BROWN, BARWICK, BROWN v R

Crown: V Lydiard COUNSEL: B Brown: C Smith K Barwick: J Stratton SC N Brown: A Bellanto QC

Crown: S Kavanagh SOLICITORS: B Brown: North & Bedgery K Barwick: S O'Connor N Brown: Patricia White & Associates

• 22 - IN THE COURT OF CRIMINAL APPEAL 2005/1365 2005/1574 2005/1572

McCLELLAN CJ AT CL HULME J ROTHMAN J

Wednesday, 22 March 2006 Neville John BROWN v R Kevin James BARWICK v R Gregory Brian BROWN v R Judgment 1 McCLELLAN CJ AT CL I have read the reasons for judgment of Hulme J in draft and agree with them. 2 As there must be a new trial the question will be raised again as to whether Mr Gray is relevantly "available to give evidence." This will require consideration to be given to his competence having regard to the tests provided by s13 of the Evidence Act in light of any evidence as to Mr Gray's mental capacity at the time of that trial. 3 The conclusion of this Court on that issue is based upon the evidence given at the trial but does not determine the conclusion which may be appropriate at the new trial. 4 I agree with the orders proposed by Hulme J. 5 HULME J: On 27 April 2004 each of the above-named Appellants pleaded not guilty to a charge that:- "He on or about 27 June 2003 at Wellington… did maliciously inflict grievous bodily harm upon George Gray with intent to do grievous bodily harm to him" 6 On 10 May 2004 the jury found each of Messrs Brown guilty as charged. Mr Barwick was convicted of the statutory alternative of maliciously inflict grievous bodily harm. 7 On 11 February 2005 Judge English sentenced Neville Brown to imprisonment for a non-parole period of 9 years and 10 months and an overall term of imprisonment of 12 years both periods commencing on 3 January 2004. Her Honour imposed a similar sentence on Gregory Brown though commencing on 1 July 2003 and sentenced Kevin Barwick to imprisonment for a non-parole period of 1 year and 9 months and an overall term of 3 years and 6 months both of these periods commencing on 10 May 2004.

Each of Messrs Brown has appealed against both conviction and sentence. Kevin Barwick has appealed only against conviction. The grounds of appeal against conviction are:-

Neville Brown 1. Her Honour erred in admitting evidence of the representations made by George Gray (the victim) to Rhonda Peckham, Carmela Wright and Shirley Gray pursuant to s65(2)(b) and s65(2)(c) of the Evidence Act 1995.

Kevin Barwick 1. Her Honour erred in admitting into evidence the alleged hearsay statements of the witness George Gray on the basis that he was an unavailable witness or at all. 2 The verdict of guilty was unreasonable and inconsistent with the evidence. 3. Her Honour erred in directing the Jury that it was "open" to the jury to find that:- (a) if the jury was satisfied that the three co-accused entered Chatfield's house asking for Gray, and Gregory Brown inflicted an injury to the nose of George Gray, that because of the location of George Gray's blood at the front door, that it was open to the jury to find that he left the house via the front door and in the company of the three accused; (b) if the jury made that finding of fact, that it was open to the jury to find that the three men seen by Karen Amatto were the persons who had been in the house kicking the accused; (c) that if the jury made that finding of fact, that it was open to the jury to find that the three people were the co-accused. (d) if the jury were satisfied of that conclusion, that it was open to the jury to find that the appellant guilty of being in company of his alleged co-offenders, ready and willing and willing to assist if called upon to do so.

Gregory Brown 1. The trial Judge erred in admitting into evidence representations made by the victim to Rhonda Peckham, Shirley Gray and Carmella Wright pursuant to Section 65 of the Evidence Act 1995. 2. The trial Judge erred in not directing the Jury that the representations made by the victim to Rhonda Peckham, Shirley Gray and Carmella Wright may be unreliable pursuant to Section 165 Evidence Act 1995. 8 It was not in issue at the trial that George Gray had been seriously assaulted and had indeed suffered brain damage in consequence. On the morning of 27 June 2003 shortly after 7.00am he was found near the entrance to the Wellington tip by a number of persons including Rhonda Peckham who gave evidence of having had some conversation with him. He was taken to hospital and it was there that, according to evidence they gave, he spoke to his sister Shirley Gray, and Carmella Wright, his niece. 9 According to Rhonda Peckham the conversation which occurred near the tip and while she was waiting for the police and ambulance, was as follows:- RP: You've been assaulted". GG: Yeah. RP: Who by? GG: Yes. RP: Who by? GG: Brownie, Kevin Barwick and Greg Brown. 10 According to Ms Peckham, Mr Gray then lapsed back into unconsciousness. She said he passed in and out of that state three or four times while she was with him. 11 Ms Wright said that on the morning of 27 June she and her mother went to the emergency section of the Wellington hospital where the following conversation occurred. CW: Uncle, do you know who I was? (sic) GG: Shark. CW: No, it's me Carmella. GG: Oh my baby. CW: Uncle George, were you bashed? GG: Yes. CW: Did Neville Brown bash you? GG: Yes. CW: Was Greg Brown there? GG: Yes. CW: And was Kevin Barwick there? GG: Yes, white cunt. CW: Was it Neville Brown's car? GG: Yes. CW: Did they take you from Freno's? GG: Yes. 12 Ms Wright gave evidence that "Shark" is a nickname for her sister, Charlene. 13 Ms Gray's evidence was slightly different. Her account of the conversation between Ms Wright and Mr Gray was:- CW: George do you know who it is? Who I am? Carmella or Shirley? GG: Carmella. CW: What happened to you? Did Neville Brown do this? GG: Yes. CW: Who else was there? Kevin Barwick there? GG: Yes. CW: Greg Brown? GG: Yes. 14 Over objection and after a voir dire hearing on the topic, Judge English decided to admit the evidence to which I have referred. In the course of stating her reasons for this decision, her Honour observed:- "Whilst the victim is physically available, he is unable to give evidence about an asserted fact because he has no memory of the fact. For the evidence to be admissible on my reading of the Evidence Act, certain conditions need to be fulfilled, the most important, for present purposes, being that the witness must be able to give evidence about the asserted fact, the very thing this witness is unable to do. The evidence is clearly inadmissible under s66(1). I do not propose to set out the various submissions or refer to the authorities handed up other than to say I have considered the submissions and read the authorities. I will simply give my rulings and give reasons, if I am required, as the conclusion of the trial." 15 Her Honour then recorded that in the alternative the Crown relied under Section 65 and that although no notice had been given, she proposed to dispense with that requirement and continued:- "The enquiry I am required to embark upon in this regard is twofold: First, whether the representations were made shortly after the asserted fact occurred and in circumstances that made it unlikely that the representation was a fabrication From the evidence thus far, the last occasion the victim was seen uninjured was in the house of Mr Chatfield at approximately midnight. He is found on the outskirts of town outside the Wellington tip at approximately 7.00am. True it is that he is in poor condition, he has been exposed to the cold and has a low body temperature and was, on the medical evidence, sedated from the effects of the cold; he had sustained a serious head injury and was lapsing in and out of consciousness. 16 Her Honour then referred to the fact of conversations between Rhonda Peckham, Carmella Wright and the victim and continued:- "Nothing has been placed before me persuades me that when the statements were made it was likely that they were fabricated, they being made shortly after the asserted fact occurred, that is that the victim was assaulted and the identity of his assailants (sic). As to the reliability of representation, much has been made of Dr Spencer's evidence in an endeavour to show that the representations are unreliable. There is other evidence available which would allow a finding that the state of the victim was other than in accordance with the evidence of Dr Spencer and, accordingly, I am not persuaded that it is highly probable that the representations were unreliable." 17 Her Honour then went on to reject an argument that if she determined the evidence to be admissible, she should exclude it in the exercise of her discretion. 18 So far as presently relevant, Sections 12, 13, 65 and 66 of the Evidence Act provide:- 12 Except as otherwise provided by this Act:- (a) every person is competent to give evidence; and (b) a person who is competent to give evidence about a fact is compellable to give that evidence. 13(1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence. … (3) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts. (4) A person is not competent to give evidence about a fact if: (a) the person is incapable of hearing or understanding, or of communicating a reply to, a question about the fact; and (b) that incapacity cannot be overcome. 65(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) … (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) made in circumstances that make it highly probable that the representation is reliable; or … 66(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. 19 The dictionary to the Evidence Act deals with the topic of availability. Section 4 of Part 2 of the Dictionary provides:- (1) For the purposes of this act, a person is taken not to be available to give evidence about a fact if:- (a) … (b) The person is, for any reason other than the application of Section 16 (Competence and compellability: judges and Jurors), not competent to give the evidence about the fact; or (c) … (2) In all other cases, the person is taken to be available to give evidence about the fact. 20 As foreshadowed, on 11 February 2005 her Honour provided some additional reasons for her decision to admit the evidence I have recounted. Included in what she said was the following:- "I ruled the evidence to be inadmissible under s66 sub-section 1 of the Evidence Act. I found that the maker of the representation sought to be relied upon - that is the victim - whilst physically available was unable to give evidence of the asserted fact. The section required the maker of the representation to be "available" to give evidence … A person is taken not to be available to give evidence about a fact if the person is not competent to give evidence about that fact. … The victim, George Gray, falls into the category of persons envisaged in s13 sub-section 3 and, to some extent, sub-section 4. On the facts and medical evidence he suffers from significant brain damage. When he was called to give evidence he clearly did not respond appropriately and nor, in my view, was he capable of understanding or communicating with Counsel. I found, as indicated previously, due to his level of cognitive impairment, he was not competent to give evidence and therefore, unavailable to give evidence of the asserted facts." 21 Her Honour went on to observe that in her view the reasons given by her earlier were sufficient and she did not propose to expand upon them other than to say:- "I rejected the submissions that the evidence was not sufficiently reliable under s65, subsection 2, subsection (b), and found that there was sufficient evidence to satisfy me of the victim's ability to respond to questions, both at the tip and at the hospital, to enable me to determine the representations were not a fabrication." 22 In the voir dire enquiry, Mr Gray had been called. The following is a copy of the transcript of his evidence:- Q Is your name George Robert Gray? A Yes. Q Do you know what happened to you in June last year? A No.

Q Do you know what town you are in today? A Yeah.

Q What town is that? A Dubbo, isn't it?

Q Do you know this place is a courtroom: Courtroom? Do you know this place is a courtroom? A No.

Q Before you came up to Dubbo, do you remember where you were living? A I can't hear.

Q Before you came up to Dubbo, do you know where you were living? A Yeah

Q Where was that? A In Wellington.

Q Wellington. Do you know a dectective, Sergeant Collett; do you know Sergeant Collett? A I think I do. I'm not quite sure.

Q You think you do, you're not sure? A I'm not sure.

Q Do you remember Sergeant Collett going and picking you up so that you could be up here for Court? A I don't know if it was this morning, I think, was it?

Q Do you remember Sergeant Collett going and picking you up so that you could be up her for Court? A I don't know if it was this morning, I think, was it?

Q Do you remember Sergeant Collett came to get you last Sunday from a particular town? A No.

Q Do you know what town you were in last Sunday if you were picked up by a policeman? A (Witness indicated)

Q Shaking your head, does that mean "no"? A No. Ground 1 (in each appeal) 23 There are a number of errors in her Honour's reasons for deciding to admit the evidence of the three persons, the subject of this ground. A theme which runs through some of them is her Honour's lack of attention to what the Evidence Act actually says. 24 Firstly, s13 talks of incapacity of understanding an obligation to tell the truth, incapacity to give a rational reply and incapacity of hearing, understanding or communicating. Such concepts are radically different from those involving simply an absence of, or imperfection in, knowledge or recollection of matters. There is no foundation whatsoever in Section 13 or any other provision of the Evidence Act for the reference in Her Honour's reasons of 27 April 2004 to whether Mr Gray "must be able to give evidence about the asserted fact, the very thing (he) is unable to do." 25 It is true that in her reasons of 11 February 2005, her Honour said:- "When he (Mr Gray) was called to give evidence he clearly did not respond appropriately and nor, in my view, was he capable of understanding or communicating with Counsel (and) … due to his level of cognitive impairment, he was not competent to give evidence" 26 However, in light of Mr Gray's evidence which I have quoted, those findings were not open to her Honour. Certainly Mr Gray's answers reveal a deal of uncertainty or ignorance in respect of a number of matters. However, his evidence does not reveal an incapacity to understand the questions he was asked or to communicate answers to them. Nor does the evidence satisfy any of the other tests of lack of competence or capacity referred to in Section 13. Mr Gray was present and thus the foundation of her Honour's decision to admit the evidence of the three witnesses referred to in this ground, namely that Mr Gray was not available to give evidence about an asserted fact was wrong. 27 A further requirement of admissibility under one of the provisions upon which Her Honour relied, s65(2)(b) namely that the representation was made "in circumstances that make it unlikely that the representation is a fabrication" required a positive conclusion as to the existence of "circumstances that make it unlikely that the representation is a fabrication". Although her Honour quoted these words in an earlier part of her reasons she then went on to observe that nothing had been placed before her to persuade her that "it was likely that they were fabricated", completely reversing the test she had to apply. 28 Section 65(2)(c), when it refers to "circumstances that make it highly probable that the representation is reliable" again requires a positive conclusion as to the existence of such circumstances. Again, her Honour disregarded this when saying, "I am not persuaded that it is highly probable that the representations were unreliable" - another reversal of the onus laid down in the section. 29 Thus her Honour's decision to admit the evidence miscarried. However, that is not to say the result was wrong. Her Honour was also in error in concluding that the evidence was "clearly inadmissible under Section 66(1)". It is apparent from the totality of what her Honour said when first ruling on the issue of admissibility and in her supplementary reasons that she did not think that the requirement in s66 that the maker of the statement be available was satisfied. As I have indicated, it was. Mr Gray was available. 30 There is, of course, in Section 66(2) a further requirement of admissibility, namely that "when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation." The content of this requirement was considered by the High Court in Graham v R (1998) 195 CLR 606 wherein it was decided that the words to which I have referred were directed principally to the temporal relationship between the occurrence of the asserted fact and the time of the making of the representation - see at pp 405 and 410. 31 At the time Mr Gray made the representation to Ms Peckham the events about which he spoke were of the order of only 7 hours old. The statements by Mr Gray recounted by the other witnesses were made later on 27 June but, at least so far contemporaneity is concerned, must be regarded as fresh in Mr Gray's memory. 32 (I may perhaps add that, during the course of argument, counsel for Mr Greg Brown and Kevin Barwick ultimately conceded that the evidence fell within the conditions of admissibility contained in s66.) 33 Before her Honour and in this Court it was also argued that the evidence, even if the requirements of s65 or s66 were satisfied, should be excluded pursuant to the terms of ss135 or 137 of the Evidence Act. Those sections provide:- S135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. S137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 34 It was submitted that, given the hearsay nature of the evidence and the fact that in consequence its author could not be cross-examined, the fact that that portion of the evidence as dealt with his representations at the hospital was in response to leading questions, and the condition of Mr Gray at the time his statements were made, the evidence was of low probative value and its admission was or might be "unfairly prejudicial". 35 Certainly the probative value of the evidence was liable to be affected by a number of the matters just mentioned. However, some of these remarks are common to much hearsay evidence admitted under s65 and not infrequently hearsay admitted under s66 is positively disowned by its author. Furthermore, section 165 to which I refer in more detail below is directed to dealing with many of these difficulties. I do not think it necessary to recount here all of the other evidence in the case which might be thought to reflect on the weight to be afforded to the hearsay evidence. It sufficeth to say that I see no reason to conclude that the probative value of the evidence was not capable of being adequately assessed by the jury and could not well have been regarded as high. I would myself regard it as substantial. 36 It is also to be borne in mind that the unfair prejudice of which both sections speak is not mere damage to a litigant's case but rather a risk that the evidence will be misused in some unfair or improper way. There are no grounds for concluding that there was such a risk here. Accordingly, the evidence the subject of these grounds of appeal was admissible.

Ground 2 - Mr Gregory Brown's Appeal 37 It is convenient to deal with this ground next. Counsel for Mr Barwick sought also to rely on it and this course was not opposed by the Crown. Having regard to its nature, if the ground succeeds, Mr Neville Brown, whose counsel was ill at the time of the hearing of the appeal, should also be allowed to rely on the ground. 38 So far as is presently relevant s165(1) of the Evidence Act provides:- "(1) This section applies to evidence of a kind that may be unreliable including the following kinds of evidence. (a) evidence in relation to which Part 32. (hearsay evidence) or 3.4 (admissions) applies;

(b) identification evidence; (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; (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; (e) evidence given in a criminal proceeding by a witness who is a prison informer; (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant; (g) in a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (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. (4) It is not necessary that a particular form of words be used in giving the warning or information. 39 As has been said, the evidence of Ms Peckham, Gray and Wright was of a hearsay nature. There was jury and, although any request under the section was in somewhat elliptical terms, I think the proper conclusion is that a request was made. Her Honour was thus obliged to comply with each of the paragraphs of sub-section 2. It is not necessary that I set out all of what her Honour said on the topic of reliability but the following provides a fair sample of the directions relied on by the Crown in opposition to this ground of appeal:- 38. The trial judge gave a careful summing up and directions to the jury which included the following: "…the Crown also relies upon the evidence of three witnesses who the Crown says came upon George Gray at the tip and who spoke to him whilst he was in hospital. The evidence of what Mr Gray allegedly said to those witnesses, Rhonda Peckham, Carmella Wright and Shirley Gray, is evidence of statements allegedly made to those witnesses in the past and outside the courtroom, it is therefore referred to in law as hearsay evidence. The witnesses are merely repeating in court what they heard the victim say to them about the alleged incident.

They were not present to observe what took place between the victim and the accused. Accordingly, they cannot give direct evidence of that was (sic).

You will therefore necessarily, approach this evidence with caution, particularly so because the victim, George Gray him himself, was unable to give evidence of what he said to those witnesses." 39. The trial judge referred to Rhonda Peckham's evidence and the cross examination of her and said: "When assessing her evidence, I would suggest that you look at the evidence of her daughter Chloe, the evidence of Constable Atkinson, the evidence of ambulance officer Mr Bost, Dr Spencer, Nurse White and Laura Reid, to ascertain whether you accept her evidence as reliable. You may also take into account the fact that she was under treatment for depression. She made reference to the fact that she had seen another person hung. They may be matters, which affected her reliability. Whether they are or not is a matter for you." 40. The trial judge referred to the evidence of and cross examination of Carmella Wright and of Shirley Gray, and said: "In assessing the reliability of the evidence you have the evidence of Nurse White who said Mr Gray was brought into casualty by ambulance at 8am. She called Mr Gray's name. He mumbled and was incoherent sometime. She asked him "did you have a fall?" She asked a couple of times. He was mumbling. He said "No.". 41. The trial judge directed the jury: "So when you are assessing the reliability of the evidence of Rhonda Peckham and Carmella Wright and Shirley Gray, you should take into account the evidence given by the medical witnesses as to the state of Mr Gray at the time. I will summarise some of the evidence. It is a matter for you to determine whether that evidence is reliable. 42. After a request from the Crown and defence counsel for further directions in relation to the hearsay witnesses, the trial judge gave these further directions. "… the Crown also relies on the evidence of Rhonda Peckham, Carmella Wright and Shirley Wright who all say George Gray identified his assailants to them as the three accused. Just on that point, you will recall that I told you the evidence of those three witnesses is hearsay evidence and, as such, it must be dealt with carefully. I said that was so because Mr Gray was not available to give evidence. That meant he was not able to be tested about the people he nominated as assailants. At the time he was in the bedroom asleep in Jeffrey Chatfield's house, he was well and truly intoxicated. When those three assailants went into the room, it was dark. When he was assaulted outside on the street it was dark and on the Crown case the attack happened in the dark. They are circumstances of identification, which you must consider in accordance with other directions of identification I gave you. If you accept the first hand hearsay evidence of Rhonda Peckham, Carmella Wright and Shirley Gray, you still do so in the light of the warnings that I have given you about the identification issues regarding George Gray."

40 Those remarks comply with neither paragraphs (a) nor (c) of s165(2), even when account is taken of the latitude that sub-section 4 allows. Although the topic of reliability is mentioned on a number of occasions, nowhere does her Honour "warn the jury that the evidence may be unreliable" and although there are statements "you will therefore necessarily approach this evidence with caution" and "(this) hearsay evidence… must be dealt with carefully" nowhere does her Honour warn the jury that the need for caution be or include "determining whether to accept the evidence and the weight to be given to it". 41 In a number of respects also her Honour did not comply with the requirements of Section 165(2)(b). For while her Honour referred to some matters of which the paragraphs speaks, she did not refer to others. In light of the conclusions at which I have arrived in other respects and as to the disposition of this appeal, it is unnecessary that I record a comprehensive list of her Honour's omissions. They included the following:- (i) The fact that to another witness Chloe Peckham who asked Mr Gray what had occurred, Mr Gray said he could not remember. (ii) The fact that Mr Gray incorrectly identified one of the three women. (iii) That Mr Gray was, according to a Dr Spencer who was there at the time, apparently unable to provide a meaningful reply to orientation type questions the doctor asked, and (iv) Some of the information supplied by Mr Gray was in response to leading questions. 42 Counsel for Mr Gregory Brown also drew attention to remarks made in this Court in R v Nemeth [2002] NSWCCA 281 where hearsay evidence of what was said by a Mr Christou to a complainant's mother had been admitted. At [10], it was said:- "… the absence of testing of Mr Christou was not the primary cause of any unreliability in the hearsay evidence. Rather do the causes of any unreliability lie in, for example, any imperfection in Mr Christou's honesty, perception of the event, and accuracy of recounting of it together with any imperfections in the complainant's mother's honesty, perception of what Mr Christou told her, memory of that and accuracy of recounting. Nor was there any reference to the fact that sometimes memory of what is heard is not as reliable as memory of what is seen." 43 There was no significant attempt by her Honour to provide this sort of information either. 44 Relying on rule 4 of the Court of Criminal Appeal Rules, the Crown submitted that the Appellant's should not be allowed to rely on this ground as, following the elliptical request to which I have referred and which occurred part way through her Honour's summing-up, no objection was taken at the trial to any of the omissions or failures to which I have referred. The Crown also submitted that in light of what her Honour did say, these matters did not lead to a miscarriage of justice. 45 However the evidence of Ms Peckham, Wright and Gray was by far the largest section of evidence implicating the Appellants in the assault of Mr Gray. Without their evidence, the Crown case against the Appellants could not be described as other than weak. The terms of s165 are peremptory and designed to bring home fully to a jury the potential for unreliability in evidence of the nature of that to which the section refers. In the circumstances referred to it is not possible to say that, despite the wholesale failures to comply with the section such as occurred in this case, there has been no miscarriage of justice. Nor, despite the gross dereliction of duty - and in the circumstances of this case that is an appropriate description - of counsel in not raising with her Honour the failures to which I have referred, would it be proper to apply rule 4. 46 This ground of appeal is made out and, subject to what follows, the appropriate order is that there be a new trial.

Ground 2 - Mr Barwick's Appeal The verdict of guilty was unreasonable and inconsistent with the evidence. 47 Were this ground to succeed, Mr Barwick would be entitled to a verdict of acquittal. However, the ground should fail. Once it was admitted, the jury were entitled to accept the evidence given by Rhonda Peckham, Carmela Wright and Shirley Gray as to what they heard the victim say. The jury was also entitled to take the view that what those persons were told by the victim was accurate. Certainly there was medical and other evidence bearing on the possibility that what Mr Gray had said was unreliable but there was no evidence which required that the jury take this view. While it is not unusual for brain injury to cause some deterioration in memory, it is not self evident or in accordance with common experience that brain injury so commonly causes invention or the attribution of events to persons not involved in them, that it was unreasonable for the jury to act upon the basis of what Mr Gray had said. Neither was there any such evidence in this case. 48 There was in addition to the evidence of the 3 women mentioned, evidence from a Mr Chatfield, at whose residence Mr Gray was living at the date of his attack, that at some time after 11pm on the night of 26 April, the 3 Appellants had called at those premises, Mr Barwick had said that Neville wanted to see the victim, that the 3 Appellants had then entered the premises and the room in which the victim was in bed and that Greg Brown had then assaulted Mr Grey. Mr Chatfield also said that the Appellants had then left, Mr Gray with them and later some search for Mr Gray at the premises had not located him. 49 Mr Chatfield's reliability was the subject of sustained attack. Many of his answers were either not clear, not responsive or inconsistent with others. He acknowledged that, on the night in questions, he had gone to bed drunk, and the jury may well have concluded, very drunk. However, if the jury did accept the main tenor of his evidence it strongly supported the Crown case. There was evidence from another witness, who also had gone to bed drunk, of having seen 2 persons, in the presence of a third, kicking a fourth who was on the ground a short distance from Mr Chatfield's residence. The witness, a Ms Amatto identified the 2 persons from their voices which she knew, as Mr Neville and Mr Gregory Brown. She said that they were calling out something which sounded like, "kill him". 50 In the face of the totality of this evidence, it could not be said that the verdict of the jury was unreasonable. 51 It was also submitted that the verdict in the case of Mr Barwick, where the jury declined to find the intent charged, was inconsistent with that found against his co-accused. Again I disagree. Ms Amatto's evidence as to what was said by Neville and Gregory Brown may have inspired the difference, the jury not being satisfied that Mr Barwick had the same intent of injury as the others, or the same level of participation.

Other Grounds 52 The conclusions at which I have arrived, make it unnecessary to consider Mr Barwick's third Ground of Appeal or to consider the Applications for Leave to Appeal against Sentence.

Orders 53 I have already indicated that, subject to later remarks, the appropriate order is that there be a new trial. Counsel for Mr Barwick submitted that this should not be so in the case of his client because Mr Barwick's non-parole period expires on 9 February next. 54 I do not agree. In this connection it is appropriate to bear in mind Mr Barwick's criminal antecedents. He was born on 4 May 1978. He does not have any substantial record for other than driving offences, this consisting of only convictions for robbery in company and assault police (in 1996), common assault (in 2000) and entering inclosed lands (in 2003). However his driving record is appalling. He was convicted of driving without a licence on 4 occasions prior to 2000. Since that time he has been convicted of that offence twice, three times of driving whilst disqualified, once of driving with a mid-range PCA and, on 29 May 2003, of driving with a high range PCA. For that latter offence he was sentenced to a suspended 12 months term of imprisonment. The assault on Mr Gray occurred on 26 or 27 June 2003. 55 Given this history of offending, it is by no means apparent that the community's interest would not be served by Mr Barwick's liberty, if he is again convicted, being conditional, as it would be if he were again convicted and the identical sentence imposed. 56 Furthermore, in the circumstances of the case, the only alternative order this Court can make to an order for a new trial is to direct a judgment and verdict of acquittal. In light of the evidence that there is, that does not seem to me the most just result. Finally, if Mr Barwick is not retried, there is the potential in any retrial of Messrs Brown for the painting of a distorted view of the circumstances leading to Mr Gray's injuries. Although this Court cannot completely eliminate that possibility, it should not increase it by making an order in Barwick's favour to which he is not entitled. 57 Accordingly, the orders which this Court should make in each appeal are: (i) Allow the Appeal. (ii) Quash the conviction the subject of the Appeal and the sentence imposed by Judge English. (iii) Order that there be a new trial. 58 ROTHMAN J: I agree with Hulme J. **********

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