Carr v R [2000] TASSC 183

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, applied.

Criminal Law - Jurisdiction practice and procedure - Summing-up - Delay before charge - Warning required - Armed robbery.

Longman v R [1989] HCA 60; (1989) 168 CLR 79; Crampton v R [2000] HCA 60, applied.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Misdirection and non-direction - General matters - Presentation of defence case and Crown case and review of evidence - New basis for conviction - Not addressed before summing-up.

King v R [1986] HCA 59; (1986) 161 CLR 423; R v GAS [1998] 3 VR 862; R v Pureau (1990) 19 NSWLR 372; R v Solomon [1980] 1 NSWLR 321, referred to.

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Identification evidence - Direction to jury - Adequacy of warning - Recognition by person knowing accused.

Domican v R [1992] HCA 13; (1992) 173 CLR 555, applied.

Judgment Number: [2000] TASSC 183

1 I have had the advantage of reading in draft form the Reasons for Judgment prepared by Blow J. With the exception of his reasons in respect of ground 1(b), I am in full agreement with his reasons and conclusions that the appeal should be allowed, the conviction quashed and a new trial ordered. In respect of ground 1(b), namely the failure to give the type of warning required by Longman v R [1989] HCA 60; (1989) 168 CLR 79 and Crampton v R [2000] HCA 60, I have some reservations as to the conclusion that the learned trial judge was in error. Both Longman and Crampton were cases of sexual molestation of young complainants many years prior to trial. In Longman, however, at 86, Brennan, Dawson and Toohey JJ pointed out that "the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case". They cited Bromley v R [1986] HCA 49; (1986) 161 CLR 315 where the effect of the mental disability of an important Crown witness upon his or her capacity to give reliable evidence was said to call for a warning of the possible danger of basing a conviction on such testimony unless it is confirmed by other evidence, and to Carr v R [1988] HCA 47; (1988) 165 CLR 314 where a disputed verbal confession to police officers, which represented a significant plank in the Crown case against the appellant, was said, in the circumstances, to require a similar warning. In the latter case, Brennan J said at 330:

"These were dangers not necessarily obvious to the lay mind, and they were dangers against which the jury ought to have been warned in order to avoid a perceptible risk of miscarriage of justice.

This theme was developed by Kirby J in Crampton at par126 where, after noting the distinction made by the majority in Longman between comment and a warning, he said:

"Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser."

2 In the sexual molestation cases, the dangers associated with a complaint of such behaviour committed many years prior even to the articulation of the complaint, let alone to the trial of an accused person in respect of it, are apparent to the courts, but not necessarily to the lay mind. The identification of the occasion of the conduct in question can be so vague as to make it nigh on impossible for an accused person to marshall independent evidence rebutting the complainant's claims. There are many other aspects of prejudice through delay in cases of this sort. Par excellence they represent the kind of case where, as Gaudron, Gummow and Callinan JJ said in Crampton at par45:

"... the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions."

3 In the present case, the fact of an armed robbery having taken place at the Ravenswood Supermarket on the night of 16 June 1991 was not in dispute, nor were the general circumstances of it. The crucial issue was the participation of the appellant in it. The principal disadvantage he faced in successfully answering the charge after a delay of nine years was in adducing evidence supportive of his denial of being present at the scene. I think there is much to be said for the proposition that applying the classification employed by Kirby J, this was a matter for comment rather than warning. Another disadvantage lay in testing the claim of recognition by Ms West which should, in any event, have been the subject of a warning of the kind identified by Blow J in relation to ground 7. I am not, therefore, persuaded that the circumstances called for a Longman warning. However, it is unnecessary to express a concluded view as, for the other reasons advanced by Blow J, I am satisfied that the appeal should be allowed and a new trial ordered.

4 I have had the advantage of reading in draft form the Reasons for Judgment of Blow J and agree with the orders which he proposes.

5 I agree that grounds 1(a), 2, 8, 10, 11, 12, 13 and 15 of the notice of appeal ought be dismissed. I agree that ground 1(b), the alternate basis for conviction - grounds 4, 5 and 6 - ought be upheld for the reasons stated by Blow J.

6 Ground 14 has no merit other than the combination of effect of grounds 1(b), 4, 5 and 6 and it is not necessary to uphold it as a separate ground. I agree with the conclusion reached by Blow J in relation to the direction given with respect to the witness MacCreadie complained of in ground 7. I do not agree with his conclusion in relation to the witness West complained of in the same ground. The direction given by the learned trial judge was adequate and the complaint made by the appellant concerns the weight of her evidence rather than any special category which might require a warning direction. However, my disagreement on this issue in no way affects my concurrence in the conclusion that the appeal ought be upheld on the other grounds.

7 I would allow the appeal, quash the conviction and order a new trial.

8 This is an appeal against a conviction for armed robbery. On 16 June 1991, a man armed with a gun entered a supermarket at Ravenswood in Tasmania and robbed the proprietor, a Mr MacCreadie, at gunpoint of approximately $28,000. The appellant was tried for this crime some nine years later. He was convicted on 7 July 2000. He has challenged his conviction on numerous grounds.

9 The Crown case was that the robbery took place as a result of a plan made and executed by the appellant and two other men, Mr Kelly and Mr Paget. Mr Kelly was jointly charged with the appellant. Mr Paget was not charged. He gave evidence as a Crown witness. As a result of an answer he gave to a question, a separate trial was ordered for Mr Kelly.

10 Before dealing with the individual grounds of appeal, it is appropriate that I summarise the Crown case. Mr MacCreadie, the supermarket proprietor, gave evidence that he was held up by a man wearing a balaclava, armed with a pistol, and carrying a walkie-talkie. He said he was made to lie on the floor and was handcuffed with his arms around a chair.

11 Mr Paget gave evidence that he planned the robbery with Mr Kelly. He said they equipped themselves with a sawn-off shotgun, a .22 target pistol, handcuffs, walkie-talkies, gloves and a big black sports bag to carry their equipment. He said they recruited the appellant and arranged for him to be the person who would actually enter the supermarket. He said that he kept watch across the road from it; that he saw Mr Kelly and the appellant go to the supermarket; that the lights went out; and that Mr Kelly and the appellant ran away from the supermarket carrying two white calico money bags. He said that the three of them went to the home of a woman named Leeanne Denholm; that he and the appellant went from there via back paddocks to the home of a Maureen West with the money; and that the appellant received his share of the stolen money there.

12 Miss Denholm gave evidence. She said that the appellant, Mr Kelly and Mr Paget came to her home one afternoon nine or ten years previously with a bag that she thought could have had walkie-talkies in it, and that they left, popped back after half an hour to an hour, and left again.

13 Miss West gave evidence that Mr Paget and the appellant came to her home on 16 June 1991. She said that she saw a lot of money on her loungeroom floor. She said Mr Paget and the appellant told her they had done an armed robbery at the Ravenswood supermarket; that they had two walkie-talkies, a pistol, and a sawn-off shotgun; that they talked of a third person being involved; and that they left behind a bag with walkie-talkies in it. She said she secretly phoned a police officer, Detective Shaw, while the two men were in her home, and told him that they were there with heaps of money, guns and walkie-talkies, and that they were saying that they had done an armed hold-up at the Ravenswood supermarket. The police did not come to her home. She said that the two men spent the night there, but were gone when she returned from work at about midday.

14 Detective Sergeant Shaw (as he now is) gave evidence of receiving Miss West's phone call. He said that police officers did not initially go to Miss West's home, but that surveillance of her home was arranged, and that he went there a week or two later, was shown a sports bag containing two walkie-talkies, recorded their frequency and serial numbers, and left without them. Obviously a decision had been made to keep Miss West's phone call a secret.

15 The appellant's case was that he had no involvement in the robbery. He suggested that he might have been living in Melbourne at the time.

16 On the first day of the trial, when Crown counsel was commencing his opening address, counsel for the appellant applied for a permanent stay of the proceedings on the indictment on the basis that the delay since June 1991 would make it impossible for the appellant ever to receive a fair trial. It may be that the Crown could have taken some technical objection to that application, on the basis that the accused were then in the charge of the jury, and that it was not appropriate to apply for a stay at that time, but I will assume for the purpose of this appeal that it was open to the learned trial judge, if he saw fit, to abort the trial as against one accused and grant a permanent stay of the proceedings as against him. His Honour conducted a voir dire in relation to the stay application and received evidence from a number of witnesses. Essentially, the appellant contended that he was in Melbourne at the time of the robbery on 16 June 1991 and that he was prejudiced as a result of the delay in the bringing of proceedings in that evidence that he was in Melbourne had ceased to be available to him. As will be seen, the evidence on the voir dire fell short of establishing that he was prejudiced in that way.

17 The appellant gave evidence on the voir dire that he was required to appear in court on 9 April 1991, but did not. He said he was not sure if he had gone to Melbourne then. He said he went to Melbourne by boat from George Town and stayed in Prahran with a man named Tony Barron. He said he travelled to Melbourne with his then fiancée and a man named Justin Nicholas. He said he had separated from his former fiancée, who had two children by him, and had not seen her for six years. He said he stayed in Melbourne for some weeks, possibly two, three or four months. He said he could vaguely remember coming back to Tasmania and staying in a caravan park at Legana. He said that, in connection with arranging to appear in court, he wrote a letter to a legal practitioner, Mr Kable, and walked into the police station and gave himself up with another legal practitioner, Mr Dockray. A copy of the letter was tendered, but it was not dated. The appellant also gave evidence that he would have made phone calls from Melbourne to his mother, and to his then fiancée, who returned to Tasmania before him. Under cross-examination he said that he would have been on unemployment benefits whilst in Melbourne; that he had not investigated the availability of records in relation to payments thereof; and that he may have asked his counsel to do that, but was not sure. He had not given her written authority to investigate such records. He had not enquired of the Commonwealth Bank, one of the banks he used, in relation to its records. He had not looked for his former fiancée. He had information that she was "somewhere Hobart way". He had given an alibi notice referring to a man named Les Fisher, and was able to call him because he was in Risdon Prison. He had asked a few people about another alibi witness named in his notice, Wally Bowden, but no-one seemed to know where he was, though he had been told he was up Kalgoorlie way somewhere "working in mines or something". He said he would have told his mother he was going to Melbourne before he went, but that he did not want to call her as a witness because she was not well.

18 Mr Barron gave evidence on the voir dire. He said he lived in Melbourne for between 18 months and two years between about 1990 and 1992, at an address in Prahran and at an address in Windsor. He said the appellant stayed with him for between 11 and 14 weeks roughly, arriving around about May, June or July of 1991. He said Telecom would have his phone records from that period. He could not say when the appellant left. Under cross-examination, he said that he had spoken to the appellant's counsel about his phone bill, but that nobody had asked him to check with Telecom.

19 Mr Dockray gave evidence of speaking in 1991 to the woman whom the appellant had named as his then fiancée. At first he said the conversation was in July 1991, but he later said that it was on 2 August 1991. He subsequently spoke to a police sergeant, and then saw the appellant on 8 August 1991 and appeared for him before a magistrate. A copy of the record of the Court of Petty Sessions was tendered on the voir dire. It showed that the appellant failed to answer his bail on 9 April 1991, and next appeared, represented by Mr Dockray, on 8 August 1991.

20 There was no evidence that the appellant or anyone else had attempted to obtain any evidence tending to establish that he was in Melbourne on the day of the robbery, nor that any relevant evidence had become unavailable.

21 Detective Sergeant Shaw gave evidence on the voir dire that police officers decided not to go to Miss West's house after her phone call because of concerns for her safety and the confidentiality of the information she provided, and because she seemed unwilling to become overtly involved. That evidence was corroborated by an Inspector Morrison. An Inspector Little gave evidence that he received information from Mr Paget around April 1999 as to the robbery; that he arranged for Mr Paget to speak to Miss West and Miss Denholm wearing a listening device; that the information thus received confirmed what Mr Paget was telling him; and that he thereafter formed the view that there was sufficient evidence to prosecute the appellant.

22 Miss West was not called on the voir dire. The learned trial judge refused the stay application. He published his reasons for that decision on the last day of the trial. After summarising the evidence on the voir dire and referring briefly to the law, he said this:

"As I have already said, I am not persuaded that the police or prosecuting authorities are to blame for the delay. Nor am I persuaded that the delay has deprived the accused of a fair or reasonable opportunity of establishing his innocence. He established almost no specific prejudice, relying simply on the passage of time in support of a claim to have suffered general prejudice. I comment that it was impossible for me to determine whether there was any truth in his claim to have been in Melbourne at the relevant time. There was little evidence of efforts made to ascertain whether any records exist to prove that he was in Melbourne or that he travelled to or from there. He had not approached a number of witnesses who might have been able to give evidence for him.

If general prejudice is harmful to his case, the jury can be instructed to have regard to it in assessing his defence of alibi."

23 When cross-examined on the trial, Miss West said that she had not been asked to make a statement, and would not have refused to make one if she had been asked. Counsel for the appellant submitted not only that the learned trial judge should have granted the stay application at the end of the voir dire, but also that, upon Miss West giving the evidence I have referred to, he should have considered reversing his ruling.

24 The High Court considered the circumstances in which the power permanently to stay criminal proceedings may be exercised in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23. At 33 - 34, Mason CJ said:

"The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v Wingo [1972] USSC 146; (1972) 407 US 514; Bell v Director of Public Prosecutions [1985] AC 937, as explained in Watson (1987) 8 NSWLR 685, and Gorman v Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at pp 263-264.

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR, at p 111, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be "able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute": Clarkson [1987] VR_,_ at p 973."

"It is not practicable to seek to precisely identify in advance the various factors which may be relevant in determining whether, in the circumstances of a particular case, unreasonable delay has produced the extreme situation in which any further proceedings should be permanently stayed. The starting point will be consideration of the question whether the delay is so prolonged that it is unreasonable in the context of the particular case. An affirmative answer to that question will, at least where the accused does not share responsibility for the delay, prima facie indicate that the accused is entitled to some relief (eg an order fixing a date for trial). It will not, however, of itself and viewed in isolation, suffice to found an order that the proceedings be stayed. In that regard, it is relevant to note that, in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case. An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process.

In his judgment in the present case, Kirby P identified five main heads of relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances. ... . I would slightly adapt them to read: (i) the length of the delay; (ii) reasons given by the prosecution to explain or justify the delay; (iii) the accused's responsibility for and past attitude to the delay; and, (iv) proven or likely prejudice to the accused. The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime (see Reg v Clarkson [1987] VR, at p 972; Carver v Attorney-General (NSW) (1987) 29 A Crim R 24, at p 32). Those five 'heads' provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances. Consideration of heads (i) (length of the delay) and (ii) (prosecution's explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources (cf Mills v The Queen [1986] 1 SCR, at pp 924-925; Aboud v Attorney-General (NSW) (1987) 10 NSWLR, at pp 683-684). Consideration of head (iv) (prejudice to the accused) will involve account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts."

26 I am not persuaded that the learned trial judge erred in the exercise of his discretion in refusing to stay the proceedings, either at the conclusion of the voir dire or after Miss West gave the answers I have referred to. On the contrary, I consider that he took the only appropriate course in refusing a stay. It had not been established that any evidence had ceased to be available. There were reasonable grounds for the police officers to infer that Miss West did not want to co-operate to the extent of making a statement and giving evidence. Her safety, and the confidentiality of her phone call, were relevant considerations. In the circumstances, it was not unreasonable for the appellant not to be charged until Mr Paget had come forward in 1999. In those circumstances, it could not be shown that any conviction would bring the administration of justice into disrepute, nor that the trial would be an unfair one, nor that the continuation of the proceedings would be so unfairly oppressive as to constitute an abuse of process. Ground 1(a) must therefore fail.

27 By this ground it is contended that the learned trial judge failed adequately to direct the jury on the difficulties caused to the appellant by the delay between the robbery and the institution of proceedings, and in particular that his Honour failed to direct on the need for careful scrutiny of the evidence of Mr Paget and Miss West. The direction to the jury in relation to delay was as follows:

"Ladies and gentlemen, I just want to make a brief comment about the delay in prosecuting this matter. You would all no doubt be aware that after the passage of about nine years witnesses' recollections would tend to get a bit vague and lacking in detail in some respects and in particular the accused has said that he was in Melbourne. It didn't come out in his examination in chief from Ms Gibson but it came out in cross-examination that he says he was in Melbourne. And he's spoken to two persons who might have been able to give evidence, he says, but they certainly can't help him now because of the passage of time so he hasn't called them as witnesses. Well you should have regard to that. If you think back to 1991 and you were accused of something would you be able to establish where you were at that particular time. Would you have difficulty in doing that? So you have regard to that. You've got no precise evidence from him as to what he's done to try and prove that he was in Melbourne but you should have regard to the fact that there may be difficulty for a person to defend an allegation made some nine years later. That also of course applies in a sense to the Crown witnesses in the sense that witnesses might have some difficulty recalling all the detail sometime later.

So don't just think of this case as something that's alleged to have happened last week or last month or last year. Keep in mind that the events are quite old and unusually old for a criminal case and give that factor due weight when you come to consider the evidence of the witnesses and the accused's denial that he participated in this and his claim that he was in Melbourne."

28 In my view, the passage I have quoted amounted to a comment, or at most a caution, and fell short of being a warning. However, it is a warning that is required in such circumstances: Longman v R [1989] HCA 60; (1989) 168 CLR 79; Crampton v R [2000] HCA 60.

29 In Longman, Brennan, Dawson and Toohey JJ said at 90 - 91:

"... there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see R v Spencer [1987] UKHL 2; [1987] AC 128 at 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. ... The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."

30 Crampton, which was decided after this appeal was argued, highlights the distinction between a warning and comment or caution that falls short of being a warning. In that case, the trial judge told the jury that late complaint had potential disadvantages to the accused because it reduced his opportunity to explore the matters complained of. She referred to the opportunity of the accused to look at matters that were happening at about the relevant time and to raise them in evidence. She said the capacity of the complainants to be accurate was probably reduced, and that that might raise some greater difficulty in cross-examination of them. All seven judges of the High Court held that what was said fell short of being the sort of warning that was required. Gaudron, Gummow and Callinan JJ said, at par44 that:

"To say what her Honour did ... was to say too little, too unemphatically, and less than what Longman required be said in the circumstances of this case".

"Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser." [Original emphasis.]

"The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected cf McGinley, 'Case and Comment: Bull; King; Marotta', (2000) 24 Criminal Law Journal 315 at 318. That idea is contrary to the repeated authority of this Court in and since Longman. The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons. The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms."

"... what has come to be known as a 'Longman warning' is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. That warning was not given." [Original emphasis.]

34 The direction as to delay in that case suffered from an additional defect in that the trial judge took the sting out of her direction by stressing that the accused's version was that the alleged crime had never happened, but I do not think that case can legitimately be distinguished on that basis. Similarly, I do not think it is appropriate to distinguish Longman and Crampton on the basis that they were sexual cases involving the risk of erroneous recollections of events occurring during childhood.

35 Although Miss West's evidence, if accepted, could corroborate that of Mr Paget, I think it follows from Longman and Crampton that the jury should have been warned in relation to the evidence of both of them in the manner suggested by Brennan, Dawson and Toohey JJ in Longman. I think his Honour's direction as to delay must be regarded as too unemphatic, and as falling short of the sort of warning that was required.

Grounds 4, 5 and 6 - Alternative basis for conviction

36 It was the Crown's case that the appellant was the gunman who entered the supermarket, and that Mr Kelly and Mr Paget remained outside. Crown counsel and defence counsel addressed the jury on that basis alone. But the learned trial judge directed the jury that they did not have to be satisfied that the appellant was the principal offender, and that they could convict him if they were satisfied beyond reasonable doubt that he either went in and committed the robbery or was there giving assistance, aiding whoever did go inside. The appellant contends that his Honour thereby erred in law. It is submitted that such a basis for conviction was not open or, alternatively, that his Honour ought to have advised counsel that he intended giving such a direction so that counsel could address in relation to it.

37 The indictment did not allege that the appellant was the gunman. He and Mr Kelly were charged with armed robbery. The particulars of the charge asserted that they "with Paul Lee Paget at Ravenswood in Tasmanian on or about the 16th day of June 1991, whilst armed with an offensive weapon, unlawfully robbed Brian John MacCreadie of approximately $28,000". It was thus open to the Crown to proceed both on the basis that the appellant was the gunman who entered the supermarket, and on the alternative basis that, whilst he was not that man, he was criminally responsible for the robbery committed by that man, either as an aider, as an abettor, or as one of a number of persons who had formed common intention to prosecute an unlawful purpose, in the prosecution of which the armed robbery, a probable consequence of the prosecution of such purpose, was committed: Criminal Code, ss3(1)(b), (c), 4.

38 In his opening address, Crown counsel said, "... it will be the Crown case that Mr Carr was the actual person who committed the armed robbery ...". It was not suggested that he could be convicted on any other basis.

39 Mr MacCreadie, the victim of the robbery, did not identify the appellant. In fact, he estimated the gunman's height to be around 5'6" to 5'8", whereas the appellant's height is about 5'1". Mr Paget's evidence was that he did not see who entered the supermarket, but that Mr Kelly and the appellant went towards the supermarket and were not in his field of view until he saw them running away carrying the white calico money bags. Of course, it was his evidence that he and Mr Kelly had agreed to recruit the appellant, and to ask him to be the person to enter the building, and that the appellant had agreed. No doubt it was the Crown case that it should be inferred from that evidence that, as planned and agreed, it was the appellant who entered the building. Under cross-examination, Mr Paget was asked whether he had any knowledge as to what might have happened to the supermarket manager. He replied, "Yeah, he was handcuffed to a chair and locked in a room. That was what I was told when we spoke about it later". That answer shed no light as to the identity of the person who entered the building.

40 The appellant gave evidence and was cross-examined. It was put to him that he approached Mr MacCreadie with a pistol, forced him back into the supermarket, took the money from the safe, and handcuffed him to a chair. He denied those allegations. It was not put to him that he had waited outside while Mr Kelly robbed Mr MacCreadie. If the prosecutor had intended to rely on an alternative route to conviction on that basis, he would no doubt have put those matters to the appellant in cross-examination in accordance with the rule in Browne v Dunn (1894) 6 R 67.

41 It was open to the jury to accept Mr Paget's evidence that he saw Mr Kelly and the appellant go to the supermarket to rob it, and leave it with the proceeds of the robbery, but to entertain a reasonable doubt, because of Mr MacCreadie's height estimate, as to whether the appellant was the one who actually entered the supermarket. The evidence was sufficient for the jury to draw such conclusions, and to convict the appellant on the basis suggested by the learned trial judge, even if they were not satisfied beyond reasonable doubt that he was the person who entered the supermarket.

42 However, I think it is of critical significance that the learned trial judge did not warn counsel that he intended to direct the jury as to this alternative basis for conviction.

43 A somewhat similar situation had arisen in King v R [1986] HCA 59; (1986) 161 CLR 423. Mr King and another man were charged with the murder of Mrs King. The case put to the jury was that Mr King had procured the other man to kill his wife. During the trial, it became apparent that the case against the other man was a weak one. Initially, the trial judge directed the jury that it was not open to them to bring in different verdicts in relation to the two men but, after submissions from the prosecutor, that direction was withdrawn, and the jury was directed that they could convict the husband if they were satisfied that he had arranged for someone to kill his wife, even if the other man was not the killer. The other man was acquitted but Mr King was convicted. The Court of Criminal Appeal (NSW) set aside his conviction and ordered a retrial. The High Court held unanimously that the conviction had rightly been set aside. Dawson J (with whom Gibbs CJ, Wilson and Brennan JJ agreed) observed, at 432, that Mr King's counsel might well have cross-examined or addressed in a different way if he had known that the alternative basis for conviction would be left for the jury. His Honour commented:

"Indeed, it may be said that the direction given by the trial judge at the behest of the Crown involved such a change in the course of the trial at such a late stage that inevitably the conviction could not be allowed to stand."

44 Deane J, with whom Mason and Murphy JJ agreed, said at 428 - 429:

"Because the Crown had adopted the undesirable approach of framing its indictment in the broadest terms it had subjected the applicant to the wide jeopardy of a trial on that indictment. But once the Crown elected at the trial to confine its case against the applicant with the result that the trial was conducted on that basis, it could not legitimately expect that it could, after evidence and addresses had been completed, seek, through the trial judge's summing-up, to obtain a conviction on some other basis if it became apprehensive that the case which it had presented might be rejected by the jury."

45 R v GAS [1998] 3 VR 862 is another case in which a trial judge suggested an alternative basis for conviction after both counsel had addressed. The accused and an accomplice, both teenage boys armed with knives, had attempted to rob a taxi driver. The taxi driver resisted and was stabbed to death. The accused was charged with his murder. The other boy had already been convicted of manslaughter. The Crown presented its case so as to seek a conviction for murder only if the jury was satisfied that it was the accused who stabbed the victim. If the jury was not so satisfied, the Crown sought a conviction for manslaughter. The defence was that there had been no plan between the accused and the other boy to rob the victim, that the accused had fled the scene, and that the other boy had thereafter stabbed the victim. After retiring, the jury asked questions which the judge interpreted as raising the possibility that both boys had stabbed the victim. He re-directed the jury that, if they thought both boys had stabbed the victim, the accused was guilty of murder even if he did not inflict the fatal wound. The Court of Appeal (Vic) quashed the conviction and ordered a new trial. Batt JA, with whom Brooking and Ormiston JJA agreed, said, at 878 - 879:

"I consider that the re-direction, supported by the Crown, involved such a change in the course of the trial at such an obviously late stage that, in accordance with the principle acknowledged in King v R at 432, the conviction cannot be allowed to stand. ... In my view, the introduction of two different bases for a conviction, admittedly falling within the offence as charged and open on the evidence, occurring after the final address of defence counsel, was a radical enlargement of the case which the applicant had to meet without any opportunity for his counsel to address the jury on those additional bases of guilt: R v Gregory (1983) 77 Cr App R 41 at 47. In short there was a miscarriage of justice."

46 In R v Pureau (1990) 19 NSWLR 372, the accused was charged with the crime of robbery with wounding. Under the Crimes Act 1900 (NSW), an alternative verdict of attempting to commit that crime was available. That alternative verdict was mentioned for the first time by the trial judge in his summing-up. It was not mentioned by either counsel in addresses. The accused was convicted of attempting to commit the crime. The Court of Criminal Appeal (NSW) quashed the conviction. Hunt J, with whom Enderby and Sharpe JJ agreed, said at 376:

"The issue of alternative verdicts should be opened to the jury by the Crown. If the alternative verdict is not referred to them [sic], it must be raised before closing addresses when the judge can rule whether the delay in raising it so late in the piece would be likely to cause injustice to the accused.

It must be conceded that the factual situation which gives rise to the prospect of an alternative verdict of attempt is often not apparent until the trial is under way. ...The trial judge would therefore be more likely to conclude that the raising of this particular alternative verdict had not prejudiced the accused. But it is difficult to imagine circumstances which would justify it being raised for the first time during the summing-up, when neither counsel had had at least the opportunity of addressing upon it if they had wished to."

47 In R v Solomon [1980] 1 NSWLR 321, the trial judge had directed the jury as to a second basis upon which they could convict of murder, despite the Crown prosecutor having deliberately confined his case to exclude such a basis for conviction, and counsel having conducted the case and addressed the jury accordingly. The conviction was quashed. Street CJ said, at 327 - 328:

"Ordinarily, it is the province of the Crown to formulate and present the case for the prosecution which will, in due course, be summed up by the judge to the jury. There may, however, be other matters of fact or law which the trial judge, in the discharge of his duty to ensure a fair trial according to law, considers it necessary to put to the jury, even though not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will, of course, be evaluated by the trial judge and will be to the forefront in his deciding how far, if at all, to put new considerations to the jury. It seems to me that, where a judge does cover fresh ground in terms that are correct in law and properly based on evidence in the case, at the highest his decision so to do will only be challengeable if it can be seen that the accused person was thereby placed at a tactical disadvantage. In such a situation, appellate intervention would be appropriate, not by reason of the judge having canvassed fresh ground simpliciter, but by reason of unfairness attending his so doing. The relevant unfairness will ordinarily be looked for in procedural considerations. The judge, drawing upon his own forensic experience, will be readily appreciative of the tactical considerations which will have governed counsel in the conduct of the case for the accused. Objections to evidence, lines of cross-examination and decisions upon the material to be advanced on behalf of the accused, not to mention the general trend of the final address to the jury made on behalf of the accused, will all, of course, have been governed by the nature of the Crown case as opened by the prosecutor and developed through evidence tendered on behalf of the Crown at the trial. It is readily understandable that, within these procedural and tactical fields, there could arise an element of real prejudice, if the judge, in his summing-up, raises new approaches available to, but not expressly relied upon, by the Crown. But in every case in which a question arises regarding the development of new approaches, the question concerning the judge at first instance, and on appeal the question concerning this Court, will be to determine whether in so doing there will be worked an unfairness to the accused."

48 Other cases in which alternative bases for conviction were mentioned for the first time during summings-up include R v Utting [1987] 1 WLR 1375; R v Falconer-Atlee (1973) 58 Cr App R 348 and R v Gregory (1983) 77 Cr App R 41. In Utting, that irregularity alone was considered sufficient to warrant a new trial. In Falconer-Atlee, that irregularity was one of many that resulted in the appeal succeeding. In Gregory, that irregularity was held not to have resulted in a miscarriage of justice.

49 As the appellant's defence was that he had had nothing to do with the robbery, I do not think that, prior to final addresses, it made any difference to the conduct of the trial that the Crown confined its case to the contention that the appellant was the gunman who entered the supermarket. I cannot think of any respect in which the cross-examination of the prosecution witnesses or the presentation of defence evidence would have been significantly different if the Crown had relied on the alternative basis for conviction that it was Mr Kelly who entered the building, with the appellant aiding him, abetting him, and/or acting in concert with him. However, I believe that defence counsel might have addressed the jury differently if she had known that the learned trial judge was going to suggest the alternative basis for conviction in his summing-up. She could, for example, have argued that the Crown case must be inherently weak if two inconsistent bases for conviction needed to be considered. She might have placed more emphasis on matters affecting the reliability of the evidence of Mr Paget, Miss Denholm and Miss West, and given less emphasis to the discrepancy between Mr MacCreadie's height estimate and the height of the appellant. In my view there is a danger that the jury, on hearing from the learned trial judge that there was an alternative basis for conviction that defence counsel had not even mentioned, might have gained the impression that that basis had not been mentioned because there were no good arguments against conviction on that basis. They might have thought she was attaching a false importance to Mr MacCreadie's height estimate, and even that she was thereby trying to mislead them. All would have been different if the learned trial judge had mentioned before final addresses that he proposed to direct the jury as to this alternative basis: Walsh v R [1996] TASSC 59; (1996) 6 Tas R 70. If the appellant's counsel had addressed the jury as to the alternative basis for conviction, it may be that the jury would have entertained a reasonable doubt as to his guilt. I therefore believe there has been a miscarriage of justice.

50 This ground asserts that the learned trial judge "erred in law in failing to warn the jury, adequately or at all, of the dangers inherent in identification evidence". It was submitted that a warning of the type discussed by the High Court in Domican v R [1992] HCA 13; (1992) 173 CLR 555 at 561 - 562, should have been given in relation to Mr MacCreadie's evidence as to the description of the gunman and as to Miss West's evidence that the man who arrived at her home with Mr Paget was the appellant. I reject that submission in relation to Mr MacCreadie's evidence. He did not purport to identify the appellant or anyone else as the robber whom he met. He said the robber was wearing a black balaclava, jeans, a sort of army jacket, and blue and white motor cycle gloves. He gave an estimate of his height. He said he spoke with an Australian accent. He said he did not sound old to him. But he did not give any evidence that identified or tended to identify the appellant as the man he described.

51 In Domican at 561 - 562, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed Kelleher v The Queen (1974), at p 551; Reg v Turnbull (1977) QB 224, at p 228; Reg v Burchielli [1981] VicRp 61; (1981) VR 611, at pp 616-619; Reg v Bartels (1986) 44 SASR 260, at pp 270-271. The terms of the warning need not follow any particular formula Reg v De-Cressac (1985) 1 NSWLR 381, at p 384; Finn (1988) 34 A Crim R 425, at pp 435-436. But it must be cogent and effective Reg v Dickson [1983] VicRp 19; (1983) 1 VR 227, at p 230; Reid (Junior) v The Queen (1990) 1 AC 363, at p 380. It must be appropriate to the circumstances of the case Reg v Aziz (1982) 2 NSWLR 322, at p 328; Allen (1984) 16 A Crim R 441, at pp 444-445. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case' Smith v The Queen (1990) 64 ALJR 588. A warning in general terms is insufficient Kelleher (1974) 131 CLR, at p 551. The attention of the jury 'should be drawn to any weaknesses in the identification evidence' ibid. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it Davies and Cody v The King (1937), at pp 182-183. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."

52 Plainly, the evidence Mr MacCreadie gave describing the gunman is not "evidence as to identification" of the sort referred to in the passage I have quoted.

53 However, I think the evidence of Miss West is in a different position. In most cases where identification is in issue, witnesses give evidence of seeing a person in circumstances associated with a crime, and of identifying someone seen at a later time as the same person. This was not the case here. Miss West gave evidence that she had seen the appellant previously, and had been given his name, and that she recognised the man who came to her house. One of the issues at the trial was whether, if Mr Paget had in fact brought a man to her house on the night of the robbery, she was correct or mistaken in identifying that man as Dennis Carr, the appellant.

54 Miss West said in evidence that she had only met Dennis Carr once before the night in question, but that he had also been pointed out to her several times by a man she used to live with, Alan Gray. She said that she met him at the back of a pet shop in Invermay Road with Mr Gray, Mr Paget, and two other people whom she named. She said that when she answered her door on the night in question, Mr Paget and the appellant were there, and that Mr Paget said, "You know Dennis, Maureen", as he came through the door. She said that she and the appellant said hello to one another. Under cross-examination, she admitted that in a conversation with Mr Paget in August 1999, she had said that she would not know Dennis Carr and would not be able to recognise him. When asked whether she had been telling the truth about that, she replied:

"Um, it was a figure of speech, um, I hadn't seen Dennis Carr for a long time, like I said, even when I first come across Paul Paget, I didn't realise that it was Paul Paget, I thought it was somebody else. I do know Dennis Carr. I can recognise Dennis Carr."

There was unshaken evidence that Miss West gave the appellant's name to Detective Shaw when she made her secret phone call to him.

55 Under cross-examination, Miss West said that she had given evidence to the National Crime Authority, and had been asked whether she knew the appellant. It was put to her that she said, "I don't think I ever met Dennis Carr, but had him pointed out to me so I knew who he was to look at". She responded that it was possible at that stage that she had not remembered the time at the back of the pet shop in Invermay Road when she had met the appellant.

56 Miss West conceded that, at committal proceedings, she had said that the appellant was pretty close in height to Mr Paget, but that the appellant "might be an inch taller or something". In fact, Mr Paget is about 5'10" or 5'11" tall, whereas the appellant is about 5'1" or 5'2" tall.

57 Whilst Mr Paget's evidence as to the involvement of the appellant in the robbery was of critical significance, the evidence of Miss West as to the presence of the appellant at her home with Mr Paget after the robbery was very important since, if accepted, it corroborated the evidence of Mr Paget, an accomplice involved in the robbery. In the light of her evidence as to the limited extent of her prior contact with the appellant, and in the light of her concessions as to prior inconsistent statements, the question of whether she had made an honest mistake as to the identity of Mr Paget's companion was a significant issue at the trial.

58 In his summing up, the learned trial judge reminded the jury of Miss West's evidence. In particular he said:

"... these two men came knocking on her door and she recognised them both for who they were and in addition Paget said to her, 'Well you remember Dennis' or 'You know Dennis Carr', something to that effect. And she was adamant that it was Dennis Carr as well as Paul Paget."

Later, when reminding the jury of the appellant's evidence, he said:

"It was his evidence that he did not know Ms West, that he'd never met her, and so not saying that she's a liar, but she could be, but you should not accept her evidence that she knew him because they'd never met. Yes he was friendly it seems with a man who was living with her, some man called Gray, but he hadn't met her and indeed I think the evidence tends to establish that they'd separated, Ms West had separated from Gray, before this crime had been committed."

Near the end of the summing-up, at the conclusion of his summary of the defence case, he said:

"Have regard to the question, well is it possible that she [Ms West] thought it was Dennis Carr in there but it wasn't in fact, that he was wrongly introduced, the man who came in with Paget, if there was one, or that she just didn't correctly identify the person who it really was? Could she have mistaken him for somebody else?"

The real question was whether Miss West could have mistaken somebody else for the appellant, but the jury no doubt understood what was meant.

59 There seem to be few reported "recognition" cases, involving the recognition of individuals previously known to witnesses, as distinct from the subsequent identification of individuals by witnesses who first saw them at or near crime scenes. In Arthurs v Attorney-General (Northern Ireland) (1970) 55 Cr App R 161, the principal prosecution witness said that he knew the accused previously, and that he saw the accused throw two petrol bombs. The accused said in cross-examination that the witness knew him very well. The trial judge did not warn the jury of the dangers of acting on the identification evidence. The House of Lords held that the summing-up was fair and adequate. In R v Wright (No 2) [1968] VicRp 17; [1968] VR 174, the accused was previously known to a witness who claimed to have recognised him. The trial judge referred in his summing-up to various matters relevant to the reliability of the recognition evidence, and directed the jury to bear those matters in mind in determining the weight that they felt they could safely attach to the identification of the accused by the witness. The Full Court of the Supreme Court of Victoria considered that some warning as to the reliability of the evidence of the witness was called for, and that the charge to the jury was sufficient in that regard. Similarly, in R v Marijancevic (1993) 70 A Crim R 272, the Court of Criminal Appeal (Vic) held that a Domican direction was not required in relation to recognition evidence given by a man who had known the accused for many years.

60 On the other hand, the Full Court of the Supreme Court of Victoria quashed a conviction in R v Boardman [1969] VicRp 17; [1969] VR 151 as a result of an identification warning not having been given in relation to evidence of a hotel's night porter that he recognised the accused as a man who had been at the hotel three nights before the robbery with which he was charged. The English Court of Appeal went further in R v Turnbull [1977] QB 224, in which a detective constable, who had previously known the accused, said he recognised him as a result of a fleeting glimpse at night. At 228, Lord Widgery CJ, delivering the judgment of the court, said:

"Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."

61 As Boardman and Turnbull illustrate, "recognition" cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously, such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime. In this case, if Miss West was to be believed, she had ample opportunity to observe the man who accompanied Mr Paget to her house, but there were other circumstances that called for a Domican warning, namely (a) the limited degree of contact that she claimed to have had with the appellant in the past; (b) her prior inconsistent statements as to her knowledge of him and ability to recognise him; (c) the possibility that she could have been misled by Mr Paget introducing his companion to her by the appellant's name; and (d) the delay of nine years between the crime and the trial. The learned trial judge adverted to the possibility of someone having been wrongly introduced by the appellant's name, and to the possibility of incorrect identification. Ideally, I think he should also have warned the jury in general terms of the dangers of convicting on identification evidence whose reliability was disputed and, whilst discussing the identification issue, referred to the limited contact Miss West claimed previously to have had with the accused and to the delay between the night of the robbery and the trial. I believe his Honour's directions as to identification were inadequate as a result of these matters not having been mentioned, but I would not regard these omissions as sufficient, by themselves, to warrant the quashing of the conviction.

62 In November 1999, the appellant was interviewed by police officers about the robbery. He denied having had anything to do with it. He admitted that he knew Mr Kelly, Mr Paget, and Miss Denholm. He said he had been to Miss Denholm's house. He said he did not know Miss West, or that he did not know her by name. He said he knew the supermarket at Ravenswood. The interview was by no means probative of his guilt. The prosecutor did not tender it. In my view, his decision not to do so did not result in a miscarriage of justice. The authorities as to the duty of prosecutors to call witnesses or evidence in particular circumstances fall far short of requiring the tendering of evidence as to an interview in which so little was admitted. See R v Shaw (1991) 57 A Crim R 425; R v Armstrong [1998] 4 VR 533; R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450.

63 In cross-examination, the appellant said that he had gone away in May or April of 1991. Later, the prosecutor asked him how long he was in Melbourne. The appellant said he was not sure, but that it could have been two or three months. He had said in his police interview that he learned of the robbery through the newspapers. It was most unlikely that the robbery would have been reported in a Melbourne newspaper, and his claim to have read about it was therefore somewhat inconsistent with his alibi defence. The prosecutor cross-examined him about his claim to have read about the robbery in the papers. The appellant said that he would have said that in the police record of interview. It was submitted on the appeal that, by not leading evidence of the claim to have read about the robbery in the papers during the prosecution case, but then introducing evidence of that claim through the cross-examination of the appellant, the prosecutor had split his case in a wholly improper way, and that a miscarriage of justice occurred as a result. I reject that submission. A prosecutor does not have a duty to adduce, as part of the prosecution case, every piece of evidence that might be of some use to rebut a defence. There is no absolute rule that evidence not led by the prosecution can never be introduced after the close of the Crown case; R v Vonarx [1999] 3 VR 618 at 629. If a prosecutor asks an accused person a question in cross-examination with a view to eliciting, for the first time, evidence which should have formed part of the Crown case, the trial judge has a discretion to exclude the evidence if its admission at that stage would unfairly prejudice the accused: R v Kane (1977) 65 Cr App R 270 at 274; R v Chin [1985] HCA 35; (1985) 157 CLR 671 per Dawson J at 686. The evidence in question was not part of the Crown's affirmative case against the appellant. It had been disclosed to the defence. Defence counsel did not object when the matter was raised in cross-examination. In those circumstances, I do not think it can be said that the learned trial judge had a duty to intervene and stop the cross-examination, nor that the relevant part of the cross-examination caused or contributed to any miscarriage of justice.

64 This ground asserts that the learned trial judge "erred in law in failing to direct the jury that the presence of the accused at the robbery and the presence of the accused at West's house, were separate considerations". When asked whether this ground was abandoned, senior counsel for the appellant said that it was not, and that it was a step in logic that he relied on. There was nothing to suggest that the appellant might have taken no part in the robbery but then joined Mr Paget and gone to Miss West's home with him. It was abundantly clear that the Crown asserted that he was first at one place and later at the other. I cannot see any merit in this ground.

65 Miss West was a police informant. She said in cross-examination that she became one after being in a bank where a robbery took place. She thought that was in 1989. She said nothing in her evidence as to what benefit, if any, she or anyone close to her received or stood to receive as a result of her being a police informant. Her evidence was very significant in that it tended to corroborate that of Mr Paget, who was an accomplice involved in the crime. Ground 11 asserts that the learned trial judge "erred in failing to direct the jury on the danger inherent in the evidence of the witness Maureen West, a Police Informer". It was submitted that there should have been a warning of the same sort that is required in relation to an accomplice or a prison informer. The categories of witnesses whose evidence should be the subject of a warning about the danger of convicting upon uncorroborated evidence are not closed: B v R [1992] HCA 68; (1992) 175 CLR 599, per Dawson and Gaudron JJ at 616.

66 It is well established that, as a general rule, an appropriate corroboration warning ought to be given in relation to the evidence of a prison informer: Pollitt v R [1992] HCA 35; (1992) 174 CLR 558. Such a warning is required primarily because of the incentive for a prison informer to give false evidence: Pollitt at 605 - 606 per Dawson and Gaudron JJ. But a police informer who is not a prisoner will not necessarily have any incentive to give false evidence. A police informer, unlike a prison informer, will often not know that the person denounced to the authorities is thought to have committed a particular crime. In R v Dellapatrona (1993) 31 NSWLR 123, the Court of Criminal Appeal (NSW) considered the need for a corroboration warning in relation to two police informers who were also agents provocateurs. At 147, the Court (Hunt CJ at CL, Abadee and James JJ) said:

"Nor does a mere police informant fall into a category of witnesses about whom a special direction is required. It is a very different thing in relation to prisoner informants: Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558; see also R v Clough (at 405 - 406). But, as those cases make clear, the obligation of the trial judge to warn the jury as to the unreliability of the evidence of such witnesses arises because that unreliability may not be appreciated by the jury, arising as it does out of a prison culture unlikely to be known to them. None of those special circumstances applies to the ordinary police informant."

67 In the light of those authorities, I conclude that the mere fact that Miss West was a police informant did not oblige the learned trial judge to give a corroboration warning in relation to her evidence. Further, I do not think there was anything special about her or her evidence that called for such a warning. Ground 11 should fail.

Ground 12 - Corroboration warning re Mr Paget

68 This ground asserts that the learned trial judge "erred in his direction to the jury on corroboration". His Honour spent some time explaining to the jury that Mr Paget was an accomplice, warning them as to the danger of convicting on the uncorroborated evidence of an accomplice, and explaining what evidence could, if accepted, be regarded as corroborative of Mr Paget's evidence.

69 It was submitted that the corroboration warning was incomplete in that it failed to refer to matters referred to in the leading case of R v Chai (1992) 27 NSWLR 153 at 178 - 179. On those pages, Badgery-Parker J, with whom Hunt CJ at CL and Allen J agreed, stressed that it was the duty of a trial judge to make clear to the jury that the corroboration warning "is not given because he has himself formed any view as to the reliability of the accomplice evidence". At an earlier stage in the summing-up, the learned trial judge told the jury, "... it seems to me that essentially the issue for you in this case is whether you accept the evidence of Paget ...". Immediately before warning of the danger of convicting on the uncorroborated evidence of an accomplice, he said, "And so accordingly there is a rule of law which applies to this case and I am required by the law to give you a direction concerning it". In my view, he thereby made it sufficiently clear that he was giving the warning for reasons unconnected with any personal view of Mr Paget or his evidence.

70 It was submitted that the corroboration warning was deficient in that it failed to catalogue the respects in which Mr Paget had contradicted himself and been contradicted by other witnesses. Counsel for the appellant relied on a comment of Lord Morris in DPP v Hester [1973] AC 296 at 315:

"The purpose of corroboration is not to give validity or credence to evidence which is deficient or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible."

There was evidence of prior inconsistent statements by Mr Paget as to the type and calibre of Mr Kelly's gun, as to whether he and his companions had any radios, as to whether they had a scanner, as to whether anyone went inside Miss Denholm's home on the second visit, as to how safe Miss West's home was from the police, as to whether she associated with criminals, as to whether he travelled by car for part of the journey after leaving Miss West's home, as to whether the stolen money was divided equally, and as to his clothing on the night of the robbery. However, Mr Paget did not contradict himself in relation to the essential features of his evidence concerning the participation of the appellant in the crime. It was thus open to the jury to accept his evidence as sufficient, satisfactory and credible. The trial had been a fairly short one. The details of the evidence were no doubt fresh in the minds of the jurors. Many of the inconsistencies were referred to in counsel's addresses and the summing-up. There was no need for the learned trial judge to refer to all of them.

71 In the course of directing the jury as to what evidence was capable of corroborating Mr Paget, the learned trial judge referred to Miss West's evidence. In summarising her evidence, he said "She went to work the next morning, left with her daughter, came back about 11.30, 12, and she saw a lot of police in the area". It was submitted that this was a misdirection in that the learned trial judge was incorrectly asserting that that evidence was capable of corroborating Mr Paget. But his Honour was not doing any such thing. He was summarising Miss West's evidence before coming back to deal with those parts of it that the jury could have regarded as corroborative.

72 A similar submission was made in relation to a comment of the learned trial judge concerning Miss West's evidence that she telephoned Detective Shaw in the early hours of the morning while Mr Paget and the man said to be the appellant were at her home. His Honour said, "... I suppose you would find that piece of evidence ... supported in a way by what the police say they did the next morning about surveillance round the area ...". But, once again, his Honour was dealing with an aspect of the evidence of Miss West before returning to deal with the evidence that could be regarded as corroborative. I do not think it likely that any of the jurors were confused by his Honour's digressions. I think ground 12 should fail.

73 Ground 8 of the amended notice of appeal asserted that the learned trial judge erred in law "in that he failed to give an adequate accomplice direction". This ground was not abandoned, but no submissions were made in relation to it, apart from the submissions relating to the direction as to corroboration. The learned trial judge adequately explained the status of Mr Paget as an accomplice and the need for corroboration of his evidence. I therefore think ground 8 should also fail.

74 This ground asserts that the learned trial judge "erred in his directions to the jury on prior inconsistent statements of the witnesses Paget and West".

75 As I have said, Miss West conceded that she had made prior inconsistent statements to the effect that she could not remember Mr Paget and the appellant coming to her house, and that she would not be able to recognise the appellant. Her evidence as to the height of the man who came to her home was also mentioned in this context, but it did not involve any prior inconsistent statement, and I will therefore disregard it for present purposes. I have already summarised Mr Paget's prior inconsistent statements in dealing with ground 12.

76 The learned trial judge referred to inconsistencies and discrepancies in general, and stressed that it was for the jury to decide whether they were substantial enough to cause them to have a reasonable doubt. He then reminded the jury of a number of inconsistencies and discrepancies, some of them involving prior inconsistent statements and some of them not. Counsel for the appellant submitted that it was his Honour's duty to direct the jury as to what each of the prior inconsistent statements were, and that they were significant in relation to questions of credibility. He relied on R v Alexandridis (1994) 76 A Crim R 391 in which the Court of Criminal Appeal (Vic) said, at 394, that "when directions as to a prior inconsistent statement or statements are warranted, such directions should occupy a separate and distinct part of the charge and then be related to any relevant issue". He also relied on R v Schmahl [1965] VR 75 in which Winneke CJ, with whom Sholl and Pape JJ agreed, said, at 748:

"The course in fact followed by the learned judge in delivering his charge was to state the general principles of law applicable to the case, omitting, however, the principle relating to the use of prior inconsistent statements, and then to leave the jury at large to apply those principles to the general body of evidence without explaining how they might be applied to the basic issues in the case before them. In a case such as the present, which extended over several days of hearing and involved many issues and a large body of evidence, and where an important part of the defence was derived from inconsistencies in the Crown case, and where so much depended on the reliability of the witness Goddard, it was, in my opinion, essential for a proper consideration of the defence that the jury be instructed on the use of the evidence in relation to the issues before them."

77 In Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 at 536, Gibbs J (as he then was) explained that a proper direction as to previous inconsistent statements would need to deal with two questions, namely the use to which the statement made out of court could be put, and the effect of the previous statement on the value of the testimony of the witness. In Tasmania, since 1974, a previous inconsistent or contradictory statement proved to have been made by a witness is admissible as evidence of any fact stated therein of which direct oral evidence by the witness would be admissible: Evidence Act 1910, s81L(2). The result of that reform is that a direction as to making limited use of the evidence, as referred to in Driscoll, is not required. Whilst the learned trial judge did not list for the jury all the prior inconsistent statements of Miss West, I do not think it can be said that he needed to do so in order for the jury to give proper consideration to the defence case. It follows that this ground should fail.

78 Ground 14 of the amended notice of appeal asserts, "An accumulation of errors caused a miscarriage of justice". As one would expect in an appeal of this nature, it was submitted that the appeal should be allowed and the conviction quashed on the basis of an "aggregate of faults" in accordance with R v Ireland [1970] HCA 21; (1970) 126 CLR 321. Two minor complaints not raised by the other grounds of appeal were also advanced by way of submissions in relation to this ground.

79 First, it was argued that the learned trial judge unfairly disparaged part of the final address of defence counsel. The passage complained of reads as follows:

"... I just want to make a couple of comments about some things that Ms Gibson said to you in the course of her closing address. It was suggested - well the police I think were criticised, 'Why didn't they fingerprint the West house? Why didn't they search the Rossarden house of Mr Carr for 2 days? Why didn't they get traffic police to keep a lookout later that day?', and things of that nature. Well the point I want to make about it: this was never put to the police. Why didn't she do this? They may have had, it's a matter for you, but I suggest they may well have had a reason why these things didn't happen for 2 days or why they didn't do something. But they were never asked so I'd be careful about using that against the Crown case, allegations of that nature, when a witness was never given an opportunity to address the particular issue and have, say, perhaps what might be causing some doubt in your mind, a witness who is not given an opportunity to respond to it.

I think Detective Shaw too might have received some criticism because he said, 'Yes, he'd read Ms West's statement at some point in time'. Well I don't think it was put to him that he'd changed his story as a result of seeing it or anything like that. So it's not really a fair way to attack a case without giving the person you're attacking a chance to respond. So I just make that point to you."

80 In the first part of the passage quoted, his Honour was not overtly critical of defence counsel, and quite properly warned the jury to be careful about issues that were not explored in cross-examination. Defence counsel said in her final address that Detective Shaw's "belief may well have been contaminated by the fact that he's read Maureen West's statement before he's made his own statement". In cross-examination, he had been asked whether he was able to read Miss West's statement and whether he knew what she was saying before he was asked to write down what his own recollection was, but it was not put to him that his recollection of events might thereby have been contaminated. It was therefore appropriate for the learned trial judge to bring to the attention of the jury the fact that no such proposition had been put to him. The only question that arises is whether his Honour went too far in suggesting unfairness on the part of defence counsel. He did not suggest that she had been deliberately unfair. Read as a whole, the summing-up was not disparaging of defence counsel or the defence case. I therefore see no merit in this point.

81 Next, a complaint was made as to an interruption during defence counsel's final address. The prosecutor had led evidence from Mr Paget that, after planning the robbery with Mr Kelly for some time, they decided to recruit the appellant as a member of their team. He made it clear at the time that he was deliberately not leading evidence as to why the appellant was chosen. I think it is clear beyond doubt that he took that course so as not to reveal the appellant's antecedents. The reasons why the appellant was chosen were not the subject of any evidence during the trial. But, during her final address, defence counsel said:

"So you might wonder why it was that these two, having planned a robbery, done their homework, got all their gear together ready for the robbery, might suddenly at the last minute think, 'Why don't we get Dennis Carr to come along'?"

At that point, the prosecutor interrupted and made an objection to the effect that, following discussion, there had deliberately been no evidence as to that point. The learned trial judge proceeded to discuss with defence counsel the fact that it had been resolved that questions would not be asked about that. It is now submitted that the point was not so important as to warrant the learned trial judge dealing with it then and there, and that doing so created a danger that the jury might attach less weight than it otherwise would to defence counsel's final address.

82 Reliance was placed on the following passage in the judgment of Ross LJ in R v Tuegel [2000] 2 All ER 872 at 888:

"As to ground 2, interventions in counsels' [sic] speech, exceptionally it may be necessary for a judge, in the presence of the jury, to interrupt a speech by counsel. But, generally speaking, just as it is preferable for counsel not to interrupt a summing up, so it is preferable for a judge not to interrupt a speech - whether for prosecution or defence. The reasons are obvious. The speaker's train of thought may be disrupted and the jury's attention may be inappropriately diverted with consequences prejudicial to the case which is being made. Ideally, therefore, interventions for the purposes of correcting or clarifying something said, either by judge or counsel, should be made, in the first instance, in the absence of the jury and at a break in the proceedings, so that, thereafter, if necessary, the point can be dealt with before the jury in an orderly fashion."

83 In this case, it is significant that defence counsel had already been interrupted by the prosecutor. Because of that, I do not think the learned trial judge can be properly criticised for dealing with the point that had been taken, rather than returning to it later. Returning to it later would have drawn the jury's attention to the inappropriateness of defence counsel's comment a second time. I cannot see that the response to the prosecutor's interruption could have contributed in any way to a miscarriage of justice.

84 However, applying the "aggregate of faults" principle referred to by Barwick CJ in Ireland at 331, I think the appeal should be allowed and the conviction quashed because the learned trial judge gave an inadequate direction as to delay, because he failed to warn counsel of his intention to direct the jury as to the alternative basis of conviction, and because his warning as to identification evidence was less than ideal.

Ground 15 - Unsafe and unsatisfactory verdict

85 It was submitted that the evidence implicating the appellant in the robbery was so unreliable that the verdict should be set aside as unsafe and unsatisfactory in accordance with M v R [1994] HCA 63; (1994) 181 CLR 487 and Jones v R (1997) 191 CLR 439.

86 The credibility of Mr Paget's evidence was open to doubt as he was an accomplice, had not been charged, had contradicted himself as to matters of detail, and had been contradicted by others as to matters of detail. The credibility of Miss West was open to doubt because she may have had some unknown purpose of her own to serve, had made prior inconsistent statements, and might have made an honest mistake as to the identity of a visitor to her home on the night of the robbery. However, the factors affecting the evidence of these critical witnesses in my view do not warrant a conclusion that their evidence, or the evidence of either of them, was so inherently unreliable that, however impressively it was given, the jury ought to have entertained a reasonable doubt. In my view, this is simply a case where an accomplice sought to implicate the appellant, it would have been dangerous to convict on the uncorroborated evidence of that accomplice, evidence capable of corroborating the accomplice's evidence was put forward, and there was scope for acceptance or rejection of the latter evidence.

87 We were referred to R v Ralph (1988) 37 A Crim R 202, in which the Court of Criminal Appeal (NSW) quashed convictions that were based on the evidence of an alleged co-conspirator who had been given immunity from prosecution. However, that case is distinguishable since that man's evidence was uncorroborated, and since the Court of Criminal Appeal had evidence that he had committed perjury at another trial.

88 It was submitted on behalf of the appellant that no order should be made for a new trial for three reasons: (a) that the evidence is wanting in credibility; (b) that the delay is unfairly prejudicial; and (c) that on a re-trial the Crown would be advancing a different case, in that it would be alleged that someone other than the appellant was the gunman who entered the supermarket.

89 This last argument can be disposed of at the outset. Mr MacCreadie may well have been mistaken in his estimate of the height of the gunman who robbed him. There is nothing else about his evidence that is inconsistent with the appellant having been that man. It is clear from the respondent's submissions that the Crown does not resile from the assertion that the appellant was that gunman, but that it would also seek to rely on the proposition that the appellant could still be convicted as a participant in the crime, even if the jury were not satisfied beyond a reasonable doubt that he was the man who entered the supermarket. That position does not involve the sort of recasting of a prosecution case that would warrant the refusal of an order for a new trial, unlike the circumstances in such cases as Parker v R [1997] HCA 15; (1997) 186 CLR 494 and R v Anderson (1991) 53 A Crim R 421.

90 So far as credibility is concerned, my views as to the strength of the evidence are as stated in relation to ground 15 (unsafe and unsatisfactory verdict). So far as the delay since the commission of the robbery is concerned, it has not been demonstrated that the appellant would suffer any specific prejudice, and the explanation for the delay in instituting proceedings has not been unreasonable. The crime committed was a very serious one.

91 I do not think the weaknesses of the Crown case are so great, and that the impact of the delay since the robbery is so prejudicial to the appellant, that his discharge would be appropriate. I would allow the appeal, quash the conviction, and order a new trial.