Winning v The Queen - [2003] WASCA 245

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: WINNING -v- THE QUEEN [2003] WASCA 245

CORAM: MURRAY J
HASLUCK J
ROBERTS-SMITH J

HEARD: 23 JUNE 2003

DELIVERED : 13 OCTOBER 2003

FILE NO/S: CCA 199 of 2002

BETWEEN: MARK DOUGLAS WINNING
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction - Whether jury should have been discharged - Assertions by co-accused at previous trial concerning events at previous trial - Jury instructed to disregard these assertions - Whether instruction to disregard sufficient in the circumstances - Further grounds of appeal - Whether it was open to jury to find accused guilty of being an accessory after the fact to an unlawful killing other than wilful murder - Application of rule in Jones v Dunkel - Whether jury should have been invited to conclude from the failure by the Crown to call a co-offender that her evidence would not have assisted the Crown case

Legislation:

Criminal Code, s 10, s 562, s 594, s 595, s 599D, s 689

Result:

Leave to appeal refused

Category: A

Representation:

Counsel:

Applicant: Mr T F Percy QC & Mr N J Mullany
Respondent: Mr R E Cock QC & Mr C Williams

Solicitors:

Applicant: Pearman Grantham
Respondent: State Director of Public Prosecutions

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

Avis v The Queen [2002] WASCA 250
Crofts v The Queen (1996) 186 CLR 427
Dyers v The Queen (2002) 210 CLR 285
Festa v The Queen (2001) 208 CLR 593
Gilbert v The Queen (2000) 201 CLR 414
Hobby v The Queen; Zaghet v The Queen, unreported; CCA SCt of WA, Library No 990013, 22 January 1999
Jones v Dunkel (1959) 101 CLR 298
M v The Queen (1994) 181 CLR 487
Mraz v The Queen (1955) 93 CLR 493
R v Apostilides (1984) 154 CLR 563
R v Barlow (1997) 188 CLR 1
R v Carter & Savage, Ex parte Attorney-General [1990] 2 Qd R 371
R v Dawson [1961] VR 773
R v English (1993) 10 WAR 355
R v Evans & Lewis [1969] VR 858
R v Firth [1938] 3 All ER 783
R v Kneebone (1999) 47 NSWLR 450
R v McLean [2001] 3 NZLR 794
R v Peckham (1935) 25 Cr App Rep 125
R v Richards (1877) 2 QBD 311
R v Stone [1981] VR 737
R v Weaver [1968] 1 QB 353
R v Whittaker (1993) 68 A Crim R 476
R v Wright [1999] 3 VR 355
Ross v The King (1922) 30 CLR 246
RPS v The Queen (2000) 199 CLR 620
Whitehorn v The Queen (1983) 152 CLR 657
Wilde v The Queen (1988) 164 CLR 365
Wilson v Dobra (1955) 57 WALR 95
Winning v The Queen [2002] WASCA 44

Case(s) also cited:

Fonseka v The Queen [2003] WASCA 111

MURRAY J: In this matter, I have had the benefit of reading in draft the reasons for decision of both Hasluck and Roberts-Smith JJ. The view to which I have come in this case is that the application for leave to appeal against the applicant's conviction for the offence of murder should be dismissed.
As to the first ground of appeal, the complaint that the trial Judge erred in failing to discharge the jury (despite the absence of any such application by the defence) on the ground of statements made by the witness Avis in open court and in the course of his evidence during his cross‑examination, I have nothing to add to what their Honours have written.
As to ground 3, the complaint that his Honour erred by failing to give the jury a direction based on the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298, again I am in entire agreement with the views expressed by Hasluck and Robert-Smith JJ. I wish to add only one brief observation.
Jones v Dunkel was, of course, a civil case, albeit concerned with trial by jury. The direction envisaged in that case: see particularly the judgment of Windeyer J, at 320-1, is one concerned with the drawing of an inference. To tell a jury that they might suppose that the evidence of the absent witness would not help the case of the party who might be expected to have called the worker is to convert the absence of the witness into "some evidence" of facts, about which the witness might have testified, unfavourable to the party against whom the inference is to be drawn. Presumably the fact that the witness is not called becomes itself something akin to a piece of circumstantial evidence.
The High Court in Dyers v The Queen (2002) 210 CLR 285 made it clear why such a direction will, as I read the judgments of the majority, virtually never be appropriate where it is suggested in a criminal trial that the witness might have been called by the accused. As to the suggestion that such a direction might be given where it is said that the prosecution has failed to call a witness, Gaudron and Hayne JJ, with whom Kirby J agreed, at 291 [6] made the obiter observation that:
"… as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses."
It will be noted that their Honours say that the occasion where such a direction might be given will be rare and it will only arise in circumstances where the witness is not only established to have been available, but to be one who should have been called by the Crown in the discharge of its duty to place before the Court all available material evidence.
For my part I would add that I would find it difficult to see how such a direction could be justified unless the speculation about what the witness might have said is overcome by evidence which would show what the witness ought to have been able to say. I find it difficult to see even in those circumstances how the jury might be assisted to consider whether the Crown has discharged the burden of proof beyond reasonable doubt by the negative direction that they might consider that the evidence of the absent witness "would not have assisted the prosecution", unless they are to be told that they may take the absence of the witness as evidence of particular facts. One can see then why such a direction ought to be a rarity. I find it difficult, for myself, to envisage any situation in which it would be fair to give the direction sought.
However that may be, it must be even more rare that the decision of a trial Judge that such a direction should not be given could itself be a ground for holding that the trial has miscarried. Suffice it to say that in this case, not only was it abundantly clear that the trial Judge did not err in his refusal to give the direction sought, but in my view, with respect, his Honour was right not to do so.
I turn then to the second ground of appeal and the proposition, as the ground is expressed, that the Judge erred in:
"Declining to direct the jury that, in all the circumstances of the separate trial, should they find the Applicant aided in the unlawful killing of Lister by Avis, it was open to them to find the Applicant guilty of being an accessory after the fact to an unlawful killing other than wilful murder."
There appears to me, with respect, to be a confusion of thought behind the way in which the ground is formulated. If the jury found proved to the required standard the fact that the applicant aided Avis to kill Lister, then he would be guilty of wilful murder, murder or manslaughter by the application of s 7 of the Code, depending upon his knowledge at the time he rendered the aid, of the intention with which Avis caused the death of Lister. In my view, it would never be appropriate for a trial Judge in those circumstances to hold that upon that ground it was appropriate to leave to the jury the accused person's guilt as an accessory after the fact.
An accessory after the fact is not a person who is guilty of the principal offence because he aids its commission, because he counsels or procures it, or because he is part of a common enterprise and his guilt of the principal offence flows from an application of s 8. By definition, under s10(1), an accessory after the fact to an offence is, "a person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment".
Apart from receiving or assisting an offender and the need to prove that the purpose of doing so included enabling the offender to escape punishment, s 10(1) makes clear that it is necessary to prove the offence which has been committed. The proof of guilt as an accessory after the fact starts from that point and it is right to say that a person does not become an accessory after the fact unless he or she knows what offence has been committed. There are cases which deal with the mode of proof of the commission of the original offence. The decisions of R v Dawson [1961] VR 773 and R v Carter & Savage, Ex parte Attorney-General [1990] 2 Qd R 371, discussed by Hasluck and Roberts‑Smith JJ, are cases dealing with that question.
It is necessary also to prove that the accessory after the fact knows what offence has been committed at the time when he or she receives or assists an offender. It is not necessary for present purposes to consider what is meant by knowledge in this context, but it is certainly right to say that if the jury finds that a particular offence has been committed and does not find that the alleged accessory knew that to be the case, then the person charged as an accessory after the fact must be acquitted.
In addition it may be accepted, as the majority in R v Carter held, that where, for example, it is alleged that the principal offence was murder, the person accused as an accessory after the fact may avoid conviction as an accessory after the fact to murder by adducing evidence that the principal offence was manslaughter. It would, I take it, be sufficient to raise a reasonable doubt that the principal offence was murder.
But this ground raises no question concerned with the circumstances in which it would be open to convict a person as an accessory after the fact to any particular offence and no complaint is made that the trial Judge failed to explain the concept of an accessory after the fact and the circumstances in which a person might be guilty of that offence. The complaint is that despite the fact that the Crown's assertion was that the principal offence was wilful murder, the trial Judge should have left to the jury that if they were not satisfied that the applicant was implicated in the homicide they could return a verdict of guilty as an accessory after the fact to wilful murder, to murder, or to manslaughter. As I understand it, the proposition is that such alternatives were open because the appropriate verdict would be guilty of being an accessory after the fact "to whatever offence [the jury] might have thought he was intending to assist or conceal". His Honour declined to give any such direction and in my opinion he was right.
The question is of what offences was the applicant liable to be convicted on an indictment for wilful murder.
Originally in many jurisdictions, at common law, it was thought to be important that upon an indictment for homicide no other offence should be joined, so that the jury were required to focus upon the charge brought and so that they might not compromise their verdict. Hence in this State, s 585 of the Code, which provides the rules about joinder of offences against the same person, contained a final paragraph providing that:
"This section does not authorise the joinder of a charge of wilful murder, murder, or manslaughter, with a charge of any other offence."
That was generally interpreted as providing a rule more strict than the common law in that it precluded even the joinder of one homicide with another where two persons were killed at the one time. This paragraph of the section was deleted by the amending Act No 2 of 1982.
So far as accessories after the fact are concerned, the offence of being an accessory after the fact to an indictable offence is created by the Code, s 562. Section 587 provides, inter alia, that:
"A person … who becomes an accessory after the fact to an offence, may be charged in the same indictment with the principal offence, and may be tried with him or separately, or may be indicted and tried separately, whether the principal offence has or has not been convicted, or is or is not amenable to justice."
The repeal of the last paragraph of s 585 therefore allowed a separate count, for example, in an indictment for a form of homicide, charging the principal offender in the alternative with being an accessory after the fact to the homicide charged or, with the aid of s 586(7), a different person from the principal offender charged with the homicide could be charged in the same indictment with being an accessory after the fact to that homicide.
The principal offender, if charged, for example, with wilful murder, could then be convicted of murder or manslaughter under s 595:
" … if either of those crimes is established by the evidence, but not, except as herein expressly provided, of any other offence than that with which he is charged."
Following the creation in 1986 of the crime of infanticide under the Code, s 281A, s 595 was amended in 1987 to take the form which it now does. It provides in respect of an indictment for wilful murder that the accused may be convicted of murder, manslaughter, infanticide, other offences under s 283, 290 and 291 of the Code and the offence defined by the Road Traffic Act 1974, s 59. The phrase formerly in this section, "but not, except as herein expressly provided, of any other offence than that with which he is charged", was dropped from the section.
At the same time, by the amending Act No 106 of 1987, ss 599A, 599B, 599C and 599D were added. Section 599A provides:
"Upon an indictment charging a person with committing any offence, he may be convicted of attempting to commit, or of inciting another person to commit, that offence or any other offence of which he might be convicted on the indictment." (My emphasis)
It is to be borne in mind that the general provision empowering the conviction upon an indictment of other offences not pleaded in the indictment is s 594 which provides:
"Except as hereinafter stated, upon an indictment charging a person with an offence he may be convicted of any indictable or simple offence under this Code, or any other indictable offence, which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment."
It follows from s 599A that upon an indictment for wilful murder the accused may be convicted, not only of those substantive offences specified in s 595, but also with attempting to commit or inciting another to commit any of those other substantive offences. The same course is taken in s 599B when a person is charged with attempting to commit an offence. He may then be convicted, not only of the principal offence, but of committing or attempting to commit, "any other offence of which he might have been convicted if the indictment had charged him with committing the principal offence."
Section 599C deals with charges of conspiracy. The special rules there provided may be set to one side, but s 599D deals expressly with an alternative verdict of being an accessory after the fact. It provides:
"Upon an indictment charging a person with committing an offence, he may be convicted of becoming an accessory after the fact to that offence."
In my opinion, the difference between that formulation and that particularly to be found in ss 599A and 599B must be accepted to be deliberate. The enactment of s 599D in 1987 marked the first occasion when, upon an indictment for wilful murder, for example, without a separate charge of being an accessory after the fact, the person charged with the wilful murder might be convicted of becoming an accessory after the fact, but only to that offence. The net was cast no wider. The accused could not be convicted on an indictment for wilful murder of being an accessory after the fact to murder or manslaughter, even though those would be offences of which he might be convicted on the indictment for wilful murder. In my opinion, the trial Judge was correct not to leave those hidden alternatives to the jury, having regard to the terms of this indictment. Section 599D marked the extent of the relaxation of the principle which limits the capacity of the jury on a charge of homicide to return other hidden verdicts.
It follows that, with respect for the contrary view, I would not accept that the words "that offence" in s 599D are to be construed as encompassing all alternative verdicts open on the indictment. To my mind, the argument is circular. The alternative verdicts open on the indictment for wilful murder are those expressly permitted by the Code and no others. In my view, it would need to be expressly provided if, on an indictment for wilful murder, it was open to convict the accused, not only of being an accessory after the fact to that offence, but also of being an accessory after the fact to murder or being an accessory after the fact to manslaughter, on the basis simply that the accused might be convicted of those two principal offences upon that indictment. If those alternatives are to be open, in my view they would need to be specially pleaded as alternative counts in the indictment itself.
As I take that view I am relieved of the need to consider whether, the applicant having been convicted of the offence of murder, any miscarriage of justice might have occurred as a result of the trial Judge's refusal to put the further alternatives sought. However, if I am wrong in the view I have expressed I am attracted to the conclusion of Hasluck and Roberts‑Smith JJ that the proviso should be applied; that no substantial miscarriage of justice has occurred because, on the basis of directions about which no complaint is made, the jury convicted the applicant of murder. I agree with their Honours that nothing in Gilbert v The Queen (2000) 201 CLR 414 would require a contrary conclusion.
As I understand the reasoning of the majority in Gilbert, it is based on the proposition that the jury's verdict could only be regarded as being unassailable, so that the proviso might have application, in a case where the verdict returned was one chosen by the jury, about which they were satisfied beyond reasonable doubt, when they had been given a proper understanding of the alternative verdicts which might be returned upon the indictment. The alternative verdict of manslaughter not having been left, it could not be said that had the jury known of their entitlement to return a verdict of unlawful killing simpliciter they would necessarily have returned the verdict of murder.
In my opinion, this is a quite different case. This jury were left as an alternative to conviction of a form of homicide, the alternative verdict of an accessory after the fact to wilful murder. In returning the verdict of murder they must have rejected the proposition that the accused was not implicated in the unlawful killing, but was merely an accessory after the fact. The verdict of murder would therefore necessarily have been returned even if other forms of being an accessory after the fact had been left. However, as I say, no such other alternatives could be left and this ground is to my mind not established.

As I said at the outset of these reasons I would refuse the application for leave to appeal.
HASLUCK J: The applicant, Mark Douglas Winning, seeks leave to appeal against his conviction for murder after a trial before a jury on 18 October 2002. The application raises issues concerning the circumstances in which it is appropriate for a Jones v Dunkel direction to be given in the course of a criminal trial, whether it was open to the jury to convict the applicant as an accessory after the fact to murder or manslaughter and the steps to be taken in dealing with unfounded allegations made by a witness in the course of a trial.

Background

Initially the applicant was indicted jointly with Kevin Avis and a woman named Julie Harris on a charge of wilfully murdering Howard Lister at Craigie on 24 September 1999. They were jointly tried before Templeman J and a jury between 6 March and 6 April 2001 and all three were convicted of wilful murder. Those convicted were each sentenced to substantial terms of imprisonment.
On 7 March 2002 the Court of Criminal Appeal allowed an appeal by the applicant, with the result that his conviction was quashed and a new trial was ordered: Winning v The Queen [2002] WASCA 44. An appeal brought by Avis was unsuccessful with the result that he remained subject to a term of life imprisonment with a minimum period of 17 years before he becomes eligible for parole: Avis v The Queen [2002] WASCA 250.
As a consequence of the applicant's successful appeal he was again presented for trial pursuant to an indictment dated 7 October 2002 that on 24 September 1999 at Craigie he wilfully murdered Howard Lister. The applicant was convicted of murder following a trial before McKechnie J and jury which concluded on 18 October 2002 in the Supreme Court of Western Australia sitting in Perth. The applicant was sentenced to a term of life imprisonment with a minimum of 11 years before parole.
Kevin Avis, the applicant's co‑accused at the first trial in relation to the same homicide, was called as a witness for the Crown and gave evidence against the applicant at the second trial. Ms Harris was not called as a witness by either party at the second trial.
The grounds of appeal the subject of the present application bring into issue the role of Avis and Ms Harris as persons who were in the company of the applicant on the evening in question and, in the case of

Avis, as a person who gave evidence against the applicant at the second trial. I will turn to the grounds of appeal shortly. However, before doing so, it will be useful to look at the circumstances of the case.

The circumstances of the case

It seems that Lister and Ms Harris were de facto husband and wife. They lived in Craigie with the latter's son, Nathan. Both were habitual heavy drinkers and frequent patrons of the Whitfords Tavern. They were both there on 23 September 1999. During the evening they argued. After Lister was removed from the tavern by a staff member, he walked back to the unit shared by the couple and fell asleep in a chair in the lounge room.
The incident between Lister and Ms Harris had been observed by Avis and Winning who worked together in a fencing business owned by Avis. After the argument Ms Harris remained at the tavern. She, Avis and Winning left at closing time and were seen in the car park speaking together. Avis and Winning gave Ms Harris a ride home in their motor vehicle.
It was the Crown case that after leaving the tavern, and before they arrived at the unit, Ms Harris sought the help of Avis and Winning to kill Lister. The Crown case was that the two men agreed. When they arrived at the unit, Ms Harris remained in the car while Avis and Winning knocked on the front door. It was answered by the boy Nathan who was told to leave the house. He did so.
In the course of the police enquiries, and at the later trials, Avis and Winning provided a different account of what then occurred. However, it is clear on all versions of the matter, that a knife obtained from a kitchen drawer in the house was used to fatally wound Lister as he slept in the lounge chair, causing his death within minutes. After Lister was killed, Ms Harris came into the unit and the three agreed to dispose of the body in the Gnangara Pine Plantation.
The disposal of the body was attended to by Avis and Winning who buried Lister in a shallow grave in the pine plantation. That done, they drove the deceased's car into a tree, doused it with petrol and set it alight. They then left the area in their vehicle.
On the Crown case, Ms Harris cleaned the blood in the lounge room and put off Lister's employer when he arrived the following morning. She said that she and Lister had argued and that Lister had left. Later that day Avis and Winning returned and took further steps to conceal what had been done. Soon afterwards Ms Harris and her son Nathan left for New South Wales by bus.
When Avis and Winning were first interviewed by the police they told a previously rehearsed story that Ms Harris was responsible for the death. However, as the interviews continued over a lengthy period, the stories changed. Ultimately, Winning said that it was Avis who stabbed Lister in his presence. On the other hand, Avis said that while Winning was doing something in the kitchen, he (Avis) went to the toilet. When he returned, Lister was in the chair choking on his own blood as a result of injuries inflicted by Winning with a knife.

The summing up

It was against this background that, towards the end of his summing up at the applicant's second trial, McKechnie J told the jury that in essence the Crown's case was that Avis and Winning were working as a team on the night in question. They aided each other by each other's presence and it mattered not who struck the fatal blow. Both were in it together.
In describing the defence case, his Honour referred to the defence concession that Mr Winning was at the scene on the night in question. However, the defence case was that Winning was not part of the offence. He did not stab the deceased and he did not know that Avis had any intention of murdering Lister. Winning did not assist Avis in any assault on Lister that night.
More particularly, the defence case was that the applicant went into the house, went to the toilet, got a beer, had a cigarette, observed Avis handling some knives in the kitchen, thought that Avis was stealing them, and the sudden killing of Lister by Avis came to Winning as a surprise. His Honour reminded the jury that it was not necessary for Winning to establish the facts he relied on. It was necessary for the prosecution to disprove those facts pursuant to its obligation to prove the Crown case beyond reasonable doubt.
It was common ground at the hearing of the present application that the prosecution brief submitted to the defence team prior to the commencement of the second trial informed the opposing side that Kevin Avis would be called as a witness for the Crown. The prosecution brief did not include any reference to Ms Harris. It seems that her version of the relevant events did not square with any other account and was thought to be unreliable. It will be apparent from the procedural history I have provided that, as at the commencement of the second trial, both Avis and Ms Harris had been convicted of wilful murder and were serving substantial terms of imprisonment.

The opening addresses

At the second trial, as at the first trial, the Crown did not seek to nominate either Avis or Winning as being the person who inflicted the fatal stab wounds. The Crown case proceeded from the premise that it was sufficient to establish that Avis and Winning were working as a team when the blows were struck with the result that both were parties to the offence and each could be convicted of the offence of wilful murder.
While opening the prosecution case at the commencement of the second trial, counsel for the Crown, pursuant to arrangements made with defence counsel, informed the jury that there had been a previous trial concerning the matter. He referred also to the position of Ms Harris and to the possibility of alternative verdicts. He said this at 1278 of the transcript:
"In this particular trial I should mention now that there are a number of alternative charges which are laid under the Criminal Code. His Honour will address you about those alternative verdicts later in the trial. During this trial you will realise that there has been a previous trial concerning these issues and in this particular matter the trial before you, however, is solely concerned with Mr Winning, Mark Douglas Winning.
During the trial you will hear about Kevin Avis who I have already mentioned. He was the other man who went to the house with Mr Winning. So the two men, Avis and Winning, went into the house. You will also hear about Julie Harris. Julie Harris was the girlfriend or the de facto wife of Howard Lister. She remained outside whilst the two men went inside the house. You won't hear from Julie Harris during the course of the trial. She won't be giving evidence. However, you will be hearing from Kevin Avis. He will tell you about what he did that night. He will speak about his version of what happened inside the house."
At the conclusion of the Crown's opening address, defence counsel made an opening statement with a view to narrowing the issues which included reference to the role of the applicant as an accessory after the fact. Counsel for the applicant said this at 1285 of the transcript:
"Yes. Mr Foreman, just so that we can narrow the issues a little in this case, his Honour afforded me the unusual opportunity of being able to put what the accused says in relation to this matter so that in essence you are not distracted by something that is not a real issue for you in the case. The accused's position in this trial is that no issue is taken with the fact that the deceased Howard Lister was unlawfully killed at the time and at the place alleged by the crown. The accused's position, however, is that the deceased was murdered by Kevin Avis.
The circumstances relating to the murder, the accused will say, are precisely as he told the police in a video record of interview on 14 October. The accused will admit that he had initially, together with Avis, resolved to tell the police a misleading story about the events in question but that he had a change of heart at around 5 pm on 14 October after speaking to his lawyer and thereafter told the complete truth about the matters in question and assisted the police fully in their investigations.
He will, frankly, concede that he assisted Avis in the clean‑up of the murder scene and in the disposal of the deceased's body and the deceased's motor vehicle. He will also admit that he made certain misleading statements to various parties at around that time. In the circumstances he concedes from the outset that he must be convicted of being an accessory after the fact to the killing of Lister, and his Honour will explain that to you in due course.
What he says, however, is that he was not the principal offender in Mr Lister's death ‑ that is, he wasn't the person who stabbed Lister ‑ nor will he say did he assist or aid Lister (sic) in any respect in the commission of the offence. From Mr Winning's perspective the central issue for resolution by you in this case is whether you could be satisfied beyond a reasonable doubt that he was responsible for the death of Howard Lister either as the person who inflicted the fatal injuries or as a person who aided or assisted the person who did."
I note in passing that in the final paragraph of his opening address defence counsel inadvertently referred to Lister rather than to Avis. Quite clearly, counsel meant to say that the accused did not assist or aid Avis in any respect in the commission of any offence. The accused, Mark Winning (the applicant for leave to appeal) was simply there, standing nearby, when Lister was stabbed by Avis.

The first ground of appeal

Let me now turn to the grounds of appeal relied upon by the applicant. In doing so, it will be useful to recall that by s 689(1) of the Criminal Code an appeal shall be allowed where the verdict of the jury is unreasonable, or cannot be supported by the evidence, or was pursuant to a wrong decision on a question of law or that on any ground there was a miscarriage of justice. The question becomes, by way of a gloss upon the provision, whether the verdict is unsafe or unsatisfactory and the test may be put succinctly in terms of the question whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. M v The Queen (1994) 181 CLR 487 at 493; Jones v The Queen (supra).
The statutory proviso, which allows for dismissal of the appeal if no substantial miscarriage of justice has actually occurred, recognises that not every departure from the proper application of the law warrants setting aside a conviction. It must appear that the accused has lost a chance which was fairly open to him of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514; Festa v The Queen (2001) 208 CLR 593.
As to the first ground of appeal, it is said that the learned trial Judge erred in declining to discharge the jury following certain unsworn statements made by Avis in open Court and unfounded allegations levied by him against the Applicant during the course of his evidence which, in all the circumstances of the separate trial, operated to taint the fairness of the trial process in a manner which could not be cured satisfactorily by direction.
The events bearing upon the first part of this ground of appeal are as follows. Shortly after the commencement of the trial Kevin Avis was called as a witness for the Crown. The transcript at 1349 reveals what then happened:
"TAVENER, MR: Thank you, your Honour. I call Kevin Leslie Avis. He is in custody.
McKECHNIE J: Mr Avis, you must either swear on the bible or take the affirmation.
AVIS, MR: (indistinct) affirmation (indistinct)
McKECHNIE J: Give Mr Avis the affirmation.
AVIS, MR: I'm not here to give evidence.
McKECHNIE J: Ladies and gentlemen, I wonder if you would mind leaving us for a little while, while we sort this little matter out.
AVIS, MR: Sir, I was just hoping you might not want to keep the jury in the dark with this trial, about the last trial …
McKECHNIE J: Just sit down, Avis.
AVIS, MR: … the evidence that was hidden from them last time.
McKECHNIE J: Sit down, Avis."
The jury retired from the courtroom immediately following this exchange and some discussion then took place as to what should happen in the light of the gratuitous remarks made by Avis. In the course of the debate counsel for the applicant touched on the prospect of the jury being discharged but arguably did not press for an order to that effect.
The learned trial Judge clearly gave careful consideration to the question of whether the jury should be discharged. However, it seems that he finally decided that he could deal with the matter by a suitable direction to the jury. Accordingly, when the jury returned, his Honour said this at 1358 of the transcript:
"Mr Avis made some remarks as he was leaving, obviously not under oath, so they are not even evidence but just disregard it. You can rest assured that nothing will be hidden from you that is in any way relevant to your considerations in due course but for now you can accompany the sheriff's officer and be back here at 2.15. I'm sorry about this but these things occasionally happen."
Avis proceeded to give evidence as a witness in support of the Crown case. The tenor of his evidence was that Winning was the person who used the knife and inflicted the fatal stab wounds.
In the course of his evidence, Avis made certain remarks which arguably amounted to casting aspersions upon Winning's character and his role on the evening in question, and which invited speculation about the course of evidence and other events at the first trial. Thus, Avis referred to Winning being dead set on picking up Ms Harris. Reference was made to Winning being involved in six cases of child abuse and not being allowed to see his daughter unless he had a parent in attendance. Avis referred to threats allegedly made by Winning including a threat to spread rumours of sexual misconduct.
For the most part, these remarks were made while Avis was being cross‑examined. Avis said further that an attempt was being made to twist the evidence given at the first trial. The cross‑examiner put to Avis squarely that by his evidence at the present trial Avis was simply trying to cast mud on Winning. Avis answered this by suggesting that a degree of denigration was inherent in the trial process.
It might be said that to some extent the line of questioning was bound to elicit unflattering comments about the applicant, for the tenor of this part of the cross‑examination was that Avis was a man with prior criminal convictions who was accustomed to telling lies. In this context, the cross‑examiner must have been conscious of a risk that Avis would defend himself by aiming a few barbs at the man who had been with him on the night in question and who had also been convicted of wilful murder.
For example, this passage from the cross‑examination of Avis appears at 1427 of the transcript:
"Is that how you saw Mark, a person who had jack shit?‑‑‑He also had (indistinct) a caravan.
He had a daughter, didn't he?‑‑‑But he's not allowed to see her.
He was, wasn't he? You knew he saw her?‑‑‑He had six cases with the child abuse, you know. They would've recorded his name. He is not allowed to see his daughter unless he has a parent or guidance‑‑‑
You know that's a lie?‑‑‑I know it's true. I've been there.
You know it's a lie?‑‑‑I've seen it.
You were asked by the police, "But look what he's done to you," and you said, "Yes. Now, I've got jack shit. God, he must be happy"?‑‑‑And I'm sure he is.
Is that right?‑‑‑Yes.
It's really the case, isn't it, that you're attempting to cast as much mud on Mr Winning as you possibly can here in front of the jury as well?‑‑‑That's what the whole idea of today is.
Is that right? Is that what you're trying to do?‑‑‑No, but that's what the idea is, isn't it?
A short time later (at 1431 of the transcript) the cross‑examiner proceeded to ask Avid about certain comments he had made to the police concerning the applicant, Mark Winning:
"Slow-moving person?‑‑‑At times.
Yes. A fairly‑slow thinking person, isn't he?‑‑‑At times.
Yes?‑‑‑Most times.
Not the sort of someone who could gratuitously murder a complete stranger in the wink of an eye while you were in the toilet?‑‑‑Maybe it's not his first time.
Maybe it's not his first time. I see. Right. This is something else you're trotting out to inspire the jury, is it?‑‑‑No, no. I'm just saying you don't know your client.
Is that your plan, is it? You've come here to throw as much mud at him as you possible can?‑‑‑No.
You say he's a sexual abuser, probably murdered someone before, something like that?‑‑‑Something like that.
Is that right?‑‑‑Yes.
It was Mark's idea to dig the hole, was it?‑‑‑I can't remember.
Burn the car?‑‑‑Yes.
Make up the story to the police?‑‑‑Yes.
Bust up the chair?‑‑‑Yes.
Remove all of Lister's tools from the house?‑‑‑Yes.
Come back the next morning?‑‑‑And he stole his record collection."
The cross‑examiner then proceeded to test the Avis evidence by putting to him the evidence to be adduced by the applicant, that is to say, evidence to the effect that it was Avis, not the applicant, who had killed the deceased, being the position adopted by the applicant in defending the wilful murder charge at the first trial (when Avis, Winning and Harris were on trial) and at the second trial (when Winning alone was on trial). It was in this context that the evidence of Avis included references to the earlier proceedings. For example, this passage occurs at transcript page 1465:
"So it's, in fact, Winning took some knives out and gave one to you in the kitchen, did he?‑‑‑We went over all that before. It's also in the trial, it's also in statements.
I see. He will say he tossed the knife onto the kitchen table. Do you remember him doing anything like that?‑‑‑No, not at all."
Soon after that exchange, Avis was instructed to confine his answer to the question put to him. The relevant passage at 1468 of the transcript was in these terms:
"So you agree Winning walked out the door at one stage and you asked where he was going?‑‑‑I don't know.
In terms like that?‑‑‑I don't know. I could say no. This is just propaganda again.
You see, I suggest to you that Winning walked as quickly as he could, which wasn't very quickly, down the driveway and you raced out after him?‑‑‑But in the last trial he froze.
McKECHNIE J: Mr Avis, counsel has asked you repeatedly, correctly ‑ he is putting to you a version of events. You may agree or you may disagree. Most of the questions seem to me to require only a response of yes or no?‑‑‑Mm'hm.
No further information is required by the question.
PERCY MR: Particularly, Mr Avis, I would ask you to refrain from any reference to any other trial, videos, statements or anything like that. We will all get on famously. Are you happy with that?‑‑‑Okay."

It was against this background, during the course of his summing up, that the learned trial Judge made these remarks to the jury (transcript 1721):
"It has been made perfectly plain to you that this is a retrial. You shouldn't be worried about that either. There are many reasons for retrials including the fact that judges may not be infallible. There is no point in speculating. It's a waste of time because again the fact that it's a retrial doesn't assist you in determining whether or not the crown has established its case here.
Now, your sole concern is for evidence and most of it in this trial falls in two basis I suppose, the oral testimony of the witnesses and the very, very lengthy video records of interview."
At the end of the trial, after summing up to the jury, some further discussion occurred concerning the initial incident. Ultimately, in response to a specific request from defence counsel, his Honour was persuaded to recall the jury and give a further direction in these terms:
"One thing no doubt, ladies and gentlemen, this trial has made you fitter. I am sorry to bring you back down the stairs just when you were no doubt settling in but there are a couple of matters which I ought to have mentioned to you and it's better to do it now. They relate, both of them, to the evidence of Avis, or in one case the lack of evidence.
You remember - and I told you about this at the time ‑ when Avis came he gave an outburst and said he hoped things wouldn't be hidden at this trial. There is in fact no evidence and nothing was hidden from you at this trial nor in fact was anything hidden at the first trial. He also made suggestions in the course of his evidence that Winning had admitted things at this first trial and there is no evidence of that in this trial; and gave evidence that Winning had been guilty of a number of serious offences, child abuser and he may have murdered someone, and again there is no evidence of those things in this trial.
It might be obvious but it is worthwhile my emphasising to you that the accused ‑ you have heard his evidence and you have heard the character evidence and that is the only evidence relevant to his prior history that is here and that's what you take into account.
The other thing about Avis is that he has given previous accounts which were consistent in broad terms with his evidence here. There is no sort of piggy‑back effect. You don't get marks for consistency. You have to weigh the evidence that he gives here as against all the other evidence you have heard and make a decision solely on the evidence that you have heard here, nothing else. Now, if you will retire and further consider your verdict."

The applicant's submissions on appeal

Counsel for the applicant submitted that the statements made by Avis and especially his opening assertion about the jury being kept in the dark gave the impression that certain matters had been withheld from the jury at the first trial and were being withheld from the jury at the second trial. Further, an impression was left with the jury that the applicant had admitted material facts at the first trial and that he was a person of bad character.
Counsel for the applicant contended also that certain submissions made to the learned trial Judge immediately following the opening assertion by Avis amounted, in effect, to a request that the jury be discharged.
I digress briefly to say, in regard to the latter submission, that counsel for the applicant on appeal was unable to point to an unconditional request that the jury be discharged. The question of whether the jury should be discharged arose in this way. Immediately, after the initial incident, counsel for the Crown indicated to the learned trial Judge, in the absence of the jury, that he needed to confer with Avis because, following the latter's conviction of wilful murder, and the failure of his appeal, there was a degree of uncertainty as to what exactly Avis would say or do at the Winning retrial. It was in that context that counsel for the applicant made these observations at 1353 of the transcript:
"Secondly, we would say that in terms of proceeding with the trial, the crown has opened on the basis that Avis would give evidence and they have referred to it on a number of occasions. We would say that if he is not to give evidence, then we should discharge the jury and start again. The opening would need to be different."
A little later, at 1355, counsel added that:
"…we might save ourselves some time and effort further down the track in one form or another if after 1 and a half days another jury was empanelled."
However, as it turned out, Avis did give evidence, and in a manner that did not require any adjustment to the Crown's opening address. It was in the knowledge that Avis would give evidence that the learned trial Judge determined that the trial was to proceed and, upon the recalling of the jury, instructed them to ignore the Avis outburst, as I indicated in earlier discussion. Counsel's conditional "request" that the jury be discharged if Avis did not give evidence was not renewed.
Counsel for the applicant submitted that in failing to discharge the jury the learned trial Judge erred. Notwithstanding his Honour's direction to the jury that they should disregard the opening assertion made by Avis, and his other assertions touching on events at the first trial, there was a real likelihood that the jury might have been prejudiced by the statements made. Thus, an order discharging the jury should have been made by the learned trial Judge.
Counsel acknowledged that there will be some situations where inadmissible evidence or inappropriate comments from a witness come improperly or inadvertently before a jury, and where an appropriate direction from the trial Judge will cure such imperfections in the trial process. However, in the present case, counsel argued, the direction provided by the learned trial Judge was insufficient to cure the potential prejudice to the applicant consequent upon the jury having heard the assertions made by Avis.
In support of his submissions, counsel for the applicant referred to the observations of Toohey, Gaudron, Gummow and Kirby JJ in Crofts v The Queen (1996) 186 CLR 427 at 440 as to the approach to be adopted when potentially prejudicial events occur during the course of a trial:
"It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishaps occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?"
Counsel for the applicant also referred to observations in R v Weaver [1968] 1 QB 353 made by Sachs LJ at 359 to the effect that whether or not to discharge the jury is for the discretion of the trial Judge on the particular facts and a court of appeal will not lightly interfere with the exercise of that discretion. Each case depends on its own facts. The decision depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence the jury must be discharged.
Sachs LJ went on to say at 360:
"This particular case is a quite common type of case. The facts were brought into the cognisance of the court by questions put by counsel for the defence. There was nothing in those particular matters which introduced such a degree of prejudice that it could not be cured by the judge acting wisely in his discretion in the later stages. In the view of this court the matter was one for the discretion of the trial Judge. Nothing had happened which this court feels entitled the appellants to say was devastating. After the inadvertent admissions of evidence everything was done which should have been done, and accordingly, the appeal is dismissed."
In R v McLean [2001] 3 NZLR 794 the complainant in a sexual assault gave evidence under cross‑examination to the effect that she was contacted by the police as a result of the defendant's ex‑wife having laid rape charges against him. The Court of Appeal held that the jury should have been discharged, notwithstanding that the Judge had directed the jury to disregard the assertion made by the complainant. The approach adopted by the Court is reflected in the headnote to the relevant report which reads as follows:
"The jury should have been discharged. Where there had been an inadvertent disclosure of prejudicial information, the test was whether there was a real danger or a reasonable suspicion that the accused was or might have been prejudiced by what took place. The comment by the complainant was highly prejudicial and the direction given more than two hours later had been insufficient to counter the prejudice. Whatever some jurors may have recalled from prior media publicity could not have adequately blunted the highly prejudicial impact of the comment."
Counsel for the applicant referred also to the observations of Olsson AUJ in the earlier appeal Winning v The Queen (supra) at par 42 to the effect that in the circumstances being described by Olsson AUJ no directions of the trial Judge would be adequate to ensure that a jury could be expected to perform "the remarkable mental feats required of them."
In the present case, counsel for the applicant contended, the failure by the learned trial Judge to discharge the jury in the circumstances of this trial might reasonably be said to have cost the applicant a chance of acquittal. The various remarks made by Avis were highly prejudicial and the directions given by the learned trial Judge were not sufficient to remove the prejudice.

Conclusion as to the first ground of appeal

I am not persuaded that the appeal should succeed on this ground. It is apparent from the opening statements made by counsel on both sides that the trial was fought on the basis that the jury were to be informed at the outset that there had been a previous trial. To my mind, that provides a framework within which the initial incident and the subsequent cross‑examination of Avis must be considered. The jury was squarely on notice that there had been a previous trial, that Avis and Winning were now in the position of antagonists, and would present completely different accounts of what had taken place on the night in question. That being so, it should not be presumed too readily that the jury would be led astray by antagonistic remarks made by Avis while under cross‑examination by the applicant's counsel.
It emerges from the reasoning in Crofts (supra), Weaver (supra) and R v McLean (supra) that the proper course to be followed when untoward statements are made is essentially a matter for the trial Judge having regard to the circumstances of the case and the nature of the admissions made. The test is whether there is a real danger or reasonable suspicion that the accused was or might have been prejudiced by what took place. The nature of the incident and the likely effect of directions aimed at removing the prejudice are factors to be taken into account in determining what is the appropriate course. Another relevant factor is whether any request was made by or on behalf of the accused that the jury be discharged. The reasoning in the decided cases recognises that a criminal trial would be unworkable if the jury had to be discharged as a matter of course whenever some unexpected statement was made.
In this case Avis made a remark prior to the commencement of his evidence. The learned Crown prosecutor was granted a short adjournment to take instructions and a discussion then took place between the learned trial Judge and counsel on both sides. At this stage, defence counsel foreshadowed an application to have the jury discharged in the event that Avis did not give evidence, given that the Crown had opened its case upon the basis that Avis would testify as to certain matters. However, in the event, defence counsel did not press for an order that the jury be discharged. Further, shortly after Avis made his opening assertion, the learned trial Judge directed the jury to disregard it and reassured them that nothing relevant to their considerations would be hidden.
It emerges, then, that a specific request was not made for the jury to be discharged. The decision of defence counsel in that regard could well have been prompted by strategic considerations, and the notion that Avis had undermined his own credibility by wild accusations and attempting to smear the applicant. I take account of what was said in R v Wright [1999] 3 VR 355 by Phillips CJ and Charles JA at 356 that the failure to take exception at trial would almost necessarily be taken by a court of criminal appeal as an indicator that counsel present saw no injustice or error in what was done. It is time to affirm with emphasis that it is the obligation of counsel at the trial (for the prosecution as well as the defence) to take objection to matters which are prejudicial to the fair trial of the accused and that the failure to take exception presents a serious obstacle to the raising of such matters on appeal.
To my mind, bearing in mind the brevity and ambiguity of the Avis words comprising the initial incident the learned trial Judge's prompt direction to the jury to disregard what had been said was sufficient to cure any degree of prejudice that might possibly flow from that particular incident. My view is reinforced by the fact that defence counsel did not specifically apply for an order that the jury be discharged in respect of this incident.
As to the related issue, I take account of the fact that there was no request to discharge the jury. I give weight to the additional fact that the learned trial Judge in his summing up directed the jury that there was no evidence to support the unfounded allegations by Avis against the applicant. At a later stage, at the specific request of defence counsel, the jury was recalled briefly and the direction was reinforced by a further direction.
I keep in mind also that the aspersions made by Avis against Winning were made during the course of a vigorous cross‑examination in which the risk of such aspersions being voiced must have been apparent to the cross‑examiner. A strategic decision was made to proceed with an attack upon Avis, notwithstanding the risk of a counter‑attack. When the matters at risk materialised it was open to defence counsel to reduce the adverse consequences by cross‑examining Avis to the effect that he was simply trying to cast mud at Winning and thereby damage the defence case. Indeed, damage control of this kind was quickly put in place by defence counsel. This was a further avenue whereby the risk of any prejudice being caused by the conduct of Avis was removed or ameliorated.
Furthermore, as I have already indicated, the learned trial Judge in his summing up directed the jury that there was no evidence to support the unfounded allegations by Avis against the applicant. The learned trial Judge gave a strong direction to the jury to carefully scrutinise the Avis evidence having regard to his background, criminal record, the lack of corroboration and the fact that he was an accomplice.
It follows, when I draw together these various considerations, that I am not persuaded that there was a real danger or reasonable suspicion that the accused was or might have been prejudiced by what took place. The jury was bound to conclude that the two men who had been in the house on the night (as conceded by defence counsel's opening statement) had subsequently had a falling out and any assertions made by Avis had to be weighed up against that background. The directions given by the trial Judge were sufficient to ensure that they did not make any improper use of the assertions.
Put shortly, the facts and matters raised in support of the first ground of appeal did not demonstrate in all the circumstances of the case, that the verdict was unsafe or unsatisfactory or resulted in a miscarriage of justice. The reasoning in Crofts (supra) and Weaver (supra) recognises that a degree of prejudice to the accused arising from incidents during the trial can often be cured by a direction concerning the point in question. That course was adopted in the present case and I am of the view that the remedial directions given by the learned trial Judge were sufficient. Further, in regard to this matter, I do not consider that a substantial miscarriage of justice actually occurred.

The third ground of appeal

It will be convenient to proceed now to the third ground of appeal.
The third ground of appeal is that the learned trial Judge erred in declining to direct the jury that, in all the circumstances of the separate trial, it was open to them to conclude from the failure by the Crown to call Ms Harris that her evidence would not have assisted the Crown case.
As to this ground of appeal, let me begin by turning to that part of the transcript which shows that, immediately after the closing address of defence counsel, there was some discussion, in the absence of the jury, concerning the role of Ms Harris. It seems that defence counsel had reminded the jury that she was not called as a witness but should have been called.
It appeared to be known to both counsel that when spoken to by the police the position of Ms Harris was that when the relevant events were happening in the house she was asleep in the backyard. Faced by her refusal to give evidence, and believing that her evidence would be of no material benefit, the prosecutor contended that the Crown had acted quite properly in deciding not to call her, and in not naming her as a witness on the prosecution Brief. He submitted (contrary to the stance adopted by defence counsel) that the learned trial Judge should not be persuaded to give a direction conforming to the requirements of Jones v Dunkel (supra), that is to say, a direction to the effect that an unexplained failure of a party to call a witness whose testimony might be reasonably expected to be favourable to that party will allow the inference to be drawn that that evidence would not have assisted the party.
The learned trial Judge made it clear to counsel (at transcript 1709) that, in his view, it was not a case calling for a Jones v Dunkel direction. It was against this background, in the course of his summing up to the jury, that his Honour said this (transcript 1723):
"Can I talk about Julie Harris very briefly? We have not heard from her. She was the third person in the night but there is no evidence that she was in the house at the critical time. Indeed, all the evidence is to the contrary. It's only unhelpful speculation as to why she has not been called by the crown. Her absence does not give rise to any inference one way or the other. Her absence does not improve or diminish the crown case. I suggest that instead of worrying about her and what she might or might not have said, concentrate on the evidence which has been called and any inferences you may or may not be able to draw from it."

The respective submissions

At the hearing of the appeal, counsel for the applicant submitted that Ms Harris, who had been convicted of wilful murder in respect of Lister's death, was at least an eye‑witness to the preparation for the crime and might have been able to give evidence as to the complicity of each of the other two parties. She was also present at the scene of the crime a very short time after the commission of the homicide. No explanation was offered by the Crown at the trial as to the failure to call Ms Harris as a witness.
Counsel submitted further that it was not to the point that Ms Harris had indicated to the Crown that she was unwilling to assist. What her attitude would have been if she had been subpoenaed and sworn before a judge and jury was unknown.
It was said further that in determining whether the circumstances of the case called for the direction, the nature of the Crown case was critical. The Crown did not attempt to nominate or prove who was the principal offender and did not attempt to identify whether Avis or the applicant fatally stabbed Lister. The Crown did not rely on s 8 of the Criminal Code concerning common purpose but relied on s 7 and alleged that the applicant was the principal offender or alternatively aided the principal offender.
Against this background, counsel for the applicant contended, the case before the jury involved significant questions of credit particularly as to the competing versions of events proffered by the applicant and Avis. The applicant denied being the person who stabbed Lister and alleged that Avis was the perpetrator. Avis denied that he was the person who stabbed Lister and alleged that the applicant was the perpetrator. It was insufficient in all the circumstances of the case to simply direct the jury that they might not speculate as to what Ms Harris might, or might not have said. The circumstances of the case called for the jury to be directed that the Crown's failure to call Ms Harris entitled the jury to infer that her evidence would not have assisted them or the Crown's case.
Thus, counsel for the applicant submitted, the failure by the learned trial Judge to give such a direction might reasonably be said to have cost the applicant a chance of an acquittal.
Counsel for the respondent submitted that it is for the prosecution to decide what evidence it will adduce at trial. The prosecution is generally required to call all available material witnesses unless there is some good reason not to do so. The prosecution may choose not to call a witness on the basis that the evidence which would be given by that witness would be unreliable, untrustworthy or otherwise incapable of belief. This was such a case. Further, it was significant that Ms Harris was not nominated as a Crown witness on the prosecution brief. In other words, it had not been suggested that she would be called in support of the Crown case.
Counsel for the respondent said that before commencing his closing address the Crown prosecutor informed the learned trial Judge about the reasons for declining to call Ms Harris, namely, that Ms Harris had refused to give evidence, and as far as the Crown was aware, any evidence she could give did not make sense in the context of what had unfolded during the trial and did not advance either the Crown or the defence case. The learned trial Judge's direction to the jury that they should not speculate about what Ms Harris might or might not have said in evidence was sufficient in the circumstances.
Further, and in any event, even if the learned trial Judge erred in declining to direct on the Crown's failure to call Ms Harris, the omission to give such a direction, having regard to the weight of the evidence against the applicant, did not result in a substantial miscarriage of justice.

Conclusion as to the third ground of appeal

It is apparent from the decided cases that the applicability of the rule in Jones v Dunkel (supra) to a particular case is largely dependent upon a determination as to whether an expectation can be said to arise that a particular witness will be called. There are particular difficulties in that regard in the context of a criminal trial because there are other rules of procedure and of evidence that bear upon the obligations of a party to give evidence or to call witnesses. As a general rule, a trial Judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence as this could intrude upon the accused's right to silence.
Accordingly, in resolving the issue raised by the third ground of appeal, it becomes necessary to give close attention to those decided cases bearing upon the obligation and the responsibility of the Crown to call witnesses.
In R v Apostilides (1984) 154 CLR 563 the High Court set out some general propositions which were said to be generally applicable to the conduct of criminal trials in Australia:
"1.The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2.The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3.Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4.When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5.Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6.A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
In RPS v The Queen (2000) 199 CLR 620 the High Court was of the view that the observations in Jones v Dunkel (supra) must not be applied in criminal cases without taking into account that an accused person is not obliged to give evidence and that it is for the prosecution to prove its case beyond reasonable doubt.
Subsequently, in Dyers v The Queen (supra) a question arose whether the trial Judge misdirected the jury by giving a Jones v Dunkel direction. The High Court held that a trial Judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. A jury should not be directed that they are entitled to infer that evidence which the accused could have given, or which others called by the accused could have given, would not assist the accused. The principles stated in Jones v Dunkel (supra) presuppose that there is an occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial.
Gaudron and Hayne JJ observed at par 6 that as a general rule, a trial Judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the Judge should not direct the jury that they are entitled to infer that the evidence of those who are not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses. They said later at par 11 that the fact that a witness will given an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.
Gaudron and Hayne JJ said further at par 17 that only if the trial Judge has been given answers thought to be unsatisfactory as to why a particular person was not called would it seem that there would be any sufficient basis for a Judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There will then be real questions about whether, and how, the jury should be given the information put before the Judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call a person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel (supra) have been open.
Having regard to these observations, I do not consider that the learned trial Judge erred in declining to give a Jones v Dunkel direction. I consider further that, in accordance with the reasoning of Gaudron and Hayne JJ in Dyers (supra), he acted properly in directing the jury to the effect that they should not speculate as to why Ms Harris had not been called by the Crown or about the nature of her evidence.
The responsibility for calling Ms Harris rested with the Crown. It appears from earlier discussion, that she was not said to be a direct eye‑witness of what took place in the house and it seems also that her evidence, if any, concerning the preparatory steps could not be relied upon because it did not square with any other account as to what had taken place. In these circumstances, it emerges from the decided cases that it was appropriate for a decision to be made by counsel for the Crown not to call the witness in question. There is no suggestion in the circumstances of the present case that unsatisfactory answers were given as to why she had not been called. It is material to note also that she was not named as a witness on the prosecution brief. It seems that her evidence was not likely to advance either the Crown or the defence case or to provide any clear insight concerning the relevant events.
Accordingly, I conclude that leave to appeal should not be allowed in respect of the third ground of appeal.

The second ground of appeal

This leaves for consideration the second ground of appeal.
The second ground of appeal is that the learned trial Judge erred in declining to direct the jury that, in all the circumstances of the separate trial, should they find the Applicant aided in the unlawful killing of Lister by Avis, it was open to them to find the Applicant guilty of being an accessory after the fact to an unlawful killing other than wilful murder.
Before turning to the submissions made by the parties concerning this ground of appeal, it will be useful to refer to a number of statutory provisions bearing upon this matter and certain features of the evidence.
Section 594 of the Criminal Code provides that upon an indictment charging a person with an offence, he may be convicted of any other indictable offence which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment. By s 595, upon an indictment charging a person with the crime of wilful murder, the person charged may be convicted of certain specified offences including murder and manslaughter if the offence is established by the evidence.
Section 599D of the Criminal Code provides that upon an indictment charging a person with committing an offence, he may be convicted of becoming an accessory after the fact to that offence. By s 10(1) of the Criminal Code, a person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence. Section 562 provides that any person who becomes an accessory after the fact to an indictable offence is guilty of an indictable offence. The penalty depends upon the seriousness of the indictable offence.
It is commonly accepted that for the liability of an accessory after the fact to arise, it is necessary for the Crown to establish the commission of the principal offence. However, it is not necessary that the principal offender be convicted or be amenable to justice. The requirement is that the offence must have been committed. Moreover, the accessory must have knowledge that the person assisted has committed the offence. The relevant time for assessing the state of mind of the accessory will be at the time the alleged assistance was given.
In R v Stone [1981] VR 737 Crockett J observed at 740 that what must be proved by way of knowledge on the part of the accessory is knowledge of all the relevant facts, or acts, that establish the precise felony with respect to which the Crown alleges the accused was an accessory.
It follows from these authorities that upon the trial of a person on a charge of having been an accessory to the commission of a felony, proof of the conviction of the alleged principal offender is admissible, and constitutes prima facie evidence that the felony was committed by him: R v Dawson (supra) at 774. Indeed, s 47(1) of the Evidence Act 1906 provides that a conviction of any person may be proved in any proceeding by producing a record of such conviction, and by giving proof of the identity of the person in respect of whom the conviction is sought to be proved. By s 47(5) the mode of proving a conviction or identity authorised by the statutory provision shall be in addition to, and not in exclusion of any other authorised mode of proving such conviction or identity.
However, I am conscious that the reasoning in Dawson (supra) must be evaluated in the light of the subsequent decision in R v Carter & Savage; Ex parte Attorney General (supra) in which the Court of Criminal Appeal in Queensland undertook a full review of the principles bearing upon the accessory after the fact provision in the Queensland Criminal Code.
In that case Carter and Savage were charged as accessories after the fact to murder. The appeal Court held that a certificate was admissible as prima facie evidence that the principal carried out the acts necessary to constitute the offence and that he possessed the necessary state of mind. However, as it was incumbent upon the Crown to establish that the principal had actually committed the offence of murder, it remained open to the accused to rebut the prima facie evidence by showing that the principal did not do the acts necessary to constitute the offence of murder, or that his acts constituted the offence of manslaughter, in which case the accessories would have been liable to a lesser punishment.
Carter J made these observations at 382:
"Therefore if the accessories are tried separately and after the principal has been convicted, proof of the conviction of the principal amounts to evidence, albeit not conclusive evidence against the accessories who may at their trial seek to deny the commission of the offence by the principal or perhaps seek to establish the commission of some other offence.
It is also a rule of long standing that, upon the trial of an accessory after the fact where the principal offence is said to be murder, the accessory is entitled to assert that the principal offender committed manslaughter only and although charged with being an accessory after the fact to murder he may be convicted of being an accessory after the fact to manslaughter: Russell on Crime Vol 1 p 167; R v Greenacre (1837) 8 C. & P. 35; 173 ER 388; R v Richards (1877) 2 QBD 311. In short it is competent for one charged with being an accessory after the fact to murder to argue whether there was murder or not and this is so even if the principal offender has pleaded guilty: see Mahadeo v The King [1936] 2 All ER 813, a decision of the Privy Council."
Reasoning of this kind appears to affirm the basic rule that a person cannot be convicted as a secondary party unless he knows the essential circumstances constituting the offence: Wilson v Dobra (1955) 57 WALR 95. Further, just as a man charged with murder may be convicted of manslaughter, because murder involves the lesser charge of felonious homicide; so, for the same reason, one charged as accessory to murder may be convicted as accessory to manslaughter: R v Richards (1877) 2 QBD 311 at 313.
Let me now return to the circumstances of the present case.

The present case

In the present case, soon after Avis commenced giving evidence he acknowledged in answer to a question asked of him by Crown counsel that he was a sentenced prisoner serving a life sentence. At the commencement of his cross‑examination by counsel for the applicant at transcript 1376, this exchange occurred:
"Mr Avis, I think you told Mr Tavener you're currently serving a life sentence. Is that right?‑‑‑That's right, yes.
That's for the murder of Mr Lister?‑‑‑Yes.
Right. You appealed against that conviction, didn't you?‑‑‑Yes.
You lost that appeal?‑‑‑It failed, yes."
Put shortly, there was no dispute at the trial of the action or at the hearing of the present appeal that Avis had been convicted of wilful murder in respect of the killing of Howard Lister on 24 September 1999 at Craigie being the death which was the subject of the indictment at the Winning retrial.
It will be apparent from earlier discussion that the tenor of the evidence given by the applicant at his retrial was that he was present when Avis stabbed and thereby brought about the death of Howard Lister, but he was not present pursuant to a plan or in order to provide aid. However, as appears from what was said on behalf of the applicant by defence counsel at the beginning of the trial, with a view to narrowing the issues, the applicant acknowledged that he provided assistance to Avis after the event and was liable to be convicted as an accessory after the fact. Defence counsel said this on behalf of his client:
"In the circumstances he concedes from the outset that he must be convicted of being an accessory after the fact to the killing of Lister, and his Honour will explain that to you in due course."
I will not traverse the entirety of the evidence given by the applicant as to what he allegedly saw on the night in question. For present purposes, it will be sufficient to refer to his evidence in chief at 1614 of the transcript:
"As Avis went into the lounge room where were you?‑‑‑As he went in, that's when I lit the smoke up.
Lit the smoke up?‑‑‑So I was a little bit behind him. I walked into the lounge room and that's when I saw Avis stabbing Mr Lister.
Where was he standing in relation to Lister?‑‑‑He was standing on Lister's right‑hand side at the time. He was more or less between me and Lister, like Avis was in the middle kind of thing. Avis was blocking the view of Lister but I did see him plunging what appeared to be a knife into him.
You saw him plunging what appeared to be a knife into him. How many times would you say?‑‑‑At that time it looked like he was ‑ I know the autopsy said three but it looked like it was more.
It looked like it was more?‑‑‑Yeah."
A little later, again in the course of his evidence in chief, Winning gave evidence at 1617 of the transcript as follows:
"After he finished those blows, did you see him do anything else to Lister?‑‑‑Yes, I did.
What was that?‑‑‑When he went around the back, he grabbed hold of Lister's head and it looked to me like to was trying to break his neck.
What gave you that impression?‑‑‑His hands were around the top part of his head and he was twisting to the left.
How long did that ensue for?‑‑‑That would have ‑ only seconds.
When you saw this happen, what did you do?‑‑‑I left. I was deeply shocked, I was speechless. I left, I took off out of there."

The Court referred to earlier authorities, including Peckham and Firth, but noted the modern practice is that whether or not to discharge the jury is a matter for the discretion of the trial Judge on the particular facts and the exercise of that discretion will not lightly be interfered with. The Court emphasised that it depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in light of the circumstances of the case as a whole, is the correct course. Finally, the Court said (at 360):
"This particular case is a quite common type of case. The facts were brought into the cognisance of the court by questions put by counsel for the defence. There was nothing in those particular matters which introduced such a degree of prejudice that it could not be cured by the judge acting wisely in his discretion in the later stages. In the view of this court the matter was one for the discretion of the trial judge. Nothing had happened which this court feels entitled the appellants to say was devastating. After the inadvertent admissions of evidence everything was done which should have been done, and accordingly the appeal is dismissed."
The correct appellate approach to the refusal of an application to discharge a jury was explained by the majority (Toohey, Gaudron, Gummow and Kirby JJ) in Crofts v The Queen (1996) (supra) at 440 ‑ 441:
"It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? (Glennon v The Queen (1994) 179 CLR 1 at 8‑9; Maric v The Queen(1978) 52 ALJR 631 at 635; 20 ALR 513 at 521). In our view, in the particular circumstances of this case, that could not be said."
In Crofts, the inadmissible evidence had been adduced by the Crown prosecutor in re‑examination of the complainant. That was contrary to an earlier direction of the trial Judge, excluding evidence of uncharged sexual offences upon her by the accused.
To some extent, it seems to me, the question may be one of characterisation. What distinguishes the present case from the authorities just referred to, is that the prejudicial statements here were made by Avis as a deliberate stratagem on his part and on which he was strongly and extensively challenged. It was a situation in which the trial Judge was manifestly in the best position to assess the forensic effect of Avis' statements in the context of the issues at trial and determine whether or not that could be adequately dealt with by the addresses of counsel and his own directions. Furthermore, bringing to the matter that separate consideration required on appellate review, in my view the learned trial Judge's failure to discharge the jury did not occasion the risk of a substantial miscarriage of justice. This ground has not been made out.
Finally, I also wish to express my strong agreement with the comment by Hasluck J that it is time to affirm with emphasis that it is the obligation of counsel at trial to take objection to matters which are prejudicial to the conduct of a fair trial and to make any necessary application at the time - and that a failure to do so presents a serious obstacle to the raising of such matters on appeal.

Ground 2 - Accessory after the fact

This ground is not well expressed. In its terms it says that if the jury were to find the applicant "aided in the unlawful killing of Lister by Avis, it was open to them to find the applicant guilty of being an accessory after the fact to an unlawful killing other than wilful murder". That could not be so. On that circumstance the applicant would be guilty of an unlawful homicide offence, not an offence of being an accessory after the fact.
As the ground was argued, and from the trial transcript, however, it is clear that what was sought to be put was that if the jury found the applicant not guilty of wilful murder, murder or manslaughter, but that he had knowingly assisted Avis after the killing, it was open to them to find him guilty of being an accessory after the fact to wilful murder, murder or manslaughter.
The learned trial Judge's direction on a possible verdict that the applicant was guilty as an accessory after the fact was very brief. It came at the conclusion of his summing up, when he was listing the possible verdicts open to the jury. Having told them about wilful murder, murder and manslaughter, he said (at t 1728):
"If you had a reasonable doubt about that in the particular circumstances of this case, you would, as has been admitted, return a verdict of guilty of being an accessory after the fact to wilful murder."
That was the full extent of what his Honour said on the matter.
When the jury retired, the first point raised by senior counsel for the applicant was that direction. His Honour said the evidence was that Avis had been convicted of wilful murder and in the circumstances that was prima facie evidence of the offence which the applicant aided. He correctly observed that the applicant could not be convicted of being an accessory after the fact to wilful murder if Avis had been convicted of manslaughter. He added, that he thought the admission made was an admission of accessory after the fact to wilful murder. With respect, as senior counsel for the applicant then pointed out, that was a misunderstanding. The concession which had been made was that the applicant was guilty of being an accessory after the fact to the killing of Lister, not any particular homicide offence. As Mr Percy put it to his Honour (t 1729):
"It was accessory after the fact to whatever offence they might have thought he was intending to assist or conceal …"
The learned trial Judge was of the view that the applicant would be guilty as an accessory after the fact to whatever offence occurred in law; that is, unlike liability as an aider where one can aid only to the extent of one's knowledge of the commission of the offence, an accessory who knowingly afterwards does acts which aid the offender, whatever the actual offence was, is guilty of being an accessory after the fact to that offence. He referred to the following passage in the joint judgment of Lowe and Smith JJ in R v Dawson (supra):
"… for it is a rule long established that upon the trial of a person on a charge of having been an accessory to the commission of a felony, proof of the conviction of the alleged principal offender is admissible, and constitutes prima facie evidence that the felony was committed by him."
In short, his Honour said that in his view the law is that once the principal offender had been convicted of wilful murder, then anyone afterwards assisting and becoming an accessory after the fact, could only be an accessory to wilful murder and no other offence. He rejected senior counsel's submission that notwithstanding Avis' conviction, it was open for the jury to bring in a verdict that the applicant was guilty as accessory to murder or manslaughter.
Section 10(1) of the Criminal Code provides that:
"A person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence."
It is pertinent to bear in mind that s 10 does not make an accessory a party to the offence committed by the principal offender; it creates a separate and distinct offence, albeit liability for which is ultimately contingent upon the commission of an offence by the principal.
It is apparent from the terms of s 10(1) itself, that knowledge is integral to the offence it creates. The word "knowing" requires actual knowledge or belief that the principal offender has committed an offence (R v English (1993) 10 WAR 355 at 362). Thus, even though the principal offender may have committed the offence of wilful murder, if on the state of the accused's knowledge or belief of the facts the offence committed would have been murder or manslaughter, then that person could be guilty as an accessory only to an offence of murder or manslaughter.
R v Dawson says nothing about criminal responsibility, derivative or otherwise. That case simply articulated a rule of admissibility of evidence on the trial of a person charged as an accessory after the fact.
Section 599D of the Criminal Code does not militate against this conclusion. That section provides that:
"Upon an indictment charging a person with committing an offence, he may be convicted of becoming an accessory after the fact to that offence."
The submission by senior counsel for the applicant that the phrase "that offence" is properly to be construed as encompassing all alternative verdicts open on the indictment, must be accepted.
This ground must be upheld.

Ground 3 - Direction against Crown for failure to call Harris

Harris was a co‑accused with the applicant and Avis at the first trial. She was convicted of wilful murder. She did not appeal her conviction.
It appears that in the course of his address to the jury, senior counsel for the applicant suggested to them that they could draw some adverse inference against the Crown from the fact that the prosecution had not called Harris. As counsels' addresses were not included in the appeal materials, and nor are they reproduced on the electronic transcript, we do not know precisely what was said.
However, following Mr Percy's address to the jury, the Crown prosecutor raised the matter with his Honour in the absence of the jury. He said that Harris had provided no useful material for the second trial nor on her own trial and that when she was spoken to by police her story was, in effect, that she was asleep in the backyard when the events occurred. He said that has always been her position, that she did not want to give evidence and her evidence would not be of any benefit to either side. The Crown prosecutor submitted that what defence counsel had said to the jury had put the Crown in an unfair position when trying to respond to it. The Crown could not have called Harris because he had no idea what she was going to say and that what she had said in the past had not made sense in light of the convictions and the other evidence about what happened that night. He pointed out that had the defence wished to obtain evidence from Harris, they could have called her themselves. The Crown prosecutor said he was raising the matter because he felt he could not ignore what had been said by senior counsel for the applicant, but on the other hand did not want to jeopardise the trial. He wished at least to be able to say that the defence also could have called Harris if they so chose.
In response, Mr Percy said that his instructing solicitor had spoken to Harris, who had said she did not wish to testify. She had not given evidence at the first trial. He said he did not know what she would say. She had given a video record of interview to the police, but on his instructions, what she said then was patently untrue and he had no idea what her version of events would now be. He conceded that if the Crown had called Harris to give the same story she gave to the police, it would not have advanced either the prosecution or the defence case.
In the event, his Honour said he was not prepared to allow the Crown to say to the jury that it was open for the defence to have called Harris, but he did consider the Crown had been put in a position of unfairness by the defence. He foreshadowed that he would be directing the jury not to speculate about why Harris had not been called, and in particular not to draw any adverse inference against the Crown case from her absence. He specifically declined to give a Jones v Dunkel direction (Jones v Dunkel (supra)).
Ultimately, the direction given by his Honour to the jury was in the following terms (t 1723):
"Can I talk about Julie Harris very briefly? We have not heard from her. She was the third person in the night but there is no evidence that she was in the house at the critical time. Indeed, all the evidence is to the contrary. It's only unhelpful speculation as to why she has not been called by the crown. Her absence does not give rise to any inference one way or the other. Her absence does not improve or diminish the crown case. I suggest that instead of worrying about her and what she might or might not have said, concentrate on the evidence which has been called and any inferences you may or may not be able to draw from it."
Whether or not it is necessary or appropriate for a Jones v Dunkel direction to be given in a criminal trial, was resolved by the High Court in Dyers v The Queen (supra).
In that case the accused had given evidence that he was with certain other persons at times bearing upon his opportunity to have indecently assaulted the complainant. Those persons were not called at trial. The trial Judge directed the jury that if any of the persons nominated was one the jury would expect one of the parties to have called to support what was asserted by that party and there was no satisfactory explanation for the failure of the party to call that person, they would be entitled to draw the inference that the evidence of that person would not have assisted the party who the jury thought should have called them. Immediately before giving that direction however, the Judge told the jury that where it appeared there was a witness who could be expected to have been able to give some relevant evidence on some aspect of the case, but the witness had not been called, they were not entitled to speculate upon what the witness might have said if he or she had been called. The High Court held that the former of those directions should not have been given but the latter (not to speculate) should have.
Gaudron and Hayne JJ said (at 1553):
"[5] As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to the general rule will be rare. They are referred to in Azzopardi (2001) 205 CLR 50 at 74 [64]. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.
[6] Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses."
On the same point, Callinan J said (at [123]):
"In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called. At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence, and only the evidence that has been called. As, save for exceptional cases, the Crown Prosecutor may not address or comment on the non‑attendance of witnesses for the defence, the reason, and therefore the occasion, for a trial judge to comment, should also be very rare."
It seems to me the question really is whether this is one of those "rare" cases constituting an exception to the general rule arising because the prosecution's failure to call the person in question was in breach of its duty to call all material witnesses.
In R v Apostilides (supra) at 576, Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ said in their joint judgment:
"A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross‑examined by the defence and then, if necessary, be re‑examined."
The High Court in that case set out (at 575) six propositions of general application. The sixth of those is pertinent to the present question. They were:
"1.   The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2.   The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3.   Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4.   When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5.   Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6.   A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."

In regard to the sixth proposition the Court emphasised (577‑8) that what was necessary was to focus on the objective consequences that the failure to call the witness has had on the course of the trial and its outcome. The critical question is not whether the prosecutor's decision not to call a witness whose evidence is essential to the unfolding of the case was erroneous or constitutes misconduct, but whether in all the circumstances the verdict is unsafe or unsatisfactory.
In R v Kneebone (1999) 47 NSWLR 450 that was just such a situation. The appellant had been convicted of having sexual intercourse in circumstances of aggravation without consent. Those circumstances were that the complainant was under 16 years of age and under the authority of the appellant.
The complainant testified, in part, that when she came home from school the appellant, who was living with her mother, came to her room. He abused her, struck her in the face causing her nose to bleed, continued to strike and choke her, threw her on the bed, removed her clothes and sexually assaulted her. She was screaming in protest and calling for help. She testified that during the act of intercourse her mother opened the door, looked at what was happening, said "that's enough" and then walked away.
At trial, although on the complainant's evidence the mother was a material eyewitness whose evidence might crucially affect the jury's decision, the Crown did not call her but sought a Jones v Dunkel direction in its favour because the defence had not called her.
The mother had not been interviewed by either side, although a statement made by her to the police in which she denied the sexual assault had been in the committal brief. The defence had not interviewed her because it was expected the Crown would call her. It was only at the end of the first day of the trial the Crown prosecutor said he did not intend to call the mother because he was of the opinion her evidence would be unreliable.
The New South Wales Court of Criminal Appeal said (460) that a prosecutor who makes such a decision must be able to point to identifiable factors which can justify it. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary, interviewing witnesses to be able to form the opinion.
Greg James J (with whom Spigelman CJ agreed) pointed out (462) that having regard to what the complainant had said, the mother's evidence was essential to the unfolding of the narrative and crucial on the issue of credibility. He added:
"In the present case, no basis is put forward in evidence which would have entitled the Crown prosecutor on the basis of unreliability to have formed the view that the witness should not properly be called in the Crown case. There was, for example, no evidence that the witness was unwilling to speak to the police; there was no attempt to conduct a conference with the witness and the witness' statements to the police concerning the physical assault may have been explicable on the basis other than being in the accused's 'camp'.
I am of the view that by reason of the failure to call the witness, occasioned, as it appears to be, by a failure to adopt an appropriate course to enable proper consideration of any question of unreliability, a miscarriage has occurred. In my view, the supplementary grounds of appeal should be upheld."
We were informed that Harris was not named on the indictment as a Crown witness. That being so, the question becomes whether or not she should have been.
For the applicant it was submitted that she was at least an eye witness to the preparation for the crime and might have been able to give evidence as to the complicity of each of the other two parties and was also present at the scene of the crime a very short time after its commission.
It is not entirely true to say (as the applicant submits) that no explanation was offered by the Crown at the trial as to the failure to call Harris as a witness. It is true no explanation was given to the jury, but the position was made quite clear to the trial Judge by the Crown prosecutor. The defence did not dissent from what was said. The proposition then advanced on behalf of the applicant is the fact that Harris had indicated to the Crown that she was unwilling to assist is not to the point; what her attitude would have been having been subpoenaed and sworn before the Judge and jury cannot be known.
The right of the prosecution to decide what evidence it will adduce at trial is qualified by its obligation to call all available material witnesses unless there is some good reason not to do so. The prosecution may decide not to call a witness on the basis the evidence of the witness would be unreliable, untrustworthy or otherwise incapable of belief (Dyers v The Queen, supra per Gaudron and Hayne JJ at [11] ‑ [12], Callinan J at [118]; R v Apostilides, (supra) at 575 ‑ 576; Whitehorn v The Queen (1983) 152 CLR 657 per Dawson J at 674).
The Crown's reasons for not calling Harris were made clear to the learned trial Judge once the point had been raised in senior counsel for the applicant's address to the jury.
The respondent's position was that there was no basis upon which to form the view that if Harris were called she would give evidence - and indeed all the indications were to the contrary. Even assuming she did agree to do so, there was no basis upon which to suggest that she would have changed her version of events from that given to the police, which in the Crown's view was unreliable, untrustworthy or otherwise incapable of belief. Unlike the situation in Kneebone, here both the prosecution and the defence did know what Harris had said earlier and it was common ground she did not advance the case either way.
It is also significant in my view, that at no time was it suggested the defence had sought that the Crown call Harris. It was not merely a matter of the defence choosing not to call her; no request was made of the Crown that it do so. That was the background and context in which senior counsel for the applicant suggested to the jury that they should draw an inference adverse to the Crown from the fact that the Crown did not call her.
In my view, given the circumstances as they were known at the time, it was quite inappropriate for the jury to be asked to draw such an adverse inference to the Crown. The matter having been raised in the way it was, it became necessary for the learned trial Judge to deal with it. The direction he gave was entirely consistent with authority and was appropriate in the circumstances. This is, of course, a further point of distinction from Kneebone, where the complaint was that there had been a miscarriage of justice because the Crown had failed to call a material witness. That is not the complaint here. The applicant complains not that the Crown did not call the witness, but that the learned trial Judge should have directed the jury they could draw an inference adverse to the Crown for that reason.
I would reject this ground for the reasons given.

The proviso

I have indicated that I would uphold ground 2. That raises the question of the proviso to s 689(1) of the Criminal Code. The test for the application of the proviso is whether, had the jury been properly directed, it would necessarily have returned the verdict it did (Gilbert v The Queen (supra) per Gleeson CJ and Gummow J at 422; Callinan J at 437‑8, referring to Wilde v The Queen (1988) 164 CLR 365, 372 and R v Whittaker (1993) 68 A Crim R 476 at 484).
In Gilbert v The Queen the accused was charged with murder. The prosecution case was that he drove two other offenders to a remote place where the killing occurred. The prosecution submitted he did so for the purpose of enabling or aiding one of the other offenders to commit the offence of murder. The accused claimed that all he knew was that the other man intended to assault the victim. The trial Judge instructed the jury that manslaughter was not an available verdict: if the Crown failed to prove the accused knew the other intended to kill or inflict grievous bodily harm upon the victim, the verdict would be not guilty. If they were so satisfied it would be murder. It was common ground before the Court of Criminal Appeal in Queensland that manslaughter should have been left to the jury as a possible verdict (R v Barlow (1997) 188 CLR 1). Nonetheless, that Court dismissed the appeal against conviction on the ground no substantial miscarriage of justice had occurred. That decision was reversed in the High Court (McHugh and Hayne JJ dissenting).
The Queensland Court of Appeal had concluded that having regard to the whole of the evidence and particularly certain admissions made by the appellant, a properly instructed jury, acting reasonably, would inevitably have concluded the appellant well knew the killer intended to cause the victim at least grievous bodily harm. Thus, the evidence in support of the higher state of knowledge asserted by the prosecution was so strong that proper directions as to the legal consequences of entertaining a doubt about that could not have made a difference to the result. Gleeson CJ and Gummow J reached a different conclusion (at 422). In their view, the admissions were not unequivocal and a rational jury, properly instructed, could have failed to have been satisfied of murder beyond reasonable doubt. Callinan J was of the same view ([83]), so the case was not one in which a verdict of guilty of murder was inevitable ([86]).
Callinan J expressly rejected the argument that the jury must necessarily have found the appellant knew the co‑accused had an intention to either kill or cause grievous bodily harm when he assisted him and so could not have convicted of manslaughter even if properly directed ([439]). Having referred to the authorities, his Honour said (at [101]):
"The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice."
Nonetheless, I think the present case is quite different.
This case was not one in which an alternative (lesser) verdict open on an indictment was not left to the jury at all. The jury were directed that if they were not satisfied the Crown had proved wilful murder, murder or manslaughter, they could (and indeed, because of the concession made by the applicant, should) return a verdict of guilty of being an accessory after the fact to wilful murder.
In these circumstances it seems to me inconceivable that had the learned trial Judge directed the jury it was open to them to return a verdict of guilty of being an accessory after the fact to wilful murder, murder or manslaughter, the verdict would have been any different.
I otherwise respectfully agree with the reasons and conclusion set out by Hasluck J in respect of this issue.
There has been no substantial miscarriage of justice and I would accordingly apply the proviso.
I would grant leave but dismiss the appeal.