Notwithstanding this conclusion, I will address the other grounds of appeal presented.

Ground 8: The trial judge unduly interfered in the conduct of the trial

57 It was submitted that the trial judge rejected cross examination peremptorily, and that his Honour’s approach disrupted the trial and unduly inhibited counsel for the appellant, and was likely to have adversely affected the accused. A schedule of interruptions and comments by the judge was presented in the course of the hearing of the appeal. I do not propose to review the transcript references exhaustively and, indeed, little time was spent in this appeal on this ground.

58 Suffice it to say that having read those passages of the transcript in the schedule that Mr Ramage presented, I am not persuaded that the intervention of the judge caused the trial to miscarry. Ground 8 has not been established.

Ground 9: The judge erred in directing the jury to disregard submissions of defence counsel

Ground 10: The judge erred in directing the jury that they were not to consider another person other than the accused was responsible for the stabbing

59 It is convenient to deal with these grounds together.

60 Complaint is made concerning the following direction in the summing up (SU 13, 23 October 2003):

“Some attention was given by [counsel] to what she variously described as an unsatisfactory or as a deficient police investigation. Quite frankly, I have to direct you to disregard those submissions in so far as they refer to a deficient police investigation. It is a complete red herring and by that I mean that it would be distraction from your proper task in this case if you were to pay any attention to deciding whether there had been a deficient police investigation or not, in so far as there is material which has been put before you on what the police did not do or fail to do, or failed to follow up, questions that they did not ask people, that they did not interview, that kind of thing.”

61 The complaint is made that the proper course would have been for the judge to have raised the matter with counsel in the absence of the jury and to have invited her to withdraw or modify her submissions.

62 The directions above set out were immediately followed by these further directions:

“I direct you as a matter of law that that material is not to be used by you as any evidence that any other person was responsible for the stabbing of Mr Lovric or that there was a reasonable possibility that any other person was responsible. As I say, it would be a complete distraction from your proper task to start to consider whether there had been a sufficient or a deficient police investigation. Your proper task is to decide on the evidence placed before you whether you are satisfied beyond reasonable doubt that the accused committed this offence .”

63 The instruction to which emphasis has been given in the passage above properly directed the jury to consider the real issue, and to my mind there is no substance in Ground 9 or Ground 10.

Ground 11: The trial judge erred in failing to refer to the evidence given by the accused

64 The evidence in chief which the appellant gave was extremely brief. He told the jury (T 258) he had met the victim a couple of times in 1999 but that he never stabbed him. He denied they had heroin together on 12 October 2002 and he denied that he was ever at Arthur Park with the victim or with the witness Gilmour. He denied meeting Gilmour before appearing at court.

65 Early in the summing up, the judge reminded the jury (SU 13) that the appellant said he did not stab the victim. He later reminded the jury of that evidence (see later SU 3). The central issue was a narrow one and the appellant’s evidence about it was brief. No further direction relevant to this ground was sought at the trial. It seems to me that the summing up sufficiently reminded the jury of the issues that it had to address, such as were addressed in the appellant’s evidence.

66 This ground has not been established. In the absence of any relevant complaint r 4 applies and I would refuse leave to rely upon the ground.

Ground 2: The verdict was unreasonable

67 This ground involves consideration as to whether it was open to the jury on the evidence to be satisfied beyond reasonable doubt as to the guilt of the accused: see M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439.

68 The Crown case depended essentially upon the jury accepting the victim as a truthful and a reliable witness. He had consumed heroin shortly before the stabbing. He had been spoken to by the police on 25 October 2002. The victim described his attacker as “Skondo” and then said that he had thin, blond scruffy hair “which hangs just above his shoulders”. He said he was wearing a light coloured T-shirt and black shorts. This differed from the description that he gave in his evidence in chief (T 17, 16 October 2003). In court he said he had

“short hair and scruffy clothes, a white shirt and a black sort-of jacket, jumper over them. He had shorts on and scabby shoes and a backpack.”

69 Of course, as far as the victim was concerned, he claimed to have an acquaintance with the appellant in 1999, so that he knew him prior to the date of the attack. The appellant acknowledged some acquaintance with the victim in 1999.

70 The victim said that following the stabbing he was unconscious for some days but was then interviewed in hospital by Det. Constable Morrison. He said he was reluctant to name his attacker but he did so after a few minutes. In cross examination he agreed that he supplied a description to police on 25 October 2002 but he said he had indicated prior to that date that “Skondo” was the person responsible (T 74). The victim’s evidence found support in the evidence of Constable Morrison who said that she interviewed the victim in hospital on 17 October 2002 and, having done so, returned to the Kings Cross detectives’ office and made inquiries in an attempt to locate a person by the name of “Skondin” (T 216). This evidence invites the inference that the victim named the appellant as his attacker on the occasion of his first interview in hospital.

71 The victim identified the appellant as a person shown in the newsagency security footage.

72 There was, of course, evidence from other sources which was inconsistent with the evidence of the victim, including the evidence of Mr Gilmour.

73 Mr Gilmour described the victim’s attacker as

“Caucasian, 160 centimetres in height, of medium height, carrying a yellow and black backpack, forty or fifty years of age, wearing a flannelette shirt and carrying a big silver knife with a serrated blade.”

74 That description was given to Constable Glasson within a very short time of the stabbing (T 162).

75 Mr Gilmour gave a different description at trial, saying the attacker

“was bald on top, with grey hair around the edges, and flat nose like he had been hit heaps of times. He looked like a bum, with a grey flannelette shirt, dirty jeans and that.” (T 99).

76 When shown the newsagency security footage, he said that the person pointed out was not the attacker and that the person on the video did not even resemble the attacker (T 125-126).

77 Mr Kirchengast gave evidence of crossing through the park where the victim was attacked, and of noticing three men sitting in a triangle. Two were in their mid twenties with short hair, and the third man looked to be over thirty years of age and to be scruffier and more unkempt than the other two. That third person had brown hair, a light coloured or white shirt and shorts and socks and shoes. He had a bigger build than the other two men.

78 Another witness, Mr Zordan, also passed the park and saw three men, two of whom were younger than the third. He saw they were “fitting up”. The third man was distinctly different to the younger guys in that “[he] was older, he was scruffier looking, he had a beard, and he was thinner and he looked unkempt.” He could not recall what he was wearing.

79 Mr Tomasich came upon the victim after he had been stabbed. He was leaning on the back of a car. He told Mr Tomasich he had been stabbed. He pleaded with Mr Tomasich to “take him away from this man”. Mr Tomasich saw a tall man, about six foot, very well built, very well groomed, carrying a dog. However, Mr Tomasich observed that it was apparent that that person had not been the victim’s attacker, and he concluded the attacker had already left the scene.

80 The descriptions given by Mr Gilmour, Mr Kirchengast and Mr Zordan did not assist the Crown. The prosecution case was by no means an overwhelming one, depending as it did essentially upon the acceptance of the victim’s evidence, notwithstanding the different descriptions he had given of his assailant, together with such support as the jury perceived the security camera footage afforded. The Court has seen that footage.

81 Having considered the evidence before the jury, including the camera footage, I have concluded that it was open to the jury on that evidence to be satisfied beyond reasonable doubt as to the guilt of the appellant, and Ground 2 fails.

82 I have, however, already expressed my opinion as to the alibi evidence which the jury did not have the opportunity of considering, and its possible effect had the jury had such evidence before it.

83 In summary then, I am of the opinion that this appeal should succeed. The appellant has now served the fixed term sentence that was imposed, in its entirety. In R v Hasenkamp (unreported, NSWCCA, 24 February 1998) Grove J referred to the “longstanding practice of the court not to exercise [the] discretion to order a new trial where the sentence imposed as a result of the quashed conviction has been served”. In that case, by majority, it was determined since almost all of the minimum term of a sentence had been served that there should be no order for a new trial. It seems to me in the circumstances that a like approach should be adopted here.

84 Hence, I would allow the appeal and propose that the verdict of guilty be quashed absolutely and that no new trial be ordered.

85 WHEALY J: I agree with the reasons of Studdert J and the orders that he proposes.

86 HOWIE J: I agree with Studdert J.

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