Dent v R

Judgment

1. HOEBEN CJ at CL: Offence and sentence In February 2016 the appellant was tried in the Supreme Court of New South Wales before R A Hulme J and a jury of twelve for the murder of Anthony Thomas O'Grady (the deceased) and a count of robbery in company inflicting grievous bodily harm on the deceased. The appellant was convicted of both counts and sentenced on 15 April 2016 to a total effective sentence of imprisonment for 42 years with a non-parole period of 32 years. Crown case
2. It was the Crown case that on the afternoon of 25 March 2014 the appellant, together with JM, RC and Jeffrey Schott, in a discussion in the appellant's flat, planned to rob the deceased. The deceased was known to JM and was suggested as a target because he was an alcoholic and he was known to carry cash with him and had an amount of money from an inheritance. The deceased was to be enticed to attend Wickham Park on the pretext that there would be a party with alcohol and girls.
3. JM introduced the deceased to the appellant and they went to Hamilton together where the deceased bought alcohol and they were joined by a young woman. The appellant and JM accompanied the deceased to a location at an oval in Wickham Park. RC and Mr Schott travelled to Wickham Park separately and waited for the others to arrive. At Wickham Park the appellant struck the deceased heavily to the head causing him to fall to the ground unconscious. The appellant removed the deceased's shorts and used his underpants as a gag, which was placed in his mouth and tied around the back of his head. Mr Schott provided a piece of rope which the appellant wound and tied around the deceased's wrists and legs. The deceased was found the following morning lying face down, hog-tied with the gag in his mouth. The deceased's possessions were taken by the appellant, RC, JM and Mr Schott.
4. The cause of death was an acute right subdural haematoma which was occasioned by blunt force trauma. It was the Crown case that the blows to the head by the appellant constituted the infliction of the blunt force trauma which caused the death of the deceased.
5. The Crown case was left to the jury on three bases. The first was constructive murder in that the appellant caused the death of the deceased in the course of committing the robbery in company inflicting grievous bodily harm offence. The second was that the appellant intended to inflict grievous bodily harm upon him and thirdly, by way of reckless indifference to human life.
6. It was the appellant's case at trial that he was not guilty of murder but guilty of manslaughter and in relation to the robbery in company inflicting grievous bodily harm charge, he was guilty of robbery in company. The appellant admitted knocking the deceased to the ground with a combination of three punches. It was the appellant's case that RC kicked the deceased in the head on three occasions and that RC was responsible for the infliction of the grievous bodily harm that resulted in death.
7. The appellant has appealed against his conviction on two grounds: Ground 1 - A miscarriage of justice resulted from the Crown Prosecutor seeking to elicit evidence that the person alleged by the accused to have been responsible for the death was "not a violent man" and submitting to the jury that that person was "not a violent man". Ground 2 - A miscarriage of justice resulted from failure of the trial judge to direct the jury that no inference adverse to the accused could be drawn from his refusal to be interviewed by the police. Evidence at trial
8. James Lammas saw JM talking to the deceased on the morning of 25 March 2014 at about 11am. He heard JM say to the deceased "Well, you've got the beer and if you come down to the park tonight, you've got the beer, the alcohol, there's going to be plenty of girls there". Mr Lammas said that during the time that he observed the deceased, he probably consumed at least 20 stubbies of beer. Mr Lammas considered the deceased to be an alcoholic and had been for some time.
9. CCTV of a bottle shop near the park showed the deceased buying a 700ml bottle of Jim Beam.
10. The deceased's body was discovered in Wickham Park on the morning of 26 March 2014. A police forensic investigator described the deceased as lying on his stomach, on the left side of his face. He was wearing a pair of grey socks and a dark coloured short sleeve shirt. He was not wearing any shoes or any lower body clothing such as underwear, shorts or trousers. The deceased was very tightly gagged with a piece of fabric wrapped around his head and in his mouth, with the gag knotted at the back of the head. The tightness of the gag had produced significant congestion within the facial region of the deceased so that it was not possible to determine any specific injuries to the face. The deceased's hands were at the back and were bound together with a grey, flat, strand rope. This rope extended to the deceased's lower legs and ankles where it had been wound around the lower legs and then knotted.
11. Located underneath the deceased's chest was a pair of shorts that had the two front pockets turned out. Subsequent testing of the shorts showed blood stains on the front and back. The piece of fabric which was in the mouth of the deceased was heavily blood stained.
12. DNA consistent with the appellant's DNA profile was located on the insert of the right front pocket of the deceased's shorts, on the underpants of the deceased which were used as a gag, on the rope that was used to tie the deceased and on the waistband of the shorts of the deceased. DNA consistent with RC was located on a bottle of coca cola found at the scene. Dr Vuletic
13. Evidence was given by Dr Vuletic, a forensic pathologist, who performed an autopsy examination of the body of the deceased. The cause of death was an acute right subdural haematoma. The other continuing cause was the fact that "he had a gag in his mouth and he was face down which caused asphyxiation". Dr Vuletic said that unless surgically treated, the haematoma was going to be fatal and that "you would not expect anybody to survive more than a few hours at the very most."
14. Dr Vuletic opined that the haematoma was occasioned by a blunt force trauma or blows to the head. Dr Vuletic gave evidence that the deceased had experienced a haematoma in the fairly recent past for which he was treated at hospital. This made it more likely for him to have a further episode of bleeding in the same area causing another haematoma. The previous haematoma was less serious because it was smaller and was of a chronic nature, rather than a fresh hemorrhage due to trauma.
15. Dr Vuletic described further signs of blunt force trauma on the body of the deceased including areas of bruising on the face that were poorly defined, bruising inside the mouth, bruising underneath the scalp in the left temporal region and bruising on the arms and legs. The gag appeared to be tied very tightly around the head. It was the belief of Dr Vuletic that there was a very significant degree of obstruction to the deceased's airway. This was because not only did he have something blocking his airway, but he was face down on the ground which could also block his nose which was not blocked by the gag. She was of the opinion that this undoubtedly contributed to his death. Even if the deceased's nasal passages were patent, and he was able to get air through his nose, he still ultimately had a fatal volume of subdural haematoma.
16. Dr Vuletic said that the level of alcohol (.183) in a man with an obstructed airway because he had a gag in his mouth, was potentially life threatening.
17. In summary, Dr Vuletic said: "I believe he sustained a number of blows to the face and head. He developed the acute subdural haematoma. At some - which was really the critical factor and, on its own, was going to be lethal unless treated. He, at some point, was bound and gagged and put in a face down position. That is likely to have contributed to his demise, however, he would have died without that simply from the haematoma if left untreated." (T.134)
18. In cross-examination Dr Vuletic agreed that "the injuries to the lips, gums and area of the mouth of the face showed a severe degree of swelling" which was consistent with a punch and with a kick in that area. Although it was hard to be accurate in predicting how long it might have taken for death to occur, Dr Vuletic thought it would have occurred within eight hours of the blows being received.
19. The participants in the robbery gave evidence as follows. RC
20. RC said that on the afternoon of 25 March 2014 he was at the appellant's flat in Mayfield. He was there with the appellant, Jeffrey Schott and JM. He said we "thought we'd just do a robbery to get some money so we could get some drugs". They were all interested in getting money for the drug ice. RC had not had any ice that day himself and he did not know whether any of the others had. The appellant was the first person to come up with the idea of doing a robbery to get money for ice. Jeffrey Schott and JM said they knew someone who had just come into a lot of money. JM said he would organise for them to meet the deceased so they could rob him. JM told them that the man was an alcoholic and that he carried around $500 at all times. RC said that he did not know what was going to happen and that: "To my knowledge, I thought we were just going to take his wallet off him, like get him drunk and take his wallet".
21. They all left together. The appellant, Jeffrey Schott and he went down to the Waratah train station. JM went in the other direction as he was going to meet the deceased. The appellant received a phone call and met JM on a bus. RC and Jeffrey Schott went to the park but waited in the wrong spot. They waited there for about 20 minutes to half an hour. RC had a bottle of coke. After they had been waiting, JM yelled out to them and they walked over. RC saw the appellant, JM and a young girl he did not know. The deceased was there also.
22. When asked what happened, RC said "Well, I approached and [the appellant] punched him in the head and kicked him in the face as he went down and that was it. Jeffrey Schott tied him up." RC was about three or four metres away when this happened. Although it was dark, he was able to see because the lights were on in the oval.
23. RC had never seen the deceased before. He did not see anything of him before this happened and he did not hear him speak. He only saw one punch in the face and the deceased was kicked by the appellant when he was falling down. The deceased was knocked out and unconscious. He was halfway down when he was kicked and RC indicated the front of his neck, jaw and chin. Jeffrey Schott had the rope and he tied the deceased up.
24. RC said that the appellant asked "Where's the rope?" and Jeffrey said "I got it". RC did not know anything about the rope before this. He did not see where Mr Schott got the rope from. When they were at the sheds waiting, he saw the rope in Mr Schott's bag.
25. While Mr Schott was tying up the deceased, the appellant grabbed the deceased's bum-bag. RC saw the appellant rip the deceased's pants off. Although he did not see it, JM subsequently told him that the appellant put something in the deceased's mouth. The last sight he had of the deceased was him on the grass, on his belly getting tied up. The deceased was not making any noises at the time.
26. When asked why he left the scene, he said "Cause I couldn't stand it". When they left the scene, he, Jeffrey Schott, JM and the young girl went one way back to Waratah and the appellant went in a different direction. The four of them caught the train to Waratah. RC went back to the appellant's flat. JW, who had the deceased's keys, went to his flat and took the deceased's car.
27. RC said that JW was standing next to the appellant when he hit and kicked the deceased. He did not see JW do anything to the deceased. RC denied that he had done anything to the deceased. RC said that when Jeffrey Schott was tying up the deceased, the appellant grabbed the bum-bag. He left before they did. When Mr Schott was tying the deceased up, the appellant was about 9 or 10 metres away, walking away.
28. In cross-examination RC agreed that he entered a plea of guilty to charges of manslaughter and robbery and that his sentence was reduced because of his assistance and willingness to give evidence against the appellant. He agreed that in what he told the police he tried to minimise his involvement in the robbery.
29. RC denied that when he got off the train and went to the park, he understood where they were going. He said that he just followed Jeffrey Schott because he believed he knew where in the park they were to meet up. RC did not recall anything being said at the flat that the man who was to be robbed could be lured to the park by promising him that he could meet with young girls there.
30. Mr Schott took him to a shed with an oval next to it which was some distance away from where the deceased was on another oval. Mr Schott told RC that they were expected to wait in this shed and meet the appellant and JM there.
31. RC eventually left the shed and went to the area where he found the deceased as JM was calling out "We're over here… Where are youse?". It took three or four minutes to reach the area where JM and the appellant were. RC said that the deceased was on the ground unconscious. He denied that soon after he arrived the deceased seemed to regain consciousness. He denied that when that happened, he proceeded to kick the deceased in the head three times. He denied that the appellant pushed him away from the deceased. RC said that when he arrived at the area, the deceased did not have pants on and that the appellant had possession of his bum-bag. RC also saw a wallet in the possession of the appellant which had come from the bum bag. Mr Schott
32. Jeffrey Schott gave evidence that he was in the company of the appellant, RC and JM at a flat in Mayfield where the appellant was staying on the afternoon of 25 March 2014. There was talk of robbing the deceased for cash that he might have on him. Mr Schott did not know the deceased but JM did. JM told the group that the deceased always had money on him and that he was an alcoholic and was always drinking. Mr Schott said the appellant was looking for some quick cash to purchase drugs. The appellant asked JM a number of questions about the deceased, including what he looked like, where he was and who he was. The appellant said "Show me him, like, take me down. Where is he? Take me down and show me". The appellant and JM then left the flat, leaving him and RC in the flat. During the course of the evening, Mr Schott communicated with the appellant via messages on his mobile phone.
33. After a while he and RC got on a train and went to Hamilton because the appellant wanted them to meet him at the park. When he was asked what he thought was going to happen in the park, Mr Schott said: "Well, I knew that he was going to get robbed, but I didn't know how or what sort of circumstances or anything like that, but I didn't really know, like, why we were needed down there at all, but he asked us to come down to the park."
34. Mr Schott said that he did not take anything to the park but that RC had a bag with him and a bottle of coke. When they got to the park, they waited inside an old garden shed in which he used to sleep when he was homeless at one stage. He said that he and RC were in there for 20 to 25 minutes. He said that he heard loud voices yelling and RC left the shed, leaving him by himself. JM came over and found him and told him that the appellant had hit the deceased. JM told him "Tony hit him. King hit him."
35. Mr Schott said that when he first saw the deceased, he was face down but still moving and making a snoring noise. His legs and arms were still moving and the appellant had his foot on his back between the shoulder blade area. He could not see if the deceased had any pants on because it was dark. The appellant said "I knocked him out. He's snoring."
36. The appellant then told him "Go find a rope". In cross-examination he agreed that he was roughly 20 to 25 metres away from the appellant when he yelled out to go and get a rope. He found a rope and when he returned with it, the appellant wanted him to tie up the deceased. It was while he was doing this that he noticed that the deceased had no pants on. Mr Schott said that while he was fumbling with the rope, the appellant said "Give me the rope. I'll show you how to tie someone". Mr Schott said that he never actually touched the deceased.
37. Mr Schott thought RC was close by but he was not paying attention to him. A young woman, who was JM's friend, was there also but he did not know her name. He thought she was there as bait to lure the deceased to the park. Mr Schott watched the appellant tie the deceased up. Mr Schott did not see anyone punch, hit or kick the deceased. He then walked across the oval with RC, JM and the young female towards the train station. The appellant was still there when he left. He did not know exactly what happened to the deceased's belongings. He thought RC was carrying his backpack and JM had his keys. The appellant instructed JM to go and ransack his house and get what he could. The appellant was behind them and he did not see which way he went as he left the park.
38. When asked whose idea it was for the robbery to take place in the park, Mr Schott said that when the appellant said to him "Where do I take him? Where do I take him?" Mr Schott had responded "I don't know, take him to Wickham Park, I guess." He said this because it was the only place he was familiar with in the Newcastle area. This conversation took place when he and the appellant were walking with JM and the deceased towards Hamilton. Mr Schott denied that it had been agreed before the four men left the flat that JM would take the deceased to a particular spot in Wickham Park.
39. Mr Schott denied that he had brought the rope to the park and that he had told the group that he could provide a rope. He agreed that he told the group that he had seen a rope previously in the park. Mr Schott did not know whether the appellant or RC had consumed the drug ice that day. He had not consumed ice at the appellant's premises that day, but had the day before. JM
40. JM was aged 19 years at the time of giving evidence. He had previously met the deceased and had known him for about two months before the robbery and saw him almost every day in that two month period. The deceased used to buy him food and they would sit and drink beer. The deceased would purchase the beer because JM was then aged 17. He said that the deceased used to tell everybody he came in contact with about having money from an inheritance.
41. JM said that as of 25 March 2014 he had only known the appellant for about a week. He met him through his friend Jeff Schott, whom he had known for about a month.
42. JM said that the appellant needed to get money which he assumed was to pay for drugs. JM said that Mr Schott came up with the idea that they rob the deceased. The appellant and RC were present with JM at that time. They asked JM if he would get the deceased and he agreed provided the deceased did not get hurt. JM was to introduce the appellant to the deceased and they would go to Wickham Park where he was going to get robbed but was not going to be hurt. The appellant told JM to tell the deceased that there was a party at Wickham Park and that there would be girls there and to buy alcohol. JM was told that the deceased would be robbed by tripping him over and asking for his PIN number and that they would tie him up if they had to.
43. JM and the appellant left the flat together to see the deceased. They stood around drinking and then JM told the deceased about the party after which JM, the deceased and the appellant went to two bottle shops. While that was happening, JM saw a girl that he knew and she just came along.
44. The group, comprising the deceased, the appellant, JM and the girl, went to Wickham Park. The group walked halfway across Thomas Armstrong Oval when the deceased stopped "to roll a smoke". The next thing he knew the deceased was getting bashed by the appellant. He saw the appellant hit the deceased in the face multiple times, about three or four times, before he hit the ground. JM indicated the right jaw area as the place where the deceased was hit. JM was pretty sure that it was the first punch to the face that knocked the deceased out.
45. JM said that there were more punches when the deceased was on the ground. When the deceased was on the ground, the appellant said to JM "Go and get Jeff to get the f'ing rope or I'll f'ing kill you." JM and the girl then ran over to where Mr Schott and RC were and he told them that the deceased had been knocked out. When they came back with the rope, JM observed that the deceased had no pants on.
46. JM observed Mr Schott give the rope to the appellant and he tried to walk away after that. JM partly saw the appellant tie the deceased up. JM could not see anything in the deceased's mouth. The deceased was lying face down and he could not recall seeing his face. At that time, he was trying to walk away with RC and the girl. He did not know what Mr Schott was doing.
47. Some time later, he went to the flat and waited there with RC. When the appellant arrived, he said that the PIN numbers did not work. When JM asked him about the deceased, the appellant stuttered for a little while and said "He's gone." JM said "What do you mean he's gone?" and the appellant said "He's not there". JM thought the deceased was all right and only found out the next day that he was not.
48. JM did not see anyone else besides the appellant hit or kick or assault the deceased in any way. JM did not touch him. JM said that he had not taken any illegal drugs that day and had drunk probably four or five beers. JM said it was the appellant's idea to go to Wickham Park when they were at the flat talking about robbing someone. He said the purpose of getting money from the deceased was to pay back their drug dealer.
49. In cross-examination JM said that he was aware of Mr Schott using ice that day. He did not know whether RC or the appellant had used ice that day. He denied that it was he who suggested that he knew a man who would be a good person to rob because he always carried around about $500. He did not agree that it was Mr Schott who suggested that Wickham Park would be a place where the robbery could take place.
50. JM was aware that at the time he went into the park, there was a possibility that the deceased would be tied up during the course of the robbery. By the time he got to the park, he understood Mr Schott and RC would already be there and that they would be waiting in a shed. He did not know exactly where the shed was. He just ran in the direction he was pointed.
51. When he saw the shed, Mr Schott was sitting down and RC was going for a walk towards the park. When he arrived at the shed, RC was just starting to walk around in a circle towards Maitland Road and the park.
52. After seeing Mr Schott and getting him to bring the rope, he went to the place where the appellant and the deceased were. He estimated that he would have been about four or five metres away from the deceased and then he walked away with the girl. When he first returned to the vicinity of the deceased, RC was standing near the deceased. JM was pretty sure that RC was picking up the deceased's backpack. The next time he noticed RC, he was about 8 to 10 metres in front of him as he was leaving the park.
53. JM agreed that after he left the park, he had possession of the keys to the deceased's house and car and went there to see if he could rob the house. He said that he was just doing what he was told. He agreed that he used the keys to steal the deceased's motor vehicle with a boat attached to it.
54. JM was ultimately charged with murder and a robbery offence but was allowed to enter a plea of guilty to a less serious robbery offence and the murder charge was not proceeded with. When he was sentenced, he gave an undertaking to give evidence in proceedings against the appellant and any proceedings that may be instigated against Mr Schott. He was placed on a good behaviour bond with a condition that he gave evidence against the appellant in accordance with his undertaking. JM understood that the smaller his role the lesser the penalty he would ultimately receive.
55. He agreed that the assault and robbery occurred in a matter of minutes between the deceased being punched and being knocked to the ground and JM leaving the scene. JM did see the deceased being tied up. He agreed that he could not recall exactly who was doing the tying up. He was pretty sure that it was the appellant who tied the deceased's legs, but he could not say who tied his hands. The deceased's hands were tied before his feet. The appellant
56. The appellant gave evidence at trial. He said that on 25 March 2014 he was with Jeffrey Schott and RC. JM arrived later in the day. They were just hanging around and had been consuming drugs. The appellant consumed ice a couple of times that day. The last time would have been about 2.30 or 3pm. The appellant said that Mr Schott and RC consumed the same drug each time that he did.
57. The appellant said there was a general discussion about drugs and money. JM said that he knew somebody who had a lot of money and always carried large sums of money on him. Mr Schott said that he knew a place where they could lure him which was Wickham Park. JM said that this person had a penchant for young women and that he would go if he believed that he had a chance at sex with a young woman or if there was a party. JM identified the deceased as that person. The appellant said that the plan was basically to assault and rob the deceased and tie him up. Mr Schott said that he knew that there was rope at the place that he mentioned.
58. The appellant and JM went to where the deceased was. Mr Schott and RC went to the train station to go to Wickham Park. The appellant and JM met with the deceased and in due course, the appellant, JM, the deceased and a young girl walked to Wickham Park.
59. The appellant said that during the walk to Wickham Park, the deceased was talking about sex with the young girl and the appellant asked "This girl?" referring to the girl with JM. The deceased replied "I don't really care. Any girl". The appellant said "This one's too young" and the deceased said something to the effect "The younger the better". At that point, the appellant hit him with a combination of punches in the face knocking him to the ground. JM and the young girl were approximately twenty feet away at the time. The appellant said the lighting in the park was dark at the time.
60. The appellant asked JM to go and get Mr Schott and RC. He expected Mr Schott and RC to be there because they had discussed this spot earlier in the day at the flat. The appellant said that RC came over first. JM then came back with Mr Schott. Mr Schott did not have the rope and said that he had to go back and get it. Mr Schott started walking back the way he came to get the rope and the deceased started to recover consciousness.
61. The appellant said that as the deceased was recovering consciousness, RC kicked him in the head a number of times, causing him to lose consciousness again. The appellant said that RC kicked the deceased in the face three times. The appellant said that before that, after punching the deceased, he had not done anything more to him. The appellant said that the deceased was still fully dressed when he was kicked. The appellant told RC in a very angry way to stop and that the deceased had had enough. The appellant pushed RC away.
62. The appellant said that when this happened, Mr Schott was coming back with the rope and JM had moved further away with the girl. The deceased was on the ground unconscious but moaning. He was bleeding from the face. The noises the deceased was making were not noises which he had made before. They were very laboured.
63. The appellant attempted to rip the deceased's underpants off and in doing so, the deceased's shorts came down to his knees. When the underpants became free, the appellant used them to gag the deceased. He put the gag in the deceased's mouth and tied it at the back of his head.
64. Mr Schott started to tie the deceased's legs. The appellant believed that Mr Schott had removed the shorts the rest of the way before attempting to tie his legs. It was Mr Schott who completed the tying of the deceased. The appellant checked how the deceased was tied up, because it was intended that the deceased be able to free himself. The appellant then searched the deceased's shorts. RC grabbed the deceased's backpack. The appellant could not remember exactly what Mr Schott was doing but he was present. The appellant found a set of keys and a wallet in the shorts. He kept the wallet and gave the keys to Mr Schott.
65. They then moved away from the deceased and Mr Schott, JM and RC and he had a general conversation to the effect that they would go and rob the deceased's house and meet up later. JM started collecting all the alcohol in a bag. RC started looking through the backpack. Mr Schott was there but other than having the keys, he did not know whether he looked in the bags or participated in anything else.
66. The appellant said that he would go and check the ATM machine with the cards that were inside the wallet. Although there were PIN numbers in the wallet, the cards did not produce any money. Before going to the ATM, the appellant observed Mr Schott, RC and JM walk over to the girl and leave the park.
67. In cross-examination the appellant said that there was no intention to hurt the deceased. The intention was to subdue him and tie him up, which would give the group time to access the deceased's account and get as much money as possible. The appellant said that when he said that the plan was to assault and rob the deceased, he was trying to imply that the plan was to subdue the deceased, not physically bash him.
68. When the appellant was asked what induced him to hit the deceased in the head, he said it was because the deceased had said he wanted sex with the young girl "The younger the better". The appellant said he was trying to explain to the deceased that the girl who was with them was too young and that if he waited, another older girl would come to the park. The appellant said it was the words "The younger the better" which caused him to strike the deceased. The appellant said that reaction was not planned, he just reacted in that way.
69. The appellant said that he hit the deceased with a combination of punches, knocking him to the ground, which he described as "two rights to the side of his face and one left to the other side of his face". He denied that he had kicked the deceased or kneed him. He hit him three times and believed that they were hard hits. He was not angry, or incensed or enraged. The appellant said that the deceased had upset him and he did not like it when the deceased said "the younger the better".
70. The appellant denied that he punched him more than three times. He could not remember whether the deceased was face down or was on his side, but he did end up on the ground. The appellant did put his foot in the middle of the deceased's back at some stage. The appellant said that he possibly did that so that the deceased could not get up again. He did not intentionally humiliate the deceased by putting his foot in his back.
71. The appellant said that JM never assaulted the deceased in anyway. He told JM to "Go get them" and all three of them came back as a group. Mr Schott at first did not have any rope with him and he went back to get it. The appellant did not send him to get it. The deceased at that time was moaning and moving. The appellant believed that if he put his foot on him, it would have been at that time. He had not taken the deceased's shorts off by the time Mr Schott came back with the rope. Mr Schott was not gone very long. The appellant said that after RC kicked the deceased, he decided to gag the deceased because he was making noises. As he attempted to pull his underpants off, he pulled them down hard and the shorts started coming down with them. The shorts ended up between his knees and his feet. The appellant said that he had never removed the shorts.
72. The appellant denied that he was in charge of the situation and dominated the other three. The appellant denied that he was lying about RC kicking the deceased in order to distance himself from the means of death of the deceased. The appellant said "Look, I don't deny what I've done. I'm not trying to make excuses, I'm not selling anyone out, all right. I had a bad thing about telling you about [RC], okay, because I don't believe in informing. Now, last couple of days, I've had a bad thing about informing, all right."
73. In the course of cross-examination the following exchange took place between the Crown and the appellant: "A …I have nothing to gain. The only thing I get is either murder or manslaughter. That's all I can get out of this, all right. I had a thing about telling on [RC] being the person that kicked Mr O'Grady in the head, but I'm in the position where I have no choice. [RC] kicked Mr O'Grady three times in the head till I stopped him and that's the gospel truth. Q. Finished? A. I'm finished now, yes. Q. Well, that's a lie because -- A. No, it's not a lie. Q. -- you were the only person who hurt Mr O'Grady-- A. That is not a lie. Q. -- in any way on that night? A. It is not a lie. Q. You don't like informers; that's clear, isn't it? A. That's more than f'ing clear, excuse me for swearing. Yes, it's very clear. Q. And this week three people have informed upon you? A. Yes. Q. So, in [RC's] case in particular you don't mind having a crack back at him; is that right? A. No, that's not the case. Q. And as you've just said, the only thing you can get out of this trial is manslaughter rather than murder? A. That's correct. Q. And the way you have determined to do that is to tell this lie -- A. No, no. Q. - about [RC] coming up and, without any encouragement from you, without any animus against the man on the ground who's unconscious anyway, he kicks him in the head? A. That's correct. Q. Not believable, is it? A. It is believable, because it's the gospel truth. Q. [RC] is a large, fat man? A. He is now, yes. Q. But he's not a violent man, I'd suggest to you? A. Sorry? Q. He's not a violent man; he's a gentle man? A. Yeah, of course he is, okay, if you say so. Q. And he didn't -- A. I've known [RC] a little bit longer than you and I know [RC], okay. [RC] is not a gentle man. Q. He is not a violent man, I'd suggest to you? A. Not as violent as me, no. But I have known [RC] to use violence before today. Q. And he doesn't try to dominate over you, does he? A. Well, no-one dominates me." (T.325.1-326.14)
74. In cross-examination the appellant was referred to a text message he sent to an unknown person at 11.26am on 26 March 2014 as follows: "Thank u darlin. U have a lovely day, whats left of it and smile that beautifu smile of ur's. I'm feeling so good I might belt another maggot as its addictive feeling like this. Ha ha. Tony x"
75. The evidence in relation to that text message was: "Q. How long did you feel so good about belting Mr O'Grady, as you boasted to this "darlin'", whoever she is? A. Well, probably for the moment I wrote it. Q. You said it was "addictive feeling like this"? A. Knocking people out is pretty addictive, you know. Q. Is it? A. (No verbal response). Q. Is it? A. Oh well, I have done it a number of times, yes. I believe it can be addictive, yes." (T.341.42-342.4)
76. At the conclusion of cross-examination, the appellant agreed that he never considered going back to the park but denied that the reason was he knew that he would not find the deceased alive. He denied that he was the only person who hurt the deceased that night. He denied that he was trying to deceive the jury into thinking that someone else caused the mortal injury to the deceased. He denied that he caused all the injuries to the deceased. Affidavit of counsel for appellant at trial
77. The appellant sought to rely upon an affidavit of his counsel who appeared at trial in relation to the two grounds of appeal.
78. While not necessarily accepting the relevance of that affidavit, for completeness the relevant parts are set out. "2. My best recollection as regards to the evidence that the appellant had declined to be interviewed by the police, is that the trial judge gave an appropriate direction to the jury at the time the evidence was led. If in fact no such direction was given, it was simply my mistake in not asking for a direction. I certainly did not make any decision not to ask for a direction. 3. The appellant testified that it was [RC] who had kicked the deceased. I recall the Crown Prosecutor cross-examining the appellant and suggesting that [RC] was "not a violent man". 4. I understood that what was being suggested was that the appellant was well aware that he was making an accusation of conduct against [RC] which was conduct that [RC] would not engage in and that the appellant was willing to lie about the conduct of [RC] even though he was aware, through personal involvement, that [RC] was in fact not a violent person. … 6. However, I considered that this cross-examination was permissible in the circumstances and did not object to it. 7. As regards that part of the Crown's final address where the Crown Prosecutor put the proposition that [RC] was not a violent man, I understood that as an assertion that the jury would not accept the evidence of the appellant who had testified that [RC] was a violent man and had been the person who had inflicted the blows which led to the head injury. For that reason I did not make any complaint about it." Crown address
79. The appellant relied upon the following extracts from the Crown address in support of his first ground of appeal. "And Jeffrey Schott said, "We've got to meet them up at the park. We went and sat in a spot at the park that was the wrong spot." So, he remembers, and says when he was asked, "Did you have anything with you, drink or food?", and he said, "I had a bottle of Coke." And sure enough, as you know, there is a bottle of Coke with [RC's] DNA profile found on it, not the neatest, most responsible with his litter man, but the Crown would submit to you, not a violent man and not a part of the assault. He said this about what happened: "[JM] was yelling out to us, so we walked over there and we seen them over there, over at the central park, so we walked over there to them. I see Tony Dent, JM with some young girl I don't know. Q. Was there anyone else there you didn't know? A. The deceased." (T.356.44-357.11) [Emphasis added] "Ladies and gentlemen, it is, in my respectful submission to you, unnecessary to continue to labour all of this. This is a simple and straightforward case; you've had the benefit of listening and watching the accused as he gives his evidence. You know the type of man he is, even on his own admission, he's a violent man and it was he who caused the death, he alone who caused the death of the deceased physically; he alone who hit him, possibly kicked him, gagged him tightly, removed his clothes, and physically did the robbing. In those circumstances, grievous bodily harm having been inflicted on the deceased by the accused, he is guilty, in the Crown's respectful submission to you, of murder by way of constructive murder. The Crown would submit, as to the other routes of murder, the Crown would submit, alternatively, that the accused committed grievous bodily harm upon the deceased fully meaning to, leaving him there in that state which would inevitably lead to asphyxia, particularly in someone so drunk, cause the death of the deceased by intentionally inflicting upon him grievous bodily harm. And, thirdly, he is also guilty by way of reckless indifference to human life. He must have foreseen the probability of death ensuing after such a vicious, violent, explosive and serious assault, leaving a man in an isolated area, face down, tightly gagged and very drunk." (T.363.18-.39) [Emphasis added] THE APPEAL Ground 1 - A miscarriage of justice resulted from the Crown Prosecutor seeking to elicit evidence that the person alleged by the accused to have been responsible for the death was "not a violent man" and submitting to the jury that that person was "not a violent man".
80. In support of this ground, the appellant relied upon the cross-examination at [73] hereof and that portion of the Crown address at [79] hereof. The appellant submitted that the assertion in cross-examination was that RC was not a violent man and that this was an assertion about his propensities and tendencies. As such, the appellant submitted, it was not admissible pursuant to s 97 of the Evidence Act 1995 (NSW) (the Act). This is because no notice had been given of an intention to adduce this evidence, nor had any ruling been sought that the evidence would be admissible. The appellant submitted that the Crown was seeking to adduce evidence that RC had a "tendency" to "not be violent". He submitted that the purpose of adducing the evidence was to persuade the jury to draw the inference that RC did not act in a violent way on 25 March 2014.
81. The appellant submitted that despite his denials, the jury may well have assumed that there was some basis for the repeated questions and inferred that RC was "not a violent man" and thus unlikely to have acted in the violent way alleged by him.
82. The appellant submitted that this cross-examination resulted in a miscarriage of justice, particularly bearing in mind that the trial judge, although directing the jury to decide the case "upon the evidence that has been presented in this court room" (SU 2.1), did not direct the jury that any suggestion put by counsel in questioning a witness was not "evidence".
83. The appellant submitted that the problem was magnified by the Crown Prosecutor's final address. There, she submitted to the jury that RC may not have been "the neatest most responsible with his litter man; but the Crown would submit to you, not a violent man and not part of the assault". The appellant submitted that in the context of the cross-examination of him on the same day as the address, the jury would have understood this to be a submission that RC was not the type of person who would have kicked the deceased.
84. The appellant submitted that when the Crown Prosecutor submitted in relation to him that "even on his own admission, he's a violent man", the jury would have understood that submission as contrasting him with RC and making it more likely that it was he alone who had assaulted the deceased.
85. The appellant submitted that nothing was said by the trial judge to the jury about this aspect of the Crown address, nor concerning the evidence. Despite this, the appellant submitted that r 4 of the Criminal Appeal Rules (NSW) did not apply to this ground. This was because the reference to the failure of the trial judge to give directions was simply a consideration in determining whether the conduct of the Crown Prosecutor resulted in a miscarriage of justice. The appellant submitted that there was a miscarriage of justice in that it was reasonably possible that this conduct affected the verdict of the jury and that he had lost a chance, which was fairly open to him, of being acquitted (Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 319 [72]; Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at 13 [38], 15 [49]).
86. It was the appellant's case that the two grounds of appeal should be looked at together and it was their effect in combination which brought about a miscarriage of justice entitling him to a new trial. Accordingly, it is helpful to also set out the appellant's second ground of appeal and the submissions made in support of it. Ground 2 - A miscarriage of justice resulted from failure of the trial judge to direct the jury that no inference adverse to the accused could be drawn from his refusal to be interviewed by the police.
87. The appellant submitted that the prosecution adduced evidence that when arrested he "exercised his right not to be interviewed in relation to this matter". The appellant submitted that the jury should have been directed that they could not use that refusal to be interviewed against him in some way, such as drawing an adverse inference. No such direction was given.
88. The appellant accepted that r 4 applied to this ground. He submitted that leave should be given to rely upon the ground on the basis that the failure of the trial judge to give an appropriate direction resulted in a real risk of a miscarriage of justice. The appellant submitted that there was a danger that the jury used the appellant's refusal to be interviewed adversely to him, notwithstanding that it was his "right not to be interviewed". The appellant submitted that given that his credibility was in issue, and that the trial turned on his word against the word of a prosecution witness, the jury might have been influenced adversely to him by his initial refusal to answer questions. The appellant submitted that the jury might have regarded his assertion of his right as permitting an adverse inference regarding his involvement in the murder. The appellant submitted that it was reasonably possible that the evidence of that refusal affected the verdict of the jury. Consideration Ground 1
89. In relation to the first ground of appeal, it is by no means clear that the only relevance of the impugned cross-examination was to elicit evidence of the non-violent tendencies of RC. It was also arguably relevant to establish the context in which the events in the park occurred. As was made clear in the criticised part of the Crown Prosecutor's address, what was being contrasted were the actions of RC and the appellant in the park. RC went to the park accompanied by Mr Schott. They went to the shed, stayed there and consumed a bottle of Coca Cola until JM called to them. By way of contrast, the appellant was walking with the deceased and for a somewhat questionable reason, suddenly punched him to the ground. That was the basis for the Crown Prosecutor's observation "Not the neatest, most responsible with his litter man, but the Crown would submit to you, not a violent man and not part of the assault".
90. Support for that approach and the relevance of the cross-examination on a basis other than tendency, can be seen in the discussion of a similar situation by Spigelman CJ (with whom Sully and James JJ agreed) in Regina v Quach [2002] NSWCCA 519; 137 A Crim R 345 where the Chief Justice said: "22 The alternative basis for the admissibility of the taped conversations is the High Court's decision in Harriman. That was not a case under the Evidence Act 1995, but it did involve the admissibility of evidence of prior drug dealings. Mr P Byrne SC who appeared for the Appellant with Mr A Bellanto QC submitted that the case of Harriman was distinguishable on the basis that it involved the admission of evidence for what would now be described as a "tendency" purpose. It was submitted that the judgments in Harriman employed tendency reasoning. 23 In Harriman the accused and his co-offender, Martin, had travelled to Thailand together. The co-offender had then travelled abroad and posted heroin to various addresses in Australia. Evidence was admitted of prior involvement between Harriman and Martin in the sale of heroin. 24 In my opinion the Appellant's submissions in this respect should be rejected. The reasoning in Harriman is consistent with the admissibility of evidence of prior heroin dealings on a basis other than tendency reasoning. In Harriman, it was admitted that there was in fact a meeting between Harriman and his co-offender Martin and the issue was to determine the events that occurred at that meeting. The same is true in this case, albeit the fact of the meeting is not admitted. 25 Brennan J identified the principle he would apply at 594 in a way which clearly distinguished between tendency reasoning and other uses: "However, where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence, the evidence is admissible. I would therefore respectfully agree with McHugh J that evidence of events which are part of the res gestae is admissible - and will usually be admitted - even if that evidence reveals the commission of an offence other than the offence charged." [Emphasis added] (The reference to Harriman is a reference to Harriman v The Queen [1989] HCA 50; 167 CLR 590.)
91. It is also not correct that there was no evidentiary basis for the questions put to the appellant to the effect that RC was not a violent person. There was, as I have already indicated, evidence of his actions on the night leading up to when he came in contact with the deceased in the park after the deceased had been rendered unconscious by the appellant. There was no element of violence in that conduct. Relevantly, however, there was also the following evidence from RC: "Q. You've told us Mr Dent hit the deceased and then kicked him? A. Yeah. Q. And then he's on the ground? A. Yep. Q. And then that he got tied up? A. Yep. Q. When did the deceased lose some of his clothes? A. Oh, after all that happened when he was unconscious, they were ripping all his stuff off, getting his bumbag off, getting his shorts off and that. Q. Who ripped the shorts off? A. Mr Dent. Q. And did the deceased have underpants? A. I didn't see. Q. Did you see anything put on the deceased's mouth or face? A. No. Q. Did you hear any clothing get ripped? A. No, I didn't really listen for that. Q. Did you stay watching the whole proceedings? A. Not the whole lot. Q. Why not? A. 'Cause I couldn't stand it." (T.157.4-.33)
92. That evidence, taken with his passive behavior in the shed, provided an appropriate evidentiary basis for the impugned cross-examination by the Crown Prosecutor.
93. It should be noted that the focus of the questioning by the Crown Prosecutor was on what had happened on the afternoon before the incident in the park, what happened at the park and subsequent actions of those involved. There were no questions directed to the previous conduct of any of the persons involved. Accordingly, although the questions may have been phrased in a general way which allowed the broad interpretation suggested by the appellant, it would have been clear to the jury that the focus of the questioning was on the actions of the participants which occurred in the park that night.
94. To the extent that the affidavit of the appellant's counsel at trial is relevant, it does not assist the appellant on this issue. Counsel deposed that he did not object to the cross-examination because he thought it was admissible and went to the appellant's character. More importantly, however, counsel made no submissions, either in relation to that evidence, or in relation to the Crown Prosecutor's address on that issue. The overwhelming inference is that counsel regarded that evidence and the criticised part of the Crown Prosecutor's address as unimportant. Put at its highest, this was a minor issue in the trial which required no challenge or answer. That was clearly the view of counsel for the appellant who was in the best position to judge.
95. Alternatively, if I am incorrect in my assessment of the relevance of the cross-examination and its only relevance was to show a non-violent tendency on the part of RC, the cross-examination was fully answered in terms by the appellant. This was not one of those cases where a number of leading questions were put to a witness and which were simply denied by the witness. The appellant went further and asserted in positive terms that RC was a violent person, albeit not as violent as him. Accordingly, the only evidence before the jury as a result of the impugned cross-examination were the strong assertions of the appellant to the contrary, which included his previous observations of RC and his own assessment of RC's tendency to violence. Had this issue been a matter of any importance at the trial, competent and experienced counsel (as the appellant's counsel at trial was) would have made a submission about it.
96. The appellant's submission that the jury may have assumed that there was some other unstated basis for the impugned questions by the Crown Prosecutor is no more than speculation and is contrary to the evidence at trial. There was some evidence from RC that he was not a violent person in that he found the violence perpetrated against the deceased to be repugnant. In any event, the appellant had denied and traversed the cross-examination in forceful terms by asserting the contrary to what was put to him. No proper basis for that speculative proposition has been established.
97. The further submission by the appellant that the phrase "even on his own admission, he's a violent man" invited a comparison of violent tendencies with RC, is subject to the same criticism. The Crown was doing no more than directing the jury's attention to the uncontroversial proposition that on his own evidence the appellant not only made it clear that he was a violent man, but that he was proud of it. The text to which reference is made at [75] hereof and the appellant's subsequent testimony, made that clear. Accordingly, no proper basis has been established for that submission by the appellant.
98. It follows that if an error has occurred in relation to the admission of that evidence, that error was not productive of a miscarriage of justice, let alone a substantial miscarriage of justice.
99. The first ground of appeal has not been made out. Ground 2
100. The evidence which gives rise to ground 2 was given by the officer-in-charge of the investigation, Detective Wink, as follows: "Q. Between 4 April and 21 April were inquiries made to locate the Accused Dent? A. Yes. Q. Then on 21 April 2014 did you, in company with other police, arrest the accused? A. He was arrested, I was informed and I attended Maitland Police Station. Q. I see, after his arrest? A. After his arrest. Q. And spoke to him on that day? A. Yes. Q. He exercised his right not to be interviewed in relation to this matter? A. Yes. Q. And certain forensic procedures were taken after the appropriate procedures were conducted? A. Yes." (T.285.37-286.6) [Emphasis added] As can be seen, the evidence was adduced as part of a general introduction to the evidence of Detective Winks.
101. It is common ground that neither at that time nor at any subsequent time was a direction given to the jury that no inference adverse to the accused could be drawn from his refusal to be interviewed by the police. It should also be noted that following that evidence, nothing was said by either counsel at trial concerning the fact that the appellant had exercised his right not to be interviewed in relation to the offence. In particular, there was no suggestion that his evidence involving RC or anyone else was a recent invention or that the jury could draw an adverse inference from his failure to raise a defence when he was first spoken to by police. In fact no mention was made of that evidence at any time in the trial, either by counsel or by the judge. As was properly conceded by the appellant, leave is required pursuant to r 4 of the Criminal Appeal Rules for the appellant to rely upon this ground.
102. The relevant principle was stated by Mason CJ, Deane, Toohey and McHugh JJ in Petty v The Queen; Maiden v The Queen [1991] HCA 34;173 CLR 95 at 99 [2]-[3]: "2 A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. … 3 That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable."
103. It is clear from the evidence that the Crown did not lead evidence that when charged the appellant made no reply. On the contrary, the Crown led evidence that the appellant had "exercised his right not to be interviewed in relation to [the] matter". Implicit in that evidence was that the appellant had a right not to be interviewed and that he had exercised that right. The adducing of the evidence in that way did not offend the principles in Petty and Maiden v The Queen.
104. An important consideration is that the appellant did give evidence at trial. The importance of that fact is that it precluded any speculation on the part of the jury as to what was the appellant's explanation of various matters and why it was that he did not offer an explanation when first spoken to by the police. They had before them, in considerable detail, his version of events.
105. In those circumstances, for the appellant to succeed on this ground of appeal he had to establish a fundamental miscarriage of justice, i.e. an error which went to the root of the proceedings. This he has failed to do.
106. In Glennon v The Queen [1994] HCA 7; 179 CLR 1 the trial judge, having explained the accused's right to silence to the jury, went on to say that the jury was entitled to have regard to the fact that the accused's defence was not revealed to police when they first spoke to him and that if his defence were true, surely the sensible thing for him to do was to tell police at the first opportunity. This was held to be an error of law. The issue was whether it was a fundamental error so as to require a retrial.
107. On that issue, the plurality (Mason CJ, Brennan and Toohey JJ) said: "13 In the circumstances of this case, it cannot be said that the trial judge's misdirection on the applicant's right to silence was "so fundamental" that the trial was "hardly a trial at all". Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. …"
108. In this case, of course, there was never an incorrect direction by the trial judge. The complaint is that the trial judge did not warn the jury against drawing an adverse inference as a result of the appellant exercising his right not to be interviewed in circumstances where it was never suggested at any time in the trial that the jury could or should draw such an adverse inference.
109. The application of r 4 is important in the consideration of this ground. Rule 4 of the Criminal Appeal Rules provides: "No direction, omission to direct, or decision as to the admission or a rejection of evidence, given by the judge presiding at the trial, shall, without the leave of the court be allowed as a ground of appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal."
110. In Regina v ITA [2003] NSWCCA 174; 139 A Crim R 340 at [93]-[98] Ipp JA (with whom Buddin and Shaw JJ agreed) collected the authorities concerning r 4 and set out his conclusions as follows: "93 In R v DH Stein JA observed [at 115]: 'Again, rule 4 applies because no point was taken at trial. In R v Jeffrey (Unreported, Court of Criminal Appeal, NSW, 16 December 1993), Mahoney JA made some pertinent observations about the role of rule 4 where an appellant relies on misdirections or non-directions to which no objection was taken at trial. They bear repeating. His Honour said: '[It] is proper to emphasise the importance of the principle embodied in r 4. In my opinion this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind. … Errors will occur and r 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. But infrequently, this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the Court of Appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4 …". 94 In R v Fuge (2001) 123 A Crim R 310 at 319, Wood CJ at CL (with whom Heydon JA and Sully J agreed) said at 319: "It is timely for this Court to repeat the observations of Hunt CJ at CL in R v Abusafiah (1991) 24 NSWLR 531 and of Gleeson CJ in Sanderson v R (unreported, Court of Criminal Appeal, NSW, 18 July 1994), in relation to the positive obligation which rests upon trial counsel to assist the court in the conduct of a trial, and in relation to the need to give meaning to r 4, whose validity was confirmed in R v Esposito (unreported, Court of Criminal Appeal, NSW, 23 July 1990). In Abusafiah, Hunt CJ at CL said (at 536; 429-430): 'The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error … any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic cord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with a duty leave will be granted to avoid a miscarriage of justice.' The caution given by Gleeson CJ in Sanderson was to the following effect: 'This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of r 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. It would ordinarily be quite inappropriate to permit appellants, in such circumstances to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred.'" Wood CJ at CL went on to refer to a number of other authorities where similar sentiments had been expressed. 95 The approach which his Honour indicated should be taken to r 4 accords with that adopted by McHugh J in Papakosmas v R (1999) 196 CLR 297 where his Honour said at 319: "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant". 96 See also R v Roberts (2001) 53 NSWLR 138 at 150-151; 124 A Crim R 60 at 72 where Carruthers AJ said at 150-151: "It is now more than ever imperative that trial counsel recognise and discharge the responsibility which they owe to the trial judge to provide whatever assistance he or she may require in order, so far as possible, to ensure that the directions to the jury are such that it can be said the accused has had a trial according to law. For years this Court has emphasised in the strongest possible terms the need for trial counsel to take objections to the summing up or the admissibility of the evidence at the trial itself so that, if they are of substance, the judge may correct them and thus avoid appeals to this Court and possible second and sometimes third trials". These views were reiterated in R v Hokafonu [2002] NSWCCA 92, in R v Pearson [2002] NSWCCA 429 and in Giri (at 588 to 589). 97 It is disturbing that so often no account is taken of the clear warnings that have been given by this Court. It is not unusual for appellants, without making any application for leave under r 4, to proceed blithely to argue grounds that should have been raised by counsel at trial but were not. There is usually, as in this case, no explanation whatever for the omission to raise the perceived difficulties with the trial judge. 98 The existence of r 4 and s 99 imposes a duty on counsel to inform the trial judge of all points that arise from the summing up that reasonably could give rise to an appeal. It will not lightly be assumed that this duty has been breached. Rather, unless there is good reason to hold the contrary, it will be inferred that decisions not to raise such matters with the trial judge are taken for sound forensic reasons. No more need be said than to repeat and emphasise the remarks of Gleeson CJ in R v Sanderson (unreported, NSWCCA 18 July 1994) that: "It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred"."
111. In Picken v Regina; Regina v Picken [2007] NSWCCA 319 at [20]-[22] Mason P (with whom Hidden and Harrison JJ agreed) said: 20 Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. There have been varying formulations of the test for identifying a miscarriage of justice in this context (see Tripodina and Morabito v R (1988) 35 A Crim R 183 at 195; Papakosmas v The Queen (1999) 196 CLR 297 at 319; R v Wilson (2005) 62 NSWLR 346 at 352[20]). 21 It appears to be generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted. 22 The question of leave in accordance with rule 4 needs to be addressed in relation to the particular error identified by the appellant and its impact, in isolation and in conjunction with other errors, upon the justice of the conviction under challenge."
112. In Germakian v R [2007] NSWCCA 373; 70 NSWLR 467 at [10]-[13], this Court (Giles JA, Hulme and Hislop JJ) said of r 4: "10 The requirements of r 4 do not constitute some mere technicality which may simply be brushed aside: R v Abusafiah (1991) 24 NSWLR 531 at 536. 11 In R v Tripodina (1988) 35 A Crim R 183 at 191 this court held: "… it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously." 12 A failure by counsel to perform this duty may be explicable because: (a) he overlooked the point or was unaware of the law on the subject; (b) he deliberately said nothing hoping to gain a tactical advantage at a later stage; or (c) he took no objection as, in the atmosphere of the trial, he saw no injustice or error in what was done: Tripodina (at 193 and 191). 13 Generally speaking, leave under r 4 will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings - Tripodina (at 195) or as Mahoney JA said in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported, at 6-7) - followed in R v DH [2000] NSWCCA 360: "… unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level.""
113. More recently in Greenhalgh v R [2017] NSWCCA 94 Basten JA (with whom Button J agreed and N Adams J generally agreed), said in relation to r 4: "14 Certain points may be made in relation to the purpose and effect of r 4. It is in terms a constraint upon the pursuit of a ground of appeal which would otherwise be available. It assumes the existence of a ground which, if upheld, could result in the quashing of a conviction. On the other hand, it does not assume that the ground will be upheld; rather, it precludes reliance upon the ground. If the ground can be seen to lack merit, leave will be refused. The converse is not necessarily correct. That is because, while lack of merit may be readily discernible, merit may not. That fact is inherent in the rationale for r 4; divorced from the understanding resulting from involvement in the trial, a claim that something should have happened which did not is hard to evaluate. If, in a clear case, a necessary element of a fair trial according to law was overlooked, leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused. 15 Generally, the conferral of a discretionary power on a court, without the prescription of criteria or standards by which the power is to operate, gives rise to a tension in the administration of justice. On the one hand, equality under the law requires that similar results should obtain in similar cases. On the other hand, a power which is not the subject of express fetters should not be restricted by glosses on the language of the instrument. 16 The importance of not limiting the scope and operation of a discretionary power, particularly in relation to the fairness of a criminal trial, was exemplified by the decision in Kentwell v The Queen. Kentwell rejected an approach adopted by this Court in assessing extensions of time within which to appeal against sentence, according to a summary review of the case, leading to the conclusion that the applicant had failed to demonstrate substantial injustice. 17 The discretionary power conferred by r 4 has a number of particular features which affect its application. Where, as in this case and in most serious criminal trials, there is legal representation at trial the following principle, stated by Gleeson CJ in Nudd, is applicable: "A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue…. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function." 18 Inherent in that proposition is the need to assess unfairness "by reference to an objective standard, and without an investigation of the subjective reasons for that conduct." Accepting that there may be unusual cases where the reason why an act or omission occurred may be relevant, the Chief Justice nevertheless reiterated: "As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel." 19 An objective assessment may be inconclusive. In some cases it will be possible to infer that a step was not taken which might have been taken, for tactical reasons. However, in most cases it will be difficult to know from reading the transcript of the trial whether some tactical advantage may have been perceived, whether a step was not taken based on instructions as to how the case should be run, or whether it was omitted through inadvertence. 20 In cases where an applicant seeks to rely upon a statement from trial counsel, that will probably be to establish that the reason was inadvertence. However, the mere fact that a step was omitted through inadvertence will often not be decisive and attempts to adduce evidence from counsel to that effect should not be readily acceded to. Inadvertence may merely demonstrate that a point now seen to be important was not, in the immediacy of the trial, seen to have such significance. For this reason, in the present case, the Court indicated that an affidavit prepared by trial counsel and proffered for the first time in the course of the hearing of the appeal would not be favourably looked on; the tender was not pressed. 21 Finally, in cases where no direction was sought, it will usually be a precondition to a grant of leave under r 4 that the omitted direction should be expressly formulated. It will be difficult for the appeal court to assess the significance of the omission, being far removed from the context provided by the trial; it will be almost impossible if the terms of the proposed direction are not formulated." [Footnotes omitted]
114. Assuming that the affidavit from trial counsel was properly before the Court and if it were accepted that the omission to request a direction that no inference adverse to the accused could be drawn from his refusal to be interviewed by the police, occurred as a result of inadvertence, it would not assist the appellant. This is because, as with Ground 1, the overwhelming inference is that trial counsel did not bring the matter to the attention of the trial judge because in the particular circumstances of this trial, such a direction would serve no useful purpose.
115. In the absence of any submission or comment by either trial counsel or the judge, the jury's state of knowledge was that the appellant had exercised the legal right which he had not to be interviewed. The jury knew what the appellant's version of events was from his evidence. Against that background, to suggest that there was a real chance that the jury would have drawn an adverse inference from the appellant's exercise of his legal right to silence is to engage in speculation. The trial proceeded in such a way that the question of whether the appellant spoke to police when first interviewed was simply not an issue. Accordingly, the trial judge's failure to give the suggested direction had no effect on the jury's verdict.
116. In those circumstances, and keeping in mind the way in which r 4 has been applied and its purpose, I would refuse leave for the appellant to rely upon this ground of appeal.
117. The orders which I propose are: 1. Ground of Appeal 1 is dismissed. 2. Leave to rely upon Ground of Appeal 2, pursuant to r 4 of the Court of Criminal Appeal Rules (NSW) is refused.
118. BELLEW J: I agree with Hoeben CJ at CL.
119. FAGAN J: I agree with the Chief Judge.