Blair v R

Judgment

1. BEECH-JONES CJ at CL: I have had the advantage of reading the judgment of Yehia J. Subject to what follows I agree with her Honour.
2. One aspect of ground 1 of the appeal is that the trial judge should have given the jury a warning under s 165(2) of the Evidence Act 1995 because the evidence of the complaint was a "kind of evidence" referred to in s 165(1)(d), namely, "evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding". There are numerous obstacles in the face of that contention including the fact that, as explained by Yehia J, there was no "request" for that warning (s 165(2)). However, even if there were such a request, s 165(1)(d) was not applicable because there was no basis for reasonably supposing that the complainant was so involved.
3. The starting point for construing this part of the Evidence Act is not the antecedent common law but the statute itself. To that end, s 3(3) provides that the material that may be used in the interpretation of a provision of the Evidence Act includes "any relevant report of a Law Reform Commission laid before either House of the Parliament of the Commonwealth before the provision was enacted". This includes the original reports of the Australian Law Reform Commission upon which the Evidence Act is based, namely its interim report published in 1985 (Report No 26) and its final report in 1987 (Report No 38). The draft bill that was included in each of those reports included the subject words, although it was limited in its application to prosecution witnesses (Report No 26 Volume 2, at p 63; and Report No 38 at p 197).
4. Report No 26 was critical of what it described as the "technical and arbitrary rules" surrounding the need for corroboration of particular classes of evidence, especially that given by accomplices (Report No 26 Volume 1 at p 266). It proposed the abolition of the existing "requirements of law and practice" and instead the adoption of "[r]ules ... which take account of the existing categories." It suggested that the categories be "broadly described" and relevantly include "evidence of persons concerned in or with the offence" (Report No 26 at [1016] to [1018]). Although this represents a relaxation of the technicalities that accompanied a determination of who was or was not an "accomplice", it is notable that it did not extend to persons concerned in or with any offence related to the proceedings as opposed to the offence the subject of the proceedings.
5. The text of s 165(1)(d) requires focus on the "events giving rising to the proceeding". In one sense this can be contrasted with simply being involved in the offence the subject of the proceeding, in that s 165(1)(d) can be engaged by a witness who might not strictly be criminally concerned with the very offence charged, but who might nevertheless be supposed to be criminally concerned in the criminal endeavour that gives rise to the offences charged. However, whatever the precise scope of s 165(1)(d), it does not extend to the complainant in this case. In this case, the "events giving rise to the proceeding" was the assault, detention and robbery of the complainant. Self-evidently, the complainant was not criminally concerned in those events. Given the origins, purpose and scope of s 165(1)(d), the (proposed) sale of drugs to the applicant's daughter by the complainant on the evening of the 28 May 2019 was not part of the events that gave rise to the proceedings. It follows that s 165(1)(d) was not engaged in relation to the complainant's evidence.
6. I otherwise agree with Yehia J in relation to ground 1.
7. In relation to ground 2, I have reviewed the record of the proceedings. Bearing in mind the very strong evidence in support of the convictions on grounds 1 and 3, which were not challenged in this Court, the sheer logic of events also supports the Crown case on count 2. At one end of the timeline, the complainant was severely assaulted, and at the other, the co-offender took his drugs and money. The notion that between those two events the complainant was simply on an early morning drive with the applicant and his co-offender is absurd. I otherwise agree with the reasons of Yehia J in respect of this ground. On my review of the evidence, it was reasonably open to the trial judge to be satisfied of the applicant's guilt on count 2 on the indictment.
8. I agree with the orders proposed by Yehia J.
9. FAGAN J: I have had the advantage of reading the judgments of the Chief Judge and of Yehia J in draft. I agree with the orders proposed by Yehia J.
10. With respect to ground 1, I agree with Yehia J that no request was made under s 165(2) of the Evidence Act for the learned judge to heed a warning to himself with respect to parts of the evidence that were hearsay (s 165(1)(a)), or with respect to evidence of the complainant on the basis that he "might reasonably be supposed to have been criminally involved in the events giving rise to" count 2 or the other charges (s 165(1)(d)). His Honour could not reasonably have been expected to understand that a request for a warning under s 165(1)(d) was being made when defence counsel delivered the part of his address that has been relied upon on the appeal, as quoted by Yehia J at [75].
11. The considerations identified by the Chief Judge at [5] and by Yehia J at [77] amply demonstrate that s 165(1)(d) was not engaged by the complainant's evidence in this case. The applicant's counsel submitted in writing: It was an aspect of the defence case that the complainant's criminal concern in events that evening was a motivation to concoct a false story to, as it were, "get in first". [The] complainant was motivated to deflect investigators from the true state of affairs. There is no doubt that the complainant was untruthful in this complaint and intent upon deflection of his criminality.
12. Counsel was not able to articulate, either in writing or orally, how a supposed motivation of the complainant to deflect investigators from his possession and supply of methyl‑amphetamine could be reconciled with the uncontested fact that he summoned police by an emergency call; or how such a motivation, if it existed, could amount to him being criminally involved in either the events giving rise to his own kidnapping or the events giving rise to the assaults upon himself and the larceny of his property. The attempt, on appeal, to fit the circumstances within s 165(1)(d) lacked coherence. On my reading of defence counsel's address, no such attempt was made at trial, for good reason. It would not have been viable.
13. For the purposes of determining ground 2 I have read the entire trial record and the learned trial judge's reasons. I adopt Yehia J's comprehensive summary. I agree with her Honour that it was open to the learned judge to be satisfied beyond reasonable doubt of the guilt of the applicant on count 2. The transcript of oral evidence of the complainant, who was the critical Crown witness, shows that he was to a degree excitable in the witness box, indignant at what he alleged had been done to him and not uniformly reliable or consistent. The learned trial judge's careful and balanced reasons took account of those features and the complainant's testimony was evaluated in light of them. His Honour gave consideration to the probabilities of the situation, arising from uncontested and objectively proved circumstances. The judgment articulates a thorough and reasonable analysis upon which his Honour accepted, beyond reasonable doubt, those parts of the complainant's evidence that were essential to proof of count 2. On the whole of the evidence, it was open to him do so.
14. YEHIA J: Following a trial by judge alone that commenced on 1 June 2020 in the District Court of New South Wales, the applicant, William Blair, was convicted by his Honour Judge Buscombe (the trial Judge) on 9 June 2020 of the following offences: Count Offence Particulars 1 Robbery in company, contrary to s 97(1) of the Crimes Act 1900 (NSW) (Crimes Act) On or about 19 May 2019, at Windsor in the State of New South Wales, William Blair did rob Allan Knibbs of his prohibited drugs and mobile phone, while in the company of Michael Savage. 2 Specially aggravated kidnapping in company, contrary to s 86(3) of the Crimes Act On or about 29 May 2019, at Windsor in the State of New South Wales, while in the company of Michael Savage, William Blair did take and detain Allan Knibbs, without his consent, with the intention of committing a serious indicatable offence, namely, larceny, and immediately before the taking and detaining, actual bodily harm was occasioned to Allan Knibbs. 3 Larceny, contrary to s 117 of the Crimes Act On or about 29 May 2019, at Prospect in the State of New South Wales, William Blair did steal a drug cutting agent, Australian currency, and a motor vehicle, the property of Allan Knibbs.

1. On 27 August 2020, the applicant was sentenced by his Honour to an aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years' and 8 months' imprisonment. There is no appeal against sentence.
2. By notice of appeal filed on 6 December 2021, the applicant seeks leave to appeal against his conviction in respect of Count 2 on the following grounds: "Ground 1 - A miscarriage of justice was occasioned in the trial of Count 2 by the failure on the part of the trial judge to warn himself in respect of aspects of the complainant's evidence in accordance with section 165(1)(a) and (d) of the Evidence Act. Ground 2 - The verdict of guilty in respect of Count 2 is unreasonable."
3. The applicant does not appeal against the verdicts of guilty returned on Counts 1 and 3.

The Trial

1. What follows is a summary of the case called by the Crown at trial. The Crown case relied heavily on the evidence of the complainant. The applicant did not give evidence. Instead, the applicant relied upon his record of interview conducted on 6 June 2019. The trial Judge rejected the account given by the applicant in his record of interview.

Evidence of the Complainant

1. The complainant gave evidence that on the evening of 28 May 2019, at around 10:00pm or 11:00pm, he was at the Wentworthville Hotel, with the applicant's brother, Eric, when he was telephoned by Ms Brittany Fotheringham (Brittany). Brittany is the applicant's daughter.
2. Brittany had asked the complainant if he "had anything". He responded: "yeah I've got a bit". Brittany then asked the complainant to "come over". There was no dispute on the evidence that the complainant and Brittany were discussing the supply, by the complainant, of methylamphetamine (ice) to Brittany. The dispute arose as to the circumstances in which the complainant intended to supply the drug. Before the complainant got to the Windsor Motel (the Motel), he sent a Facebook message to Brittany in the following terms: "you still owe me and the debt collector wants to collect, I'm coming to collect".
3. The complainant drove to the Motel in his motor vehicle and in possession of three "points" of ice contained in a packet of cigarettes.
4. The complainant was "not real sure" what time he arrived at the Motel, but thought it was around 11:00pm or midnight. The CCTV footage shows the complainant arriving in his motor vehicle at approximately 2:05am. Upon his arrival, he received a text message from Brittany that stated she was in the shower and that the keys to her room were on the windowsill near the stairs.
5. A Telstra document listing the text messages sent from the complainant's mobile phone number was tendered (Exhibit 4 in the trial). At 10:39pm, on 28 May 2019, the complainant sent a text message to Brittany's phone stating: "call me, I've got some good shit". At 1:21am, on 29 May 2019, a text message was sent from Brittany's number stating: "Hey I'm going to jump in the shower, I'll leave the key downstairs for you near the front door, I'll tell you where when I hide it, just come up and go to the room on the right and I'll be out soon."
6. The complainant intended to meet Brittany to "have a smoke, a pipe and yeah just do what we normally do, chat and whatever". He obtained the keys from where he was told that they would be, went up the stairs, opened the door, and was confronted by two males. He was dragged into the room by the two men. One of the men introduced himself as Brittany's father and used the name "Bill". There was no dispute that "Bill" was the applicant, and the second man was Michael Savage (Michael).
7. What ensued after the complainant was dragged into the room was summarised by him as follows: "I started getting assaulted. I was getting hit with a tyre lever, getting punched, getting kicked, was thrown down on the bed and they just continued to assault me, the pair of them, asking where the money was, where the drugs was and I said "I've got nothing, I've got nothing, I don't have anything." And they said "Yeah, you do." and they'd just keep going and going and going. In the end I give up and I give them my packet of smokes, which is Holidays, and in the smokes was a little pack of ice and then - " [1]
8. The complainant nominated the applicant as the person who struck him with a tyre lever. While assaulting the complainant, the applicant repeatedly asked: "where is your money, where's your money and where is your drugs?" The assault came to an end when the complainant told the two men that he had "drugs" and "money" at his house: "…in the end, how it ended was, I said, "All right, I've got it at home". So, they said all right, "We'll take you home", and that's it stopped because I agreed for them to come to my place, take me to my place." [2]
9. The complainant told the applicant and Michael that he had money and drugs at home to prevent further assault upon him as, at the time, he believed they were going to kill him. [3] Before the three men left the Motel, the complainant's mobile phone was taken from him.
10. The complainant was escorted from the Motel down to his car. He was told to sit in the back seat. The applicant sat in the front passenger seat and Michael drove the vehicle. CCTV footage shows the complainant and the two men walking from the Motel to the complainant's car at around 2:44am. The complainant appears to be walking freely and the other men do not have hold of him in any way. The complainant maintained he did not leave freely, but did so under duress and was forced by the men to go to his car.
11. The complainant "passed out" for a period, but recalled that he was driven to Penrith, Werrington, and to a service station at Orchard Hills, before arriving at his home. He did not get out of the car during the journey, notwithstanding more than one opportunity to do so. The complainant was challenged about his failure to escape when he had an opportunity: "Q: Sir, can I suggest that you had been attacked and kidnapped by these men and you are in the main street of Penrith several hundred metres from the police station that you would have attempted to get out of the car and get the police station, wouldn't you? A: No. I wanted to live. If I got out and they got me before I got there, they already threatened to kill me." [4]
12. It was put to the complainant in cross-examination that given his failure to escape when he had an opportunity to do so, he was not kidnapped, but rather was driving back to his home voluntarily. The complainant responded: "No I was doing what was keeping me safe, he [a reference to the applicant] threatened he would kill me and he would kill my family". [5]
13. Given the complainant's connection to the applicant's brother, Eric, the complainant believed that the applicant knew where he lived and knew members of his family. [6]
14. After stopping at a 7-Eleven to get petrol, the complainant was driven to his home at Prospect. CCTV footage shows the parking of the complainant's car on the left-hand side of the road, almost opposite his home, at 5:21am.
15. He was told to "get out of the car" by the applicant and was escorted into the house by Michael. At 5:24am, the complainant and Michael walked along the driveway to the complainant's home.
16. Michael took money, a quantity of ice, and a cutting agent. As soon as Michael left the house, the complainant locked the front door. At approximately 5:27am, the applicant and Michael drove away in the complainant's car. The car was later located by police in the Schofield area, having been damaged by fire.
17. At 5:34am, about seven minutes after the complainant's car was driven away from the premises, the complainant used his neighbour's phone to make a triple-0 call.
18. The complainant made a complaint of being "kidnapped, bashed, car stolen, money stolen". [7] He told the operator that the man had taken his phone, and provided the operator with the registration details of his car. He reported that he had been "hit with iron bars", which he later described as a wheel brace. He recounted that he was bleeding "everywhere" and had a split head.
19. At 5:40am, Sergeant Gillett attended the complainant's premises. He observed that the complainant had a number of injuries to his face and head, and noted a large red welt to the upper left side of his head. He also observed a laceration on the same area.
20. When asked what had happened, the complainant responded: "I got jumped by a couple of guys when I went to meet up with someone. They were laying into me and stole my car and phone. One of them hit me with an iron bar or something. They held me for a few hours." [8]
21. The complainant told the officer that the incident had occurred at Room 23 of the Motel. He also said Brittany had messaged him and asked him to go over and that the key was outside. The complainant identified one of the men as Brittany's father, a man called "Bill", and he indicated that he did not know the other man. He described the men taking him around Werrington and stopping at a service station on Northern Road, which the officer identified as the 7-Eleven in South Penrith.
22. Photographs of the complainant's injuries were taken by the complainant's son-in-law on 29 May 2019. The photographs depicted small abrasions and lacerations to the head and face; bruising to the eyes; and a bruise to the rib and chest area. None of the photographs were of the complainant's arms. No medical evidence was tendered in the trial.
23. The applicant was arrested on 6 June 2019. He participated in a record of interview with the police (Exhibit 8 in the trial). After the interview with police, the applicant wrote a letter to a police officer, Sergeant Martin, providing an account of what had taken place. The trial Judge found that the letter, in general terms, was consistent with the account the applicant had given in his record of interview.

Judge Alone Judgment

1. The trial Judge made the following observations regarding the complainant's credibility: [9] 1. The complainant was not an "accurate witness" and tended to exaggerate certain parts of his evidence; 2. The complainant did not give truthful evidence about the nature of his relationship with Brittany. In particular, his Honour was satisfied that the complainant was Brittany's "drug supplier and was going to the Motel that night to supply her with the drug ice and that he was to be paid either in cash or in kind"; 3. The complainant was not accurate in relation to the time he said he arrived at, and left, the Motel. The complainant initially claimed that he had been detained in the motel room for several hours, when, in fact, he was detained for approximately 40 minutes. His Honour was satisfied of this fact by comparing the complainant's evidence with what was revealed by the CCTV footage obtained from the Motel; 4. The complainant was unreliable in his evidence as to how much money was taken from his own home. The trial Judge noted that the complainant initially said in evidence that about $600 - $700 had been taken, yet he told the police that only $265 was taken. His Honour took this as being another example of the complainant's tendency to exaggerate the offences that night; 5. His Honour could not be satisfied that the complainant was struck with a metal bar, but was satisfied that a metal bar was produced during the assault; 6. The trial Judge rejected the complainant's evidence that he was struck a number of times with a metal bar and blocked those blows with his arms. This was because his Honour had regard to the photographs that were in evidence and demonstrated limited injuries, as well as the fact that the complainant did not require hospitalisation or medical treatment; 7. The fact that the complainant was not the driver of his own car to his own home was consistent with the complainant's evidence that he was taken there against his will; and 8. The complainant was "unshaken in cross-examination" regarding his version of events, namely, how he was dragged into the room; the demands made of him for drugs and cash; the loss of his phone; the forced taking of him from the motel room; and why he did not attempt to escape.
2. The trial Judge acknowledged that, to a considerable degree, the Crown's case relied upon the evidence of the complainant. Accordingly, his Honour gave himself the following direction: "It is necessary to very carefully scrutinise the complainant's evidence in determining whether, on the issue of the proof of the elements of the offences, that he can be accepted as a truthful and accurate witness before returning a verdict of guilty on a particular count. It is also necessary to consider if there is any other evidence that supports the complainant's account." [10]
3. The trial Judge then turned his mind to the complaint evidence. His Honour found that there were immediate complaints by the complainant, first in the triple-0 call and then to Sergeant Gillet when he arrived at the complainant's premises. The trial Judge was satisfied that the complaints were generally consistent with the evidence the complainant gave as to the events on 28 May 2019 and 29 May 2019. With this in mind, his Honour directed himself as follows: "Evidence of complaint in these circumstances can be evidence of what actually occurred during that night, in addition to the evidence given by the complainant in the witness box. It is also evidence that, if accepted, can be used in support of the complainant's credit. In giving myself those directions concerning the complaint evidence, I of course recognise that a fulsome and accurate account does not become more truthful or accurate simply because it is repeated on one or more occasions."
4. The trial Judge concluded that considerable weight should be given to the complaint. His Honour reached this conclusion on the basis that: "the triple-0 call was made almost immediately that the accused and Michael left the complainant's premises and was made from another phone consistent with the complainant having had his phone taken from him. The complaint was immediate; relatively detailed and consistent with the account that the complainant gave in his evidence as to the events of that evening. Those comments also apply to the evidence of the complaint the complainant made to Officer Gillet."
5. In addition to the complaint evidence, the trial Judge placed some weight on the fact that if the complainant had simply agreed to give the men the drugs at his home: "it is impossible to understand why the complainant was not the driver of his own vehicle back to his home where the drugs were kept". [11]
6. The trial Judge also noted that the complainant's description of how he and the two men left the Motel, where he was seated in the car, what occurred at the service station, and what occurred when the car arrived at his premises, was all supported by the CCTV footage from the various locations.
7. There was nothing in the demeanour of the complainant whilst giving evidence that concerned the trial Judge. [12]
8. The trial Judge considered the contents of the applicant's record of interview in which he gave an alternative version of the events the subject of the trial. The applicant told police that he was concerned about the message that the complainant had sent to Brittany, which stated: "You still owe me and the debt collector wants to collect, I'm coming to collect". The applicant denied being the aggressor and said he only responded with physical force because the complainant had first attacked him. He claimed that he could not remember who else, if anyone, was present at the Motel.
9. After careful consideration of the contents of the applicant's record of interview, his Honour concluded that aspects of the interview were not a truthful and accurate account about what occurred. His Honour concluded that the applicant's account was "overall… implausible". [13]
10. Having rejected the account of the applicant, his Honour correctly scrutinised the evidence called by the Crown, in particular the evidence of the complainant, in determining whether or not the Crown had proved the charges beyond reasonable doubt.
11. The trial Judge, having summarised the evidence and set out a number of directions of law, made the following findings beyond reasonable doubt: 1. The applicant and Michael did drag the complainant into the motel room, having been waiting for him to arrive. This was instigated following the applicant seeing the messages sent by the complainant to his daughter indicating that the complainant was coming to the Motel to provide her with drugs; 2. Both the applicant and Michael assaulted the complainant and demanded from him money and drugs in the motel room; 3. During the course of the assault, they took the complainant's mobile phone from him; 4. That in order to stop the assault upon him, the complainant produced a small amount of ice he had taken to the motel room; 5. Following the production of that small amount of drug, the complainant was further assaulted, and a demand was made for further drugs and money. It was only then that the complainant told the applicant and Michael he had drugs and money at home; 6. During the assault, the complainant suffered some bruising and a number of small abrasions and lacerations to the head and face; 7. The applicant and Michael said that they would take the complainant to his home so they could obtain the drugs and money the complainant kept there; 8. The complainant was then taken from the Motel and forced to sit in the back seat of his car while he was driven to a number of locations, eventually arriving at his home; 9. The complainant was taken against his will and the applicant knew that was so, given what occurred in the motel room; 10. The complainant did not attempt, at any time, to leave the car as he was concerned that further assaults may be inflicted upon him if he did; 11. The applicant stayed in the complainant's car while Michael effectively escorted the complainant into his home; 12. There was an agreement between the applicant and Michael that Michael will take from the complainant any money and drugs the complainant had in his home; 13. Michael did take property from the complainant's home, namely, a quantity of drugs and cash in the amount of $265; and 14. The applicant and Michael drove away in the complainant's car intending to permanently deprive him of the car and the items taken from his house;
12. Having been satisfied of those matters beyond reasonable doubt, the trial Judge returned verdicts of guilty in relation to each count on the indictment.

Ground 1 - A miscarriage of justice was occasioned in the trial of Count 2 by the failure on the part of the trial Judge to warn himself in respect of aspects of the complainant's evidence in accordance with section 165(1)(a) and (d) of the Evidence Act 1995 (NSW)

1. The applicant contended that there is a relationship between the grounds of appeal as Ground 2 bears upon the nature of the miscarriage alleged in Ground 1.
2. The applicant submitted that in "rehabilitating the complainant's credit", the trial Judge placed "considerable weight" on the evidence of the complaint in the triple-0 call, but failed to direct himself in terms of ss 165(1)(a) and 165(1)(d) of the Evidence Act 1995 (NSW) (Evidence Act).
3. In essence, the applicant submitted that the absence of warnings pursuant to ss 165(1)(a) and 165(1)(d) of the Evidence Act is relevant to Ground 2 because "this omission" was significant in circumstances where his Honour's judgment discloses the complaint evidence was fundamental to the conclusion that Count 2 was proven beyond reasonable doubt.
4. Notwithstanding the relationship between the grounds of appeal, it is necessary to address each ground separately.

Warning under Section 165(1)(a)

1. The applicant contended that the failure to administer the warnings constitutes a miscarriage of justice, pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). Accordingly, the applicant noted that it is for the Crown to discharge their onus in proving there has been no substantial miscarriage of justice in respect of the conviction for Count 2.
2. Section 165(1) of the Evidence Act applies to "evidence of a kind that may be unreliable" (emphasis added). A non-exhaustive list of categories of evidence is provided, which includes evidence in relation to which Pt 3.2 (hearsay evidence) of the Evidence Act applies (see s 165(1)(a)). The "orthodox" direction in respect of complaint evidence does not include a warning that it may be unreliable. Where there are reasons why hearsay evidence may be unreliable, trial counsel may request a warning pursuant to s 165(1)(a).
3. No further direction, by way of a warning, was required in respect of the complaint evidence in this case. Firstly, although there were some inconsistencies between the complaint evidence and the findings made by the trial Judge, his Honour accepted that the complaints in both the triple-0 call and to Sergeant Gillett were generally consistent with the evidence the complainant gave as to the events that unfolded on 28 May 2019 and 29 May 2019.
4. The first complaint was made approximately seven minutes after the applicant and Michael drove away from the complainant's premises. The triple-0 call was made by the complainant from his neighbour's phone, consistent with his account that his own phone had been stolen from him.
5. Secondly, the trial Judge directed himself that while the complaint can be evidence of what actually happened on the night and, if accepted, can be used in support of the complainant's credit, an account does not become more truthful or accurate simply because it is repeated on more than one occasion.
6. Thirdly, counsel at trial did not make a request for a warning pursuant to s 165(1)(a). Instead, counsel acknowledged that there was complaint in light of the triple-0 call, stating: "Your Honour will no doubt be mindful of all the directions that you have to consider in relation to complaint, truthfulness or otherwise, some people lie, some people do not". [14] This did not amount to a request by counsel at trial for a warning. Such a request was not made because there was no basis, in this case, to do so. This was not a case where the timing of the complaint, or the terms of the complaint, were such as to warrant a warning.
7. In support of the contention that the trial Judge ought to have warned himself pursuant to s165(1)(a), the applicant relied upon R v TJF (2001) 120 A Crim R 209 (TJF) as authority for the proposition that evidence of complaint may be unreliable for a number of reasons. In particular, the judgment notes that a complaint is not made in a court environment and, therefore, is potentially more susceptible to pressures which might result in a false account. In addition, the statement is not made on oath or affirmation in the solemn context of court proceedings.
8. The complaint evidence in TJF was not immediate. At the time the complaints were expressed in each case, the events complained of were not fresh in the memory of the respective complainants. In the case of one complainant, the alleged misconduct had occurred two years prior to the complaint. In the case of the second complainant, the alleged misconduct had occurred seven months before the complainant spoke to her mother. The complaint in the present case was immediate; the triple-0 call was made approximately seven minutes after the applicant and Michael left the complainant's premises. The content of the call was, in general terms, consistent with the evidence of the complainant.
9. The circumstances in which a complaint is made, may, in some cases, require a warning pursuant to s 165(1)(a). This was not such a case. The absence of a request for a warning reflects a recognition by counsel at trial that there was no basis for such a warning.

Warning under Section 165(1)(d)

1. In support of Ground 1, the applicant asserted that the complainant's version was untruthful, and his complaint was intended to deflect investigators from his own criminality. In support of the contention that the complainant was a person "criminally concerned in the events that give rise to the proceedings", the applicant relied upon long-standing common law authority. In particular, the applicant pointed to the "accomplice warning" as being appropriate where a witness "may be exposed to facts and circumstances which might be persuasive of the false involvement of another".
2. It is, therefore, necessary to consider the position at common law before considering the provisions of the Evidence Act.
3. It has long been recognised in common law that certain categories of evidence are inherently unreliable and outside the ordinary knowledge of jurors. Evidence by an accomplice, in particular, against his or her co-offender is less than reliable precisely because they are "such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth": see R v Ncanana 1948 (4) SA 399 at 405; R v McLachlan [1999] 2 VR 553 at 562; R v Kendrick [1997] 2 VR 699 at 705; Downey (1997) 97 A Crim R 41 at 44; Ware (1994) 73 A Crim R 17 at 28.
4. Accordingly, a warning is required "because of the experience of the courts which had led to a conclusion that such evidence has, as a general category of evidence, particular aspects which may not be known to our understood by a jury": see R v Booth [1982] 2 NSWLR 847 at [171]; McKinney v The Queen (1991) 171 CLR 468.
5. In Peacock v The King (1911) 13 CLR 619 at 671, the Court noted that an accomplice in particular has some "material fact or facts which go to prove that the prisoner was connected with the crime charged". The Court reiterated that the evidence of an accomplice may be unreliable as it is only natural for an accomplice to want to shift the blame from himself and construct an untruthful story. Accordingly, the Court held that without a warning, the evidence of an accomplice, where uncorroborated, could lead a jury to convict an accused on that evidence alone.
6. Similarly, in R v Sneesby [1951] St R Qd 26 at 28 Philp J said: "The reason for the rule … is that an accomplice is a person who would be likely to lie in order to save his own neck, or his own liberty. Lord Macaulay says somewhere that an accomplice giving evidence is like 'a cormorant fishing for prey with a rope around his neck.' It is fair to assume that an accomplice may be induced to lie in order to get a pardon, or to get immunity from prosecution, or, perhaps, lesser punishment."
7. In Davies v Director of Public Prosecutions [1954] AC 378 at 400 Lord Simonds LC, with whom Lords Porter, Oaksey, Tucker and Asquith of Bishopstone concurred, said that the common law rules as to accomplice warnings applied to three classes of "accomplice": "(1) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanors). This is surely the natural and primary meaning of the term 'accomplice.' But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule. (2) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny…. (3) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted, of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration."

Enactment of the Evidence Act 1995 (NSW)

1. The enactment of the Evidence Act made substantial changes to the law of evidence: see Papakosmas v The Queen (1999) 196 CLR 297. That said, s 165 has its origins in the common law requirement that a trial judge be obliged to give a warning to the jury in respect of potentially unreliable evidence; one such category, or class, of evidence is persons who are "criminally concerned". Section 165 is concerned with those occasions where the possibility of a miscarriage arises because there is evidence before the jury "of a kind that may be unreliable", categories of evidence about which the courts have acquired a special knowledge of the potential unreliability of the evidence or in respect of which the courts perceived that there was a danger of the jury over-estimating the weight to be given to the evidence: see Regina v Stewart [2001] NSWCCA 260 at [92] (Stewart).
2. Section 165 of the Evidence Act provides (relevantly): S 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury." The section creates a non-exhaustive list of categories of evidence that are deemed to be of a "kind" that require the trial Judge to give the jury a warning about its reliability. A failure to provide such a warning could result in a miscarriage of justice.
3. The purpose of the section was helpfully summarised by Kirby J in R v Baartman [2000] NSWCCA 298 at [62]: "In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence (see ALRC 26, Vol 1, para 1017)…"
4. The term "accomplice" is not used in s 165(1). Instead, subsection 165(1)(d) refers to a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding." Whether the witness falls into that category is initially a matter of fact to be determined by the trial judge, although a finding that there is evidence that the witness falls into that category is a question of law: see R v Taranto [1999] NSWCCA 396 at [38]; Stewart at [125].
5. The question in this case is whether the complainant is "criminally concerned in the events giving rise to the proceedings". Accordingly, it is necessary to deal with some of the authorities relied upon by the parties.
6. In R v Clarke [2001] NSWCCA 494, a key Crown witness, Mr Brown, testified that the appellant had confessed the murder to him. Mr Brown had given this evidence under an indemnity from prosecution. The appellant contended that the trial Judge failed to carry out a duty created by s 165 to give an unreliable evidence warning in respect of Mr Brown's testimony.
7. The Court held at [69] that Mr Brown was not "criminally concerned in the event giving rise to the proceedings". The language of paragraph (d) "must be read in the light of the opening words of s 165", namely, evidence of a "kind that may be unreliable" (emphasis added): see [70].
8. Although Mr Brown's evidence was open to various criticisms, the Court ultimately held at [71] that "the idiosyncrasies and particular potential deficiencies of a given witness do not of themselves make that witness a member of a "kind", and even if they do, the trial judge repeatedly exposed those idiosyncrasies and particular deficiencies."
9. In Stewart, Howie J reiterated at [98] that matters which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and does not satisfy the description of "a kind" of evidence. His Honour held at [150] that what is required by the section is some "basis to fear that the significance of the matter may be lost on the jury" or a matter "which the court has some special knowledge that it should share with the jury" (emphasis added).
10. In Kanaan and Ors v Regina [2006] NSWCCA 109, the Crown case relied principally on the evidence of three witnesses: Rossini, Peter Laycock and Oscar Laycock. Each had been arrested on drug supply charges which were withdrawn after they signed an undertaking to give evidence of their knowledge of various criminal activities, including the index offence involving the accused. The Court dealt with matters which had the potential to make an induced statement by an accomplice unreliable and require the giving of a warning. Relevantly, at [164] - [166]: 1. Witnesses involved in criminal activity is directly relevant to the credit of such witness. However, those issues would "ordinarily be a matter of which jurors will be aware"; 2. Witnesses involved in the same criminal activity as the accused provides such a witness with the motive to construct a false version of the events in order to justify his own behaviour. The evidence of such a witness, moreover, is likely to have a seeming plausibility because of their detailed knowledge of the circumstances in which the crime was committed, and this plausibility may add undeserved weight to what they say about the part played by the accused; and 3. An indemnity or undertaking given to the witness is a matter less likely to be within the general experience and understanding of the jurors. The nature of that benefit to the witness, the consequence to the witness if he does not adhere to the (induced) statement he gave to the police, and the effect which such a consequence may have on the truthfulness of the evidence given by the witness are not matters within the general experience and understanding of jurors and thus will ordinarily require mention in the warning given.
11. The complainant's involvement in drug supplying and/or general criminal activity is not a matter that would normally require or justify a warning under s 165(1)(d) of the Evidence Act. In this case, the events giving rise to the proceedings involved allegations of robbery, kidnapping and larceny. The complainant was not a witness criminally concerned in these events.
12. The applicant's submission that the complainant's "tendencies to exaggerate and his untruths were motivated to deflect investigators from the true state of affairs", namely, his involvement in drug related criminal activity, is somewhat misconceived. Far from deflecting investigators, his immediate complaint that he was assaulted and kidnapped could only have served to bring attention to the events, including criminal conduct on his part.
13. An issue arises as to whether counsel at trial requested the trial Judge to warn himself as to the dangers of acting upon the evidence of the complainant. The applicant submitted that the following passage from the closing address of counsel at trial amounted to "in essence a request" for a warning pursuant to s 165(1)(d) of the Evidence Act: "…your Honour has to look at it all in context. We have a man who, in accordance with the accused's version, was caught out red handed supplying drugs to his daughter. My client's view of that and no doubt he put it directly to Knibbs that night, that it was for the purpose of him getting sex, either consensually or otherwise, from his daughter. He decided, in my submission, it is very open on all of these facts that Knibbs therefore decided, the only way I am going to get out of this is if I bribe him, if I let him take things of mine in the hope that he will take these, disappear and there will not be a problem. Whether he then therefore thought, I need to get in first with police to complain about his behaviour before he complains about mine, that is a reasonable open inference that your Honour could draw from all of these facts."
14. This passage points to a number of factors relevant to the complainant's credibility and reliability. However, it does not amount to a request for a warning pursuant to s 165(1)(d). Furthermore, during discussions between the trial Judge and counsel about the appropriate directions, counsel at trial did not request such a warning. The fact that he did not do so is telling.
15. Clearly, the complainant was not a witness who "might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings". He made a complaint about those events, namely, allegations that he had been robbed, kidnapped and had his property stolen. The evidence that he was involved in drug related criminal activity was relevant to an attack upon his creditability and reliability. Such evidence properly required a direction that the complainant's evidence be carefully scrutinised before it was accepted beyond reasonable doubt. That direction was administered.
16. I am not persuaded that the trial Judge ought to have warned himself pursuant to ss 165(1)(a) and 165(1)(d). The applicant has not established error giving rise to a miscarriage of justice. This ground of appeal must therefore fail.

Ground 2 - The verdict of guilty in respect of Count 2 is unreasonable

1. The judge alone judgment sets out the directions of law and the trial Judge's comprehensive reasoning underpinning the verdicts. His Honour had the advantage of observing the witnesses (in particular, the complainant) give evidence. His Honour made clear findings in respect of the complainant's evidence, rejecting parts of that evidence and accepting other parts, as he was entitled to do. After carefully scrutinising the complainant's evidence, his Honour concluded that there was nothing of concern about the manner in which the complainant gave his evidence in terms of his demeanour.
2. Ground 2 requires the Court to allow an appeal if it is of the opinion that the verdict is unreasonable, or cannot be supported, having regard to the evidence. The principles to be applied in determining such a ground are well-known and need not be rehearsed in any detail here.
3. The test to be applied to a complaint that the verdict is unreasonable within the first limb of s 6(1) of the Criminal Appeal Act was explained in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [43] as follows: "At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing the 'unreasonableness ground' was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey in M. The court must ask itself: 'whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'"
4. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M v The Queen) Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test for an appellate court to apply when considering whether a verdict is "unreasonable". The Court held at 493 that: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
5. Accordingly, the task for an appellate court is to make an independent assessment of the whole of the evidence, both as to its "sufficiency" and its "quality", in order to determine whether any of the verdicts of guilty are unreasonable, or cannot be supported, having regard to the evidence. In arriving at this decision, the task is not to consider "as a question of law whether there is evidence to support the verdict"; the question is one of fact based on the court's own assessment of the evidence: see M v the Queen at 492; MFA v The Queen (2002) 213 CLR 606 at 623-624; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400 at 406; [2011] HCA 13 (SKA); SM v R [2022] NSWCCA 13 at [4]; Sita v R [2022] NSWCCA 90 at [49]; Khan v R [2022] NSWCCA 157 at [30].
6. It is necessary to consider all of the evidence relevant to the allegation of kidnapping, bearing in mind that the trial Judge rejected parts of the complainant's evidence.
7. CCTV footage tendered at trial established, contrary to the complainant's evidence, that he had arrived at the Motel at 2:05am and was present there for 40 minutes. The complainant's over-estimation of the time he was in the motel room was consistent with what was found to be his "tendency to exaggerate" matters in some aspects of his evidence.
8. Photographs of the complainant's injuries did not support his evidence that he was struck with an implement. The trial Judge rejected that the Facebook message sent by the complainant to Brittany was simply a joke. The complainant was also found to be unreliable in his evidence as to how much money was taken from his home.
9. However, in other respects, the complainant's evidence was supported. His initial evidence about how he came to go to the Motel and obtain the key to the room rented by Brittany was substantially corroborated by the text messages that passed between the complainant's phone number and Brittany's phone number. At the time of those messages, the complainant was still in possession of his phone.
10. Upon attending the motel room, the complainant was confronted by the applicant and the man, Michael. His evidence that he was dragged into the room and assaulted by the applicant is not in issue in these proceedings.
11. Although the complainant's evidence that he was struck with a tyre lever or iron bar was rejected, he was struck multiple times by the applicant and Michael. A small quantity of ice was stolen from him. These are the facts the constituted the allegation of robbery in Count 1. The verdict of guilty on that count is not challenged.
12. The assault in the motel room came to an end only when the complainant told his assailants that he had more drugs at his home. The complainant did not enter into a consensual agreement to convey his assailants to his premises. Instead, he thought the men were going to kill him and the best way to stop the assault was to tell the men that he had drugs at his home.
13. It was immediately after the robbery that the complainant, in the company of the two men who had just assaulted him, was escorted to his car. Contrary to the proposition that the complainant willingly accompanied the applicant and Michael, is the evidence that he was told to sit in the back of his own car while the applicant sat in the front passenger seat and Michael drove. The objective evidence supported the complainant's version as to the position of the men in the vehicle. The fact that the complainant was not the driver of his own car to his own home is consistent with him being taken there against his will.
14. The three men left the Motel at about 2:44am. They arrived at the complainant's home at approximately 5:21am. There was, therefore, a period of over two and a half hours during which the complainant was in the car being driven from one location to another. The complainant described waking up at one point and being outside a block of units in Penrith. The car was then driven to premises in Werrington. CCTV footage captured images of the vehicle outside a Commonwealth Bank branch in Penrith at 4:33am and at a 7-Eleven service station in South Penrith at 4:58am. The vehicle left the 7-Eleven at 5:02am, arriving at the complainant's home at 5:21am.
15. It was not in issue at the trial that during the period the complainant was driven to various locations, he was, at all times, unrestrained in the back seat. The complainant conceded that throughout the journey, he did have an opportunity to get out of the car and make his escape. The complainant explained why he did not do so, explanations that must be considered in the context of the assault that had taken place in the motel room. Furthermore, he no longer had possession of his mobile phone.
16. On one occasion, the car pulled up near Penrith police station. The complainant gave evidence that he thought about making "a run for it" but did not know where he was and "thought it might have been set up for me to run and then get me and attacked me so just stayed still where I was".
17. The complainant explained that he did not make an attempt to escape because "I wanted to live. If I got out and they got me before I got there [to the police station], they had already threatened to kill me".
18. After conceding that there were other occasions when he had the opportunity to escape, the complainant gave evidence as follows: "If I go out and run and they drive off they knew where they I lived, they also know other family members, right Bill knows Eric, is his brother and Eric knows a lot more of my family okay so no, the idea was to sit back, shut up and get home safe and that's it." [15]
19. Eric, the man with whom the complainant had been drinking at the Wentworthville Hotel, prior to attending the Motel, is the applicant's brother.
20. When it was put to the complainant that he did not take up the opportunity to escape because he was not being kidnapped, he responded: "No I was doing what was keeping me safe, he threatened he would kill me and he would kill my family". [16]
21. There is no issue that the complainant's property, including his motor vehicle, was stolen from him. There has been no challenge to the guilty verdict in respect of Count 3. In circumstances where the complainant had been assaulted, and a small quantity of his drugs and phone taken, it is implausible that he would have willingly handed over drugs and money at his home, following which his car was stolen.
22. The complainant made an immediate complaint of being "kidnapped, bashed, car stolen, money stolen". The complainant's account of where the men were seated in the car, what occurred at the service station, and what occurred when the car arrived at his premises, was all supported by CCTV footage.
23. Weighing all of the evidence, and making an independent assessment both as to its sufficiency and its quality, I am satisfied that it was open to the trial Judge to be satisfied beyond reasonable doubt of the guilt of the applicant in respect of Count 2. It follows that the verdict of the trial Judge was not unreasonable. I reject this ground.

Conclusion

1. For the reasons given above, I am of the view that none of the grounds have been established. Accordingly, the orders are: 1. Leave to appeal against conviction is granted. 2. The appeal is dismissed.

Endnotes

1. Appeal Book (AB) 28: 14-21.
2. AB 30:11-13.
3. AB: 30:36-39.
4. AB 67: 1-6.
5. AB 82:30.
6. AB 82:9-13.
7. Triple-0 Call Recording and Transcript (Exhibit 3 and 3A).
8. AB 82:10-21.
9. AB 174-176.
10. AB 170.
11. AB 176.
12. AB 176.
13. AB 173.
14. AB 145:41-43.
15. AB 82: 10-13.
16. AB 82: 30-31. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2022