David L'Estrange v The Queen

Evidence in the trial 8The Crown case as to the two counts on the indictment was that Mr L'Estrange along with four others, Mr Robin Martin, Mr Michael Bell, Mr Justin Quarta and Mr Michael Jelisavac, had on the evening of 26 March 2006 first agreed to rob a drug dealer whom they understood lived in the house at Canley Vale. The agreement to commit that offence was the subject of count 1 on the indictment. 9For various reasons, it was decided at the last minute not to proceed with that offence but instead to rob another person (also understood to be a drug dealer) who lived in Guildford. The events that occurred at the house at Guildford were the subject of count 2 on the indictment. 10The main evidence against Mr L'Estrange came from Mr Martin, who had pleaded guilty to offences relating to those events. Although other members of the group accused of committing the offences had also pleaded guilty, none of them gave evidence at Mr L'Estrange's trial. 11Mr Martin was a friend of Mr Bell's. He and Mr Bell had been in discussion, apparently over a period of some weeks, planning to rob drug dealers. They were unaware that their telephone conversations were being lawfully intercepted by police during that time. 12It was the Crown case that some of Mr Martin and Mr Bell's intercepted telephone conversations implicated Mr L'Estrange, both in respect of the two counts on the indictment and in respect of the earlier attempted robbery near the Crossroads Hotel. The judge's pre-trial ruling concerning that incident related both to the evidence of the intercepted telephone conversations and to the evidence anticipated to be given at the trial by Mr Martin in relation to that incident. 13Insofar as the two counts on the indictment are concerned, the impact of the evidence of the intercepted conversations was very limited. Few were conversations to which Mr L'Estrange was a party. Those which were established little more than that, on the relevant evening (the evening of 26 March 2006), Mr L'Estrange was waiting in a street in the area in which he lived to meet some people including Mr Jelisavac. In a number of telephone conversations that evening, Mr Jelisavac said to Mr L'Estrange "we're on our way", "we'll be there in about 10 minutes" and words to similar effect. In one conversation Mr L'Estrange evidently made a joke about having been kept waiting, saying "I booked a taxi 20 minutes ago". 14Without the evidence of Mr Martin, that evidence would not have sustained any case against Mr L'Estrange. The Crown case rested heavily on his explanation of those conversations. 15Mr Martin said that he had known Mr L'Estrange since about 1999. After not having seen him for a while, he saw him at Mr Quarta's house in 2006. The Crown led the following evidence from Mr Martin as to that occasion (the record of the trial does not disclose whether the leading form of the questions was by prior agreement with counsel for the accused): Q. When you saw him at Justin Quarta's place, did the accused say to you something like this: "Are we going to go off?" A. Yeah. Q. Did you understand what he was talking about? A. Yes. Q. Did you take that to mean that he wanted to know when you were going to do a job together? A. Yes. Q. That is, a crime? A. That's right. (AB1219). 16Apart from that exchange, there does not appear to have been any direct relevant conversation between Mr Martin and Mr L'Estrange in advance of the Crossroads incident. It appeared to be acknowledged by Mr Martin in his evidence that he had no direct conversation with Mr L'Estrange to include him in the plans to commit that offence. Mr Martin said "I think I went through Feks [Mr Jelisavac]. I may have went through Feks." (AB 1221). 17So far as Mr Martin was concerned, the purpose of going to the Crossroads Hotel was to rob a drug dealer. However, he gave no evidence as to any direct discussion to that effect between him and Mr L'Estrange. 18Mr Martin said that the people who went to Ingleburn were himself, Mr Bell, Mr Quarta, Mr Jelisavac and Mr L'Estrange. Mr Martin and Mr L'Estrange were together in a ute driven by Mr Martin. Mr Quarta and Mr Jelisavac were together in another car and Mr Bell was apparently in a third car. According to Mr Martin, the plan was that Mr Bell would point out the drug dealer to them and they would follow him. Mr Martin's evidence about the whole incident was extremely vague and in many instances was prompted by the Crown reminding him as to the contents of the intercepted telephone conversations. His version of events was that they were too slow following the person they had targeted and that they lost him. 19The intercepted conversations are consistent with Mr Martin's evidence that Mr L'Estrange was in one of the cars when they began following the man in question and that there was conversation as to the need to move more quickly. In one conversation, Mr L'Estrange received a call from Mr Quarta (presumably in a different car) telling them to hurry up. Mr L'Estrange is then recorded to have said "hurry up, hurry up. Hurry up", presumably to Mr Martin. 20However, Mr L'Estrange denied that he was aware of any plan to rob the drug dealer. He gave evidence at his trial in which he explained that he understood the purpose of the trip was for other members of the group to buy speed from a dealer called Ray. He said that they would not have robbed that man because they knew him. He also said that they knew where Ray lived, which was inconsistent with Mr Martin's evidence as to their having lost him while following him. In cross-examination, Mr L'Estrange explained why they were urging each other to hurry: Because they missed Ray at the pub and his girlfriend said the day before, or the day before that, "don't go to his place again", because his girlfriend was upset because they left syringes in the bathroom." (AB 1669). 21There was some conversation consistent with that version of events in the intercepted telephone conversations (AB136). 22According to the evidence of Mr L'Estrange, it was on that occasion, after they followed Ray from the Crossroads Hotel on 15 March 2006, that Mr L'Estrange went with Mr Martin to Mr Martin's sister's house. Mr Martin said that occurred on the evening of 26 March 2006. That discrepancy assumed some significance in the trial.

Evidence as to the two counts on the indictment 23As already noted, the Crown case in support of the first count rested on the alleged existence of a conspiracy to commit the robbery at Canley Vale. The robbery was never in fact carried out. 24A great deal of Mr Martin's evidence related to the planning that took place between him and the other co-conspirators before it had even been contemplated (according to his evidence) that Mr L'Estrange would be introduced to the plan. 25Mr Martin said that, in the course of their discussions about robbing drug dealers (leading to the failed attempt to rob the man at the Crossroads Hotel), Mr Bell had identified two other drug dealers to Mr Martin, one at Canley Vale and one at Guildford. A friend of Mr Bell's, an Asian woman, had told him that the man at Canley Vale had $250,000 in cash in a safe in a child's room at the man's house. Mr Martin's evidence disclosed that he, Mr Bell and Mr Jelisavac had spent some time visiting those premises in advance and discussing how they would carry out the robbery. 26Mr Quarta had not visited the premises. He had recently been involved in a motor bike accident. He also suffered from epilepsy. It was agreed that he was not fit for the task of carrying out the robbery. Mr Martin had nonetheless told Mr Quarta that he would receive an equal share of the proceeds of the job. 27As at 21 March 2006 Mr Martin intended doing the job at Canley Vale with Mr Jelisavac and Mr Bell. He gave evidence that he decided to bring Mr L'Estrange in on the plan only on 25 or 26 March 2006. Asked why he introduced Mr L'Estrange, he said: "I thought, well one more person wouldn't hurt, and also, David was - I guess you could say wishing to do a job or wanting" (AB 1274). 28Mr Martin said that he first contacted Mr L'Estrange either the day before or the day of that offence. He claimed to have said to Mr L'Estrange "Are you ready to go off?" (AB 1274.46). He could not remember Mr L'Estrange's response but said "it would have been a yes". He did not recall whether anything else was said. Asked whether any arrangements were made with Mr L'Estrange as to how the job was going to be done, he said : Well at that stage I don't think we even knew what we were going to do until we got there, myself, Bell and Feks. I mean, David knew that all he had to do was follow. (AB 1275) 29A considerable part of Mr Martin's evidence entailed his explaining the conversations recorded by police. As already noted, however, there was little in that evidence to implicate Mr L'Estrange except to the extent that it revealed that he was expecting Mr Jelisavac and another person or other people to drive to where he lived that day. 30Mr Martin stated that he had arranged to collect Mr L'Estrange at Fairfield. He then corrected that evidence, saying that it was Strathfield. Asked how those arrangements were made, he said: I may have even told Feks to talk to him and tell him to meet us where, because Feks knew the area and I didn't, so I left it in his hands - would have left it in his hands to tell David where to meet us so we could pick him up. (AB1275) 31Mr Martin could not recall what was said in the car after they collected Mr L'Estrange but said that they would have discussed the job because that was the whole purpose of what they were doing. He could not recall anything Mr L'Estrange had said and stated "As far as I can remember, he just listened and accepted what I had to say" (AB1279). 32According to Mr Martin, he ultimately decided not to do the job at Canley Vale. Mr Bell had turned up with other people whom Mr Martin did not know and he was concerned that a woman or child in the house might be hurt or traumatised by the actions of those people. Mr Bell suggested that they could "go and do this other drug dealer at Guildford" (AB1282). Mr Martin said that they went to his sister's place before leaving to go and do the job at Guildford. 33Mr Martin gave a detailed description of the commission of the offence at Guildford. He said that he kicked the door open and that he, Mr L'Estrange and Mr Jelisavac went into the house. He said that Mr Jelisavac was armed with a meat cleaver. He and Mr L'Estrange were unarmed. According to Mr Martin, Mr Bell did not go into the house with them because the people in the house knew what he looked like. 34Mr Martin said he went upstairs to a bedroom where one of the residents was asleep. He found a samurai sword under the bed, which he said he later gave to Mr L'Estrange. According to Mr Martin, Mr L'Estrange held the sword and stood guard over the people in the house whilst Mr Martin and Mr Jelisavac searched the premises. 35It happened that some friends of the residents of the house had that day won the grand final of their local cricket club competition. They had celebrated well into the night at Guildford Leagues Club, which was just across the road from the house broken into by Mr Martin and his associates. One of the people being held in the house managed to call them for help. 36The arrival of the victorious cricketers, all well-intoxicated and armed with cricket bats, prompted the offenders to make a hasty retreat. Mr Martin gave evidence that he and Mr L'Estrange ran to the backyard and jumped over the fence that ran along the left side of the house. A number of the cricketers, who were called as witnesses by the Crown, gave evidence confirming that the offenders ran away at speed. Separately, the Crown case disclosed that the fence was a six-foot "Colorbond" steel fence. According to Mr Martin, Mr L'Estrange was behind him. Mr Martin said that he heard Mr L'estrange drop himself over the fence, landing on his back. On Mr Martin's version, Mr L'Estrange must somehow have kept hold of the samurai sword during that manoeuvre, since it ended up in the car with them. Mr Martin did not know where Mr Jelisavac was at that stage. He said they caught up with him later. 37Mr L'Estrange denied that he was present with Mr Martin and his associates at either the proposed robbery at Canley Vale or at the break-in at Guildford. His explanation for the telephone conversations disclosing that he was waiting on the street for Mr Martin and Mr Jelisavac was that he had agreed to give Mr Martin a car stereo and had arranged for them to collect it that night. 38An important aspect of Mr L'Estrange's defence was the fact that, after suffering a stroke in 1997, Mr L'Estrange has a measure of disability on the right side of his body. It was his case that he is unable to run in the manner described in the evidence because his right foot gets in the way of the left and he trips himself over. He contended, further, that he suffers significant disability in his right arm, such that he could not hold a samurai sword in the manner described by Mr Martin, let alone clear a six-foot steel fence. 39The Crown called evidence from Mr Martin's sister, ostensibly to corroborate the evidence given by Mr Martin that the four men (including Mr L'Estrange) had gone to her house on the night of the two offences. As already noted, Mr L'Estrange accepted that he had been to her house, but said that occurred on the night of 15 March 2006 after the Crossroads incident. Without descending to detail, it is enough to say that aspects of Ms Martin's evidence were very unsatisfactory.

Grounds of Appeal 40The first ground of appeal is that the trial miscarried. That ground is based upon the other grounds of appeal and does not require separate consideration.

Grounds two and three: evidence relating to the Crossroads incident 41The second ground of appeal relates to the admission of the evidence in the Crown case concerning the incident at the Crossroads Hotel dealt with in the trial judge's pre-trial ruling given 28 August 2008. The third ground relates to the judge's failure to give the jury any warning or direction as to the use to be made of that evidence. 42Ground 2 is: The trial judge erred in admitting evidence of other alleged criminal conduct. 43As already noted, the trial judge ruled that the evidence of the Crossroads incident was admissible and ought not to be excluded. The pre-trial ruling also dealt with other evidence objected to on behalf of Mr L'Estrange as being prejudicial. The trial judge upheld the objection insofar as it related to references to Mr L'Estrange and the other members of the group having met whilst in prison and, separately, material disclosing that other members of the group had referred to Mr L'Estrange as "an evil cunt" and otherwise described him as a person with a willingness to engage in violence. 44In ruling on the evidence relating to the Crossroads incident, the judge noted that the two counts on the indictment were to be heard together and that there had been no application for separate trials of the two counts. His Honour expressed the view that the Crossroads evidence was "admissible under the Harriman principle", noting that it was not tendency or coincidence evidence. 45The judge recorded the Crown's anticipation that Mr Martin's direct evidence would establish that Mr L'Estrange was a willing participant in the abortive attempt to rob a drug dealer at the Crossroads. The telephone intercepts were described as being capable of showing that Mr Martin, Mr Bell, Mr Quarta and Mr Jelisavac: were conducting a criminal business of planning and attempting to carry out profitable criminal activities, usually involving robbery in company and collateral and associated offences. This business was ongoing since at least the abortive Crossroads episode and continued through the 26 th . There is admissible evidence that the accused was a part of this business, available and ready, willing and able to participate as required. 46Against that assessment, the judge turned to consider whether the evidence should be excluded under s 137 of the Evidence Act 1995. His Honour concluded: In my view [the evidence] has strong probative value and may show the nature of the relationship of the accused, Martin and the other people very clearly. Separately, the judge considered whether the evidence was likely to derail the jury from their proper task. He determined that it was not. His Honour declined to exclude the material under section 137 "or for any other discretionary reasoning". 47The first specific error alleged in respect of the trial judge's ruling is that: In purporting to apply the common law as set out in Harriman v R (1989) 167 CLR 590, the trial judge failed to carry out the balancing exercise required to be carried out in accordance with the law in R v Blick [2000] NSWCCA 61. 48In Blick , the Court considered the correct approach to an application made by a defendant in criminal proceedings to have evidence excluded pursuant to section 137 of the Evidence Act . That section provides: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 49The principal judgment in Blick was given by Sheller JA. His Honour noted (at [18]) that, at common law, a trial judge on the tender by the prosecution of photographic evidence to identify an accused person had first to determine whether the material was admissible. If it was, the judge could refuse to admit the evidence if of the view that its probative value was outweighed by its prejudice to the accused. 50Sheller JA took the view that section 137 mandates a different approach. His Honour said (at [20], James and Dowd JJ agreeing at [31] and [32] respectively): Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected. 51It may be acknowledged that the trial judge articulated his reasons for declining to exclude the evidence in language consonant with the approach disapproved in Blick. In my view, however, a careful analysis of the judge's reasons reveals that his Honour did undertake the weighing exercise mandated by the section. It is clear enough that, when describing the evidence as being "admissible", his Honour was referring to its probative value. His Honour then identified matters of prejudice before articulating his final assessment that the material ought not to be excluded under section 137. I do not think that the judge's reasons reveal error in that particular respect. 52The second specific error alleged in the trial judge's ruling is that his Honour: Failed to consider the important distinctions between Harriman , as applied in R v Quach [2002] NSW CCA 519, and the current case, in balancing the probative value of the evidence against its prejudicial effect. 53The burden of the appellant's argument in support of that contention was that the evidence in the present case was considerably less probative than the evidence under consideration in the decisions in Harriman and Quach and that, on that basis, the trial judge ought not, when performing the weighing exercise mandated by the section, to have reached the conclusion he did. 54In considering that complaint, it is important to bear in mind, as acknowledged in Blick at [19], that the trial judge's judgment as to how the probative value of the evidence sought to be adduced should be weighed against the danger of unfair prejudice to an accused will be "one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge's own trial experience". 55Sheller JA stated: In that sense, the result can be described as analogous to a discretionary judgment; see Heydon, 'A guide to the Evidence Acts', 2 nd ed, para 3.725. 56The fact that the judge did not assess the evidence by comparing it with evidence admitted or excluded in other decided cases could not of itself be said to amount to error in that context. 57The third specific error alleged in respect of the trial judge's ruling is that: In assessing the prejudicial effect of the evidence, the trial judge failed to take account of, or sufficiently take into account the risk of the jury engaging in tendency reasoning. 58It is convenient to consider that contention together with the fourth specific error relied upon, which is that the trial judge failed to consider the extent to which the evidence would distract the jury from the determination of the offences charged. 59In my view, there is force in those complaints. The trial judge observed, correctly, that the evidence was not tendency or coincidence evidence. The Evidence Act defines both coincidence evidence and tendency evidence by reference to the purpose for which a party seeks to have the evidence adduced: see part 1 of the dictionary to the Act. 60In the present case, the Crown Prosecutor characterised the evidence as evidence "about [Mr L'Estrange's] association with particular people". Implicitly, the Crown disavowed any reliance on the evidence for the purpose of proving that Mr L'Estrange had a tendency to act in a particular way ( cf section 97 of the Evidence Act ) or to prove that he committed the offences charged on the indictment on the basis that it was improbable that those events and the Crossroads incident occurred coincidentally ( cf section 98 of the Act). 61It has frequently been observed, however, that such disavowal does not remove the risk that the jury will reason in that way. As submitted on behalf of Mr L'Estrange, the distinction between such reasoning and evidence adduced for the purpose of establishing background or context is fragile at best. In HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16 (2008); 235 CLR 334, Hayne J noted at [116] that the risk of misuse of the evidence is the very risk to which the general rule of exclusion is directed. Indeed, any characterisation of evidence of prior criminal conduct as "background" or "context" should sound a warning of the need to give careful attention to the risk that the purpose for which the jury might find the evidence most useful is that of placing the charges in the context of their having been brought against a person who has done this kind of thing before. 62In the present case, the risk of tendency reasoning was high. Indeed, it is difficult to imagine the jury using the evidence in any other way. The Crown contended that the evidence could be used to explain an otherwise surprising feature of the Crown case that Mr L'Estrange had readily agreed to join the group on the evening of 26 March 2006, and (on the Crown case) to carry out the two crimes although he had not been involved in their planning. 63There is an element of circularity in that reasoning, which only serves to highlight the prejudice of admitting the evidence. Whether Mr L'Estrange was agreeing to carry out the two offences charged on the indictment when he allegedly gave an affirmative answer to the question "are you ready to go off" was the very issue to be determined by the jury. It was very likely that they would use the evidence of the Crossroads incident for the purpose of assisting their interpretation of that obscure exchange and that they would do so by engaging in tendency reasoning. In my view, the risk that the jury would engage in impermissible paths of reasoning was a material consideration which his Honour was required to take into account. His Honour did not address that risk when he gave the pre-trial ruling. 64The result, in my view, is that the decision to admit the evidence miscarried. For my part, I do not think that the evidence of the Crossroads incident was admissible. Assuming it was relevant for any purpose other than to establish tendency (a purpose disavowed by the Crown), which is doubtful, its probative value was undoubtedly outweighed by the danger of unfair prejudice to the appellant. 65The fifth specific error alleged is that the trial judge: Failed to consider the prejudice arising from the cumulative effect of the evidence in combination with the "co-conspirator's evidence" being led to establish count 1 and the increased difficulty in separating it from being used for tendency reasoning. 66This ground refers to the fact that the telephone intercept evidence relied upon by the Crown included a number of conversations between Mr L'Estrange's alleged co-conspirators to which Mr L'Estrange was not a party. That evidence included conversations in which the co-conspirators referred to Mr L'Estrange's alleged desire to be included in "a job" and their decision to include him in the planned robbery at Canley Vale. 67Undoubtedly, the cumulative impact of the Crossroads evidence on evidence of that kind underscores the prejudicial impact of the evidence in the present case. However, in light of my conclusion that the decision to admit the Crossroads evidence miscarried in any event, it is not necessary to give separate consideration to this ground. 68The sixth specific area alleged is that the trial judge: Failed to give consideration to a limitation of the evidence. 69Counsel who appeared for Mr L'Estrange at the hearing of the pre-trial argument had indicated that Mr L'Estrange proposed to make admissions of the fact of his relationship with the various co-offenders at a time proximate to the events of 26 March 2006. The proposition raised in the appeal appears to be that, in light of that indication, the judge ought to have given a ruling under section 136 of the Evidence Act limiting the evidence as to the events of 15 March 2006. 70If I have understood the submission correctly, I think it misconceives the effect of that section. Section 136 provides: 136 General discretion to limit use of evidence The Court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading of confusing. 71The section focuses on the use to be made of evidence. The occasion for the exercise of the discretion conferred by the section is the circumstance where evidence potentially of use for more than one purpose should be confined to a limited use so as to avoid the consequences referred to in the section. Where, as in the present case, what is sought is to have part of the evidence excluded altogether, the discretion invoked is that arising under section 135 of the Act. 72In the context of the present case, if the use to be made of the evidence as to the events of 15 March 2006 was to be limited to establishing the existence of prior dealings between the co-offenders and not to establish that their prior dealings extended to the commission of criminal offences together, the evidence was of no use to the Crown. 73In any event, it could scarcely be said that an application to that effect was made on behalf of Mr L'Estrange. I am not persuaded that the trial judge erred in that particular respect. 74The third ground of appeal is that: The trial judge erred in failing to warn the jury against tendency reasoning in respect of evidence of alleged earlier criminal activity at the Crossroads Hotel. 75This ground extends to the judge's failure to give a warning both at the time when the evidence was admitted and during the summing up. 76The Crown acknowledges that no warning was given at the time the evidence was admitted. As to the summing up, the Crown pointed to the following remarks of the trial judge: In the early period of March 2006, there are said to have been a number of telephone calls establishing contact, and association, between the accused and Quarta and other people. 15 March 2006 is said to be the date of the episode at Crossroads, or Ingleburn, going out there, and you have heard different versions of what that was all about. (summing up, page 16). The Crown put to you that you look at these events in sequence. It is not just the events of the 27 th . You look at the 15 th and then the 20 th and so on but on the 15 th with the preceding series of calls you can see from the events of the 15 th the intention of the accused to be involved with Martin and the others, shows their agreement, association between them ...(summing up, page 31) 77Where evidence that invites tendency reasoning is admitted in a criminal trial other than as tendency evidence, the need for clear direction to the jury is well recognised: see R v Beserick (1993) 30 NSWLR 510 at 516B per Hunt CJ at CL; JDK v R; R v JDK [2009] NSWCCA 76 at [32] per McClellan CJ at CL. As already indicated, the risk that the jury would use the evidence for an impermissible purpose was high in the present case and a warning was plainly required both at the point when the evidence was lead and in the summing up. Nothing in the trial judge's summing up addressed that issue. This ground should be upheld.

Was the Crossroads incident required to be proved beyond reasonable doubt? 78Ground 4 is: The trial judge erred in failing to direct the jury that they could only use the evidence of the uncharged prior criminal act if satisfied of its proof beyond reasonable doubt. 79The appellant's entire written submission on this ground was as follows: In circumstances where the purpose of the evidence that was admitted of other discreditable or criminal conduct was to establish a step in the proof of the prosecution case, the jury should have been directed that they could use it in that way only if persuaded of its truth beyond reasonable doubt: HML , supra per Gummow J at 362; Kirby J at 363/377 and Hayne J at 406. 80The succinctness of that submission belies the complexity of the issues it raises. First, it is by no means clear that a principle in the unequivocal terms articulated by the appellant emerges from the decision of the High Court in HML . Regrettably, the appellant gave only page references to that decision. The point references intended to be relied upon appear to be the statement of Hayne J at [196] and the statements of Kirby and Gummow JJ expressing their agreement with that statement (per Kirby J at [46] and [83]; per Gummow J at [41]). Hayne J said at [196]: It was pointed out in Pfennig that the purpose of evidence of other discreditable or criminal conduct that is admitted at trial is to establish a step in the proof of the prosecution case; if the evidence is not capable of doing that, it is to be rejected as inadmissible. Because this is the basis for admitting the evidence (that the jury may use it as a step towards inferring guilt) the jury may use it in that way only if persuaded of its truth beyond reasonable doubt. The direction in this case about what standard of proof was to be applied was correct. 81The different conclusions reached by the other members of the Court in HML are collected in the judgment of Kirby J at [82]. They include the following proposition stated by Gleeson CJ at [31]: There is no general principle that whenever, at a criminal trial, the prosecution sets out to prove, as a fact relevant to a fact in issue, that some criminal conduct occurred, that fact must be established beyond reasonable doubt. 82One apparent difference between those views is that the principle stated by Hayne J holds that the evidence is either admissible to establish a step in the proof of the prosecution case or inadmissible. The principles stated by Gleeson CJ do not assume that dichotomy. His Honour appears to contemplate the possibility of evidence of prior criminal conduct which assists the evaluation of the facts in issue but which, not being an element of the offence in question, raises no separate question of standard of proof. 83As already indicated, I do not think that the evidence of the Crossroads incident was admissible. In light of my view on that issue, there is a measure of artificiality in my purporting to determine whether the evidence was propounded to establish a step in the proof of the prosecution case in the sense considered in HML . 84In any event, having regard to the conclusion I have reached as to grounds 2 and 3, I consider it preferable not to determine the complex issues raised by the decision in HML in the present different factual context.

Need to distinguish between the evidence on each count 85Ground 5 is: The trial judge erred in failing sufficiently to distinguish the evidence admissible on the first count and that on the second count in the circumstances of the case and the role of a finding of guilty on the first count in the determination of the second. 86As already explained, evidence of conversations between the other co-accused to which Mr L'Estrange was not a party were admitted in support of count 1 of the indictment, which alleged a conspiracy. The appellant acknowledges that the evidence was admissible in those circumstances to prove the charge against each alleged co-conspirator: Ahern v The Queen [1988] HCA 39 (1988); 165 CLR 87. 87The trial judge explained to the jury that evidence of conversations in the absence of Mr L'Estrange would not ordinarily have been admissible against him and was only admitted because of an exception to that rule in the case of a charge of conspiracy (summing up, page 5). His Honour also directed the jury that the exception only applied to count 1, not to count 2 (summing up, page 4) and that the conversations to which Mr L'Estrange was not a party were not evidence in count 2 (summing up, page 8). He had already directed the jury at the outset of his summing up as to the need to consider and decide upon each count separately (summing up, page 2). 88The appellant submits, however, that the directions given were inadequate in the circumstances. In particular, it was submitted that proof of the conspiracy (count 1) inferentially supported the Crown case in respect of count 2 because it placed the appellant in the company of the other offenders earlier on the same evening. In those circumstances, it was submitted that the trial judge was required to give clear directions identifying the discrete body of evidence upon which the jury could rely in considering each separate charge. 89The appellant sought to sustain that contention with the proposition that there were grounds in the present case to separate the trial of the two counts. It was acknowledged that no such application was made before the trial. It should be noted that the reason no such application was made was that counsel appearing for the appellant at the pre-trial hearing acknowledged, properly in my view, that the two offences charged in the indictment were linked, on the Crown case. The Crown had characterised the second offence as following directly from the decision not to proceed with the first. The trial judge had, during argument, described the conspiracy charge as being intimately related to the later charge, and that indeed was the way in which the trial was ultimately run. 90No direction of the kind identified by the appellant was sought at the trial and accordingly Rule 4 of the Criminal Appeal Rules applies to this ground. 91So far as the appellant was concerned, his defence was an "all or nothing" defence. He denied being present during either incident. Having regard to the way in which the case was run, both on behalf of the Crown and on behalf of the appellant, I am not persuaded that the trial judge's directions were inadequate in that respect. It seems likely that so much was recognised in the failure to seek any further direction on those matters at the trial. I do not think this ground warrants a grant of leave under rule 4.

Failure to give a propensity warning in respect of two matters charged 92Ground 6 is that the trial judge erred in failing to give a propensity warning in respect of the evidence on the two counts on the indictment. No such direction was sought at the trial and accordingly Rule 4 of the Criminal Appeal Rules applies to this ground. 93This ground invoked the principles stated by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221. In that case, in the context of a discussion of the practice of warning the jury of the need to consider each count separately and only by reference to the evidence applicable to that count, his Honour noted that in some cases of multiple counts "some feature of the evidence may create a risk that the jury would use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count". McHugh J stated that where that risk exists and where separate trials are not ordered, "a propensity warning will almost certainly be required". 94The appellant submitted that leave should be given under rule 4 in the present case because there was a strong risk that the presumption of innocence would be eroded particularly in respect of count 2 in the absence of a warning against propensity reasoning. 95It may be acknowledged that, regardless of whether or not a particular direction is sought, the overriding duty of the trial judge is to ensure a fair trial according to law and, to that end, to give full and correct instructions to the jury: BRS v The Queen [1997] HCA 47; 191 CLR 257 at 302, 306. However, in considering whether the failure to give a particular direction deprived a person of a fair trial in a particular case, an appellate court must be astute to the difficulty of evaluating that question after the event. Rule 4 reflects, in part, the fact that those present at the trial are best placed to judge the fairness of giving or not giving a particular direction in the particular circumstances of the trial. 96Sometimes counsel exercise their forensic judgment not to seek a direction which, if given, will emphasise evidence adverse to the accused. A propensity direction in respect of the two counts alleged in the indictment in the present case may well have been judged to be unnecessary and undesirable in the context of the way in which the trial was run. 97Conversely, however, the risk that the jury would use the evidence on count 1 to reason that the appellant was the kind of person who would commit the offence charged in count 2 was compounded in the present case by the absence of any warning against such reasoning as between the evidence of the Crossroads incident and the two counts on the indictment. Ultimately, it is not necessary to decide whether leave should be granted to argue this ground, since the appeal is to be determined on other grounds. It is sufficient to indicate my view that, had a warning of the kind commended in KRM been sought, the trial judge would, in my view, have been required to give it.

Improper cross-examination of the appellant's expert 98Ground 7 is: The trial judge erred in allowing the Crown to ask improper questions which allowed inadmissible evidence before the jury and in failing to sufficiently warn the jury against using such evidence. 99As already explained, a critical factual issue at the trial was the extent of the appellant's physical disability. The appellant gave evidence that he could not have scaled a six-foot high steel fence, as Mr Martin had said. He also said that he could not have carried a weapon in each hand as described by Mr Martin. 100In support of his case, the appellant called a medical expert witness, Dr Sharp. During the cross examination of Dr Sharp by the Crown, there was the following exchange: Q. And you know from documentation provided to you that he has, in the past, exaggerated his condition? A. I'm not sure I've seen that information. Q. Doctor Brew said it in the report of 22 April, 1998. A. That was Dr Brew's opinion, not Mr L'Estrange's opinion. Q. Doctor Brew in his report - do you have a copy of it handy? A. I do have a copy. Q. You see in the last paragraph, "There is no question, however, that there is a super added functional element so that he is exaggerating his deficit. However, on balance, I think the degree of exaggeration is less than the real demonstrated deficits." What does that mean? A. It means he thinks the degree of disability he has demonstrated is not all real. Q. So, you accept the suggestion then that in the past someone else has thought that Mr L'Estrange has exaggerated the effects of the stroke on him? A. That is what Dr Brew's opinion was at the time, yes. Q. Indeed, in the report, one of the reports you had available to you which was that of Dr Santamaria, which is dated 10 February, 1998 - do you have that one handy? A. I do have it somewhere. Q. Let me ask you this; do you remember him saying, as at 10 February 1998, "His long term outlook is poor. He has a prognosis which is, at this point, to a person with severe physical handicap." Do you remember that? A. What was the last bit? Q. "Severe physical handicap"? A. Yes. Q. Indeed, he said a physical and emotional handicap? A. Yes, I do recall that. Q. You accept that by May 1998, he had improved substantially in all of those aspects? A. He does appear so, yes" (AB1585-86). 101Surprisingly, no objection was taken to that evidence by defence counsel. 102There was no warrant for putting the content of Dr Brew's report before the jury in that form. It was plainly inadmissible hearsay. At least three aspects of the cross examination exacerbated the vice of doing so. First, the formulation of the first question in the exchange set out above characterised the opinion of another doctor (not a witness in the trial) as knowledge held by the appellant's expert witness, Dr Sharp. 103Secondly, the Crown should not have asked Dr Sharp what Dr Brew meant in his report. The vice of asking that question is amply illustrated in the answer given, which had the effect of placing before the jury a misinterpretation of a hearsay opinion cloaked with the authority of having come out of the mouth of the appellant's own expert. It should have been contrary to the instinct of every lawyer in the courtroom for the cross examination to take that path. 104Finally, it was quite wrong for the Crown to invite the appellant's expert to speculate as to whether the appellant was exaggerating his symptoms when he saw a different doctor in February 1998. Self-evidently, the evidence had the potential to be extremely damaging to the appellant's credibility on a critical aspect of his defence. 105The appellant's credibility on the issue as to whether his physical disabilities were such as to preclude him from doing the things attributed to him by the Crown's key witness was a critical aspect of his defence. The inadmissible evidence adduced by the Crown in cross-examination would inevitably have dramatically undermined his case in that respect. In my view, ground 7 should be upheld. 106In R v Morgan [2000] NSWCCA 7, impermissible cross examination that enabled the Crown to put evidence before a jury that would not otherwise have been admissible was held to warrant a conviction being quashed and a new trial ordered. In my view, the result should be the same in the present case.

Evidence as to the appearance of the appellant's arm 107Ground 8 is: The trial miscarried as a result of critical evidence being misrepresented by the Crown and incorrectly summed up by the trial judge. 108This ground relates to evidence in the appellant's case at trial as to the disability in his arm. Dr Sharp had given evidence that, as a result of the appellant's stroke, his arm was permanently in a bent position. However, a photograph of the appellant taken towards the end of his period under arrest depicted his arm straight down by the side of his body. 109The Crown cross-examined Dr Sharp to the effect that the photograph demonstrated that the appellant was exaggerating the extent of his disability to Dr Sharp (AB1588). In re-examination, Dr Sharp accepted that a possible explanation for the photograph was the fact that the appellant had been handcuffed for a period of time before the photograph was taken, which had the effect of forcing his arm into a straight position temporarily. 110The appellant gave evidence after Dr Sharp. He was cross examined by the Crown as to how long he had the handcuffs on for. He did not purport to be able to give a specific answer to that question, but said "I would say a while", recalling the events that had occurred between the time of his arrest and the time when he recalled the photograph and fingerprints being taken. It was his recollection that he had the handcuffs on throughout that period. He denied that the handcuffs had been taken off when he got to the police station. However, when asked by the Crown whether it followed that he had the handcuffs on for 3 or 4 hours, he said, "It didn't feel that long but I'm not quite sure. I am not sure." 111The following day, after reviewing his custody records, the appellant clarified his evidence on that issue, saying that he was handcuffed for a total of one hour and 10 minutes. 112In her closing address to the jury, the Crown submitted that the appellant had lied about those matters. She said: Well I submit to you that what the lies were, were what the accused was telling you this morning about the handcuffs coming off and then going back on. Or it was a lie what he said to you yesterday, or maybe both of them, we don't know. But they're clearly very inconsistent versions that he gave of events in order to try to explain how it was that his arm's like that. 113The trial judge made the following remarks on the issue in his summing up: Then he said in that evidence, when he gave evidence-in-chief the first time, that the hands had been kept handcuffed for most of the time while he was at the police station, before the photograph was taken on the 29 th , 'for about four hours' ...Then you heard him give some further evidence and be cross-examined again on that subject after he had overnight considered a document which was the police document relating to his, the details of the times and so on, when he was at the police station before the photograph was taken. He still said that he had been handcuffed for various times, although the version he gave of it was that the handcuffing had been in the front for the periods of broken time when he was handcuffed. 114The appellant submits that the way in which that issue was left to the jury both by the Crown and by the trial judge amounted to a misrepresentation of the evidence as a result of which the trial miscarried. 115Having regard to the equivocation with which the appellant answered the questions put to him in cross examination by the Crown, it was in my view a robust submission to say that he had lied in one or both of the versions he gave. In my view, on a fair reading of the evidence, the inconsistencies were such as to point rather to uncertainty or unreliability than to dishonesty. The distinction is one as to which lawyers' minds will inevitably differ and that in itself commends a conservative approach on the part of the Crown, in the interests of ensuring a fair trial. 116I am not persuaded, however, that the way in which the jury was addressed on the issue in the present case was so unfair as to amount to a miscarriage of justice. In my view, ground 8 should be rejected.

Are the verdicts unsafe and unreasonable? 117Ground 9 is that the verdicts are unsafe and unreasonable in all the circumstances. 118Two specific contentions were made in support of this ground. First, the appellant submitted that the verdicts are unsafe due to the admission of evidence of the uncharged acts and the failure to give directions as set out above. As already indicated, I am persuaded that grounds 2 and 3 are made out and that the trial miscarried on that basis. In my view, that is the appropriate characterisation of the consequences of those matters. 119Separately, the appellant submits that the verdicts are unsafe and unreasonable in that there was insufficient admissible evidence supporting the second charge against the appellant for the jury to have been satisfied beyond reasonable doubt. 120As noted in the written submissions of the Crown, it was not contended that there was insufficient evidence to support a finding of guilt beyond reasonable doubt in respect of count 1. However, the appellant's submissions addressing this point applied with equal force to that count. 121The test is whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt of the appellant's guilt: M v The Queen [1994] HCA 63 (1994); 181 CLR 487 at 494-495. 122The appellant does not submit that there was no evidence capable of sustaining the verdict as a matter of law. Accordingly, the success of the appellant's submissions as to the alleged unreasonableness of the verdict rested on the contention that, applying the test stated in M at 494, the evidence, "upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force" so as to warrant the intervention of this Court, notwithstanding the advantages enjoyed by the jury. 123Counsel for the appellant provided detailed written submissions setting out a careful and well-reasoned analysis of the evidence of Mr Martin and that of his sister. I have given careful consideration to those matters against my own reading of the record of the trial. I accept that the evidence was highly unsatisfactory in many respects. I am left with some unease as to the strength of the Crown case. Ultimately, however, I have not been satisfied that it was not open to the jury to convict the appellant on the strength of the evidence of Mr Martin. A critical factor in my conclusion is my acceptance of the need to pay due deference to the advantages of being present at a trial and the limitations on the ability of this Court to assess the strength of a case that is so heavily dependant upon the credibility of a single witness. 124Having expressed my reservations as to the strength of the Crown case, it follows that I am not persuaded that the Court should apply the proviso, as submitted on behalf of the Crown. On the contrary, in my view the difficulties with the Crown case warrant careful attention on the part of the Director of Public Prosecutions to the question whether there should be a retrial in this matter. 125I would allow the appeal on grounds 1, 2, 3 and 7. The orders I propose are that the convictions be quashed and a new trial ordered. 126R A Hulme J : I agree with McCallum J.

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