Alibi

Gibbs CJ, Murphy and Aiken JJ (would allow the appeal)

1. The question for decision on this South Australia is whether a trial judge may permit the Crown to adduce evidence after the close of the case for the defence to rebut an alibi sworn to by the accused in the course of his evidence, and not previously the subject of evidence at the trial, but which the Crown ought reasonably to have foreseen would be raised by the accused at the trial, because it had been put forward by him in earlier legal proceedings.

2. The applicant was convicted on four counts of armed robbery. One of the robberies, the subject of the fourth count, took place at Plympton, a suburb of Adelaide, on 16 June 1978. There is no doubt that at some time on the evening of that day the applicant, who lived in Sydney and was on bail, reported to the police station at Chatswood, a suburb of Sydney. The Crown case was that after the robbery the applicant travelled from Adelaide to Sydney by an aircraft which arrived in Sydney at 8.03 p.m., and that he reported to the Chatswood police station at approximately 8.30 p.m. The accused gave evidence that he was in Sydney for the whole of 16 June. He said that at about 10.00 a.m. on that day he took his child to a Mrs Eyles, at Croydon, to be minded by her, that he picked up the child from Mrs Eyles again in the afternoon and later had tea with his wife and reported to the Chatswood police station at 8.00 p.m. His evidence was corroborated by that of his wife. The applicant had previously given evidence to the same effect when he appeared before a special magistrate in Sydney as respondent to extradition proceedings and had given the same version of events in an affidavit filed in support of an application for bail made to a judge of the Supreme Court. Although at the committal proceedings the applicant, who did not give evidence, did not refer to his alibi, the Crown should have foreseen that it was probable that he would raise it again at the trial. The Crown called no evidence in chief to rebut the alibi but after the case for the applicant had been closed called Mrs Eyles and her son, Kym Eyles, to show that it was not the applicant, but his wife, who delivered and picked up the child on 16 June. The sole question raised on the application before this Court is whether that evidence was rightly admitted.

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4. The principles in Shaw v. The Queen do not particularly refer to a case in which the accused has raised an alibi, but there is no reason why they should not apply to such a case. If the details of the alibi have not been disclosed before the trial, it will, in general, be right to say that the occasion for the calling of evidence to rebut the alibi could not have been foreseen. It is true that Avory J. said during the course of argument in R. v. Liddle (1928) 21 Cr App R 3, at p 6 that an alibi ought always to be foreseen, but his Lordship could not have intended to mean, by that rather cynical observation, that the nature of an undisclosed alibi is foreseeable, and the actual decision quashing the conviction in that case depended on the circumstances that the rebuttal evidence was called by the judge himself, after counsel for the accused had addressed the jury, and after the judge had adjourned the trial to enable the further evidence to be called. In principle it seems clear enough that, speaking generally, if an alibi the details of which have not been disclosed is raised at the trial the Crown should be allowed to give evidence to rebut it. The decisions in Reg. v. Flynn (1957) 42 Cr App R 15 ; Reg. v. Levy & Tait (1966) 50 Cr App R 198 and Reg. v. Daren & Tange (1971) 2 NSWLR 423 support this view. The situation will be different if the evidence sought to be given to rebut the alibi is merely confirmatory of the Crown case, as where the Crown attempts to rebut an alibi by evidence that the accused was near the scene of the crime at the time when it was committed: R. v. Hilditch (1832) 5 Car & P 299 [1832] EngR 607; (172 ER 986).

5. When the details of the alibi were disclosed before the trial, it cannot be said that the occasion for the giving of evidence to rebut it is unforeseeable. Although an alibi is not uncommonly referred to as a defence, no onus of proving an alibi rests on the accused; the prosecution must negative an alibi if one is put forward as it must negative a claim that the accused acted in self-defence or as a result of provocation: see Reg. v. Johnson (1961) 46 Cr App R 55 ; Reg. v. Taylor (1968) NZLR 981, at pp 985-986 . It is therefore difficult to see why the Crown should be allowed to take the exceptional course of calling evidence in rebuttal to refute an alibi, if details of the alibi were known and the refuting evidence could have been called in chief. In a number of cases a distinction has been drawn between alibis previously known to the Crown, and those which became known for the first time at the trial…

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6. Before us, on behalf of the Crown, it was submitted that it was doubtful whether the evidence of Mr. and Mrs. Eyles could have been given by the Crown as part of its case in chief. It was said that it was doubtful whether the evidence would have been admissible as proof that the applicant had put forward a false alibi and in that way had shown a consciousness of guilt, and that the evidence was not admissible at that stage on any other basis. We cannot accept this argument. Whether or not the evidence would have been admissible to show consciousness of guilt, it would, in our opinion, have been admissible as part of the Crown's case in disproof of the alibi which the applicant intended to set up. Of course, the Crown cannot, to use Lord Sumner's words in Thompson v. The King (1918) AC 221, at p 232 , "credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice". It cannot give evidence in disproof of an alibi which the accused has no intention of raising. However, in this, as in many other cases, there will be no difficulty in asking counsel for the accused whether or not it is intended to set up the alibi at the trial. Counsel of course is not bound to give the information sought, but if he declines to give the information, or says that there is no intention to set up the alibi, and evidence in support of the alibi is then given at the trial, the circumstances will be such as to justify the presiding judge in allowing the Crown to give the evidence in rebuttal. On the other hand, if counsel for the accused states that it is intended to set up the alibi, the Crown can then give in chief the evidence to disprove it. If the Crown is aware of the details of the alibi, and knows that it is intended to rely on it at the trial, there is no more justification for withholding until the close of the defence case evidence to refute the alibi, than there would be for withholding evidence to refute a claim that the accused acted in self-defence.

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8. In our opinion, the circumstances in which the evidence of Mr. and Mrs. Eyles was tendered in rebuttal were not very special or exceptional. It was foreseeable that the applicant would set up the alibi at the trial. Full details of the alleged visits to Mrs. Eyles had been given at the extradition proceedings. The Crown took none of the steps that were open to it to ascertain whether the applicant would persist in relying on the alibi. The evidence of Mr. and Mrs. Eyles, when given after the case for the applicant had closed, dealt a fatal blow to the applicant's case - a blow which unfairly gained force from the time when it was delivered.

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10. We have given anxious consideration to the question whether this is a proper case in which to grant special leave to appeal. For the reasons given we consider that the learned trial judge should not have allowed the Crown to give the evidence in rebuttal. When given the evidence was likely to have been decisive of the jury's verdict. No suggestion has been made that this is a case that calls for the application of the proviso on the ground that no substantial miscarriage of justice has occurred. It seems to us that this Court should ensure the strict observance of the principles in Shaw v. The Queen (1952) 85 CLR 365 . In the circumstances we have concluded that the case is one in which special leave to appeal should be granted.

Wilson and Brennan JJ (would dismiss the appeal)

8. There may be cases where the evidence which the Crown seeks to call in rebuttal of new matter introduced by the defence is at the same time confirmatory of the case which the Crown has sought to make. Such cases require the trial judge to exercise a discretion. He must ensure on the one hand that evidence which is clearly relevant to the Crown case - not marginally or minimally relevant - is not admitted in breach of the rule laid down in Shaw (1952) 85 CLR 365 merely because of its relevance to a fact first raised in the defence case (cf. Reg. v. Levy & Tait (1966) 50 Cr App R 198, at p 202 ); equally he must not exclude evidence which is in substance rebuttal evidence because some minimal or marginal relevance to the Crown case would have made it admissible in that case. The discretion must be exercised according to the circumstances of each case (cf. Reg. v. Miliken (1969) 53 Cr App R 330 ). (at p576)

9. And so the Crown is at liberty to call evidence in rebuttal of an alibi first set up by the defence in its case, at all events if the evidence does not go to confirm the prosecution case (cf. R. v. Hilditch [1832] EngR 607; (1832) 5 Car & P 229 (172 ER 986) ). The evidence of Mrs. Eyles and Kym Eyles was not confirmatory of an issue in the Crown case. To what issue could their evidence have been relevant before the applicant and his wife set up his alibi at the trial? It could not have advanced in the slightest the Crown case, which was that on Friday 16 June the applicant was committing a robbery in Adelaide, to adduce evidence that the Eyles had not seen him in Sydney on that day.

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12. It is not necessary to decide whether the Crown might have proved in its case the setting up of a false alibi in the extradition proceedings. It was under no obligation to do so. In fact no issue of an earlier false alibi was raised in the Crown case nor, for that matter, was that issue raised later in the trial. The only alibi raised for the jury's consideration was raised by the defence case at the trial. The only issue to which the Eyles' evidence was relevant was the truth of the alibi set up by the evidence of the applicant and Mrs. Killick in the defence case. Their evidence was relevant to disprove an alleged fact, namely, that the applicant was in Sydney during the day of Friday 16 June, and that matter had not been raised prior to the defence case. The admission of the Eyles' evidence did not split the Crown case on any issue

Gleeson CJ, with whom James J agreed

At 1 and 2

In August and September 1995, the appellants were tried before his Honour Judge Twigg QC and a jury in the District Court at Port Macquarie. They were each charged with three offences of assault, one offence of assault occasioning actual bodily harm, and one offence of using offensive weapons (pistols) with intent to commit an indictable offence, namely, assault. The first two appellants were convicted of all five offences. The third appellant was convicted of four offences and acquitted of one. They appeal against their convictions and seek leave to appeal against their sentences.

The principal issue in the appeals concerns the manner in which the trial was conducted in relation to certain alibis raised by the appellants, and the Crown's response to those alibis. In that respect, the position of the third appellant, Shane Neville Heuston, is somewhat different from that of the other two appellants, and he relies upon considerations and arguments additional to those relied upon by the other appellants.

At 4

Prior to the commencement of the trial, although, at least in the cases of the first and second appellants, well out of time, the appellants gave the Crown notices of alibi defences.

The first appellant, Eric Heuston, gave a notice of alibi on 24 January 1995. It was expressed fairly briefly. The particulars of the alibi were that the appellant was in Sydney on 29 November 1991, having his motor vehicle's windscreen repaired by his brother, Lee Heuston, at Novus Windscreens at Bankstown. (Novus Windscreens had an outlet at Bankstown, where Lee Heuston worked. It also had an outlet at Blacktown. The difference between the two outlets was of some evidentiary significance, but need not be pursued here.) It could be inferred from the notice that Lee Heuston would be a witness in the defence case. Nothing was said in the notice about the detail of any evidence Lee Heuston would give.

The notice of alibi of the second appellant, Neil Heuston, was given, shortly before the trial, in three instalments, on 27 and 28 July, and 16 August 1995. It was to the effect that, on the day of the alleged offences, Neil Heuston was at 21 Cooper Street, South West Rocks, painting a house belonging to Ann Horne. It was said that the accused would call Ann Horne, and her neighbour, Mr Arthur, to support that alibi. It was also said that the appellant's son would be called to give evidence that, on the day in question, he drove to South West Rocks to collect his father from work, 29 November 1991 having been the last day on which the appellant had been engaged in painting the house.

At 6

It is common ground on this appeal that evidence called by the Crown, in its case in reply, exploded the alibis of the first two appellants. The witness who supported the alibi of the third appellant was challenged in cross-examination, but, in the case of the third appellant, the Crown did not profess to be able to establish, as it unquestionably did in the case of the first two appellants, that his alibi was untrue.

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A number of exchanges between counsel, which occurred between 28 August and 13 September 1995, and which are recorded in the transcript, show that, over that period, the Crown was continuing its investigation of the alibis, although, statements of some of the witnesses upon whom the Crown ultimately relied had been obtained in August 1995, prior to the commencement of the trial.

At 7

A number of exchanges between counsel, which occurred between 28 August and 13 September 1995, and which are recorded in the transcript, show that, over that period, the Crown was continuing its investigation of the alibis, although, statements of some of the witnesses upon whom the Crown ultimately relied had been obtained in August 1995, prior to the commencement of the trial.

At 10

In the course of his cross-examination of Lee Heuston, the Crown prosecutor made it clear that he intended to challenge the authenticity of the invoice upon which the witness was relying. It is unnecessary to go into the details of that challenge. It suffices to say that it is common ground on this appeal that the challenge was successful, and that the invoice produced by Lee Heuston and tendered in the defence case was shown, by the cross-examination of Lee Heuston, and later by the evidence of a witness called by the Crown in reply, to have been a forgery. It may be noted, however, that the cross-examination of Lee Heuston had to be interrupted because the Crown prosecutor had not yet been able to obtain from Novus Windscreens all the documentary material relevant to the cross-examination.

At 12 and 13

After the cases for the appellants closed, the Crown indicated an intention to call a case in reply, consisting of the evidence of Paul Horne, Charles Bidwell, Anna Pincevic and Patrick Wearne. The opposition to that course, the applications for a discharge of the jury, and the rulings and directions of the trial judge will be considered below.

In due course, the evidence of the four witnesses was called in reply by the Crown. The evidence of Mr Bidwell, which was supported by contemporaneous records, destroyed the alibi of the second appellant. That evidence proved that the painting work at the home of Mrs Horne had been done in September, not November, 1991. The evidence of Mrs Pincevic destroyed the alibi of the first appellant. It proved that she was the person to whom receipt A12164 had been issued, and that the genuine receipt related to her motor vehicle. Her evidence, together with other documentary material, showed that the receipt produced by Lee Heuston, and relied upon in the case for the first appellant, was a forgery. She was not cross-examined.

At 16

At the conclusion of the case for the third appellant, on 18 September 1995, the Crown made an application for leave to present evidence in reply to rebut some of the matters raised in the alibi defence for the first and second appellants. The Crown indicated that it wished to call the evidence of Mrs Pincevic, Mr Wearne, Mr Home, and Mr Bidwell. The application was opposed by counsel for each of the appellants. On 19 September 1995, Twigg DCJ gave a judgment in the Crown's favour. He referred to s405A(4) of the Crimes Act, and the decisions of the High Court in Killick v The Queen (1981) 147 CLR 565 and Blewitt v The Queen (1988) 62 ALJR 503.

At 17

It being apparent that the evidence to be called in reply related only to the first and second appellants, counsel for the first and second appellants then sought a discharge of the jury on substantially the same basis as that on which they had opposed leave to call evidence on reply. That application was refused.

The four witnesses mentioned above were then called by the Crown in reply with the consequences earlier discussed.

After that happened, trial counsel for the third appellant made an application for the discharge of the jury which, he acknowledged, was virtually an application by his client for a separate trial.

At 23

The present case provides a good example of the need for the flexibility given by a provision such as s405A(4), and of the undesirability of determining these matters by reference to technical and inflexible rules of evidence, including rules about splitting of cases. It illustrates the desirability of determining the matter by reference to considerations of fairness, and by judicial discretion.

At 25

As to the first appellant, the position is clear. The critical evidence was that which proved that the copy invoice produced and relied upon by Lee Heuston, to support his evidence in the defence case, was a forgery. I am unable to see how the Crown could have called that evidence in chief, even if it had wished to do so. The copy invoice was not mentioned in the notice of alibi. It was simply a document in the possession of Lee Heuston or, by then, the first appellant's solicitor. What would the jury have made of evidence tending to show that such a document was a forgery? How could the Crown have set about proving that a document, which had not been put in evidence, and was not in the possession of the Crown, was not genuine? It is not difficult to imagine the protests that would have issued from the defence side if the Crown had embarked upon such an exercise.

Furthermore, it is difficult to charge the Crown with breach of any duty of disclosure in relation to the matter. The question of the genuineness of the copy invoice was still being investigated up to the time the Crown case was closed, and a good deal would obviously depend upon how the defence was going to explain and use the document. The genuine invoice that was sent to Mrs Pincevic was not seen by the Crown prosecutor until after the close of the Crown case, and, where questions of forgery are involved, examination of original documents can be important.

At 26 and 27

The second appellant's alibi, as notified to the Crown, was that he was painting Mrs Home's house on 29 November 1991.

Before the trial commenced, both Mr Horne and Mr Bidwell told the Crown that the appellant's painting work had been done while Mr Bidwell was also working at the house. Mr Bidwell told the Crown his records showed that was in September. Mrs Home, at the suggestion of the appellant's solicitor had checked the dates with Mr Bidwell before the trial. (That she did so demonstrates that she also associated the timing of the appellant's work with that of Mr Bidwell). He told her that she was wrong in thinking that the work was done in November; it was done in September. What exactly Mrs Horne reported back to the solicitor we do not know.

Two things emerge. First, although the Crown prosecutor did not, until 15 September 1995, show Mr Bidwell's statement to the defence, what was in that statement had been told by Mr Bidwell to Mrs Horne when she spoke to him, at the solicitor's request, before the trial. Second, it was not until after Mrs Horne gave her evidence, and Mr Bidwell subsequently produced his records for November, that it became apparent that Mr Bidwell's records could destroy the second appellant's alibi.

At 29 and 30

What had to be made clear was that the third appellant was entitled to separate consideration of the case against him, including the case in relation to his alibi. There was an obvious risk that the jury would reason along the following lines: "The alibis of Eric and Neil Heuston have been proved to be false. There is no such conclusive proof about the alibi of Shane Heuston. However, we will infer from the falsity of their alibis that his also is false".

The directions given by the trial judge, in favour of the third appellant, may well have been adequate to this purpose were it not for the addition, later, of the remark that the jury could compare each of the unsworn statements of each accused "and draw inferences of collusion from them".

No objection to that remark was taken by any of the trial counsel and I would refuse leave to either of the first two appellants to complain about it on appeal. However, its effect in depriving the third appellant of the protection to which he was entitled, in relation to separate consideration of his alibi, could have been very serious. Once again, if that remark had stood alone, I would not have given the third appellant leave to complain about it now. However, it is the combination of the third appellant's particular need to have his alibi, which was still viable, separately considered, and the making of the remark, which means that, in his case, leave should be given to raise the point.

At 31

To invite the jury to consider the possibility of collusion in relation to the alibis, which formed an important part of each joint statement, was to deprive Shane Heuston of the opportunity of having his alibi, which remained viable, considered separately on its own merits.

For this reason I would allow the appeal of the third appellant, and order, in his case, a new trial.

James J

At 1

I agree with the judgment of the Chief Justice.

Simpson J

At 1 to 3

I have read in draft the judgment of the Chief Justice, and I agree with the orders proposed in the appeals of the first and third appellants, Eric and Shane Heuston, and with his Honours reasons for those orders. I regret, however, that I am unable to agree with the order proposed in the appeal of the second appellant, Neil Heuston.

I agree with the Chief Justice that the statements held by the Crown ought to have been disclosed to the legal representatives of the appellant. I am further of the view that evidence from those statements ought to have been led in the Crown case in chief.

The intention of the legislature in introducing s 405A into the Crimes Act is clear. It was to ensure that the Crown is in a position to investigate and meet any alibi defence raised by an accused. It was not intended, in my view, otherwise to put an accused in a worse position than prior to its enactment. Certainly it was not intended, in my view, to put the Crown in a position to retain relevant information in its possession for the purpose, or having the result, of securing a tactical advantage. I do not suggest that that was the purpose of the Crown in the present case, but it almost certainly was the result.

An alibi notice may be, and commonly is, tendered in the Crown case in chief. What use may then be made of it will be dependent upon the course taken in the defence case. Should the accused adduce no evidence, or in an unsworn statement refer to no other material in support of the alibi, a comment is available to the Crown not different in kind to that available where an accused is alleged to have told lies about some material matter, or has fled. The Crown will be entitled to directions from the trial judge, but those directions will be tempered by the cautions necessary in cases of lies or flight. Should the accused adduce evidence, or provide other material which departs from the particulars given, similar comment will be available, and similar direction required. The Crown case in chief in my view, is also the appropriate time for the Crown to adduce any evidence in its possession demonstrating the falsity of the alibi. Such a course permits an accused who has an answer to the Crow n's rebuttal, or an explanation for raising a false alibi, to raise those matters in his or her own case.

Subs(4) contemplates that the Crown may, in a case in reply, respond to alibi evidence given in the defence case, but reserves to the trial judge a discretion to give "directions" about when the Crown may adduce such evidence. It is that discretion which, I consider in the case of Neil Heuston, miscarried. The Crown had in its possession, well before the close of its case, much of its material to rebut the alibi, and the opportunity of access to the balance, particularly the records of Mr Bidwell that showed that he did not work at the Horne house in November. As a matter of principle, I am of the view that the time for the production of all of that material was prior to the close of the Crown case.

Sperling J

8. The relevant question is, of course, whether the notice should not have been admitted in the Crown case against the appellant.

9. I agree with Kirby J's view that the notice was admissible as evidence of consciousness of guilt and ought to have been so admitted, with the usual Edwards directions. However, that does not justify the admission of the notice into evidence because it was a use which her Honour ultimately intended should not be left to the jury for consideration.

10. However, as Kirby J has said, the alibi notice was relevant and admissible as to credit. Solomon Siulai gave evidence in answer to the Crown case which was not only evidence in his own case, but also evidence in the appellant's case. It was evidence on which the appellant relied for a different version of events. Solomon Siulai's evidence was that he was present, but innocently. It followed that the notice was admissible against him pursuant to s106 of the Evidence Act 1995 because the notice was capable of being construed as a statement that he was not present at all.

11. As for the appellant, he did not give evidence but he had told the police, when interviewed, that he had no involvement and could not tell the police anything. The jury were entitled to treat that as evidence of innocence. The alibi notice was then relevant and admissible against him, pursuant to s108A of the Evidence Act, as going to his credit in relation to what he said to the police.

12. It is Kirby J's opinion that, if the notice was not to be used as evidence of consciousness of guilt, her Honour was bound to exclude the notice altogether in the exercise of her discretion because of the risk that the jury might, unprompted, use the notice as evidence of consciousness of guilt without having received the full Edwards directions in that regard.

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17. Kirby J has explained the limited way in which the alibi notice might have been misused as evidence of consciousness of guilt due to lack of the full Edwards directions.

18. In these circumstances, the admission of the alibi notice into evidence cannot have resulted in the appellant losing a chance of acquittal.

19. Rule 4 applies. Having regard to the foregoing considerations, leave should not be given to mount this argument on appeal.

20. There was no other reasonably arguable basis on which it could be said that the notice should have been excluded.

21. For these reasons, Ground 1 fails.

Kirby J

27. On 12 August 2002, Toai Siulai (the appellant) and his brother, Solomon Siulai, stood trial before Latham DCJ and a jury upon the following charges:

"Count 1: On 4 August 2001 at Mayfield ... he did break and enter the dwelling house ... and whilst therein did commit a serious indictable offence, namely steal ... in circumstances of aggravation in that at the time of the offence Solomon Siulai and Toai Tess Siulai were in the company of another person whose identity is unknown. (s112(2) Crimes Act 1900)

Count 2: On 4 August 2001 at Mayfield ... being in the company of another person whose identity is unknown he did assault Jim Lea Stephens with intent to rob him. (s97 Crimes Act 1990)"

28. Both the appellant and his brother pleaded not guilty to each charge. On 20 August 2002 the jury returned verdicts of guilty against both accused on both counts.

29. In the course of evidence an Alibi Notice was admitted against each accused (Exhibit J). The Grounds of Appeal by the appellant relate to that notice. They are:

1.              The alibi notice, exhibit J, should in all the circumstances of the case (have) been excluded.

2.              Her Honour erred in directions and the use to which the jury should put evidence as to the alibi notice and denials of guilt by the accused.

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45. As mentioned, the offence occurred on 4 August 2001. Solomon Siulai was arrested on 8 October 2001 and his brother, Toai (the appellant), on 13 October 2001. Both were in custody at the time of the committal in Newcastle on 11 December 2001. Mr Graham of counsel was briefed to appear at the committal. Having spoken to each accused, the matter proceeded as a paper committal. Both were committed for trial.

46. On 13 December 2001, Mr Graham wrote to the Director of Public Prosecutions in these terms:

"These accused have been committed for trial and are to appear on arraignment on 31.1.02.

Please note that both intend to rely on alibis as follows:

(a)         Toai Siulai

States that he was at the relevant time at home at 33 Margaret St, Tighes Hill. He will call Laine Gostini of that address in support. He only states this to the best of his belief. I have been unable to contact Ms Gostini to verify this and am informed that she may be on holiday in Queensland. If I am able to obtain further information I will immediately advise you.

(b)         Solomon Siulai

States that he is fairly sure he was at home with his wife, Caroline Puru, and his 2 yr old son, 334 Ridley St, Charlestown. He intends to call Ms Puru in support of this."

47. During the trial, the appellant, on the advice of counsel, made an admission in these terms (s184 Evidence Act 1995):

"On 4th August, 2001 at about 11.40 pm Toai Tess Siulai attended [the location of the incident] and spoke to [the alleged victim].

48. The appellant's brother, Solomon, made a corresponding admission.

49. The Crown thereafter sought, as part of its case, to tender the Alibi Notice. Objection was taken on behalf of each accused. The notice was, however, admitted against both accused (Exhibit J).

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72. The notice was plainly relevant. It was capable of being regarded as a deliberate lie told through a consciousness of guilt (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193). If accepted as a lie, it was an attempt to provide a false alibi. It was also (if accepted as a lie) capable of affecting the credibility of Toai Siulai (in the section of the notice dealing with his whereabouts) and the credit of Solomon Siulai (in that part of the notice dealing with his whereabouts). The admissibility of the notice did not depend upon it having been expressly adopted by the appellant. The notice had been given by Mr Graham of counsel. There was a rebuttable presumption that the notice had been given with the authority of the accused (s48(6) Criminal Procedure Act 1986).

..

75. The Alibi Notice was a statement by the appellant (made through his agent) which included a representation as to his whereabouts "at the relevant time". It was hearsay if tendered to prove the truth of that representation. However the Crown had in mind a different purpose (cf s60 Evidence Act). The statement was not tendered for its truth. Rather, the Crown sought to contrast the admission made by the appellant in the course of the trial (acknowledging his presence at Mr Stephens' home late on the evening of 4 August 2001) with the assertion in the notice that he had been elsewhere. It was arguably a statement inconsistent with that admission.

76. Should the notice have been excluded under the discretion given in s135 or s137 of the Evidence Act, or limited by s136? Her Honour thought that, because both accused ultimately acknowledged their presence at Mr Stephen's home, that unfair prejudice would attend the use of the notice as a lie told with a consciousness of guilt. With respect, I disagree. In my view, notwithstanding the admission, the Crown was entitled to prove the lie and assert that it was told with a consciousness of guilt. The appellant had made the representation in the Alibi Notice at a time that he had been apprised of the allegations against him. He had responded by asserting a belief that he was elsewhere. That was very different from saying that he was there, but that nothing of the kind alleged by Mr Stephens had taken place. In my view the notice had significant probative value, notwithstanding the qualification. It was, as I have said, capable of being regarded as a false alibi.

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79. Accepting that her Honour did not deal with the notice in that way, should the notice have been admitted where it was confined to the issue of credit? Part 3.7 of the Evidence Act deals with evidence relevant to credibility. Such evidence is not admissible (s102 Evidence Act), unless it falls within one of a number of defined exceptions. Her Honour referred to the exception created by s106(c) where the credibility rule does not apply to evidence tending to prove that a witness has made a prior inconsistent statement. She did so at a time when it was assumed that both accused would give evidence. That exception justified the reception of that part of the notice dealing with Solomon Siulai, who was a witness. However, the appellant did not give evidence. He was not a witness. Section 106 had no application to him. Nonetheless, the following provision of the Evidence Act, in my view, justified the reception of the notice against the appellant in relation to his credibility, subject to the discretion under s135 and s137, and assuming always that there was an issue as to his credibility.

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84. However, the real difficulty in treating the notice as being relevant only to credibility was the nature of the alleged lie. It was a lie (or was capable of being so regarded) in respect of a central issue, namely the appellant's presence at the scene on the night of the home invasion. It was, as stated, capable of being regarded as a false alibi. That really is not a credibility issue. If it was a lie, it betrayed a consciousness of guilt. It would be difficult for a jury not to so regard it. If they were to find that the notice was a deliberate lie, there was a real risk that they would misuse that finding as evidence from which guilt may be inferred. On the issue of credibility, therefore, there was the danger of unfair prejudice. It outweighed the probative value. If the notice were confined to the issue of credibility, it should, in my view, have been excluded under s137.

85. On this basis, I would be prepared to find error. However, the issue having evolved in the way described, and the appellant having elected not to give evidence, no application was made to exclude the Alibi Notice from the evidentiary material available against the appellant. Rule 4 applies. I will postpone, for the moment, a consideration of whether leave to appeal should be given.

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94. Had the Alibi Notice been tendered as material from which the jury could infer a lie told with a consciousness of guilt, a direction in accordance with Edwards v The Queen (supra) would have been required. Such a direction requires that the jury are told that they must be satisfied that the accused told a deliberate lie. The lie must relate to a material issue (that is, it must be concerned with some circumstance or event connected with the offence), and must be a lie told in circumstances where the explanation for the lie was that the accused knew that the truth would implicate him in the offence (Edwards v The Queen (supra) at 210). Such a direction should be accompanied by an elaboration on the last of these requirements, along the following lines (Edwards v The Queen (supra)): ( at 211)

"Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt (see eg Lonergan v The Queen [1963] Tas SR 158 at p 160; Broadhurst v The Queen [1964] A C at p 457). A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission."

95. The direction by her Honour plainly did not satisfy those requirements. It was not intended to do so. Her Honour had already ruled that the Alibi Notice should not be received as a matter from which the jury (if they found the lie) might use the lie as evidence from which guilt could be inferred.

96. It was common ground during the hearing of this appeal that, having finally limited the Alibi Notice to the issue of credibility, her Honour should have given the direction suggested by the High Court in Zoneff v The Queen (2000) 200 CLR 234 (the "Zoneff direction").

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103. The issue of credibility was different in the case of each accused. The direction, with respect, did not identify the different ways in which the issue arose. Solomon Siulai had given evidence but had not provided an interview, whereas Toai Siulai had provided a brief interview but had not given evidence. If the lies were relevant simply to credibility, and the jury determined that a particular accused had lied, then the lie could only be used in determining whether the version of that accused was to be believed. If he were not believed, his evidence should be put to one side. The question would still remain: has the Crown proved its case beyond reasonable doubt? The jury could not, as a matter of reasoning, move directly from a determination that there was a lie to an inference of guilt.

104. The direction did not, to my mind, conform with these requirements. Error has been demonstrated.

Bell J

125. I agree with the orders proposed by Kirby J generally for the reasons his Honour gives, subject to the qualifications expressed by Sperling J, with respect to ground one. In relation to ground one I agree with the reasons of Sperling J.

Studdert J

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

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

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

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

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

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

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

“On 27th September 2002 my cousin, Shane Skondin, whose date of birth is 10/5/1972 got out of gaol. He came and saw me and I said he could come and stay with me. He came back that night with his gaol stuff. The next day he picked up some bags from his grandmother’s place with his clothes. He put those in the spare room at my place. Up until Shane got locked up at Sutherland on 14 October ’02, he was staying with me.

He used to go and visit Natasha Maher from Coogee and also Rebecca Grey at Redfern. When Shane got arrested by police at Sutherland he had stayed at my house almost every night for the previous week.”

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

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

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

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

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

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

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

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

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

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