Vickers v R

[2006] NSWCCA 60

Reported Decision: 160 A Crim R 195

New South Wales

Court of Criminal Appeal

CITATION:	Vickers v R [2006] NSWCCA 60
HEARING DATE(S):	23 February 2006
JUDGMENT DATE:	31 March 2006
JUDGMENT OF:	James J at 1; Simpson J at 20; Hall J at 117
DECISION:	Appeal against conviction dismissed.
CATCHWORDS:	appeal against conviction - maliciously inflicting grievous bodily harm - assault occasioning actual bodily harm - admission of evidence over objection - statement tendered at trial pursuant to s65(2)(b) and (c) of Evidence Act 1995 - maker of statement unavailable to give evidence - objection taken on grounds of late notice and discretionary factors - no separate objection to content of evidence - whole of statement admitted - whether trial judge erred in admitting statement - - whether trial judge failed adequately to warn jury of the danger of relying on the evidence of the statement - directions to jury adequate to draw attention to any potential unreliability of statement, including those parts now held to have been inadmissible - hearsay provisions of the Evidence Act - exceptions to the hearsay rule - identification of previous representation - identification of what fact was intended to be asserted by previous representation - relevant evidence - evidence of out of court representation by one person cannot be given by out of court representation of another person - evidence of previous representations inadmissible - effect of admission of inadmissible evidence of previous representation - Criminal Appeal Rules, rule 4 - whether appellant requires leave before being permitted to argue admissibility of previous representations as a ground of appeal - Criminal Procedure Act s68, s289 - appellant waived right to committal hearing - proviso to s6 of the Criminal Appeal Act - admission of the inadmissible evidence would and should have had no significance in verdict - evidence properly admitted proves beyond reasonable doubt guilt of the offence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 199 s9 Criminal Appeal Act 1912 s6 Criminal Appeal Rules, rule 4 Criminal Procedure Act 1986 s68, s289 Evidence Act 1995 s55, s56, s59, s60, s62, s65, s66, s67, s81, s82, s135, s137, s165, s192
CASES CITED:	House v The King [1936] HCA 40; 55 CLR 499 Lee v The Queen [1998] HCA 60; 195 CLR 594 R v Plevac (1995) 84 A Crim R 570 Weiss v The Queen [2005] HCA 81; 80 ALJR 444
PARTIES:	Brett David Vickers - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2005/2457
COUNSEL:	HK Dhanji - Appellant V Lydiard - Respondent
SOLICITORS:	William O'Brien Solicitors - Appellant S Kavanagh - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0920
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ

2005/2457

JAMES J
SIMPSON J
HALL J

Friday 31 March 2006

Brett David VICKERS v REGINA

Judgment

1 JAMES J: I have read in draft the judgment of Simpson J and I agree with her Honour’s conclusion that the appeal against conviction should be dismissed. I agree with most of her Honour’s reasons for reaching this conclusion but I would like to make some comments of my own.

2 In Simpson J’s judgment her Honour has summarised the facts of the offences, parts of the appellant’s trial and the relevant provisions of the Evidence Act and the Criminal Procedure Act and there is no need for me to repeat any of those matters in this judgment.

3 In her judgment Simpson J has held that the parts of the statement of Matthew James Gould reading “I heard him (the appellant) say that he was provoked in the male toilets” and the appellant said “I know”, after Mr Gould had asked the appellant to go back to his boat, were not admissible under s 65 of the Evidence Act and not admissible under s 289 of the Criminal Procedure Act; that, nevertheless, the admission of these parts of Mr Gould’s statement did not involve any “wrong decision of any question of law” or a “miscarriage of justice” within s 6 of the Criminal Appeal Act; that leave under r 4 of the Criminal Appeal Rules was required in order that the appellant should be allowed to rely on the first ground of appeal but that leave should be granted; that leave should not be granted to rely on the second ground of appeal or, alternatively, if leave was granted, the ground of appeal should be rejected; and that, alternatively to her Honour’s holding that the admission of the parts of Mr Gould’s statement had not established any ground within s 6(1) of the Criminal Appeal Act, the appeal should be dismissed under the proviso to s 6(1), that is on the basis that no substantial miscarriage of justice had occurred.

4 I agree that the parts of Mr Gould’s statement were not admissible under s 65 of the evidence Act or s 289 of the Criminal Procedure Act, that if leave is required in order that the appellant should be allowed to rely on the first ground of appeal, leave should be granted and that the second ground of appeal should be determined adversely to the appellant and I agree with her Honour’s ultimate conclusion that the appeal against conviction should be dismissed. However, I would prefer, without expressing an opinion on whether the admission of the parts of Mr Gould’s statement established any ground within s 6(1) of the Criminal Appeal Act, to dismiss the appeal on the basis that, assuming that some ground within s 6(1) was established, the proviso to s 6(1) should be applied in favour of the Crown.

5 As I have already indicated, I agree with Simpson J that the parts of Mr Gould’s statement in which he said that “I heard him (the appellant) say that he was provoked in the male toilets” and that the appellant said “I know”, after Mr Gould had asked the appellant to go back to his boat, were not admissible under s 65 of the Evidence Act.

6 As to the first of these parts of Mr Gould’s statement, it is clear, in my opinion, that the fact, the existence of which the Crown should be taken as having sought to prove by this part of Mr Gould’s statement, was, not that Mr Gould had made a representation, either orally to the police officer who took his statement or in the written statement itself, that he had heard the appellant say that the appellant had been provoked in the male toilets, a fact which would have been irrelevant; and not that the appellant had made a representation to Mr Gould that the appellant had been provoked in the male toilets, a fact which would also have been irrelevant; but that the appellant had in fact been provoked in the male toilets, a fact which was, at least arguably, relevant as being capable of rendering it less likely that the appellant had acted in self defence, as distinct from acting under provocation.

7 However, this part of Mr Gould’s statement was not admissible under s 65 of the Evidence Act to prove that the appellant had in fact been provoked, because, as evidence of that fact, it was not first-hand hearsay but second-hand hearsay and, by virtue of s 62 of the Evidence Act, s 65 is restricted to first-hand hearsay. The evidence of this part of Mr Gould’s statement was evidence of a previous representation made by Mr Gould that a previous representation had been made by the appellant that the fact sought to be proved had happened.

8 The situation in the present case is similar to the situation in Lee v The Queen (1998) 195 CLR 594, with the appellant corresponding to the appellant Lee in Lee’s case and Mr Gould corresponding to the witness Calin in Lee’s case.

9 The situation in the present case is an example of the form of remote, and not first-hand, hearsay, which was discussed by the Australian Law Reform Commission in its report Evidence Report No. 26 interim (1985) Vol 1 par 678 and by the High Court in Lee at 602-603 (35), where one person A gives evidence of what a second person B said that a third person C had said in order to prove a matter of which only C had first-hand knowledge. In the present case the police officer who gave evidence at the appellant’s trial can be regarded as filling the role of person A, Mr Gould can be regarded as filling the role of person B and the appellant can be regarded as filling the role of person C.

10 This part of the statement was not admissible under Pt 3.4 of the Evidence Act as an admission, because by virtue of s 82 evidence of an admission which is not first-hand evidence is not admissible.

11 For similar reasons the part of Mr Gould’s statement stating that the appellant said “I know” was not admissible under either s 65 or Pt 3.4 of the Evidence Act.

12 I agree with Simpson J that Mr Gould’s statement cannot be regarded as having been properly admitted under s 289 of the Criminal Procedure Act. Mr Gould’s statement was not a “prescribed written statement” within subs (1) of s 289, because, no committal hearing having taken place, neither the whole nor any part of the statement had been admitted or rejected as evidence under Div 3 of Pt 2 of ch 3 of the Criminal Procedure Act and neither the whole nor any part of the statement had been admitted as evidence under Div 5 of Pt 2 of ch 3 of the Criminal Procedure Act.

13 Section 289 of the Criminal Procedure Act was not mentioned at all, when Mr Gould’s statement was tendered at the trial and its admissibility was argued and it can be inferred that the only basis on which the Crown prosecutor at the trial submitted that the statement was admissible was that it was admissible under s 65 of the Evidence Act.

14 I seriously doubt whether, even if a statement happens to fall within the definition of “prescribed written statement” in s 289(1), its admission into evidence at a criminal trial can be justified ex post facto on the ground that it was admissible under s 289, if that was not the basis or a basis on which it was tendered. Section 289 of the Criminal Procedure Act imposes certain obligations on a trial judge in admitting a statement under s 289, including determining whether the statement is a “prescribed written statement” within subs (1), whether the trial judge should otherwise order within subs (2) and whether the conditions of admissibility in subs (3) are satisfied. Unless the statement is explicitly tendered on the basis that it is admissible under s 289, the trial judge will not be alerted to the need to discharge these obligations and is unlikely to discharge these obligations.

15 As I have previously indicated, Simpson J considers that leave under r 4 of the Criminal Appeal Rules is required in order that the appellant should be allowed to rely on the first ground of appeal but that leave under r 4 should be granted.

16 I am also of the opinion that, if leave under r 4 is required, such leave should be granted. However, I would prefer to reserve the question on whether leave under r 4 is required. It is unnecessary for me to decide this question in order to determine the appeal.

17 The question of whether leave under r 4 was required in order for the appellant to be allowed to rely on the first ground of appeal was only very briefly dealt with in argument on the appeal. The only case referred to in the argument was R v Plevac (1995) 84 A Crim R 570 and it was the Court which brought this case to the attention of counsel.

18 Plevac is not an entirely satisfactory authority, partly because it was unclear to the Court of Criminal Appeal in that case what had been the extent of counsel for the appellant’s objection at the trial. Furthermore, Plevac was a very different case from the present case. Plevac was a case decided before the Evidence Act came into force and concerned the admissibility of a hearsay statement under the exception to the hearsay rule at common law whereby a statement forming part of the res gestae was admissible.

19 I agree with what Simpson J has written in determining the second ground of appeal and in holding (alternatively) that the proviso to s 6 of the Criminal Appeal Act should be applied in favour of the Crown and I have nothing to add to those parts of her Honour’s judgment.

20 SIMPSON J: On 16 February 2005 the appellant was arraigned in the District Court on an indictment charging (i) that he maliciously inflicted grievous bodily harm on Tom Nichols (Count 1) and (ii) that he assaulted Marcus Cross, occasioning to him actual bodily harm (Count 2). On 21 February 2005 the jury returned a verdict of guilty on each count.

21 On 14 April 2005 Blackmore DCJ sentenced the appellant. On the first count he imposed a sentence of a fixed term of imprisonment for two and a half years, to be served by way of periodic detention. On the second count he deferred passing sentence conditional upon the appellant entering into a bond pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Procedure Act”).

22 The appellant now appeals against the convictions. He has not sought leave to appeal against the sentences.

the Crown case

23 Each offence was alleged to have been committed late in the evening of 21 December 2003 or in the early hours of the following morning in the Fisherman’s Club at Brighton-Le-Sands. The appellant was a director of the club. He was present at a table drinking with friends. He was behaving in a disruptive fashion. Complaints were made about his behaviour by other patrons, who were present at another table, with the two victims. At about midnight Mr Nichols went to the male toilets. The appellant followed and hit him on the head. This was in retaliation for the complaints made earlier that evening. Mr Cross also entered the toilets and intervened. The appellant poked him in the eye. Mr Nichols was rendered unconscious for a short time. He was assisted by Mr Cross and by a woman who gave evidence in the Crown case, Diedra Murphy. Mr Nichols was bleeding. He was taken to a hospital, where he underwent surgery. Mr Cross received medical attention to his eye.

the defence case

24 The appellant’s case was that the incident was initiated and provoked by Mr Nichols and that he, the appellant, acted in self-defence. He gave evidence. He claimed that when he went to the toilet a man (who must have been Mr Nichols) already in the toilets made an offensive remark to him, to which he replied equally offensively. He claimed that as he began to urinate the man tackled him, causing him to slide into the trough. The appellant punched the man and pushed him off. This caused the man to hit his head on the wall. Another man, Dave Mitchell, came through the door, followed by Mr Cross. The appellant became “entangled in a bit of a fury of words” with Mr Cross, but did not know that Mr Cross had been poked in the eye. He agreed, however, that there had been “pushing and shoving”, involving himself, Mr Cross and Mr Nichols. He described this as:

“... a big tangle up between the three of us”.

the appeal

25 The grounds of appeal are narrow. Two related grounds are pleaded. Each concerns evidence admitted over objection. This evidence was the content of a statement made to investigating police by a Mathew James Gould, who, it was accepted, was unavailable to give evidence in person. The statement was tendered through a police officer, Senior Constable Edward Taylor. Constable Taylor had not in fact been involved in taking the statement from Mr Gould, but that is immaterial for present purposes. Mr Gould gave an account of the events as he observed them on the evening in question. He identified himself as having been the duty manager at the club on the night of the incident. He said that, at the time, only two groups of patrons were present in the club. One of the patrons had made a complaint about the conduct of the appellant. Mr Gould asked the appellant to return to his “boat” (presumably terminology used in the Fisherman’s Club for the table or area occupied). The appellant replied to this by saying, “I know”. Mr Gould saw another patron (from the other group) walk towards the toilets and saw the appellant also walk towards the toilets. Mr Cross and Mr Mitchell did the same thing. Mr Gould followed. Inside he saw a male patron (plainly Mr Nichols) with his hand covering his left eye. He saw Mr Mitchell pushing the appellant back towards the other side of the room; and heard the appellant say:

“Don’t try to pick me.”

Mr Gould told the appellant to leave. He saw the appellant reach behind Mr Gould with his right hand over his left shoulder. Mr Gould turned and saw that Mr Cross had his hand over his left eye. He pushed the appellant out of the toilet block and then returned to the toilet. He saw blood on the hand towel. He observed a five centimetre cut on the left-hand side of Mr Nichols’ forehead, just above his eye. Mr Gould walked towards the guests remaining in the auditorium. He heard the appellant arguing with patrons at Mr Nichols’ table.

26 Mr Gould’s statement then contains the following controversial sentence:

“I heard him [the appellant] say that he was provoked in the male toilets.”

27 At the trial objection was taken to the admission of the whole of the statement. Counsel then appearing for the appellant asserted that the statement was tendered by the Crown pursuant to s65(2)(b) and (c) of the Evidence Act 1995. The Crown Prosecutor did not dissent from that assertion.

28 S65 of the Evidence Act applies in a criminal proceeding where a person who made a previous representation is not available to give evidence about an asserted fact. (The text of s65 is set out below.) As indicated above, it was common ground that Mr Gould was not available to give evidence about the facts asserted in his statement. S65 operates, in defined circumstances, to permit hearsay evidence (by s59 rendered inadmissible, unless, by one of the exceptions enacted in subsequent provisions, s59 is itself made inapplicable to the particular evidence) to be given in a criminal trial.

29 By s67, s65(2) is inapplicable where the party seeking to adduce evidence thereunder has not given reasonable notice in writing of his or her intention to adduce the evidence. By s67(4) the court may, notwithstanding the absence of notice, direct that s65(2) applies. The effect of s67 is, therefore, that hearsay evidence that would ordinarily be inadmissible by reason of s59, but is made admissible by reason of s65(2), again becomes inadmissible unless reasonable notice has been given, or unless the court exercises the subs(4) discretion to waive the notice requirement.

30 The Crown Prosecutor told the judge that notice had been served, but counsel for the appellant added that notice had been given only four days before the date fixed for the commencement of the trial. He then put an argument against admission of the evidence based only upon discretion. He gave a number of reasons why the discretion should be exercised against the admission of the statement. The transcript records him as saying:

“It was late notice and we have never cross-examined Mr Gould, there was no committal proceedings, obviously, having been, this matter having gone straight to trial, and when the matter was, the paper committal there was no mention of the unavailability of one of the witnesses. There were also, on my instructions, things that I wanted to put to Mr Gould which ... assist the defence case and his unavailability would leave up in the air, it will be a one-sided – I shouldn’t use the word ‘one-sided’. All you have is a statement being read to the jury and that’s the end of it.”

31 It is to be observed that no objection was taken on the basis that the evidence did not come within s65(2). Objection was taken solely on the basis that reasonable notice had not been given, and that, for discretionary reasons, the evidence ought, in any event, be excluded. Presumably by these submissions counsel intended to invoke all or any of ss67(4), 135 and 137 of the Evidence Act. It remains the case in this Court that no contention is made that the evidence does not come within s65(2).

32 After consideration Blackmore DCJ admitted the statement. He gave reasons for doing so. He considered, firstly, the impact of the late notice, and came to the view that earlier notice would not have made any, or any significant, difference. He held that the notice given was, in the circumstances, not unreasonable.

33 He then turned to the other discretionary factors mentioned, and observed that he had not been told what the “things” were that counsel wanted to put to the witness. He considered that the evidence from Mr Gould about the appellant’s demeanour on the night of the events was potentially important, and that his evidence would “clearly” be an important aspect in the jury’s assessment as to who was the aggressor. In this respect he noted his understanding that the appellant proposed to rely upon self-defence as an answer to one, if not both, of the charges. He considered that Mr Gould had been shown, on the evidence already admitted, to be an important eye-witness to the events and that, even if the appellant denied the conversations with him asserted by Mr Gould, that would not affect Mr Gould’s observations (of events and conduct). He concluded that the evidence should be before the jury so that they could adequately address the issues in the case. He noted that, on admission of the evidence, he would give a direction in accordance with s165 of the Evidence Act. He stated that he had considered ss135, 137 and 192 of the Evidence Act and determined that the evidence would be admitted and that any unfairness could be addressed by a direction. He in fact did, immediately, give such a direction.

34 Once his Honour had determined to admit the statement, no further discussion about its content took place. No objection was taken by counsel to the admission of any discrete part of the statement on any ground. All involved proceeded on the basis that, the two bases of objection (absence of adequate notice, and prejudice arising from the inability to cross-examine) having been determined adversely to the appellant, the whole of the statement would be admitted.

35 On this appeal it was not contended that Blackmore DCJ erred in the approach he took to the issues that were aired before him, or in the exercise of his discretion in admitting the statement.

36 The grounds of appeal as pleaded were not directed at the whole of the statement. They were concerned only with that sentence in the statement in which Mr Gould said:

“I heard him say that he was provoked in the male toilets.”

The grounds of appeal were framed as follows:

“1. The learned trial judge erred in admitting into evidence the prior representation of Mathew Gould that he heard the appellant say ‘ that he was provoked in the male toilets’.
2. A miscarriage of justice was occasioned by the failure of the trial judge to adequately warn the jury of the danger of relying on the evidence of Mr Gould in relation to the admission alleged to have been made by the appellant.”

37 At a late stage during the hearing of the appeal leave was sought to widen the first ground by including complaint also about the admission of the evidence of the conversation in which Mr Gould claimed to have asked the appellant to return to his “boat” to which, he said, the appellant replied, “I know”.

ground 1 – admission of evidence

38 As will be apparent from the manner in which the first ground of appeal is framed, no point is taken in relation to the admission of the evidence as it was argued before and decided by Blackmore DCJ. The only issues raised before his Honour were those I have already identified: late notice and the lack of opportunity to cross-examine Mr Gould. No error is asserted in the way his Honour dealt with that issue, or in his conclusion. At no point was any individual part of the statement the subject of objection. Nor was either of the parts of the statement now the subject of appeal the subject of any separate submission – for example, that counsel wished to cross-examine Mr Gould in relation to that part of the statement, or indeed to challenge him as to the accuracy of that part of the statement. It may well be that, had separate objection been taken at the trial to either of those portions of Mr Gould’s statement now the subject of objection, either or both would have been excised.

39 At the outset of the appeal counsel for the Crown was asked to specify what it was that the Crown sought to prove by the tender of that part of Mr Gould’s statement in which he attributed to the appellant the assertion that he had been provoked. The reply was that the evidence constituted an admission on the part of the appellant (i) that he had struck Mr Nichols, and (ii) that he had done so in circumstances in which no attack had been made upon him by Mr Nichols. (I have serious reservations about whether that part of the statement can fairly be taken to convey the second of these meanings, but this ground of appeal can be decided upon acceptance of Mr Crown’s interpretation.)

40 On behalf of the appellant it was argued that the statement attributed to him, that he was provoked, was second-hand hearsay, and rendered inadmissible by reason of s82 of the Evidence Act, and on the analysis of the High Court in Lee v The Queen [1998] HCA 60; 195 CLR 594. (The same argument would apply to that part of the statement later included in the ground of appeal in which the appellant was said to have replied, “I know” to Mr Gould’s request that he return to his “boat”. In my opinion, in this context, those words should be interpreted as an acknowledgment on the part of the appellant that his behaviour to that point had been unacceptable, so as to justify Mr Gould’s request that he return to his “boat”. In any event, that appears to be the basis upon which the Crown contends that that part of the statement was admitted under s65(2).) The Crown argued to the contrary, contending that the evidence was not second-hand hearsay, and not inadmissible.

41 It is therefore necessary to consider in some detail the hearsay provisions of the Evidence Act. These principally appear in Part 3.1.

42 The starting point is s59. That section relevantly provides:

“ 59 The hearsay rule—exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact .”


This exclusionary rule is, as the heading indicates, known as “the hearsay rule”.

“Representation” is defined in the Dictionary, relevantly, as including:

“(a) an express or implied representation (whether oral or in writing) ...”

A “previous representation”, also defined in the Dictionary, is:

“a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.”

43 In the sections which succeed s59 are enacted a series of exceptions and qualifications thereto. Those presently relevant are:

(i) s60 , which provides:

“ 60 Exception: evidence relevant for a non-hearsay purpose

The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation”;
(ii) s65 , which, in subs(1), is expressed to apply in a criminal proceeding where a person who made a previous representation is not available to give evidence about an asserted fact, and which relevantly provides:

“(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:


(a) made under a duty to make that representation or to make representations of that kind, or

(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c) made in circumstances that make it highly probable that the representation is reliable, or

(d) against the interests of the person who made it at the time it was made”;

(iii) s66 , which, in subs(1), is expressed to apply in a criminal proceeding where a person who has made a previous representation is available to give evidence about an asserted fact, and which relevantly provides:

“(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:


(a) that person, or

(b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.”

44 By s62 the exceptions provided in Division 2 of Part 3.1 are restricted to evidence that is “first-hand” hearsay. That section provides:

“ 62 Restriction to “first-hand” hearsay

(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.”

45 Admissions are a specific species of hearsay evidence. “Admission” is defined in the Dictionary as:

“... a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person’s interest in the outcome of the proceeding.”

46 By s81 evidence of admissions is excepted from the hearsay rule; by s82, the exception provided by s81 is itself the subject of exception unless the evidence of the admission is given by a person who saw, heard or otherwise perceived the admission being made. (This is commonly referred to as a prohibition on evidence of an admission by second-hand hearsay.)

47 It is convenient here also to refer to ss55 and 56. By s56(1), except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding; by subs(2), evidence that is not relevant in the proceeding is not admissible.

48 S55(1) defines “relevant evidence” as:

“(1) ... evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.”

49 At this point it is convenient to be more precise about the characterisation of Mr Gould’s statement. The statement was, in reality, a series of linked representations made by Mr Gould. It may be assumed that he made the representations orally to a police officer, and that he made them in writing when, by signing the statement, he adopted them. As noted above, the statement was tendered through Senior Constable Taylor, although Senior Constable Taylor had not been present at the time the statement was taken. Sensibly, no point was taken that Senior Constable Taylor had not seen, heard or otherwise perceived Mr Gould making the representations; there was no issue that the statement (that is, each individual representation) had, in fact, been made to the other police officer who had accordingly seen, heard or otherwise perceived Mr Gould making the representations, and could, accordingly, (provided that the individual representations were relevant) have given evidence to that effect. Notionally, therefore, the hearsay evidence that was given and that was admitted under s65(2) was the evidence of Senior Constable Taylor (standing in for the officer to whom the statement had been made) that he had heard (and/or seen) Mr Gould make a series of representations made admissible by s65(2).

50 It is then necessary to consider the nature of the evidence now the subject of controversy. I will begin with the statement initially the only subject of the ground of appeal – that the appellant said that he had been provoked, (and continuing to accept the interpretation placed upon it by the Crown). The same principles will, of course, apply to the other evidence, but it will be necessary to consider it separately.

51 The first task is to identify the “previous representation” sought by the Crown to be admitted under s65(2); that will necessarily identify the person by whom the representation is said to have been made. The second task is to identify the “fact” that person intended to assert in the representation. The third task is to identify a fact in issue, or a fact relevant to a fact in issue in the proceedings, the probability of the existence of which is said to be affected by the evidence.

52 There are, in fact, two previous representations and it is important to distinguish between them. One is the representation made by Mr Gould that he heard the appellant say that he had been provoked. That was an express oral representation made by Mr Gould to, and heard by, the police officer who took his statement; alternatively (or additionally), it was an express written representation made by Mr Gould and seen or perceived by the police officer who took, and witnessed, the statement. The other representation is the representation contained in the words attributed by Mr Gould to the appellant, that he had (in fact) been provoked. On the face of Mr Gould’s statement, this was an express oral representation made by the appellant and heard by Mr Gould. This latter representation was relied upon by the Crown as an admission by the appellant – that is, a representation made by the appellant adverse to his interest in the outcome of the proceedings.

53 The question which then arises, pursuant to s59, is what fact or facts Mr Gould intended to assert by his representations. His representation that he had heard the appellant say that he (the appellant) had been provoked was no more than that – that is, a representation that Mr Gould had heard the appellant say that he had been provoked. Mr Gould did not intend to assert any more than that. He did not intend, and was not in a position, to assert that the appellant had in fact been provoked (or, if he did, it was beyond his capacity to do so, because it was outside his knowledge). It was the appellant’s representation that was intended to assert that fact.

54 If the fact that the appellant had said that he had been provoked (as distinct from the fact that the appellant had been provoked) were relevant, then (subject to any other relevant provision of the Evidence Act, or any other impediment), s65(2) would have rendered the evidence contained in that part of the statement admissible. But the fact that the appellant said that he had been provoked was not relevant to any issue in the trial; it could have been relevant only if it could also be used in proof of the truth of what the appellant had said.

55 Counsel for the Crown sought, in a sense, to retreat from his earlier specification of what the statement attributed by Mr Gould to the appellant was said to prove. He expressly sought to rely upon Mr Gould’s statement as evidence that the appellant had in fact been provoked.

56 The identification at the commencement of the appeal by the Crown of what was sought to be proved by the statement attributed to the appellant is, in my view, the correct characterisation. That is, the Crown tendered, and sought to rely upon, that statement as evidence that the appellant had struck Mr Nichols and had done so in the absence of any attack by Mr Nichols upon him. That was, in my view, plainly impermissible. In my opinion, the case is indistinguishable from Lee, to which I will shortly come. The evidence contained in Mr Gould’s statement of what the appellant had said was inadmissible. I repeat, that was because it was not relevant to prove the fact that the appellant had said he was provoked (with the connotation placed upon that statement by the Crown); it was necessary for the Crown to prove that the appellant had struck Mr Nichols, without having first been struck by Mr Nichols; and to seek to prove that through the appellant’s statement heard by Mr Gould was, in these circumstances, to seek to prove it impermissibly through second-hand hearsay.

57 The same, in my opinion, applies to that part of Mr Gould’s statement in which he asserted that, on being asked to return to his “boat”, the appellant had said “I know”. Although those words may appear to lack clarity, they ought, in the circumstances, and contrary to the submission of the Crown, to be interpreted as an admission or acknowledgment that his conduct had been such as to justify the request made by Mr Gould. (The construction sought to be placed by the Crown upon the appellant’s answer was that it was merely an acknowledgement that he had been spoken to by Mr Gould.) On the interpretation that I favour, that part of Mr Gould’s statement was also tendered to prove the truth of the fact that the appellant had intended to assert. As with the statement about his having been provoked, Mr Gould’s statement was inadmissible to prove that fact.

58 Either could have been proved through oral evidence given by Mr Gould, had he been available; what was not permissible was to prove either through the hearsay statement of Mr Gould, via the evidence of a police officer.

59 The “previous representation(s)” which s65 rendered admissible was (were) here (subject to relevance) the previous representation(s) made by Mr Gould. It was not the representation (as to his conduct) attributed to the appellant. This was precisely the situation that pertained in Lee. What was held in that case is summarised accurately in the headnote in the Commonwealth Law Report. It was:

“... s60 did not permit an out of court statement which was itself a report of what another had said to be used as proof of the truth of what was reportedly said, and, accordingly, that evidence of the out of court statement was not admissible as evidence of the truth of the confessional statement.”

60 The issue in Lee arose in different circumstances, but the reasoning in that case is equally applicable to the present.

61 There, a witness had made a statement to police in which he attributed to the accused person certain representations of a confessional character. When the witness was called in the accused person’s trial to give evidence, including evidence of those confessional representations, he claimed to have no recollection of such a conversation. The Crown sought leave to cross-examine the witness in order to elicit evidence of what he had told police, and tendered oral evidence through two police officers, and documentary evidence in the form of a statement signed by the witness, of what the witness had attributed to the accused. The ultimate objective of the Crown was to prove, not that the accused person had made the confessional representations, but that the confessional representations were true. That is precisely what the Crown here seeks to do. The cases are indistinguishable.

62 The exception to the hearsay rule that was relied upon in Lee was s60, which excludes the application of the hearsay rule to evidence that is admitted for a purpose other than proof of the fact intended to be asserted by the representation: in that case the purpose for which evidence of the witness’ representations was tendered was to show that the witness had made a prior inconsistent statement and that his credibility was thus affected [28]. To that extent the witness’ previous representations were admissible, through evidence given by a person who heard him make them. But the exception provided by s60 applied only to the previous representations made by that witness; it did not also apply to the previous representations said to have been made to the witness by the accused person. S82 precluded the admission of evidence of previous out of court statements made by the witness, that the accused person had made those representations. It would not have precluded evidence being given by the witness in court that the accused person had made those representations.

63 That the exception there relied upon was the s60 exception, and not the s65 exception here relied upon, is immaterial. The High Court made it clear that evidence of an out of court representation by one person cannot be given by the out of court representation of another person. That is, however, what the Crown here seeks to establish. It cannot be done.

64 The present case neatly illustrates another point made by the High Court in Lee, at [32] – [35] concerning the reforms made by the Evidence Act to the common law hearsay rule. The Court pointed out that those reforms are limited (to permitting first-hand hearsay), and the reason for that limitation. That reason is the inherent unreliability of second-hand hearsay, affected as it is by the honesty and accuracy of the recollections of the person who is said to have heard, seen or otherwise perceived the making of the original representation, but who does not himself, or herself, actually give evidence. Here, if Mr Gould’s previous representations as to what he heard the appellant say were to be admitted, there was no way that his honesty or accuracy could be tested or could be evaluated by the jury. What would not be known would be his position in relation to the appellant at the time the appellant was said to have made the statements, the ambient noise, and any other distractions that might have affected his capacity accurately to capture what the appellant said. Those matters could be tested if he gave the evidence himself orally, but could not, in the circumstance that his account was given by the hearsay evidence of another witness, or in documentary form.

65 Part 3.1 of the Evidence Act was designed and intended to relax the old common law prohibition on the admission of hearsay evidence. It was not designed or intended to abolish the prohibition altogether or to render remote (and therefore potentially extraneous and unreliable) hearsay statements admissible. It was intended to contain a brake upon the relaxation of the common law hearsay rule; that brake is contained in s82. It operates on the evidence here in question. That evidence was inadmissible.

Criminal Appeal Rules, rule 4

66 On the hearing of the appeal an issue arose as to whether, having regard to the provisions of rule 4 of the Criminal Appeal Rules, the appellant requires leave before being permitted to argue the admissibility of the evidence as a ground of appeal.

67 Rule 4 is in the following terms:

“ No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal.” (italics added)

68 On behalf of the Crown it was contended that no relevant objection had been taken at the trial, and that the appellant therefore required leave to raise the ground, and that leave ought to be refused. Counsel for the appellant agreed that, objection to the whole of the statement having been taken, the conditions of Rule 4 had been met, and that leave was not required.

69 That raises an important issue as to the scope of rule 4.

70 What happened in the present case, as I have earlier outlined, was that counsel for the appellant objected, on discretionary grounds, to the admission of the whole of Mr Gould’s statement. He did not at any stage argue that it, or any part of it, was not admissible under s165(2); he argued, presumably invoking the judicial discretions conferred either by s67(4) or s135, that the evidence ought to be excluded. He also appears obliquely to have relied upon s137. Neither s67(4) nor s135 is a section directed to admissibility – each is a section reserving a discretion to the court to exclude evidence of the character identified. S137 is, properly characterised, a section directed to admissibility. The nearest counsel could be said to have come to an argument that the evidence was inadmissible was to put to the trial judge matters that might be construed as raising s137, pursuant to which (in a criminal case), if a court is of the view that the probative value of a particular piece of evidence is outweighed by the danger of unfair prejudice to the defendants, then the court is obliged to exclude that evidence – that is, once the judgment is made that the probative value of the evidence is outweighed by the danger of unfair prejudice, then s137 renders the evidence inadmissible.

71 In fact, counsel never drew attention to, or even mentioned, any of these sections. The legal foundation on which he put his objection has to be divined from the rather cryptic submissions he made.

72 Once the decision had been made that those objections failed, he made no further objection as to the admissibility of any individual part of Mr Gould’s statement.

73 Nevertheless, counsel for the appellant argued in this Court that, once objection is taken, rule 4 has no further application. That is, that once objection – that is, objection of any kind, and on any basis - is taken on any ground to a particular piece of evidence, then rule 4 will not operate to prevent the raising of an entirely different objection to the same piece of evidence.

74 To accept the appellant’s contention would be to cast an extraordinary burden upon trial judges. It not infrequently happens that evidence, whether oral or documentary, is tendered, and objection is taken to the whole of the evidence of a witness, or of a document. An obvious example is an electronically recorded interview with the person subsequently charged. These frequently are extremely lengthy documents. On the appellant’s argument, if objection were taken to the whole of such an interview, on the ground, for example, that it was not voluntary, and, if that objection were resolved against the accused, and no subsequent objection taken to any individual part of the interview, it would, nevertheless, be incumbent upon the trial judge (at the risk of falling into appellable error) to determine the admissibility of every individual answer given in the interview. The judge would be required to take that course without knowing the contents of the brief (at least of counsel for the accused), and frequently without having been enlightened as to the true issues in the proceedings. The proposition only needs to be stated to be seen as untenable.

75 There are, however, some passages in the authorities said to support the contention of counsel for the appellant. One such is R v Plevac (1995) 84 A Crim R 570, a decision to which I was a party. There, in a joint judgment, this Court said:

“If an objection was indeed taken, although counsel may not have formulated the basis thereof as precisely as might have been expected, leave to argue this ground is not required. If, on the other hand, and as appears more likely, no objection was taken, leave is required: Criminal Appeal Rules, r4.”

The Court in that case did not find it necessary to determine the application of rule 4, holding that the error there identified was fundamental and of such potential significance that, if necessary, leave ought to be (and was) granted to argue the point.

76 I cannot accept the appellant’s proposition. S6 of the Criminal Appeal Act 1912 provides for a number of grounds of appeal, including, relevantly “the wrong decision of any question of law”, and “that on any other ground whatsoever there was a miscarriage of justice”. The contention of the appellant is that the evidence was wrongly admitted. Admission of evidence involves a question of law. The appellant must be taken to be raising a ground that the decision to admit the evidence involved the wrong decision of a question of law. Judges decide questions that are put before them by the parties for determination. In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, with reference to rule 4, McHugh J commented that, where objection has not been taken at trial, the trial judge cannot be said to have made an error of law, because he or she has not been asked for a ruling. That reasoning is equally apposite where, as here, a relevant ruling has not been sought. The question that was put before Blackmore DCJ for determination was whether, in the exercise of his discretion, he should reject the whole of Mr Gould’s statement. Since the questions under s165(4) and s135 involved discretionary determinations, those determinations may only be reviewed on appeal on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The question under s137 involves an evaluation, the result of which dictates whether the evidence is or is not admissible. That evaluation too, may only be reviewed on the principles stated in House. If the grounds established that (and they obviously do not), it would be open to the appellant here to argue error of law in the determination not to reject the whole of the statement under ss67(4), 135 or 137. Yet the appellant now seeks to argue, not that there was any House-type error in the exercise of discretion, or in the s137 evaluation, but that two parts of the statement were not admissible by reason of the provisions of the Evidence Act. This is a far cry from the objection that was taken at the trial. The judge has made no error of law in that respect, because is was never put before him for determination.

77 I recognise that on one very literal construction of the words in rule 4, the appellant might draw some comfort. However, closer analysis of the rule strips that comfort away. The “decision” in question was not a decision (made over objection) that the two passages now in contention were admissible evidence; such a decision was never made, because the judge was never called upon to make such a decision. The decision he made was a decision, made after consideration of discretionary matters, and evaluation, that Mr Gould’s statement, in its entirety, would be admitted.

78 In my opinion, the appellant requires leave under rule 4 if he is to be permitted to argue this ground. In the unusual circumstances of this case, I would grant leave. As I have indicated, I am of the view that the particular passages in the statement were inadmissible. That does not, however, necessarily lead to the conclusion that the ground should succeed.

79 The statement that the appellant said that he had been provoked, even if construed as contended for by the Crown had, in my opinion, little, if any, significance. No reference was made to it in the addresses of either counsel, or by the judge in summing up. As I have indicated above, I have doubts about the interpretation proposed by the Crown of the words or the interpretation that the jury, unaided by any submissions about what should be read into the words, would have placed upon them. This Court did not receive any contrary submission on behalf of the appellant; it was not, on appeal, in his interests to accept a benign interpretation. The substance of the evidence (as interpreted by the Crown) was in evidence from other sources: for example, a witness called Graham Watson, who was called in the prosecution case, said in his evidence-in-chief that, on the day after the incident, he encountered the appellant who mentioned the events of the previous evening and said that while he was in the toilet:

“... a bloke walked up behind him and he turned around and kicked him in the head and then urinated on him.”

80 When asked further questions in chief, Mr Watson said that it was the appellant who urinated on the other man. In cross-examination he confirmed that he had said that the appellant told him that somebody had walked up behind him; he then said:

“... I said that Brett Vickers told me that someone walked up behind him and went to hit him, he spun around and kicked him in the head and then urinated on him.”

81 While Mr Watson’s evidence was not always clear, this answer did make it clear that the representation that he attributed to the appellant was that another person – Mr Nichols – had initiated the violence, and that the appellant had reacted. In one sense this evidence was more damaging to the appellant than the controversial sentence in Mr Gould’s statement because it detailed a far greater level of violence on the part of the appellant; on the other hand, so far as it dealt with the question of who initiated the violence, it favoured the appellant’s account.

82 Even the phraseology of the contested passage did not seriously cut across the case the appellant sought to make – that it was Mr Nichols who was the aggressor. Indeed, it seems to me that the passage in Mr Gould’s statement is consistent with the defence advanced by the appellant himself – that he responded to an attack upon him. True it is, on one interpretation of what Mr Gould attributed to the appellant, he acknowledged something of an overreaction, but this, in the light of the evidence Mr Watson had given, could not have done him any more harm. No attention was paid to, or reliance placed upon, the disputed words in the address of the Crown Prosecutor in the address of defence counsel, or in the summing up. The words effectively disappeared without trace.

83 Even less were the words “I know” attributed to the appellant by Mr Gould of significance. They, also, were simply never mentioned by counsel or by the trial judge.

84 There was no error of law in the admission of either passage. The admission gave rise to no miscarriage of justice. There is then no basis under s6(1) of the Criminal Appeal Act to allow the appeal in this respect. Accordingly, I would not uphold this ground of appeal.

ground 2 - directions

85 No application was made to the trial judge for directions of any kind in relation to the disputed passage in Mr Gould’s statement. Accordingly, there is no issue that leave under rule 4 is required if the appellant is to be permitted to rely upon this ground.

86 Immediately after reading Mr Gould’s statement to the jury, Blackmore DCJ gave a strong direction pursuant to s165 of the Evidence Act. His Honour exhorted the jury to be cautious in respect of the evidence; he told them that the evidence was potentially unreliable in a number of respects, which he identified. He pointed out that Mr Gould was not available to be cross-examined; that his statements had been taken down, presumably by a police officer and so there was no certainty whether the words on the page were the precise words used by Mr Gould or whether it was “a compilation” of the words of the police officer and Mr Gould; and he pointed out that it was not a statement on oath or affirmation. He therefore told the jury that the statement may be unreliable and repeated that the jury needed to be cautious in using it.

87 His Honour repeated these warnings in the summing up.

88 The complaint that is now made is that the very strong warnings given related to the whole of the statement and were not directed to the particular passages now under consideration.

89 On behalf of the appellant it was submitted that, specifically in relation to the “I was provoked” passage, the judge should have warned the jury:

- that the part of the statement complained of was not only hearsay, but second-hand hearsay;

- that the words attributed to the appellant were not in direct speech and may not have been his precise words;

- that the statement attributed to the appellant was not made directly to Mr Gould but was overheard by him and his capacity accurately to hear (by reason of distance, orientation, and background noise) were not known;

- that evidence of an admission is easily fabricated and not easily disproved and the motive for fabrication will not always be apparent, even to the accused person;

- that the admission, if made, may have related either to the conduct giving rise to count 1 or to count 2;

- that two important prosecution witnesses did not support the making of the admission.

90 In my opinion, ground 2 fails. The directions given in relation to the whole of the statement were perfectly adequate to draw to the jury’s attention any potential unreliability in Mr Gould’s statement, including those parts of it now held to have been inadmissible.

91 I would not grant leave to argue this ground; if leave were granted, I would reject the ground.

Criminal Procedure Act , s289(1)(b)

92 In relation to Ground 1, an alternative response was put on behalf of the Crown, to the effect that, had objection been taken to the admissibility of the whole of the statement under s65 of the Evidence Act, (as distinct from the objections that were taken, that relied, essentially, upon discretionary matters) it would have been open to the Crown to tender the statement under the provisions of s289(1)(b) of the Criminal Procedure Act 1986.

93 S289 relevantly provides as follows:

“289 Written statement admitted in committal proceedings

(1) This section applies to:

(a) a written statement the whole or any part of which has been admitted as evidence under Division 3 of Part 2 of Chapter 3, including any part of the statement that has been rejected under that Division,
(b) a written statement the whole or any part of which has been tendered as evidence under Division 5 of Part 2 of Chapter 3,


referred to in this section as a “ prescribed written statement” .

(2) Except in so far as the court otherwise orders, a prescribed written statement may be admitted as evidence for the prosecution at the trial of the accused person on proof on oath that the person who made the statement:

(a) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person’s life, or
(b) is absent from Australia.
...
6) If at a trial it appears to the court that the whole or any part of a prescribed written statement is inadmissible, the court may reject the statement or that part, as the case may be, as evidence.”

94 S68 of the Criminal Procedure Act (which appears as part of Chapter 3, Part 2, Division 2, concerning “committal proceedings generally”) provides:

“Accused person may waive committal hearing

68 Despite any other provision of this Part, the Magistrate may, at any time, on the application of the accused person, and with the consent of the prosecutor, commit the accused person for trial.”

95 Division 3 of Part 2 of Chapter 3 of the Criminal Procedure Act appears under the heading “Prosecution Evidence” and contains detailed provisions concerning the prosecution evidence to be given in committal proceedings in respect of indictable offences. Division 5 appears under the heading “Procedure if accused person pleads guilty” and is not presently material.

96 It will be appreciated from the clear words of s289(1)(a) that the admissibility in a trial of a prescribed written statement provided for in s289(2) depends upon that prescribed written statement having been admitted, in whole or in part, as evidence under Chapter 3, Part 2, Division 3.

97 This Court was provided with an affidavit affirmed by Ms Philippa Winston, a solicitor employed in the Office of the Director of Public Prosecutions. Ms Winston researched the files and material relating to the committal proceedings in relation to the charges faced by the appellant. That evidence shows that, on 22 July 2004, the appellant made an application under s68 to waive his right to a committal hearing in respect of the charges, and the prosecution consented to the application. An order was accordingly made by the Magistrate in the following terms:

“I order the Accused Person to be committed to trial to the District Court at Sydney and to appear before such Court on 30th day of July 2004.”

98 Since that order obviated the need for any committal proceeding, it seems clear that no statements, including that of Mr Gould, were “admitted” under Chapter 3, Part 2, Division 3 of the Criminal Procedure Act. S289(2) was therefore not activated and, in my opinion, Mr Gould’s statement could not have been admitted under that section in the appellant’s trial.

99 I am conscious of the considerable ramifications which might attach to this view. Strictly speaking, because Mr Gould’s statement was not, at trial, tendered under s289, it is not necessary to decide this issue raised by the Crown. However, the argument was put, and the consequences are potentially so significant, that I have come to the view that I should at least express the view I have reached. That is, that where a person accused of an indictable offence under s68 of the Criminal Procedure Act waives the right to a committal proceeding, and the Crown consents, as a result of which a magistrate commits that person for trial without there having been a committal proceeding, so as to obviate the admission of the statements of prosecution witnesses, and where the maker of the statement becomes relevantly unavailable to give evidence, then s289(2) does not permit those statements to be read on a trial. This gives rise to a considerable gap in the capacity of the prosecution to adduce relevant evidence on a trial.

100 Ms Winston pointed out that the District Court file contains the police brief of evidence, which, in turn, appears to contain the statement attributed to “James Gould” who is identified as the Bar Manager of the Fishermen’s Club, and which is obviously a mistaken reference to Mr Mathew James Gould. That does not alter my view that s289(2) would not have made his statement admissible on the appellant’s trial.

101 Even if this were incorrect, I would not decide the appellant’s ground of appeal on the basis that Mr Gould’s statement could have been made admissible by an alternative route, never raised at the trial. When counsel for the appellant said that the statement was to be tendered under s65, the Crown Prosecutor made no dissent. That may even have been because he recognised that, there having been no committal proceeding, and the statement not having been admitted at committal proceedings, s289 had no application. It may have been for other reasons.

102 In its opening words, s289(2) reserves to the trial court a discretion, in the widest terms, to refuse to admit a statement tendered under the subsection. Subs(6) reserves the right to reject any part of a statement as inadmissible. Had s289 been raised at the trial, the trial judge would have been required to consider and exercise those discretions. It is inappropriate for this Court to take on that role.

103 I reject the Crown’s argument that Ground 1 should fail because Mr Gould’s statement may have otherwise been admissible.

the proviso to s6 of the Criminal Appeal Act

104 Since I have concluded that inadmissible evidence was placed before the jury, and notwithstanding my expressed view that that does not establish any ground of appeal for which s6 provides, I should conclude by referring to the proviso to s6.

105 I have already mentioned the grounds of appeal for which s6(1) of the Criminal Appeal Act provides. It is now necessary to consider the well-known proviso to that subsection. It provides as follows:

“... provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

106 The Crown contended that, even if this Court were to find that either of the grounds of appeal was made good, nevertheless, it should apply to the proviso to dismiss the appeal.

107 The task of this Court in considering the application of the proviso has most recently been the subject of explanation by the High Court in Weiss v The Queen [2005] HCA 81; 80 ALJR 444. It is a task to be undertaken in the same way as the task of determining a ground of appeal that a verdict of guilty is unreasonable or cannot be supported having regard to the evidence. The court is required to:

“... make its own independent assessment of the evidence and determine whether, making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.” (internal references omitted)

108 Their Honours then said:

“[43] There are, however, some matters to which particular attention should be drawn. First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not ‘to speculate upon probable reconviction and decide according to how the speculation comes out’. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt.” (internal reference omitted; italics in original)

Finally, the Court laid down three “fundamental propositions”. They are:

(i) “...the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred”;
(ii) “... the task of the appellate court is an objective task not materially different from other appellate tasks”;
(iii) “... the standard of proof of criminal guilt is beyond reasonable doubt.”

And the Court offered one negative proposition, in the following terms:

“[44] ... It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.”

109 I have already made some reference to evidence, besides that the subject of the grounds of appeal, in the trial. There was an abundance of evidence about the appellant’s conduct, both before and after the occurrences in the toilets.

110 The complainant, Mr Nichols, described observing a person who was pointed out to him as a director of the club (obviously the appellant) who was, on Mr Nichols’ arrival, “fairly drunk”. Ms Deidra Murphy gave evidence that she arrived at the club at about 9.00 or 9.30 pm and joined Mr Nichols and Sean (also known as John) Brosnan. She said that the appellant approached their table “and was pretty loud and obnoxious”, attempting to engage her group in conversation, an attempt which was rebuffed by them. She then saw the appellant drop his pants. He continued to be “loud, obnoxious, swearing”. She reported his conduct to the Manager. Shortly after she decided to leave. She saw the appellant walk from the direction of the men’s toilets towards the table that she and her group had occupied, towards Mr Brosnan, where:

“He was basically, wanted to have a go at Sean, accusing Sean of reporting him, ...”

In cross-examination of Ms Murphy it was elicited that, in a statement to police, she had said that the appellant was dancing in his bare feet.

111 Ms Murphy was challenged as to the evidence she gave about the appellant’s conduct in “dropping his trousers” but her evidence to this effect was confirmed by Mr Brosnan.

112 Evidence given by Mr Graham Watson, who was called in the prosecution case, was also of some significance. Mr Watson had not been present in the club on the evening in question, but was there very early the following morning to repair one of the club’s boats. At about 6.30 am he saw the appellant and had a conversation with him. He then recounted the conversation, referred to above, in which the appellant described to him his part in the events. That included the following:

“... he turned around and told me that he was in the toilet and a bloke walked up behind him and he turned around and kicked him in the head and then urinated on him.”

113 In answer to another question, he said:

“Brett Vickers urinated on whoever it was, was in the toilet, I didn’t know who it was at the time.”

In cross-examination he gave this evidence:

“... I said that Brett Vickers told me that someone walked up behind him and went to hit him, he spun around and hit him in the head and then urinated on him. That is what is in my statement and that is what I am saying now.”

114 It was put to him that the appellant had not said any such thing, but he adhered to his evidence.

115 Applying the test laid down in Weiss, I am satisfied that no substantial miscarriage of justice has actually occurred. I am satisfied that the admission of the inadmissible evidence would and should have had no significance in determining the verdict that was returned. The evidence properly admitted at trial proves beyond reasonable doubt the appellant’s guilt of the offence with which he was charged.

116 I would dismiss the appeal against conviction.

117 HALL, J: I have read in draft form the judgment of Simpson, J. and I agree with her Honour’s conclusion that the appeal against conviction should be dismissed and also with the reasons expressed in support of that conclusion.

118 There is one matter about which I record an additional comment. That matter is whether or not it can be said that a decision was made over an objection on behalf of the appellant on the basis of the admissibility of relevant statements of Mr. Gould for the purposes of Rule 4 of the Criminal Appeal Rules.

119 I am of the opinion that leave should be granted pursuant to Rule 4, if such leave is required, without deciding whether such leave is necessary in this case.

120 Whilst I consider, with respect, that the reasons stated by Simpson, J. in support of her Honour’s conclusion, that leave under Rule 4 is required, to be persuasive, for the reason expressed in the judgment of James, J., at [17], I defer from expressing a concluded opinion on that matter and upon the issues that are subjacent to it.

121 That said, I am, as I have stated, in agreement with the orders proposed by Simpson, J.

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