Supreme Court of Tasmania|2002-09-03|Before: Cox CJ, Crawford JJ

Carr & Ors v R [2002] TASSC 60 (3 September 2002)

CITATION: Carr & Ors v R [2002] TASSC 60

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Corroboration - Direction to jury - Adequacy of warning - Generally - Accomplices - Whether necessary to warn of risk of an innocent man being convicted - Whether necessary to direct that Crown could appeal against accomplice's sentence if he did not give evidence in accordance with undertaking - Direction raising question of why would accomplice lie.

R v Stewart (1986) 83 Cr App R 327, referred to.

Palmer v R [1998] HCA 2; (1998) 193 CLR 1, explained.

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Corroboration - Direction to jury - Adequacy of warning - Evidence capable of amounting to corroboration - Accomplices - Extent of duty to identify evidence capable of corroborating accomplice - Effect of comments on that evidence.

Read v R A69/1993; R v Small (1994) 33 NSWLR 575, referred to.

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Non-parole period - Order that no eligibility.

Gill v R 34/1990; Power v R [1974] HCA 26; (1974) 131 CLR 623, referred to.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Conduct of trial judge - Interference by judge in conduct of case - Whether excessive cross-examination of accused - Whether summing up unfair to accused.

Galea v Galea (1990) 19 NSWLR 263; Cleland v R [1982] HCA 67; (1982) 151 CLR 1; R v Joyce [1970] SASR 184, referred to.

Evidence - Witnesses - Corroboration - Admissions - Conduct - Other conduct - Lies told or adopted by accused - Form of direction to jury - Whether lie an admission.

Criminal Law Interrogation and Detention Act 1995 (Tas), s8(2).

Attorney-General of New South Wales v Martin [1909] HCA 74; (1909) 9 CLR 713; R v Arnol (1997) 6 Tas R 374; R v Clark; ex parte Attorney-General [1999] QCA 438, applied.

Judgment Number: [2002] TASSC 60

TONY ALLAN PYKE, REGINALD MICHAEL WELLS v THE QUEEN

1 The four appellants were indicted for stealing two cylinders of oxygen and two cylinders of acetylene from Mitre 10 South West Ltd at Geeveston. The same indictment also charged the four appellants with one count of burglary at the Hastings Caves building complex and one count of stealing approximately $8,000 therefrom. The Crown alleged that the crimes were committed by the four appellants and one Craig Anthony Sherman, during the late evening of the Queen's Birthday holiday Monday, 14 June 1999. For convenience, we shall refer to Mr Sherman as "the accomplice".

2 Upon their trial, the appellants were acquitted of the first count of stealing and convicted of the burglary and stealing at Hastings Caves. The learned trial judge sentenced each appellant to 18 months' imprisonment and ordered that none of them be eligible for parole.

3 Each appellant has appealed against his conviction and against the order barring eligibility for parole. Some, but not all, of the grounds are common to all of the appellants.

4 The Crown case rested very substantially upon the accomplice's direct evidence. This evidence was supported by some circumstantial evidence. Of the appellants, only Pyke gave evidence. His evidence was not disputed by any of the other appellants. In essence, the appellant Pyke's evidence was to the effect that at the time the crimes were committed, all four appellants were together and engaged in the pursuit of lawful leisure activities and, that if the accomplice committed the crimes, he did so either alone or with another or others, not the appellants.

5 The accomplice said that he and the appellants all lived at Rossarden and that on the day the crimes were committed, they all set off from there in the appellant Hampton's white Toyota Landcruiser. Their intention was to commit the crimes charged. They took with them what he described as their own "personal stuff, gloves, torches, jemmy bars, everything like that". He said that each of the five of them had gloves and a balaclava. They also took with them oxyacetylene gear and four small UHF radios.

6 The accomplice said that they stopped at Geeveston and the appellant Wells climbed over a cyclone wire fence at a hardware store. The appellant Wells passed two oxygen and two acetylene bottles over the fence to the accomplice. These were loaded into the Landcruiser and the party continued their journey to Hastings Caves.

7 The accomplice told the jury that on arrival, the five men had a general look around and then disabled the alarm siren by squirting foam into it from a Selleys "Space Invader" filler can that they had brought with them for this purpose. He said that they also removed the strobe light. The accomplice said that he then used a set of wire cutters to cut some wires leading into the building.

8 The five men waited 10 or 15 minutes to enable the foam to effectively silence the alarm and then gained entry to the building by forcing a door. The accomplice said that the appellant Carr used a jemmy to do this. The accomplice said that the appellants Wells and Pyke entered the building, came out shortly afterwards, got the oxyacetylene equipment and re-entered the building. By this time, the appellant Hampton was in his Landcruiser about a quarter of a kilometre down the road, with one of the radios, keeping watch. The appellants Pyke and Wells each had a radio.

9 The accomplice said that after about 15 minutes, the appellants Pyke and Wells emerged from the building with a till drawer and the oxyacetylene cutting equipment. He said that the money was removed from the till drawer and the latter, together with two bottles of gas, were thrown away. All these articles and the can of Selleys "Space Invader" filler that had been discarded earlier, were recovered from the scene by the police. The accomplice said that all five of them were wearing gloves and balaclavas, but he added that he thought that the appellant Carr was wearing a peaked cap.

10 The five men left the scene of the crime in the Landcruiser. The appellant Hampton was the driver. The accomplice said that just after they left the unsealed road, which, according to the evidence of the local Parks & Wildlife ranger, Mr Wass, was about 1 kilometre from the Hastings Caves building complex, they passed a car travelling in the opposite direction. This car flicked its lights onto high beam as it went past the appellants. The jury might well have concluded from the evidence of Mr Wass that he was the driver of car. The accomplice said that shortly after this car had gone past, the Landcruiser stopped and the money was divided up into five parts. Coins that had been stolen were put in a backpack which was placed on the floor of the Landcruiser.

11 The accomplice said that as they drove towards Huonville, "some things" were thrown out of the car and they discussed telling the police that they had been down to have a look at a car if they were stopped by them. The accomplice said that he hid his share of the money behind a kick panel in the front passenger seat well. He described whereabouts each appellant was sitting in the vehicle.

12 The police stopped the Landcruiser at the Huonville bridge. After a short while, all the men got out. There was a verbal exchange between the police officers and one or more of them. We shall refer to this exchange in a little detail later, as it is the subject of a ground of appeal.

13 While being questioned by police, all the men except the appellant Hampton, walked off in the direction of Grove. They were not stopped, but Hampton was taken into custody. The Landcruiser was later searched by police officers from the scientific section. We will refer to the results of that search a little later.

14 The accomplice said that as the group walked off, one of their number used his mobile phone to make a call and after they had travelled quite some distance, they were picked up by one Allan Jones. The accomplice said that Jones drove off in the direction of Kingston, but before they got there, they were again stopped by police. This time the accomplice and the appellants (apart from Hampton, who was already in custody) were arrested. Mr Jones' car was later searched.

15 On behalf of the appellant Carr, counsel at the trial established in cross-examination, that the accomplice was a thief who had pleaded guilty to the crimes charged by the indictment and other crimes. Counsel also established that the accomplice agreed to give evidence against the appellants and that the judge who sentenced him said that the sentence was reduced by nine months on account of that fact. The accomplice did not agree with the suggestion put to him that he knew that if he did not comply with the agreement, the Crown could appeal against that sentence. (R v Stanley (1998) 7 Tas R 357.)

16 At the conclusion of the cross-examination on behalf of the appellant Carr, the learned trial judge, understandably, raised a Browne v Dunn issue. He said to counsel for the appellant Carr that other than the claim that the appellant Carr was not with the accomplice when the crimes were committed, it had not been put that the accomplice's evidence was generally false. Counsel for the appellant Carr then put to the accomplice that his evidence that Carr was involved in the burglary was false and that he had given false evidence pursuant to an agreement he had with the Crown "to get a more lenient sentence". The accomplice denied this. No other motive for giving false evidence was suggested to him in cross-examination.

17 Counsel for the appellant Hampton only asked five questions in cross-examination. They were all to the effect that Hampton was not with the accomplice when the latter committed the crimes. The accomplice denied this.

18 Counsel for the appellant Pyke put to the accomplice an account of events that was later given by Pyke in his evidence. The accomplice said that this account was not true.

19 Counsel for the appellant Wells briefly put to the accomplice that his client was not with the accomplice when the crimes were committed. Again, the accomplice asserted that he and all four appellants committed the crimes together.

20 Finally, in re-examination, the accomplice told Crown counsel that he confessed to the commission of the crimes charged by the indictment and other crimes because he was "just sick of the lifestyle that [he] had, and ... that somebody had already started a rumour that [he] was working with the NCA and [he] wasn't at the time".

21 The appellant Pyke said that on Sunday 13 June 1999, the day before the commission of the crimes, the appellants and the accomplice travelled to Dover in order to camp, to fish and to enjoy some trail bike riding. The appellant Pyke said that the appellant Hampton and the accomplice went in the appellant Hampton's Landcruiser and the remainder travelled in a camper van that he owned. He said that he and the appellants Carr and Hampton each took a trail bike. The appellant Pyke said that the party stopped at Huonville to get something to eat and also to give the appellant Carr a chance to look at a four wheel drive vehicle that was down there. He said that the group then proceeded to Dover, drove up a forestry road three kilometres south of Dover and set up camp.

22 The appellant Pyke described the party fishing for the remainder of that day and trail bike riding and fishing the following morning. He said that during the course of Monday 14 June 1999, all five men went to Dover in the Landcruiser and bought some beer. He said that about 2pm that day, they drove to a fishing spot near the campsite and the accomplice drove off in the Landcruiser, leaving the appellants to fish. He said that after about three or four hours, the members of the fishing party walked back to the campsite, but the accomplice was not there. The accomplice returned in the Landcruiser about an hour after the others had got back to the camp. The appellant Pyke said that about 7pm that night, the accomplice drove off again and did not return until about 11pm (by which time other evidence established that the crimes had been committed). The appellant Pyke said that on the accomplice's return, the latter said "come on fellows, let's go; we're off to the big smoke" and the appellants thereupon climbed into the Landcruiser and set off in the direction of Huonville. The appellant Pyke said that this time, the driver was the appellant Hampton. The appellant Pyke said that he believed that they were going into Hobart. He said that they were stopped by the police at Huonville and thereafter his account of events was in substantial accord with that given by the accomplice.

23 The appellant Pyke said that he saw no money in the Landcruiser as they drove to Huonville. He agreed that at the time of his arrest he was carrying $991 in his wallet and explained that it was there for the purpose of paying two debts. He said that he thought there were three UHF radios which were used for communication while riding trail bikes in the bush.

24 There was no issue that the crimes were committed. The only issue was whether the appellants committed them with the accomplice as he described in his evidence.

25 (a) Since about March 1999, there was a large safe and a small safe in the Hastings Caves building

complex. Access to the large safe, which had both a combination lock and a key lock, was restricted to Mr Vanderstaay, the person in charge of the day to day operations at Hastings Caves and Mr Wass. Most of the money was kept in the large safe. Staff had access to the small safe. It was opened by a key. Small sums of money, or floats for the tills, were kept in this safe. Also kept in the large safe was an envelope of keys. These keys opened the two small safes that were used at Hastings Caves prior to about March 1999. All the staff used to have a key to both these safes. When one of the small safes was replaced by the large safe, all the keys to both small safes were collected by Mr Vanderstaay and all but two, which opened the remaining small safe, were put in the envelope and placed in the large safe.

Within a very short time after the alarm went off at the offices of the security company, Mr Wass was on the scene and found the large safe with the door cut open. The small safe was on its side with a key in its opened door. Lying on that safe near its opened door were about a dozen other keys, similar to the one in the opened door.

In a bag in the back of the appellant Hampton's Landcruiser police found some oxyacetylene equipment, a spanner and a key. Using a micrometer, a locksmith compared that key with the keys that were found on the small safe. He found that two of them were, in all respects, identical to the key found in the Landcruiser and that two of them were exact copies. That evidence was not challenged.

(b) In addition to the black bag and contents just referred to, the police found the following in the appellant Hampton's Landcruiser.

* $480 in notes on the floor in the foot well behind the driver's seat;

* $260 in notes behind the lambs wool cover covering the back of the driver's seat;

(c) Geeveston police officer, Constable Scarafiotti, was telephoned about the Hastings Caves burglary about 11.04pm on 14 June 1999. Not long after he received the telephone call, he was in his car and just south of Geeveston and saw a white Toyota Landcruiser travelling along the Huon Highway towards Huonville. As a result of information he had received, he followed this vehicle, keeping some distance to the rear. He used his radio to advise other police officers of his position. It was a foggy night. Constable Scarafiotti kept the Landcruiser under observation until it reached Port Huon, where he lost sight of it. However, he continued to drive on to Huonville and by the bridge, he saw a vehicle that "appeared to [him] to be the same vehicle" that he had been following. When Constable Scarafiotti arrived at the scene, there were four men inside this vehicle and one outside. It was not disputed that these five men were the appellants and the accomplice.

* $110 in notes on the driver's seat that presumably the driver had been sitting on;

* $750 in notes and a mobile phone in the centre console;

* $345 in notes in the flap pocket in the rear of the front passenger seat.

(e) At the time of his arrest, the appellant Pyke was carrying $991.

(f) At the time of his arrest, the appellant Carr was carrying $613.90.

(g) At the time of his arrest, the accomplice was carrying $102.80.

(h) At the time of his arrest, the appellant Hampton was carrying $375.15.

(No money was found on the person of the appellant Wells.)

(i) A forensic chemist examined a jacket found on the floor of the appellant Hampton's Landcruiser, a Japarra worn by the appellant Wells, a blue polar fleece worn by the accomplice and a black woollen jumper worn by the appellant Pyke. She said that on all these items there were very small metal beads consistent with metal bits originating from an oxyacetylene torch. She was unable to express any opinion about the age of the metal beads, nor whether any of them originated from the same cutting process as any of the others.

(j) The same forensic chemist found foreign material on the jumper worn by the appellant Pyke that was indistinguishable "in relation to colour, appearance and chemical composition" from the material found on the nozzle of a can the of Selley's "Space Invader" foam recovered from the scene of the crime.

(k) The balaclava found under the rear seat of the Landcruiser, near where the accomplice said that the appellant Carr had been sitting, carried DNA, the profile of which was consistent with the appellant Carr and one other person in 400,000.

(l) Another balaclava, also found in the rear of the Landcruiser close to where the accomplice said that the appellant Pyke had been sitting, carried two lots of DNA, one with a profile the same as the appellant Pyke and one with a profile the same as the appellant Carr. The expert evidence was that the chance of these profiles being found in two other persons was one in 1,800.

(m) The balaclava found in the appellant Hampton's Landcruiser next to the driver's seat carried DNA which matched his profile. The expert opinion evidence was that the random chance of that profile being found in another person was one in a 100,000,000.

(n) An earpiece that the jury might conclude could have been used with one of the UHF radios was found on the floor in the kitchen of the Hastings Caves building. The expert opinion evidence was that this earpiece had on it DNA that matched the appellant Wells' DNA profile and that the random chance of it being another person's DNA was one in 100,000,000. Also on this earpiece was a small amount of DNA from an unknown person. For completeness, but obviously not by way of corroboration, evidence was led that DNA that matched that of the accomplice was found on another balaclava found in the Landcruiser.

26 The foregoing comprises all of the evidence given at trial that was capable of corroborating the accomplice's evidence against each of the appellants. That evidence was admissible on the trial of each of the accused because of the evidence that each of them were in the company of the others in the Landcruiser and in close proximity to incriminating evidence. In substance, the only other evidence given at trial was as follows:

(a) At or about 10.30pm on 14 June 1999, Mr Wass was notified that the alarm had gone off at the Hastings Caves complex. He and his wife left for the complex almost immediately after receiving the call and passed what he described as "a lightish coloured Toyota Landcruiser type of vehicle" about 700 metres from the entrance to the Hastings Caves complex, travelling in the direction of the Huon Highway. Mr Wass was unable to see the occupants of this vehicle. On arrival at the complex, Mr Wass telephoned a Constable Browning and told him to look out for a light coloured Toyota Landcruiser. As there was no evidence of the identity or even number of the occupants of this vehicle, this evidence was not capable of corroborating the accomplice's evidence.

(b) Police officers gave evidence of finding an empty "Space Invader" filler can, two gas cylinders and a till drawer in the greenery in the vicinity of the Hastings Caves building. There was nothing about this evidence that was capable of corroborating the accomplice's evidence that the appellants committed the crimes charged.

(c) Evidence was given of only one videotaped police interview. That was with the appellant Hampton. Obviously, this interview was only admissible against Hampton.

(d) Evidence was given that there were fingerprints on all the UHF radios which, when examined, were not the prints of any of the appellants or the accomplice.

(e) Evidence was also given that there were fingerprints on a can on the floor in the kitchen which did not match those of the accomplice or those of any one of the appellants. No other fingerprints were detected.

(f) The evidence of the appellant Pyke to which we have referred.

(g) The evidence of what was found by police at the scene of the crime could not support the evidence of the accomplice that the appellants committed the crime. However, upon the hearing of the appeal, counsel made considerable reference to two pieces of real evidence found at the scene, namely, a blonde hair on the key in the door of the safe, and a burnt out cigarette left on a bench top. Accordingly, it is necessary to refer to this evidence in a little detail.

27 Mr Wass said that he noticed that there was a hair across the round end of the key that was in the lock of the opened door of the small safe. He did not touch it. It was taken away by police officers and subjected to scientific scrutiny. The evidence was that it was a blonde human hair, 56 mm long. Nothing else was known about this hair. None of the appellants or the accomplice was blonde.

28 In the kitchen of the building where the earpiece was found, there was a box containing electronic equipment for the alarm system. The box was located above a bench. Mr Wass noted that the box was open and that the wires had been pulled out. On the bench below, and slightly to the right of this box, was a cigarette. The cork tip of the cigarette was on the bench and about two thirds of the rest of it was just ash. It gave the appearance of having been put down on the bench facing outwards and left to smoulder away until all the tobacco turned to ash, which, if touched, would fall to the ground. Forensic examination of this object detected the presence of some unknown female DNA.

29 Each of the appellants complained about the learned trial judge's directions concerning the evidence of the accomplice and the evidence that was capable of corroborating the evidence of the accomplice.

30 It is possible to compendiously deal with all these grounds as follows:

(a) the accomplice direction was defective because the learned trial judge did not tell the jury that one of the reasons why it is dangerous to convict on the uncorroborated evidence of an accomplice is because there is a risk of an innocent man being convicted;

(b) the learned trial judge did not identify, either properly or sufficiently, the evidence that was capable of corroborating the evidence of the accomplice;

(c) the effectiveness of the warning that the learned trial judge did give the jury was negated or seriously eroded by certain observations the learned trial judge made with respect to the evidence;

(d) the learned trial judge erred in failing to direct the jury that as a matter of law, the Crown could have appealed against the accomplice's sentence if he did not give the evidence that he told the learned judge who sentenced him he would give.

31 The law concerning the directions that must be given to the jury when evidence is given by an accomplice is settled. Foundational authority, R v Baskerville [1916] 2 KB 658, confirmed the common law rule that it is permissible for a jury to convict upon the uncorroborated evidence of an accomplice, but that it is dangerous for them to do so. There are many cases for the proposition that a trial judge has a duty to tell the jury just that. See, eg, R v Hester [1973] AC 296; DPP v Kilbourne [1973] AC 729; Chidiac v R [1991] HCA 4; (1991) 171 CLR 432 at 456; Doney v R [1990] HCA 51; (1990) 171 CLR 207.

32 Further, it is settled law that no special form of words is required; the direction must be tailored to the circumstances of each case. See R v Hester (supra) at 328; Carr v R [1988] HCA 47; (1988) 165 CLR 314 at 320 - 321; R v Spencer [1987] UKHL 2; [1987] 1 AC 128; R v Button [1992] 1 Qd R 552 at 558.

33 The learned author of Cross on Evidence, 6 Aust edn, says, at par15100:

"In England at least a jury must be told that convicting on the evidence of the impugned witness alone carries the danger of a serious risk that an innocent man will be convicted."

In support of that proposition, the author footnotes a passage from the judgment of Mustill LJ in R v Stewart (1986) 83 Cr App R 327 at 335. Counsel for the appellant Carr, Mr Ross QC, adopted that proposition and that case in support of his argument that the learned trial judge's direction in this case was defective because it did not contain a reference to the risk of an innocent man being convicted. The passage from the judgment of Mustill LJ in Stewart, commences with a reference to the need to give a "full" warning on corroboration. There follows the observation that there is ample authority that no set formula is required and indeed, that the words "danger" or "dangerous" need not themselves be employed. Mustill LJ then goes on:

"At the same time, however, the courts have emphasised that (as Salmon LJ said in Henry v Manning (1968) 53 Cr App R 160, 163) there must be clear and simple language that will without any doubt convey to the jury that it is really dangerous to convict on the evidence of the impugned witness alone; and the danger is, of course, the serious risk that the jury will end by convicting an innocent man (Holland [1983] Crim L R 545)."

34 With respect to the learned author of Cross, we do not understand Mustill LJ to be saying that the jury must be told in every case that the danger is of convicting an innocent man. We understand him to be doing no more than describing the nature of the danger. To propose that in England or, indeed, elsewhere for that matter, the jury must be given a reference to the danger of convicting "an innocent man" negates the widely accepted proposition, both in England and in this country, that no set form of words is required for a valid direction.

35 With respect to the accomplice's evidence, the learned trial judge told the jury the following:

(a) His directions were not given because he had any particular view of the accomplice's evidence.

(b) An accomplice's evidence may be unreliable and must be approached with caution.

(c) There are many reasons why an accomplice's evidence may be unreliable. Those reasons include shifting the blame to others, justification of his own conduct or playing up the part of others, particularly in a case where the accomplice has not been prosecuted. The learned trial judge added that this was not the position in this case as the accomplice had been sentenced for his part in the commission of the crimes.

(d) In this case, the accomplice knew that by pleading guilty he would get a lenient sentence and that he additionally pleaded guilty to other crimes as he said that he wanted to change his lifestyle.

(e) The learned trial judge reminded the jury that, on behalf of the appellant Carr, counsel put to the accomplice that he was giving false evidence in order to get a lenient sentence and that all counsel had submitted to them that the accomplice may have given false evidence to protect the real accomplices. Further, he reminded the jury that counsel had put to them that having once given a false account, the accomplice was then locked into that account.

(f) He made it clear to the jury that there was no obligation on any accused to prove the accomplice was lying as the onus of proof always remained with the Crown.

36 After the learned trial judge had reminded the jury of counsels' submissions about the veracity of the accomplice's evidence, the learned trial judge discussed those submissions and invited the jury to think about them. He asked the jury to think about the following matters:

(a) if the accomplice wanted to protect the real accomplices, he did not need to "put in four friends who are totally innocent";

(b) why would the accomplice benefit more by telling the police an untruthful story?

(c) if he was lying to protect the real accomplices, there was a risk that the lie might be exposed by the real accomplices coming forward or being caught;

(d) no-one suggested to the accomplice that his plea of guilty was dishonestly put forward; and

(e) there might be other reasons why the accomplice might have lied other than those suggested by him (trial judge) and counsel. The learned trial judge said to the jury, "it is for you to think about the potential reasons".

37 The learned trial judge then repeated his direction that it was dangerous to convict on the evidence of an accomplice unless there is corroboration of that evidence.

38 On behalf of all appellants it was submitted that by reason of the comments summarised in pars(a) - (d) above, the learned trial judge so undermined the warning he had given the jury about the danger of convicting on the uncorroborated evidence of the accomplice that there was a miscarriage of justice.

39 We do not accept that submission. The remarks were made in the context of a trial in which the defence had been that the accomplice had been lying. Counsel for the appellant Carr at the trial raised in cross-examination one reason the accomplice may have had for lying, and all counsel put to the jury other possible reasons for him to lie, reasons that were not put to the accomplice in cross-examination. The learned trial judge did no more than remind the jury of the submissions that counsel had made to them and point out what might be said to have been rather obvious weaknesses in those submissions. Throughout this part of his summing up, the learned trial judge repeatedly told the jury that the assessment of the accomplice's evidence was a matter entirely for them, that they were to consider counsels' submissions, and his comments on those submissions, and that there may have been other reasons for the accomplice to lie, other than those already mentioned. He told the jury they were to think about all of that. The learned trial judge was entitled to make the observations that he did with respect to the matters put to the jury on behalf of the accused. In Broadhurst v R [1964] AC 441, the Privy Council's advice included this passage, at 464:

"But it is very important that the jury should be told that they are not bound by them [trial judges' opinions] nor relieved thereby of the responsibility for forming their own view. Nevertheless, a jury is likely to pay great attention to them: and even in a case where a proper warning is given, an appellate court may still intervene if it considers them far stronger than the facts warrant."

40 The following passage is taken from the judgment of Brennan J (as he then was) in B v R [1992] HCA 68; (1992) 175 CLR 599 at 605 - 606 and is apposite to the present issue:

"A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury (Broadhurst v The Queen [1964] AC 441, at p 464). It must exhibit a judicial balance (Green v The Queen [1971] HCA 55; (1971) 126 CLR 28, at p 34) so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence' Stokes v The Queen [1960] HCA 95; (1960) 105 CLR 279, at p 284). I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg v Hulse (1971) 1 SASR 327, at p 335:

'(T)o use the words of the Privy Council in Broadhurst's Case ([1964] AC, at p 464), there is a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views.'

Whether his Honour went too far in deprecating the defence case depends on the impression gained by reading the summing up as a whole (Green v The Queen [1971] HCA 55; (1971) 126 CLR 28, at p 34)."

41 In our view, by making the impugned observations, the learned trial judge did not overawe the jury. He repeatedly made it clear it was for them to make their own assessment of the accomplice's evidence and noted that in doing so the jury should think about possible reasons that the accomplice may have had for lying that had not already been mentioned to them.

42 Next, it was submitted that the accomplice warning was undermined by the learned trial judge:

(a) telling the jury that an obvious reason for an accomplice to lie is to shift the blame, especially if the accomplice has not been prosecuted but then immediately telling the jury that the accomplice in this case had been convicted and sentenced.

(b) not telling the jury that if the accomplice did not give evidence as he told the judge who sentenced him he would, the Crown could appeal against that sentence.

43 With respect to the first point, we find no substance in it at all. The first part of the learned trial judge's observation was perfectly correct, and the fact of the accomplice's conviction was very obvious to the jury from the evidence they heard during the cross-examination by the appellant Carr's counsel. Further, any lingering complaint about this matter is dispelled because it was followed by the observations about other possible reasons to lie to which we have already made reference.

44 With respect to the second point, R v Stanley (supra) is authority for the proposition that upon an appeal against sentence, evidence of events that have occurred after sentence was imposed may be received if that evidence shows that the sentence was imposed upon a wrong basis. In such a circumstance the sentence may be set aside and the appellate court may re-impose sentence. Stanley was a case of an accomplice who was sentenced upon the basis he would give evidence against his co-offenders, but failed to do so.

45 It is true that the learned trial judge could have explained this to the jury, but its significance was marginal because the learned judge would have had to also tell the jury that the accomplice claimed to have no knowledge that the Crown could appeal against his sentence if he did not give evidence against the appellants. This is apparent from the following exchange in cross-examination:

"MS GIBSON: All right. (Resuming) What's your understanding of what would happen if you - if any witness simply refused to give evidence? ... I don't know. I suppose you'd be charged with not turning up or something.

Yep. But no one has ever told you that there's an additional implication, in the fact that the Court gave you a discount in sentence for your promise to give evidence ... No.

That's a serious answer. No one from the Crown has ever told you that? ... No.

46 In these circumstances, it is our view that there is nothing in the complaint that the learned trial judge should have explained the effect of Stanley's case to the jury and that his failure to do so constituted a miscarriage of justice.

47 The next matter which was argued on behalf of all appellants under the general heading of "Corroboration" was that the tenor of the learned trial judge's summing up with respect to the accomplice was, "why would he lie?" This, it was contended, was tantamount to reversing the onus of proof. Palmer v R [1998] HCA 2; (1998) 193 CLR 1 was relied upon by counsel for the appellants in support of this ground. The reliance on Palmer is misplaced. Palmer is authority for the proposition that it is impermissible to put to an accused person the question "why would the complainant lie" because his or her inability to answer that question amounts to no more than the accused has no evidence to suggest motivation to lie. Accordingly, the answer is irrelevant as it is not probative of any issue. Worse, the asking of it has a prejudicial tendency to confuse the jury about the onus of proof. Although the accomplice was not the complainant at the trial of the appellants, his evidence was akin to that of a complainant. With respect to such evidence, Brennan CJ, Gaudron and Gummow JJ said in Palmer at 7:

"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it."

See also R v Uhrig unreported Court of Criminal Appeal (New South Wales) 24 October 1996.

48 "Why would the accomplice lie?" was the central credit issue at the trial. As we have noted, counsel put to the accomplice that he lied and counsel put to the jury that the accomplice had lied. In these circumstances it was perfectly proper for the learned trial judge to deal with this issue and in doing so no possibility arose of the jury mistakenly believing that the onus of proof had shifted from the Crown.

49 The final complaint about corroboration is that although the learned trial judge described in general terms what constituted corroboration, he failed to identify what evidence was capable of corroborating the evidence upon the trial of each accused separately. The learned trial judge gave this general direction:

"As I've said to you, it's dangerous to convict an accused person on the evidence of an accomplice, unless there is corroboration of that evidence. Corroboration is evidence from a source independent of the accomplice, which implicates the accused in the crime charged, by tending to show both that the crime was committed, and that the accused committed it. When you find evidence which appears to support an accomplice's evidence in a material respect, you should consider that evidence to determine two questions. Firstly, whether you accept the evidence, and secondly, whether, in your opinion, it does provide corroboration of the witness by tending to show that the crime was committed, and that the accused committed it. Now in terms of those two things, of course, there's just no issue that the crime was committed."

50 In support of this ground, counsel for the appellants relied upon a sentence in the judgment of Zeeman J in Read v R A69/1993 and R v Small (1994) 33 NSWLR 575. In Read, Zeeman J said, at par26:

"Cases where the law requires corroboration are in no special category for present purposes. In those cases the law requires that the trial judge direct the jury as to the evidence capable of constituting corroboration, leaving it to the jury to determine whether as a matter of fact it is persuaded that the evidence is corroborative."

51 We do not understand his Honour to have been stating as a proposition of law, that the trial judge must refer to individually, or identify each piece of evidence capable of constituting corroboration although, of course, in many cases this would be desirable. His Honour was stating no more than the evidence that is capable of constituting corroboration must be identified by some means. In R v Small Hunt CJ at CL said, at 593;

"Although there is no rule of law which requires the trial judge to do so, in my view it is usually preferable for the trial judge in a straightforward case such as the present one to set out exhaustively each of the matters upon which the Crown relies and which may be considered by the jury as amounting to corroboration: R v Walczuk [1965] QWN 63 at 64; R v Sherrin (No 2) (1979) 21 SASR 250 at 255; R v Marcell (Court of Criminal Appeal, 26 March 1993, unreported) at 16 - 18. Such directions should be given by the judge without disclosing the necessary ruling which preceded the summing up (and preferably which also preceded the final addresses) that such matters are capable of amounting to corroboration; such a description is unnecessary, and it is also unhelpful to juries, who do not always understand the distinction between what is said by the judge to be capable of constituting corroboration and whether that evidence does in fact constitute corroboration: R v Zorad (at 103).

Where the trial judge has not exhaustively set out each of those matters which may be considered as amounting to corroboration, he or she must instruct the jury as to the qualities of corroboration in such a way as to leave it beyond doubt what conditions the material must satisfy before it can be regarded as corroboration: R v Williams (Court of Criminal Appeal, 21 May 1992, unreported) at 6. It is quite wrong for the trial judge simply to leave it to the jury to take into account any evidence which they may consider as amounting to corroboration: R v Mercer (1993) 67 A Crim R 91 at 98."

52 Other authority to the same effect includes R v Matthews and Ford [1972] VR 1 at 20; Hayler and Henry v R (1988) 39 A Crim R 374 at 378 - 379; R v Sorby [1986] VicRp 77; [1986] VR 753 at 782 - 783.

53 Immediately following his general direction with respect to the attributes of corroborative evidence to which we have referred, the learned trial judge said:

"Now I was next going to start going through that evidence. It seems to me that it's a sensible time to stop, rather than break that up, members of the jury. So, we will stop now and continue on Monday." [Emphasis added.]

54 On Monday, the learned trial judge referred again to the danger of convicting on the uncorroborated evidence of the accomplice alone He repeated his direction that corroboration is evidence from a source independent of the accomplice which tends to show that the crime was committed and that "the particular accused" committed it. He told the jury that when they found evidence that appeared to "support" the accomplice's evidence, they were first to decide if they accepted it and, if yes, decide if it provided support for the accomplice's evidence in that it tended to show that the crime was committed and that the accused committed it. No criticism was, nor could be, made with respect to this encapsulation of the law.

55 The learned trial judge then observed, as was plainly the case, that there was no doubt that the crimes were committed and the question was whether the accused committed them. The learned trial judge then said:

"Now how you go about thinking about this, and how you go about assessing the evidence is entirely a matter for you. I'll be raising some questions for you, and some considerations for you, but they are simply matters for you to consider. You don't have to adopt the approach that I take in any way."

56 Over the next 12 pages of single spaced transcript, the learned trial judge referred to a very substantial part of the Crown evidence given at trial. As he did so, he expressed his comments about that evidence. At the end of that part of the summing up, the learned trial judge said:

"Members of the jury, that's as far as I want to take the evidence in terms of identifying matters which may or may not support the evidence you've heard from [the accomplice]. I remind you that it's dangerous to convict an accused on the unsupported evidence of an accomplice. It's a matter - it's for you to decide whether matters such as those that have been referred to, support [the accomplice], and whether those matters, coupled with the evidence from [the accomplice], satisfy you beyond reasonable doubt of each of the accuseds' guilt."

57 On behalf of the respondent, the learned Director of Public Prosecutions submitted that by the two paragraphs we have just set out, the learned trial judge provided "book ends" for the evidence that was capable of corroborating the evidence of the accomplice.

58 The difficulty about that submission is that over those 12 pages of transcript, the learned trial judge referred to some of the other evidence as well as that which was capable of corroborating that given by the accomplice. He did not simply list the evidence that was capable of supporting the evidence of the accomplice (which would, we respectfully think, have been the preferable course to have taken) but he discussed, at some length, matters that he suggested the jury might like to consider with respect to that evidence and, additionally, expressed his own views about some parts of that evidence.

59 During this part of the summing up, his Honour devoted a considerable amount of time to the evidence concerning the burnt cigarette and the hair on the key found on the open safe. However, we do not think that any miscarriage of justice arose out of his Honour referring to these two pieces of evidence at the same time as he was going through the corroborative evidence, because he made it clear to the jury that which would have been obvious to them in any event, that this evidence was not capable of being viewed as corroboration. With respect to the hair, he said "[c]ertainly, that pale hair doesn't prove that any of the accused was one of the perpetrators". With respect to the evidence concerning the burnt cigarette the learned trial judge said to the jury that they were to consider that evidence and think about whether, as a consequence of it "you're not satisfied beyond reasonable doubt that the accused were the perpetrators".

60 Within the "book ends" the learned trial judge also spent a considerable amount of time discussing with the jury whether they might think that having regard to the size of the crime, that more than one person was involved, and also whether they might think that it was "a professional job". Of course, the real evidence about such matters as the weight and size of the large safe and the finding of cylinders and so forth in the vicinity of the building, as well as the evidence of absence of fingerprints, could not possibly be categorised as corroborative evidence, and we are satisfied that this was clear to the jury, especially after the learned trail judge had told them:

"... if you are of the view that the evidence points to them having been very professional, that of course doesn't establish whether the job was done by Mr Sherman, together with the accused, or by Mr Sherman together with persons unknown, possibly including a woman. I mean either of those groups could be very professional.

61 Earlier in these reasons, we set out in summary form the substance of the evidence given at the trial. Recourse to it shows that the vast majority of the circumstantial evidence was capable of corroborating the accomplice's evidence on the trial of each accused. Although the summing up did not isolate in dot point form all the corroborative evidence, and although the learned trial judge included other evidence within the "book ends" section dealing with corroborative evidence, we are of the view that no error of law or miscarriage of justice thereby arose. Directions concerning corroboration are not required to take any special form. Although usually desirable, it is not necessary in every case to identify every piece of corroborative evidence, provided a sufficient direction is given as to the characteristics of corroborative evidence, as was the case here. Finally, the nature of the non-corroborative evidence to which the learned trial judge referred within the "book ends" was such that it would have been obvious to the jury that such evidence was not capable of supporting the evidence of the accomplice and, in any event, the learned trial judge expressly made that clear to them in his directions.

62 Three other complaints were made about the directions concerning corroboration. The first was that the learned trial judge left it to the jury to ascertain for themselves what evidence was capable of providing corroboration of the accomplice's evidence. To support this complaint, the appellants relied upon the phrase " ... such as those that have been referred to ... " used by the learned trial judge in the passage we have already cited to identify one of the "book ends". The short answer to this complaint is that the phrase has to be read in the context of the whole summing up. When this is done, it is clear that although the words "such as" are used, the learned trial judge was clearly only referring to the pieces of evidence that he had just been discussing between the "book ends" and which is recorded in the 12 pages of transcript to which we have referred. In the circumstances, no juror would have been misled by the use of that phrase into thinking that he or she could roam at large over the evidence and select some other piece or pieces of evidence and use it or them as corroboration of the accomplice.

63 The next matter of complaint is a failure of the learned trial judge to direct the jury that they could only rely on those pieces of corroborative evidence which they considered reliable. The submission has no substance. On two separate occasions in the context of directions concerning corroboration, the learned trial judge told the jury that the first thing they had to do was decide whether they accepted the [corroborative] evidence. Finally, it was the written submission of all appellants that error occurred in that the learned trial judge failed to direct the jury that with respect to the circumstantial evidence they could not act on it unless guilt was the only rational hypothesis that could be drawn from that evidence. Not all counsel supported this complaint with oral argument. Plainly, it has no substance. It never was the Crown case that any of the appellants could be convicted upon the circumstantial evidence alone. It is only in such a circumstance that such a direction must be given. See Barca v R [1975] HCA 42; (1975) 133 CLR 82; Shepherd v R [1990] HCA 56; (1990) 170 CLR 573.

64 Error allegedly occurred in a direction that the learned trial judge gave the jury that there was evidence upon which they could be satisfied that each of the appellants, other than Hampton, adopted a lie told by that appellant.

65 This direction concerned evidence, to which we earlier made passing reference, of what was said between police and the appellant Hampton after the Landcruiser had been stopped at the Huonville bridge. There was evidence from the accomplice, two police officers and the appellant Pyke, about what happened after the Landcruiser was stopped. It seems to have been fairly common ground that the police officer initially asked the appellant Hampton for his driver's licence and then all of the appellants got out of the vehicle. There was no common ground with respect to the order of getting out. Mr Ross referred the Court to the evidence of Constable Browning that he asked the appellant Hampton where they had been and the latter told him that they had been "down the road about 15 kilometres", "to have a look at a vehicle similar to the one he was driving". Constable Browning said that at that stage Hampton was out of the vehicle. Evidence to the same effect was given by Constable Archer and Mr Ross directed the Court's attention to this as well. Mr Ross then submitted that there was no evidence that any of the other appellants had heard that exchange between Constable Browning and the appellant Hampton and therefore the direction given the jury by the learned trial judge should not have been given. What Mr Ross did not refer the Court to was the following passage in the evidence of Constable Browning, appearing in the transcript two pages after the part to which Mr Ross did refer:

"Now did you say anything to Mr Hampton in relation to the keys of the vehicle? ... Yes. I asked him - I asked him for the keys to the vehicle and again with a little bit of reluctance he did give them to me and I retained possession of the keys thereafter.

So by this stage we've got Mr Hampton is out of the car? ... Yes.

Did Mr Carr and Mr Pyke do anything? Did they stay in or - - - ...Yeah, they - when I went back around to the other side of the car - or around that period of time they both got out of the car and were sort of - and then everybody was sort of hanging around in the same near vicinity, around the front of the car.

When you say everyone is that all five of them? ... All five, yes.

All five, right. So they're in a sort of a group are they? ... Yeah. Mr Hampton was more with me sort of separated from the others.

Well where's that? ... On the driver's side of the car.

And where are the other's sorry? ... Sort of - towards the front right hand fender area.

Right. And are they asking you anything? ... Generally they were asking, you know, 'What's going on?', you know, 'Why are we here?', sort of thing.

So what do you say to them? ... Well I just told them that we were investigating a report of a burglary and stealing and safe cutting from the Hastings Kiosk.

Right ... And also that I believed that the vehicle - the vehicle that we had there and the occupants were involved.

Right. And did you get any response from any of the men? ...Basically, you know, 'Bullshit, we had nothing to do with it. We've told you why we're down here. We come down to look at - basically came down to look at a car.'

Right. Can you remember who said that or - - -...Again I think it was Mr Hampton said - reiterated about that.

Right. Was there any other response from the others that you recall? ... Basically that they didn't do anything wrong.

Right. Well did you ask then to do anything, these five men? ... Yes. I asked them to accompany me to the Huonville Police Station.

And what response did you get to that?....Pretty much refusal by all."

66 This evidence could have been accepted by the jury and they might well have thought that the appellant Hampton was telling a lie or lies. Further, it was well and truly open to the jury to conclude from that piece of evidence by Constable Browning that the appellants Carr, Pyke and Wells all heard the statement by the appellant Hampton and accordingly his direction to that effect was a perfectly proper one. His Honour prefaced this part of his directions with these words:

"The evidence is only admissible against another accused if you are satisfied that he heard the conversation and that the other accused in effect adopted what was said by, in this instance, Michael Hampton by failing to react and not contradicting what he said."

67 His Honour then gave the jury a direction about the use that the jury might make of this evidence if they considered it to have been a lie which was adopted by all the appellants. The direction was in accordance with Edwards v R [1993] HCA 63; (1993) 178 CLR 193. On behalf of the appellant Carr, Mr Ross submitted that even if an "Edwards direction" was given in the case of the appellant Hampton, it was not given in the case of his client. This submission is contradicted by the transcript of the summing up. The learned trial judge introduced the "Edwards direction" by saying:

"If you are satisfied that Mr Hampton was lying when he said that, then as to Mr Hampton or any accused who you are satisfied overheard the lie and adopted it by not correcting it, I must give you this direction ...". [Emphasis added.]

68 In support of this ground, it was submitted in the alternative, that the evidence of a lie and the evidence of the adoption of that lie amounted to an admission, not admissible by virtue of the Criminal Law Interrogation and Detention Act 1995 ("the Act"), s8(2), which provides:

"On the trial of an accused person for a serious offence, evidence of any confession or admission by the accused person is not admissible unless -

(a) there is available to the court a videotape of an interview with the accused person in the course of which the confession or admission was made; or

(b) if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why a videotape referred to in paragraph (a) could not be made, there is available to the court a videotape of an interview with the accused person about the making and terms of the confession or admission or the substance of the confession or admission in the course of which the accused person states that he or she made a confession or an admission in those terms or confirms the substance of the admission or confession; or

(c) the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why the videotape referred to in paragraphs (a) and (b) could not be made; or(d) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence."

69 The potential lie identified by the learned trial judge and made the subject of his direction was the statement by Hampton that "they had been down the road about 15 kilometres to look at a vehicle similar to that which he was driving". A statement to this effect does not constitute a confession or an admission within the meaning of the Act, s8(2). It was an exculpatory statement which it was proper for the Crown to lead notwithstanding its self-serving character. We note that none of the appellants sought to exclude it at trial. Similarly, its adoption by the appellants who overheard Hampton make it could not be said to be a confession or admission by them within the meaning of that subsection. In R v Arnol (1997) 6 Tas R 374, Zeeman J considered this question. At 381 he said:

"In my view, a communication will amount to an admission for the purposes of s8 if it admits to a fact which, taken in conjunction with other facts, may be probative of the guilt of the accused."

In this case, the fact "admitted" (we would prefer to say "asserted"), whether taken on its own or in conjunction with other facts, is not probative of guilt. It is the false assertion of the fact that they had been down the road about 15 kilometres to look at a vehicle which may be probative of guilt.

70 In the course of his judgment in R v Arnol (supra), Zeeman J referred to the Attorney-General of New South Wales v Martin [1909] HCA 74; (1909) 9 CLR 713 where the voluntariness of a "confession" was in issue. At 732 O'Connor J said:

"There are many definitions of what will amount to a confession for the purposes of the rule I am considering. They all agree in this, that it must be either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner's guilt at the trial."

See also R v Georgiadis (No 3) [2001] TASSC 49.

71 The question has also been considered in Queensland by the Court of Appeal in an unreported decision R v Clark; ex parte Attorney-General [1999] QCA 438 delivered on 22 October 1999. The section under consideration was the Criminal Law Amendment Act 1894, s10, which relevantly provides:

"No confession ... shall be received which has been induced by any threat or promise by some person in authority ...".

In an interview with police, the appellant told a number of lies to the effect that he was elsewhere at the time the crime of which he was convicted had been committed. At pars21 - 24, De Jersey CJ, with whose reasons for judgment McPherson JA and Jones J agreed, said:

"[21] What is a 'confession' for the purposes of that section? The issue has twice been addressed at appellate level in Queensland. In R v Lindsay [1963] QdR 386, 393, Mack J, as he then was, in the Court of Criminal Appeal, with the agreement of Philp ACJ and Hart J, held that a 'confession' (for purposes of the Aboriginals Preservation and Protection Acts) included 'any statement obtained from the prisoner which could lead to the inference of guilt or which would tend to prove it'. He adopted the view of O'Connor J expressed in Attorney-General for New South Wales v Martin [1909] HCA 74; (1910) 9 CLR 713, 732 that for there to be a confession, there 'must be either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner's guilt at the trial'.

[22] The issue was again discussed in R v Doyle ex parte Attorney-General [1987] 2 QdR 732, where Shepherdson J, with the agreement on this point of Kelly SPJ and Matthews J, followed Lindsay, and added, relevantly for the present, that 'an exculpatory statement which is not a confession ... is not protected by s.10' (p 746). There is substantial additional authority supporting that view.

[23] Isaacs J dealt with the point in Attorney-General for New South Wales v Martin, supra, pp 734-5, as follows:

'Looking at the statement in the present case, I find there is nothing incriminating in that document. Everything in it from beginning to end is the denial of guilt. ... although it is a denial or exculpation, and therefore it is outside the principle of protection which the common law has thrown around a prisoner to guard him against a confession gained under the influence of a threat or promise, and consequently I am of the opinion that it is not within the Act. I have said that the statement was not incriminatory. I should like to add this: that in one sense a false statement by a prisoner, though a denial or exculpation, might indirectly be the means of convicting him, not by reason of that statement proving his guilt, but by reason of other evidence which shows the statement is untrue, or that the prisoner is unworthy of belief. If he says that he at the time was elsewhere, but it is proved that he was not; or if he says some other person was there and it is proved the other person was not there, that might destroy his defence. It does not, however, prove he actually committed the crime. The prosecution still has to depend on its own affirmative evidence for that, and therefore I do not think a denial or exculpation is, even when contradicted by subsequent evidence, to be regarded as an incriminatory document, in the same sense as a confession or admission of guilt or a statement which is an affirmative link in the chain of evidence, because it admits some fact which tends to prove the guilt of the prisoner.'

See also p 732 per O'Connor J; R v McKay [1965] QdR 240, 242 per Mack J as he then was; R v Coats (1932) 51 NZLR 401, 405, 407; and Maddaford v Brown [1953] SASR 169, 172.

[24] In my opinion s10 did not apply to this material because it was not confessional. As I have said, it was exculpatory material, which, even when shown to be false and thereby providing the foundation for an argument that the appellant had told lies on material points because of a consciousness of guilt, did not take on a relevantly confessional character."

With respect, we agree. The Act, s8 has no application to the lie in question or to its possible adoption by the appellants who raised the point in their notices of appeal. Furthermore, we note that objection was not taken at the trial to the admission of this evidence and consequently no evidence was led that might touch upon the issue of the discretion conferred by the Act, s8(2)(c). However, in the circumstances there is no need to consider the effect of this failure on this ground of appeal.

Did the learned trail judge cross-examine the appellant Pyke?

72 All the appellants complain that there was a miscarriage of justice by reason of the learned trail judge's extensive cross-examination of the appellant Pyke.

73 It is of course, well established that in this country's adversarial system of justice, a trial judge must remain aloof from the business of examining and cross examining witnesses. In his inimitable style, Denning LJ described the role of a trial judge in Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 63 - 65. His Lordship adopted that oft cited expression of view of Lord Greene MR in Yuill v Yuill [1945] P 15 at 20 with respect to a judge who conducts the examination of a witness - "he, so to speak descends into the area and is liable to have his vision clouded by the dust of conflict". See also Ratten v R [1974] HCA 35; (1974) 131 CLR 510 at 517. Involvement by a trial judge in examination or cross-examination of a witness may amount to such a departure from the due process of a trial that there is a miscarriage of justice. There is no exhaustive list of when such involvement will amount to a miscarriage of justice. See R v Mawson [1967] VicRp 23; [1967] VR 205: R v Esposito (1998) 45 NSWLR 442. In this case, the appellants argue that a miscarriage of justice occurred because the nature and extent of the learned trial judge's questioning assisted the prosecution. Mr Ross, whose submissions were adopted by the other counsel, submitted in effect, that the questioning showed that the learned trial judge did not believe the evidence given by the appellant Pyke.

74 Kirby ACJ said in Galea v Galea (1990) 19 NSWLR 263 at 281:

"The decision on whether the point of unfairness has been reached must be made in the context of the whole trial in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached and one which is provisional and put forward to test the evidence and invite further persuasion."

75 The appellants identified 13 separate points of intervention by the learned trial judge which, it was submitted, when taken together, constituted a miscarriage of justice. Some of them are quite brief and, our view, completely innocuous. For example:

"HIS HONOUR: Well just a moment. How do you know you weren't in the car?

HIS HONOUR: So you thought that the only person who was arrested was Mr Sherman?

WITNESS: I thought that's who the officer was talking to.

MS MASON: (Resuming) But - so you, at that stage, didn't believe that you were under arrest? ... No, I did not.

ACCUSED: It heats metal up hot enough, it fuses - a metal welding rod gets it hot enough and - - -

Carr & Ors v R [2002] TASSC 60

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Carr & Ors v R [2002] TASSC 60 (3 September 2002)

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