s165

Wood CJ at CL and Howie J

1. On 2 October 2001, the appellant was placed on trial, before Justice Kirby and a jury, charged with the murder of his wife Kristine Anne Rose. To that charge he entered a plea of not guilty. On 16 November 2001, the jury returned a verdict of guilty. He now appeals against that conviction but not against the sentence imposed which, when adjusted for pre sentence custody, was effectively one of imprisonment for 14 years with a non parole period of 10 years.

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13. Its case against him was entirely circumstantial, the arrest and trial occurring more than 18 years after the discovery of the body of the deceased, by which time, regrettably, certain critical elements of forensic evidence, including vaginal swabs from the deceased, her panties upon which semen had been found, her jeans on which dust had been found, and various dust or soil samples which were of critical importance, appear all to have been lost or destroyed. To their significance we shall return.

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143. It was the Crown case throughout, that the deceased was killed at the appellant's flat, and then taken by him in her car to the Pipeclay Creek Bridge area where her body was dumped. If the person seen in the Laundromat between 9.00 and 9.30 pm had been the deceased, then, unless she had returned to his flat after that time, his premises being some distance from the Laundromat, this case could not be established.

144. Reference has already been made to the evidence concerning this aspect of the case, which, so far as the Crown was concerned, should be accepted as having involved a mistaken identification by Mr Dawson of the deceased as the lady in the Laundromat.

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286. The question, which arises then, is does the section, referring as it does specifically to "identification evidence" in s 165(1)(b), apply to evidence of visual identification not falling within that definition? Notwithstanding the arguments to the contrary set out in the judgment of Smart AJ, we believe that it does.

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289. Visual identification evidence of a particular person is no more reliable because the person being identified is not the accused. Nor does the potential unreliability of such evidence diminish because it is being led in civil proceedings rather than in a criminal trial. The concern about the use to be made of such evidence is that its inherent unreliability can be masked by the jury's perception of the witness as generally plausible. Honesty is rarely an issue and, therefore, the jury might give more weight to the evidence than it deserves overlooking the possibility of an honest mistake. Because the evidence may, by its very nature be unreliable regardless of the honesty or general reliability of the witness, it is the kind of evidence to which some form of warning or information should attach if a jury might use it adversely to a party without giving due regard to its potential frailty. Why then should some warning not be required where the party relying upon the evidence is other than the Crown in a criminal trial?

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295. But, even if we were wrong in the view we take of the scope of s 165(1), s 165(5) makes it clear that the trial judge has a residual power to give a warning to a jury, or to inform them about some matter where the judge believes it is necessary to do so in the interests of justice. If the particular evidence under consideration does not fall within the scope of s 165(1), the trial judge has power to give a warning or provide the jury with information although there is no requirement to do so. In our view it was open to Kirby J to conclude that in fairness to the Crown the jury should be alerted to the general difficulties involved evidence of the nature of that given by Mr Dawson.

296. Although we are of the opinion that identification evidence generally falls within the scope of s 165, it does not follow that a warning has to be given. Nor is it necessary for a judge to give a warning of any particular kind and, certainly, not one of indicating the special caution required by s116. As Hunt CJ at CL pointed out in Clarke, not all identification evidence has the potential for unreliability that attaches to visual identification of a person. Identification of an inanimate object, such as a motor vehicle, may be less likely to be open to mistake and it may not be so persuasive. The trial judge is required to make a discretionary judgment in all the circumstances of the case whether to give a warning and what the content of the warning should be. In R v Stewart, above, it was held that s 165(3) applies to each of the matters set out in s 165(2), so that, for example, a trial judge may find that there is a good reason not to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it, as required by s 165(2)(c).

297. In the case of evidence of a person other than the accused, and in circumstances where the evidence favours the accused, there would be good reason for the trial judge to temper the warning and information given to the jury in respect of that evidence. Clearly there would be no basis for the trial judge to warn the jury that mistaken identification has led to erroneous convictions. Generally speaking it would not be necessary for the trial judge to caution the jury in terms of s 165(2)(c) although we would not hold that such a caution could never be given. In our view, what Kirby J said to the jury about the evidence of Mr Dawson in the summing up was appropriate. Although we do not believe that it was correct for the trial judge to tell the jury, the day after Mr Dawson's evidence was given, that, in respect of identification evidence, "caution must be exercised in dealing with such evidence when you come to address it", we do not believe that in the circumstances of this particular case that remark might have led to a miscarriage of justice in light of what his Honour said to the jury in the summing up many days later.

Smart AJ

315. Mr Dawson was called by the Crown in its case. He was independent of the applicant and the deceased and owned a laundromat in the Centrepoint Arcade in Armidale. About 9 pm on Friday, 30 April 1982 he went down to the laundromat and saw a lady operating two washing machines. He left the laundromat and returned about 25 minutes later. He saw a vehicle in the car park attached to the Arcade. The vehicle could have been white or cream. The lights were not very bright where it was standing and he did not take much notice of the vehicle. It was either a Holden or a Falcon.

316. Mr Dawson said that when he returned the clothes were in the dryers. He had some conversation with the lady about the weather. She told him that she was on her way to Brisbane and wanted to get the clothes dry before she left. Mr Dawson told her to go ahead and dry them. He told her that he normally closed earlier, but not to hurry. He told the police a few days later that she was about five feet eight inches tall with shoulder length hair. She was a slim lady. She was wearing a brown coat which went down below her waist level. The coat had a heavy collar. She was wearing glasses and faded blue jeans. She was about 30 years old.

317. She left the laundromat about 9.30 pm and drove away. He turned off some taps, locked the door and left straight away. He noticed that the white or cream vehicle had left. It seems that the lady and Mr Dawson were in the laundromat together for about five minutes. This was not a case of fleeting visual identification. A couple of days after this he was at home watching TV. He saw a photograph of a man, a lady and three children. The lady was the subject of a missing person's announcement. He recognized the lady in the photograph as the lady who had been in the laundromat. The following day he went to the police station and told the police that he had seen the lady in the laundromat. When the police showed him the photograph of Mrs Rose he told them "I am certain that was the lady in the laundromat." He made his statement on 4 May 1992.

318. He had never known or met the applicant. Mr Dawson had particular reasons to recall Friday, 30 April 1982. He had been entertaining guests at his home to dinner that night and because of this did not go down to the laundromat at 8.30 pm, his usual time to close up.

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338. The question remains whether the general words of s.165, namely "evidence of a kind that may be unreliable" requires the judge to comply with s.165(2) and give the warning and caution there specified in a case where the visual identification evidence of the deceased victim as being at a particular place at a particular time is capable of causing the jury to have a reasonable doubt as to the guilt of the accused. The answer to that question must be approached in the light of the history of directions as to identification evidence and the deliberate choice made by the Legislature in its definition of identification evidence. It would have been easy to leave the definition in general terms and not to restrict it to an assertion by a person that a defendant was at or near a place where the offence, for which the defendant is being prosecuted, was committed. This identification did not take place where the offence was allegedly committed nor where an act connected to that offence was done.

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340. There could be no objection to a judge pointing out to a jury particular weaknesses of particular identification evidence where it is exculpatory, always bearing in mind that an accused has to prove nothing but it would seldom if ever be correct to give a caution or warning in respect of such evidence. Sometimes alibi evidence involves identification evidence. Of course, the judge would also have to point out the strengths of the identification evidence.

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342. In view of the definition of identification evidence in the Act and the history of directions as to that I do not accept that the correct approach is to say that all visual identification evidence should be classed as evidence of a kind that is unreliable, whether inculpatory or exculpatory and whether of the offender or the deceased and whether near the place of the offence or not. There is a real difference between the identification of an accused near the scene of the offence and identification of somebody else, for example, at a place away from the offence. The alleged presence of an accused near the scene of the offence has a cumulative effect and there is fear and tension quite often on the part of the observer, for example if allegedly the accused is seen at the scene of an armed robbery. I do not think that the Courts can say that they have experience of mistaken exculpatory identifications especially where they take place away from the scene of the offence in calm circumstances where there is an appreciable time for observation.

343. Thus I would reject an approach that the Court should regard all visual identification evidence as being of a kind that is unreliable but refuse the request for a warning because the evidence is exculpatory, that being a good reason for not giving the warning. The first step is to decide whether exculpatory identification evidence is of a kind that is unreliable. I do not agree that it is. If I am wrong in that view and have defined the category of unreliable evidence too narrowly, it would be necessary to consider whether there is good reason not to give a warning. The fact that the evidence is exculpatory would be a good reason. In most cases the difference in approach will not affect the result.

The Court (Tobias JA, James and Howie JJ)

1. On 21 February 2001, the appellant was convicted by a jury of the charge of murdering Trevor Climpson (the deceased) on 8 January 1988. This was his third conviction for that offence, the two previous convictions having been set aside after successful appeals to this Court. Simpson J sentenced the appellant to 10 years and 10 months imprisonment, commencing on 20 February 2001, with a non-parole period of 6 years and 10 months to expire on 19 December 2007. The appellant appeals against both the conviction and sentence.

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121. It was submitted that the trial judge should have given the jury a warning about Adam Fowler's evidence "pursuant to the provisions of s 165 of the Evidence Act" having regard to the following factors: his age as at 8 January 1988; the number of years which had elapsed between 8 January 1988 and the time of the trial in February 2001; his lack of any independent recollection of the events of 8 January 1988; and the answers he gave in the concluding part of his cross-examination in which he conceded that he might have been mistaken in two parts of his evidence.

122. Under s 165(2) of the Evidence Act, a trial judge is required to give a jury directions in accordance with s 165 only if "a party so requests". At the trial, no such request was made. Accordingly, the trial judge was not required by s 165 to give directions in accordance with that provision in relation to the evidence of Adam Fowler.

123. At the trial, not only was no request made that a s 165 direction be given in relation to Adam Fowler's evidence, but no application was made by appellant's counsel for any kind of warning to the jury in relation to his evidence.

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125. Section 165(5) of the Evidence Act provides that s 165 does not affect any other power of a trial judge to give a warning to a jury. Even if no party requests that a warning be given, one must be given "whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case". Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ; R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301 per Howie J at 318 (86). A warning may be required where the courts have special knowledge or experience about the kind of evidence which has been given which a jury may not possess or where there is a risk that a jury may attribute more weight to the evidence than it actually deserves. See R v Baartman [2000] NSWCCA 298 at [62] and R v Stewart at [97] and [101].

126. In the present case, the evidence given by Adam Fowler was not evidence about which the Court had any special knowledge or experience not shared by the jury, nor was it evidence to which the jury was likely to attribute more weight than actually deserved. It would have been quite obvious to the jury that his evidence concerned events, which had happened when he was eleven years old and that thirteen years had elapsed by the time of the trial. The jury also would have been aware that he had no recollection independent of the statement he had made to the police of what had happened on 8 January 1988 and that he had conceded in cross-examination that he might have been mistaken in two parts of his evidence.

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176. It was submitted by the appellant in support of this ground of appeal that his counsel at the trial had made a request for the trial judge to give directions in accordance with s 165 in relation to Mr Doran's evidence. This request was based on: firstly, Mr Doran's evidence being evidence of admissions by the appellant within the definition of "admission" in Part 1 of the Dictionary at the end of the Act and hence was evidence within s 165(1)(a); and secondly, Mr Doran's evidence being evidence the reliability of which might be affected by mental ill health and hence was evidence within s 165(1)(c). The appellant submitted that further grounds that could have been relied on were: firstly, "the age" of the alleged conversations and the inconsistency between Mr Doran's evidence in chief and his evidence when cross-examined by the Crown; and secondly, although the trial judge had given certain directions about Mr Doran's evidence, she had not, as required by s 165(2)(a), warned the jury that Mr Doran's evidence might be unreliable.

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181. However, it is unnecessary to construe s 165 in any particular way in order to avoid an absurd result or to ensure that unnecessary directions and warnings are not given to a jury. As her Honour noted, s 165(3) provides that the trial judge is not required to comply with s 165(2) where "there are good reasons for not doing so". Clearly, if the reliability of any evidence falling within the section was not in issue at the trial, that would be a good reason for not complying with s 165(2).

182. Further, it has been held that even though the evidence before a particular jury falls within one of the categories specified in s 165(1), a trial judge is not required to give a warning unless there is a real possibility that the evidence is unreliable: see R v Flood [1999] NSWCCA 198 at [14]; and generally R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301 at [95]. In R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 at [70], this Court held that the opening words of the section qualified the words of the particular categories mentioned in s 165(1), so that even though the evidence fell within one of the categories, a warning was not required by the section where the evidence was not of a "kind that may be unreliable". In Clark it was held that, in the circumstances of that case, there was no need for the trial judge to give a warning in relation to an indemnified witness, even if it were assumed that he was a witness otherwise falling within s 165(1)(d), because there was nothing about his evidence to suggest that it might be unreliable. In any event, a finding by a trial judge that there was no reason to suppose that the particular evidence under consideration might be unreliable would itself provide a good reason for the trial judge not to give a warning.

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184. The purpose of the section is to ensure that the jury is alive to any factor that might adversely affect the weight to be given to evidence before them. If there is a real possibility that, without an appropriate warning from the trial judge, the jury might not identify such a factor or might not appreciate its importance or might in some other way be misled about the weight to be given to the evidence, a warning should be given. The risk of unreliability might arise for various reasons: the evidence is of a certain kind (such as hearsay evidence); the witness is of a certain class (such as a person implicated in the offence); the evidence might be affected by some personal characteristic of the witness (such as age); or the witness may be honestly mistaken (such as in identification evidence).

185. Of course, the risk of unreliability might arise from the presence of a number of circumstances that impact upon the weight to be given to the evidence in different ways. For example, in the case of an admission there may be an issue about the reliability of the evidence that the accused made the statement amounting to the admission. That issue will arise where the evidence of the making of the admission is itself evidence of a kind that might be unreliable because, for example, the evidence comes from a prison informer. There may be a further issue about whether the statement made by the accused might itself be unreliable as an admission because, for example, of the accused's mental condition at the time the statement was made.

186. Where a party has requested a warning under s 165 about a particular witness or a particular piece of evidence, the trial judge must consider what issues (if any) were raised during the course of the trial about the reliability of the witness or the evidence, in order to determine whether a warning is required by the section and what the content of any such warning should be. If there was no issue raised about the reliability of any aspect of the evidence, then no warning should be given, notwithstanding that it might otherwise have fallen within the ambit of the section.

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194. The submission that there were further grounds for a warning under s 165, other than those relied upon by defence counsel at the trial, has no substance at all. The fact that the evidence concerned alleged conversations which took place in 1986 and which were not reported to the police until 1992 are not matters which fall within the ambit of s 165. This is not "evidence of a kind that might be unreliable". Nor did the fact that there were inconsistencies in the witness's evidence require or justify a warning. These are matters upon which her Honour might have made comment to the jury, but she was not required to do so in order for the appellant to receive a fair trial.

The Court (Hunt AJA, Buddin and Hoeben JJ)

1. Michael Kanaan, Rabeeh Mawas and Wassim El-Assaad were each convicted by a Supreme Court jury of the murder of Danny Georges Karam at Surry Hills on 13 December 1998.

2. In sentencing the appellants, Wood CJ at CL described the killing as a deliberate assassination carried out under the leadership of the appellant Kanaan, substantially to advance the interests of the appellants in ongoing criminal activities — an assassination motivated by greed, carried out with considerable pre-meditation, and callous and cold-blooded in character. He sentenced Kanaan to imprisonment for life, the appellant Mawas to imprisonment for 25 years with a non-parole period of 19 years, and the appellant El-Assaad to imprisonment for 24 years with a non-parole period of 18 years. Each of the appellants has appealed against his conviction

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7. Each of the appellants was a member of DK's Boys, as were Rossini and Gea Gea. The main activity of that organisation was selling cocaine in Kings Cross. The Boys organised the supply of cocaine to their own street-level runners. They also stood over other dealers who paid them protection money known as "rent", which allowed those other dealers to operate without fear of harassment from DK’s Boys. The Boys beat up anyone who did not pay the rent. At the peak of the business, which was around the time the deceased was killed, the business was earning about $28,000 a week. Each of the appellants had to pay rent to the deceased. The deceased told Kanaan and Rossini that he was putting money away for them, but for some time they were only paid about $100 a week.

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107. This ground asserts that the trial judge erred in his directions in respect of the evidence of Ngaari Zahabe. The complaint by the appellants that the judge failed to give specific directions based on the Crown prosecutor's failure to comply with the rule in Browne v Dunn has already been considered and rejected under Ground 2(a). Ground 2(b) is concerned with the directions which the judge gave concerning the negative identification evidence of Mrs Zahabe, that she did not recognise either Kanaan or Mawas as one of the shooters.

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110. The appellants have submitted that those directions should have been qualified so far as they applied to Mrs Zahabe. Reliance was placed on this Court’s decision in Regina v Rose [2002] NSWCCA 455; (2002) 55 NSWLR 701…

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115. It was common ground in Regina v Rose that negative identification evidence does not fall within the terms of s 116 of the Evidence Act — which requires a trial judge to inform the jury that there is a special need for caution before accepting identification evidence, and of the reasons for that need for caution both generally and in the circumstances of the particular case. This conclusion followed from the specific terms of the definition of “identification evidence” in the s 3 Dictionary, which limit its application to an assertion by a witness that the accused was or resembles the person who committed the offence charged or was involved in its commission.

116. However, this Court (at [285]–[294], [296]) held by majority (Wood CJ at CL & Howie J, Smart AJ dissenting) that negative identification evidence was “evidence of a kind that may be unreliable”, thus falling within the terms of s 165(1)(b) of the Act — which requires a trial judge, if requested to do so and unless of opinion that there were good reasons not to do so, to warn the jury that identification evidence may be unreliable, to inform the jury of matters that may cause it to be unreliable and to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. The majority referred to the earlier decision of this Court in Regina v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301, in which it was held that evidence is “of a kind that may be unreliable” where it is such that its unreliability does not fall within the general experience and understanding of a jury, and where the jury may be misled in making an assessment of whether to accept it or in evaluating its worth (Howie J at [98], [101]); Hulme J (at [38]) agreed with Howie J on this point. Spigelman CJ (at [16]–[17], [27]) did not find it necessary to deal with the point, but observed that the word “kind” must be read down in some way.

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121. The appellants in their written submissions assert that Regina v Rose was wrongly decided insofar as the majority concluded that s 165 applies to evidence which exculpates the accused, and that the judgment of Smart AJ (who dissented on this point) should be followed. Different views as to this submission were expressed orally by counsel for the appellants. Counsel for one appellant supported it, counsel for another did not challenge the majority opinion. However, in our opinion, the joint judgment of Wood CJ at CL and Howie J was correct, for the reasons given by them and to which reference has already been made. We agree also with the alternative conclusion by the majority that, in any event, the trial judge was entitled to give the directions he gave in fairness to the Crown, pursuant to s 165(5) of the Evidence Act. See also Regina v Ayoub [2004] NSWCCA 209 at [18].

122. Alternatively, the appellants submit that exculpatory negative identification evidence is not evidence “of a kind that may be unreliable” within the meaning of s 165(1) of the Evidence Act. The appellants argue that this follows from what is said to have been the “relatively narrow approach” adopted by this Court to the scope of that phrase. They refer to three cases.

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126. Accordingly, we are satisfied that negative (or exculpatory) identification evidence is “evidence of a kind that may be unreliable”, and thus falls within the meaning of s 165(1).

127. The appellants put forward a further alternative submission, that there existed good reasons for not giving the warning required by s 165(2), thereby relieving the judge of the need to comply with that requirement. Section 165(3) provides:

The judge need not comply with subsection (2) if there are good reasons for not doing so.

The appellants assert that no warning should be given in relation to evidence which favours the accused. In our opinion, it is not possible to determine in relation to any particular category of evidence that there are good reasons for not complying with the requirement to give a warning where any evidence within that category has been given. Section 165(3) is directed to the circumstances of the particular case, not to specific categories of evidence in every case.

128. In any event, we do not accept that a warning should not be given in relation to negative identification evidence simply because it favours the accused. Whilst there may be good reasons in a particular case not to give the warning in relation to some evidence within this category which may be unreliable — for example, because it was led by the Crown and its source is the accused himself and thus self-serving: see Regina v Salama [1999] NSWCCA 105 at [87] — the dangers inherent in any kind of identification evidence are such that it would be wrong to exclude warnings in relation to that category of evidence, whatever the nature of the circumstances of the case, as is now submitted by the appellants. Each case must depend on its own circumstances. To accept the proposition now put forward by the appellants in this case would, in our view, amount to overruling the decision of this Court in Regina v Rose. As we have already expressed agreement with what was said by the majority in that case, we would not be prepared to overrule it.

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158. The third ground of appeal, filed jointly by all three appellants, asserts that the trial judge failed to direct the jury adequately, and erred in his directions, in relation to “Rossini” and the “Laycock” brothers. The directions challenged relate to the warnings given as to the reliability of their evidence. The fifth ground of appeal, filed by the appellant El-Assaad, asserts that the trial judge erred in directing the jury on the effect of the undertakings by Rossini and the Laycocks. These two grounds may conveniently be considered together.

159. Section 165(1)(d) of the Evidence Act identifies as evidence “that may be unreliable” the evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. Subsections (2) and (5) of s 165 require the judge if so requested, or permits the judge in the interests of justice (see par [118] supra), to warn the jury that the evidence may be unreliable, to inform the jury of the matters that may cause it to be unreliable and to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. Before the Evidence Act, these were usually described as accomplice warnings, but it has been held that it is preferable that the word “accomplice” not be used in the warning given as it may inadvertently convey to the jury the impression that the judge accepts that the witness is an accomplice of the accused, and thus that the accused is guilty: Regina v Stewart at [21], [126]. It will nevertheless be convenient at times in this judgment to refer to an accomplice warning as shorthand for a warning that the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial may be unreliable.

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182. Section 165(2)(b) requires the warning to inform the jury of matters which may cause the evidence to be unreliable. The purpose of doing so is to provide the jurors with knowledge of matters not within their general experience and understanding (see par [166] supra). Those matters need be stated only with such detail as is required to achieve that purpose. A trial judge in any criminal case is required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury; the conduct of the case necessarily bears on the extent to which the judge is bound to comment on and discuss the evidence: Domican v The Queen at 561. The High Court in that case (at 561-562) went on to say, however, that because the seductive effect of identification evidence had so frequently led to proven miscarriages of justice special rules apply in relation to that evidence. In the case where the issue of identification plays any significant part of the Crown case, the judge must isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence — whatever the defence raised and however the case is conducted.

183. Whereas it is necessary pursuant to s 116 for the judge to go beyond how the case has been conducted and to refer to every matter of significance which may reasonably be regarded as undermining the reliability of identification evidence (unless the identification is in the end not in dispute: see Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [19]–[22], [53]), the warning required pursuant to s 165 need be given only if requested by a party. Provided that a general warning is given to the extent now required by s 165(2), in the usual case where the evidence may be unreliable (that is, other than identification evidence) the necessary content of that warning will be dictated by the evidence and the addresses. Accomplice evidence does not have the seductive effect of identification evidence, and the present case does not, therefore, fall outside the usual case.

McClellan CJ at CL

Ground Two: the trial judge erred in the directions he gave in respect of the evidence of Roy Butler (Rustom appeal)

2. Roy Butler was a drug and alcohol counsellor at Parklea Prison. He gave evidence at the trial. He said that he had spoken to Rustom on 10 January 2002 and, as best he could recall, Rustom used words similar to:

“it’s their fault not mine. It took some one to die to get me out of here, but I am moving. They’re responsible not me.”

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10. Defence counsel asked the trial judge to give a warning to the jury in relation to Mr Butler’s evidence. Counsel indicated that he had in mind s 165(1)(f) of the Evidence Act. However, his Honour ruled that because Mr Butler had not been engaged in official questioning of Rustom, he was in fact conducting a survey of inmate facilities, s165(1)(f) did not require a warning.

11. The warning which counsel sought at the trial had two foundations. Firstly, it was submitted that because Mr Butler had not responded to Rustom at the time and had not told him what he believed he heard Rustom say, Rustom was denied an opportunity to respond to Mr Butler’s version or make his own note of the conversation. Secondly, it was submitted that the trial judge should draw the jury’s attention, in the form of a “standard type of direction”, to the fact that Miss Stepanik did not corroborate Mr Butler’s evidence.

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16. When counsel addressed the jury he took a similar approach to Mr Butler’s evidence. He never suggested that the jury should conclude that a conversation between Mr Butler and Rustom did not occur. Rather he argued that Mr Butler had not accurately remembered the conversation and recorded it in a manner which did not adequately reflect the context. Instead of submitting that Miss Stepanik did not recall the conversation because it did not happen, counsel suggested that the jury may think that “some of the words used and the juxtapositioning are more those of an educated man, like Mr Butler. Miss Stepanik did not recall it because it happened in little bits and pieces and part of the note was made at one time and part was made some time later on. Perhaps he is (sic) just putting down what he thought, what he thought he should have.” Counsel did not suggest that if the jury accepted Mr Butler’s evidence as to the words said by Rustom they did not constitute a relevant admission.

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22. Counsel for the appellant in the appeal did not press the basis for the suggested warning argued by counsel at the trial. It is clear that Mr Butler was not engaged in official questioning and accordingly s 165(1)(f) did not require that a warning be given.

23. However, it was submitted that once an application had been made for a warning under s 165(2) the section was engaged and if any subsection of s 165 applied the trial judge was required to give a warning, unless there were good reasons for not doing so (ss (3)). It was submitted there were many reasons why a “warning” that the evidence may be unreliable or, at least, directions beyond those which his Honour gave in relation to Mr Butler’s evidence were required. They included the following:

• his Honour should have provided further directions in relation to the apparent conflict between Mr Butler’s account and that of Miss Stepanik.
• his Honour should have drawn the jury’s attention to the fact that the words relied upon by the prosecution could have been spoken for reasons other than an acceptance by Rustom of his guilt and may merely have been said out of a desire to “big note” himself or be “flippant.”
• his Honour should have warned the jury of the need to exercise caution in determining whether to accept the evidence and the weight to be given to it: R v Fowler (2003) NSWCCA 321; 151 A Crim R 166; Brown, Barwick, Brown v R (2006) NSWCCA 69 at [40] and [45].

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25. The obligations of a trial judge when asked to give a warning pursuant to s 165 were comprehensively considered by this Court in Fowler – a joint judgment of Tobias JA, James and Howie JJ. At 204 [186] their Honours said:

“Where a party has requested a warning under s 165 about a particular witness or a particular piece of evidence, the trial judge must consider what issues (if any) were raised during the course of the trial about the reliability of the witness or the evidence, in order to determine whether a warning is required by the section and what the content of any such warning should be. If there was no issue raised about the reliability of any aspect of the evidence, then no warning should be given, notwithstanding that it might otherwise have fallen within the ambit of the section.”

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28. It is important to appreciate that although evidence may fall within one of the categories identified in s 165(1) it does not follow that a warning is necessarily required. The evidence must be of a kind that may be unreliable. Although in some cases confessions allegedly made to police officers have, regrettably, been shown to be unreliable (necessitating legislative response to ensure they are recorded) evidence of the type given by Mr Butler is of a different character. Evidence of an alleged confession made to someone with an “interest” in the matter, a police officer with an interest in obtaining a conviction, a friend or relative who may be seeking vengeance – there will be other interests - may justifiably be categorised as potentially unreliable. However, Mr Butler had no identifiable interest which could justify a conclusion that, because he gave evidence of an alleged confession by the appellant, his evidence may be unreliable.

Simpson J

44. On 28 September 2004, after a lengthy trial, each of the appellants, Iyman Derbas and Mohamed Rustom, was convicted by a jury of one count of murder and one count of assault. Each was sentenced on the murder charge to imprisonment for 24 years, commencing 24 June 2004 (Derbas) or 9 June 2004 (Rustom), with a non-parole period of 17 years, which will expire on 23 June 2021 (Derbas), or 1 June 2021 (Rustom); and, on the assault count, to a wholly concurrent fixed term of imprisonment for two years. Each now appeals against the convictions. Neither seeks leave to appeal against the sentences.

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Grounds 2, 5 and 6

95. In my opinion these grounds ought to be rejected…

Hidden J

99. I agree with the orders proposed by McClellan CJ at CL and Simpson J, and with their Honours’ reasons.

Gummow and Hayne JJ (who held the proviso should not have been applied at the Court of Criminal Appeal, and did not address the 165 point)

1. In February 2002, security cameras photographed an armed man robbing persons of money. The offender was wearing overalls, sunglasses, and a balaclava which covered all of his face except eyes and mouth. After the robbery, a baseball cap and a tissue were found on the floor near where the robber had stood. The security photographs, taken at intervals, show where these items were found. The photographs tendered in evidence were not very clear. In some of the photographs something that could be a cap can be seen on the floor; in other earlier photographs that item cannot be seen.

…

4. In the District Court of New South Wales, the appellant was charged with, and convicted of, two counts of armed robbery and one count of assault with intent to rob whilst armed with an offensive weapon.

5. The appellant appealed to the Court of Criminal Appeal of New South Wales against his conviction. He advanced several grounds of appeal and the Court of Criminal Appeal (James, Hidden and Hoeben JJ) held that two of the grounds were made out.

6. The first concerned the appellant being required, in the course of cross-examination by the prosecutor, to put on not only the balaclava and overalls that had been found at his house but also a pair of sunglasses which were not in evidence but were produced by the prosecutor. The Court concluded that although there was no error in requiring the appellant to put on the balaclava and overalls, he should not have been asked to put on sunglasses that were not in evidence.

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8. The Court of Criminal Appeal concluded that neither of the errors it had identified was significant, and that "the evidence properly admitted at the trial proved the guilt of the appellant beyond reasonable doubt". Accordingly, the Court of Criminal Appeal applied the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) and dismissed the appellant's appeal to that Court. By special leave, he appeals to this Court. The appeal should be allowed.

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51. These issues need not be resolved in this matter. They need not be resolved because the errors made at trial undermined the appellant's defence and prevented him putting it fully. The Court of Criminal Appeal ought not to have decided that the appellant had been proved beyond reasonable doubt guilty of the offences charged. The Court of Criminal Appeal ought not to have decided that there had been no substantial miscarriage of justice.

Kirby J (holding that the 165 direction should have been given)

54. I agree with the conclusion expressed by Gummow and Hayne JJ ("the joint reasons") that the application of the "proviso" was erroneous. The Court of Criminal Appeal ought to have ordered a retrial. That is the order that this Court should now make.

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59. The other reasons clarify the issues that now fall to be decided. Those issues are the ones expressed in the appellant's several grounds of appeal to this Court which are helpfully set out in the reasons of Heydon J. So presented, the controversies that this Court is asked to resolve may be summarised as follows:

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(3)         The judicial warnings issue: Whether the Court of Criminal Appeal ought to have held that a miscarriage of justice had occurred by reason of the failure of the trial judge to direct the jury concerning the specific dangers occasioned by the demonstration, questioning and procedures referred to in issues (1) and (2). In particular, whether, in the circumstances, the attempted warning given by the trial judge to the jury about the dangers inherent in the use of in-court evidence for a suggested similarity between descriptions and appearances of items of clothing, the appearance of the accused when dressed up, walking and speaking, and the imperfect evidence of surveillance videotapes, taken at the time of the offences, were defective for the lack of specific warnings to the jury about the dangers of convicting the appellant on the basis of any such perceived resemblance or similarities;

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70. Inadequate judicial warnings: I can deal more peremptorily with the third and fourth issues. So far as the third issue is concerned (the suggested omission of judicial warnings on the dangers of miscarriages of justice occasioned by identification or resemblance evidence), I respectfully differ from the conclusion of Heydon J that the inadequate (and in some respects inaccurate and confusing) directions given by the trial judge are to be discounted or passed by because of the failure of the appellant's trial counsel to seek further directions at the closing of the judge's summing up.

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73. Especially is this so because, as Heydon J has shown, the prosecutor at the trial, very properly, discerned the imperfections of the trial judge's directions to the jury on this issue. The prosecutor sought to explain to the trial judge the need for more explicit warnings to the jury as to the special caution they should observe in drawing conclusions adverse to the appellant by reference, for example, to the evidence of witnesses concerning the apparent similarity of items of clothing found much later at the appellant's home and the overalls and balaclava worn by the offender, remembered from the time the crimes were committed.

74. Despite the prudent interventions by the prosecutor in this respect, the trial judge did not subsequently provide the jury with supplementary directions of the kind the prosecutor correctly perceived to be necessary, so as to conform to the stringent standard stated in Domican v The Queen and other cases.

Heydon J (holding that the failure of defence counsel to request the warning meant the court had no obligation to give it)

228. This ground is:

"The Court of Criminal Appeal should have held that there was a miscarriage of justice occasioned by failure to direct the jury on the dangers of the procedure outlined in ground 2.1 and/or 2.2 (above)."

229. The first complaint, then, is that the trial judge failed to warn the jury about the dangers in the evidence of the eyewitnesses about the balaclava and the overalls. The second complaint is that there was a failure to warn the jury about the dangers of the accused wearing a balaclava, wearing overalls and walking in front of the jury, and saying two sentences containing the word "serious".

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232. At one point the trial judge and defence counsel agreed that there was a need to warn the jury to "[e]xercise caution", but whether it was caution about what the witnesses saw of the offender's balaclava and overalls or caution about something else is not clear. Later, prosecution counsel instigated a brief discussion of s 165. Defence counsel submitted in relation to s 165 that "whilst it's not intended to be exclusive, there is an indication of the types of evidence by the inclusions". The trial judge then said: "It's if they have given different evidence on another occasion, something like that. I don't think it is appropriate here. But is it substantially a circumstantial case?" Defence counsel said: "It is absolutely a circumstantial case in my submission." Defence counsel did not say anything more on the point. Hence, contrary to the submissions of counsel for the accused in this Court, there was no statutory requirement to give a s 165 direction because it cannot be said that his predecessor made a "request" for a s 165 warning within the meaning of s 165(2). The conditions necessary to satisfy the word "requests" in s 165(2) in relation to a warning about "evidence of a kind that may be unreliable" would involve counsel making the request identifying what the "kind" of evidence was, why it was unreliable, and what the terms of the warning requested were. None of these points were identified. Defence counsel certainly did not specifically ask for warnings on the subjects set out in ground 2.3, let alone formulate in terms what the content of those warnings might have been. Prosecution counsel did suggest, however, that the trial judge should "modify the identification evidence directions but refer to it as resemblance evidence, not identification evidence".

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236. The relevant course of events before the summing up, then, was that prosecution counsel suggested a "resemblance warning" akin to an "identification warning", and raised the question of a s 165 warning; defence counsel asked for "the usual warnings" without saying what they were, and did not make any request for a s 165 warning. After the summing up, prosecution counsel reminded the trial judge of the need for a "resemblance warning" about what the eyewitnesses said about Exs M and O, but defence counsel twice indicated it was not necessary. Even though the trial judge said she would give it and did not, the failure of defence counsel to press for it after prosecution counsel raised the point, and thereafter to remind the trial judge of her failure to fulfil her promise that she would comply with prosecution counsel's request, disables counsel for the accused now from saying that the failure to give the two warnings which it is now said should have been given amounted to a miscarriage of justice. To examine witnesses by reference to the balaclava and overalls in the manner employed in this case, though permissible, is not a particularly common event. To ask the accused to don the items, walk before the jury and speak as requested is less common. On the other hand, the difficulties of drawing inferences from mass produced items are fairly obvious, and were stressed by counsel for the accused in address. The jury must have appreciated the diverse reactions of the eyewitnesses to the offender's clothing. Further, the events to which the two warnings which it is said should have been given related took up very small amounts of time - a miniscule fraction of the whole trial. Rather than asking for unspecified "usual warnings", it was incumbent on the defence, if it was thought the unusual nature of the events called for specific directions, to formulate the precise words of any direction sought and either read them to the judge at dictation speed or hand up a document containing them. What McHugh JA said of civil jury trial is true for criminal cases as well:

"If a party is to rely as a ground of appeal on a misdirection in a summing-up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give."

The conduct of defence counsel, who at all times showed a vigilant determination to protect his client's interests as energetically as possible, suggests that he did not see his client's position as being damaged by the summing up, that he considered that the prosecution counsel's request might not advance it, and that he did not think his client's position would be improved by the very subtle and detailed warnings which it was submitted to this Court should have been given.

Crennan J

266. I agree with Heydon J that the appeal should be dismissed and I agree with his Honour's reasons.

The Court (Tobias JA Johnson and Rothman JJ)

10. There is little contest as to the circumstances of the robbery itself. The appellant conducted his case on the basis that he was simply not involved in the robbery

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25. AR, the appellant’s son, gave evidence that shortly after the robbery took place, he saw bundles of notes of $100 and $50 wrapped in rubber bands on the table in their room at the Novotel. AR was 14 years of age at the time of the robbery. He gave evidence that the appellant had said in relation to a question about the money: “That’s our money”. AR also gave evidence about the baton which, he said, he had seen under the driver’s seat of the family car during the period of time that they were staying in Sydney and prior to the date of the robbery.

26. Further, the evidence of AR was that the appellant had answered “jokingly” to an enquiry from AR that the baton “was to whack someone over the head with”.

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82. The bases of the submission that warnings should have been given under s 165 of the Evidence Act 1995 were two-fold. Firstly, it was suggested that a warning should be given relating to the bias or possible bias of AR, in relation to his father. Secondly, it was submitted that the unreliability of the identification of the baton by AR and evidence as to the money should also have been the subject of a warning to the jury.

83. The issue of bias was squarely put both to AR in cross-examination and to the jury in addresses. The bias of AR as a result of the allegation that he would, together with his mother, concoct evidence against his father was, with the possible exception of the allegation in relation to his mother procuring false evidence, a matter with which the common sense and experience of juries is manifestly capable of dealing.

84. A request was made by counsel for the appellant, at trial, for a warning under s 165 of the Evidence Act in relation to concoction. The judge determined that it was unnecessary: see s 165(3) of the Evidence Act, the reason being that it was a matter within the general experience and understanding of the jury.

85. Further, notwithstanding the cross-examination on this issue, and the address by counsel on the question of concoction, there is nothing in the evidence itself which was “of a kind that may be unreliable”: see R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 at 547-549, per Heydon JA (with whom Dowd and Bell JJ agreed).

86. The possibility of concoction between the witness, AR, and his mother, ER, while in some circumstances possible, and in this case possible, does not necessarily render the evidence, as such, “of a kind” for which a warning is necessary. If the possibility of concoction and the issues of credit associated therewith were plainly before the jury as a result of the cross-examination and the address of counsel, it is unnecessary for the judge to warn separately, unless the evidence is in a category that may be unreliable in the experience of the judge and not within the common experience of the community.

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91. In relation to the warning as to the identification of the baton, different issues arise. The provisions of s 165 of the Evidence Act require a judge to warn a jury, only in circumstances where a party requests the judge so to do. On the issues of the identification of the baton, there was no request by the appellant for such a warning. Of itself, that would preclude the operation, or any error associated with the operation, of s 165 of the Evidence Act.

92. However, judges are required, where it is appropriate so to do, to warn a jury: see s 165(5) of the Evidence Act. The appellant, on the appeal, relied on statements of Howie J in R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301; (2001) 124 A Crim R 371 to support the proposition that identification of the baton by AR was a matter of “identification” and, like identification of an accused, should be the subject of an appropriate warning. The difficulty with the submission in this case is that nothing turned on the precise identification of the baton. The appellant also sought to rely on the statements of Kirby ACJ in R v Clout (1995) 41 NSWLR 312 at 320-321.

The Court (Leeming JA, Schmidt and Wilson JJ)

1. On 16 March 2016 the applicant (“AL”) was arraigned before his Honour Judge Berman SC and a jury of twelve upon an indictment which charged him with three offences contrary to s 66A of the Crimes Act 1900 (NSW). Each count was in the same terms, charging that AL,

"Between 14 September 2003 and 1 February 2005, at Ermington in the State of New South Wales, did have sexual intercourse with AM, a person under the age of 10 years".

2. On 23 March 2016 a verdict of guilty was returned by the jury with respect to each of the three counts. The applicant was convicted and subsequently sentenced.

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52. In support of the application for the s 165 direction, trial counsel gave three reasons why the complainant’s evidence may be unreliable, thus requiring the warning to be given to the jury. It was submitted that the complainant’s “memory is clearly inadequate and is wrong”; that the whole of the evidence relied upon by the Crown in support of each count came only from the second interview with the complainant from November 2014; and that the details given by the complainant in the second interview were based upon “dreams”.

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55. The trial judge concluded that he would not give the jury a s 165 warning. He did not give reasons for that decision, and was not asked to do so. Counsel then addressed the jury.

56. At the conclusion of the closing addresses and before his Honour summed up to the jury, the applicant returned to his request for a Murray direction. He confirmed that what he was asking the trial judge to tell the jury was “either that it would be dangerous to convict or they should scrutinise his [the complainant’s] evidence with great care”.

57. It was submitted that a Murray direction was required not because the complainant was a child witness, but rather because he was the sole witness to the commission of a crime; because he was aged 4 or 5 at the relevant time, an age so young as to have consequences for the reliability of memory; because he had not disclosed the three specific charged offences until his second interview with police; and because delay in complaint had occasioned forensic disadvantage to the applicant.

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61. Referring to the decision of Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544, his Honour noted that, whilst a Murray direction could still be given in an appropriate case, the present was not such a case.

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71. The obligation to give a warning is conditional: it need not be given unless it has been requested, or if the trial judge is satisfied there are “good reasons” for not giving the warning. Section 165(3) preserves the discretion of the trial judge to decline to give an unreliability warning where he or she is satisfied that good reasons exist not to do so.

72. Section 165(6) specifically prohibits a warning being given to a jury as to the unreliability of a child’s evidence based upon the age of the child, otherwise than in accordance with s 165A(2) and (3).

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77. In all cases a direction cautioning the jury about the possible unreliability of the evidence of a child complainant in a sexual assault case can only focus on matters relevant to the particular child in the particular circumstances of the case. It cannot focus on the mere fact that the witness is a child, or derive from a feature about the witness which is an inherent feature of children more generally, such as a warning based on an assumption about the capacity of a child to lay down memory or accurately recall memory later.

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81. In the applicant’s case, the trial judge was conscious of the distinction to be drawn between the need for a warning about matters of which the jury could have little understanding or appreciation, but where the court would have such an understanding; and matters which the jury was well able to assess without particular assistance.