Evans v The Queen [2007] HCA 59

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

GRAHAM JOHN EVANS APPELLANT

AND

THE QUEEN RESPONDENT

Evans v The Queen [2007] HCA 59

13 December 2007

S219/2007

ORDER

Appeal allowed.
Set aside the orders of the Court of Criminal Appeal made on 7 September 2006, and in their place order that:
the appeal to that Court be allowed,
the appellant's convictions be set aside, and
there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with G A Bashir for the appellant (instructed by Legal Aid Commission of NSW)

D C Frearson SC with M M Hobart for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Evans v The Queen

Criminal law – Evidence – Admissibility of in court demonstrations – An armed man wearing overalls, balaclava and sunglasses committed a robbery – During the trial the appellant was required to wear overalls and a balaclava found at his residence and sunglasses not in evidence as well as walk before the jury and say words attributed to the robber ("the in court demonstration") – Whether the in court demonstration was relevant – Whether the in court demonstration was unfairly prejudicial – Relevance of distinction between demonstrations, experiments, inspections, reconstructions and views – Whether s 53 of the Evidence Act 1995 (NSW) ("the Act") applied to in court demonstrations – Whether requiring the appellant to perform the in court demonstration was permitted either by s 53 of the Act or at common law.

Criminal law – Evidence – Admissibility – Whether showing witnesses the overalls and balaclava found at the appellant's residence was relevant – Whether showing witnesses the overalls and balaclava was unfairly prejudicial.

Criminal law – Appeals – Application of the proviso– Whether the trial judge's error in not admitting alibi evidence which the appellant proposed to call denied the application of the proviso – Whether the failure of the trial judge to give adequate reasons for rulings made during trial was a miscarriage of justice – Whether the judicial warnings to the jury were adequate – Whether the in court demonstration was so prejudicial as to deny the application of the proviso – Whether the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged.

Words and phrases – "demonstration", "experiment", "inspection", "unfairly prejudicial", "reconstruction", "relevance", "view".

Criminal Appeal Act 1912 (NSW), s 6(1).

Evidence Act 1995 (NSW), ss 53, 55, 137.

GUMMOW AND HAYNE JJ. In February 2002, security cameras photographed an armed man robbing persons of money. The offender was wearing overalls, sunglasses, and a balaclava which covered all of his face except eyes and mouth. After the robbery, a baseball cap and a tissue were found on the floor near where the robber had stood. The security photographs, taken at intervals, show where these items were found. The photographs tendered in evidence were not very clear. In some of the photographs something that could be a cap can be seen on the floor; in other earlier photographs that item cannot be seen.
In December 2003, nearly two years after the robbery, police went to the appellant's house. They found a red full‑faced balaclava in his bedroom and a pair of blue overalls in the laundry. They were directed to a box of similar balaclavas kept in the basement of the house.
The appellant provided a DNA sample. The profile of his DNA was the same as the profile of DNA recovered from the cap found at the scene of the robbery. The particular profile is expected to occur in fewer than one in ten billion individuals in the general population. Whether DNA recovered from the tissue was shown not to be his was disputed.
In the District Court of New South Wales, the appellant was charged with, and convicted of, two counts of armed robbery and one count of assault with intent to rob whilst armed with an offensive weapon.
The appellant appealed to the Court of Criminal Appeal of New South Wales against his conviction. He advanced several grounds of appeal and the Court of Criminal Appeal (James, Hidden and Hoeben JJ) held¹ that two of the grounds were made out.
The first concerned the appellant being required, in the course of cross‑examination by the prosecutor, to put on not only the balaclava and overalls that had been found at his house but also a pair of sunglasses which were not in evidence but were produced by the prosecutor. The Court concluded² that although there was no error in requiring the appellant to put on the balaclava and overalls, he should not have been asked to put on sunglasses that were not in evidence.
Secondly, the Court concluded³ that the trial judge had wrongly excluded evidence which the appellant proposed to call from his brother and father concerning the appellant's practice of preparing for display vehicles used in his brother's business. The evidence was intended to demonstrate that the appellant prepared the vehicles at the same time and on the same day each week, at a place far from where the robbery occurred, and that the time at and day on which he regularly did this coincided with the time and day of the robbery. The trial judge rejected the evidence on the basis that no notice had been given of alibi evidence in accordance with s 150 of the 1986 (NSW). The Court of Criminal Appeal concluded that "the exercise by the trial judge of the discretion under s 150 of the did miscarry". The correctness of this conclusion was not put in issue in this Court.

Showing the balaclava and overalls to other witnesses

In this Court, the appellant made two distinct points about the uses to which the balaclava and overalls found at the appellant's house were put at trial. The first concerned witnesses, who had seen the robber, being asked whether the articles produced at the trial were similar to those the robber had worn. The second concerned the appellant being required by the prosecution, in the course of cross‑examination, to do three things: to put on the balaclava and the overalls (together with a pair of sunglasses that were not in evidence); to walk up and down in front of the jury; and to say some words the robber was said to have used.
The appellant submitted that "the trial miscarried as a result of the admission of evidence of eyewitnesses" to the robbery concerning the items of clothing. The items were described in the notice of appeal as having "been randomly seized from the [appellant's] home twenty two months after the offence".
At the trial, two witnesses were asked, without objection, whether the items shown to them were similar to those they had seen that day and in general terms each agreed they were. It is as well, however, to say a little more about the evidence of the first of these witnesses. Immediately before the robbery she had seen a man walking towards the place where it occurred. She said the man was wearing overalls, a bright red beanie, and sunglasses. The beanie had excess material sitting above the man's head. The witness described the man, when slightly hunched over, as about her height (which she gave as 5 feet 6½ inches), of normal build, and having smooth, well‑tanned skin. She was not asked, and did not profess to be able, to identify the appellant as the man she had seen. She did say that the balaclava she was shown "could be the same beanie" and that the overalls she was shown "look a lot dirtier than what the man had worn and probably a little faded as well but they look exactly the same style ... the man was wearing".
When the prosecution sought to show the balaclava and the overalls to a third witness, trial counsel for the appellant objected on the basis that the witness had given a description of the items that differed in some respects from the items that were to be shown. The objection was overruled but the subject was revisited later in the trial. Trial counsel for the appellant submitted that evidence should not be received of the police finding at the appellant's house the balaclava and overalls that had been shown to the witnesses or of their finding a box of similar balaclavas. It was submitted that the evidence lacked probative value and that its reception would be prejudicial.
In this Court the appellant submitted that the items that had been produced at the trial were not then said or shown to have been worn by the robber. They were mass produced items. (The statement in the grounds of appeal that the items had "been randomly seized" is to be understood as implying that the balaclava tendered in evidence was not different in any relevant way from the others found at the house.) The appellant submitted that the Court of Criminal Appeal should have held that "the procedure adopted [in showing the items to witnesses and asking for their comments] was unfairly prejudicial".

Dressing the appellant in the balaclava and overalls

Other aspects of the use made at trial of the balaclava and overalls present more fundamental questions. In his notice of appeal, the appellant alleged that the Court of Criminal Appeal should have held that "the prosecutor should not have been permitted to require the [appellant]" to put on these items, walk up and down in front of the jury and say words which it was alleged that the robber had used. The grounds gave no particulars of why the prosecutor should not have been permitted to make these requirements but the respondent, correctly, understood the ground as challenging both the relevance and the admissibility of what was done. The respondent's written submissions sought to demonstrate that the relevance of what was done "lay in the comparison of what the jury saw and heard with the descriptions of the witnesses" and the respondent amplified that proposition in those submissions in a number of ways. The appellant, in his written submissions in reply, joined issue with the respondent's analysis.
The chief weight of oral argument in the appeal to this Court was directed at whether asking the appellant to put on these items, and show himself to the jury, constituted a "demonstration, experiment or inspection"⁸ and whether, and how, Pt 2.3 of the Evidence Act 1995 (NSW) ("the Act") was engaged. Argument was also directed to whether any common law rules of evidence applied. But counsel for the appellant, in oral submissions, returned to the issues of relevance that had been debated in the written submissions and submitted that "none of these exercises [with the balaclava and overalls] were relevant"⁹. The particular reason then advanced by counsel for the appellant was that "no ... adequate foundation existed in the evidence for [these] exercise[s] to be conducted"¹⁰ but the whole question of relevance was plainly in issue between the parties as one of the several bases for the appellant's argument that the prosecutor should not have been permitted to require the appellant to put on these items.
These reasons will demonstrate that the logically anterior question raised by the appellant – whether what was done was relevant – is determinative. It is as well, however, to begin by noticing a variety of steps sometimes taken in the course of a witness giving evidence that may be thought to provide (but on examination do not provide) the basis for sound analogical reasoning supporting what happened at the appellant's trial.
Items of real evidence are often tendered and received in evidence. The balaclava and overalls found at the appellant's house are but one example of the tendering of such evidence. The photographs taken by the security cameras, and the cap found at the scene of the robbery, are other examples. As Wigmore explained, there are many circumstances in which a tribunal of fact is asked to act upon what the tribunal itself perceives, rather than upon acceptance of testimonial evidence or inference from either testimonial or circumstantial evidence. Wigmore classified this as . (A party proffers something which the tribunal perceives for itself; Wigmore refers to the tribunal's self‑perception of the thing as its autopsy of that thing.)

Some unsatisfactory features of the trial

More than once during the trial the trial judge was required not only to decide disputed questions about the admissibility of evidence but also to rule upon applications that the jury be discharged without verdict. On some of these occasions the trial judge was asked to give reasons for decision, said that she would do so later, but did not. The Court of Criminal Appeal concluded¹⁸ that the trial judge "was remiss in not stating, even if quite succinctly, her reasons for a number of her rulings". But the Court went on to conclude¹⁹ that the failure did not amount "to such a fundamental procedural irregularity as to warrant setting aside the appellant's convictions". The Court said²⁰:

"All, or almost all, of the applications by counsel for the appellant at the trial were argued at considerable length. The competing submissions of the parties were stated and, indeed, often repeated a number of times. The views the trial judge was forming on each application were revealed by frequent remarks made by her in the course of the argument. ... [I]n the present case it can be inferred from the transcript of the argument what were her Honour's reasons for making each of her rulings and it is possible for this Court to determine whether her Honour erred in making the rulings."

Not every ruling given at trial must be accompanied by reasons. Many issues about the admissibility of evidence are best resolved by simply allowing or disallowing a question to which objection is taken. But there are some evidentiary issues that arise in a trial where it is desirable to give reasons. It is not possible to formulate a single criterion of universal application that distinguishes between issues whose resolution should be accompanied by a statement of reasons and those where reasons need not be given. It suffices to say that cases in which a discretion must be exercised or the resolution of the issue depends upon some intermediate conclusion of fact or law will more likely warrant the giving of reasons than will an issue about the relevance of a question or the form in which it is posed. But what is of particular importance in the present matter is that the trial judge considered that she should give reasons for particular evidentiary rulings but did not.
Apart from evidentiary issues, there were two applications to discharge the jury without verdict which the trial judge refused, indicating, in respect of one of the applications, that she would give reasons later. It may be doubted that an application for discharge of the jury could properly be determined without the judge stating reasons for the decision either when announcing the decision or at some later time. The reasons need not, indeed usually will not, be long. But the circumstances in which it would not be necessary to give reasons for the decision are not readily identified. And the trial judge in this case did not consider that the applications by trial counsel for the appellant were of that kind. Yet the trial judge did not give reasons for rejecting the first application that was made.
There is a further aspect of the conduct of the appellant's trial that must be noticed. In the course of the trial, the trial judge made a number of incorrect statements of what had happened in the course of evidence to or in the presence of the jury. The chief error made, in the course of the trial judge's charge to the jury, was to tell the jury that the appellant had "also called evidence, that is his father and his brother in support of his case, to the effect to support his denial of his being present and committing the offence which is alleged against him". The trial judge had ruled that neither the father nor the brother of the appellant could give evidence of the kind described. Her Honour had concluded (wrongly as the Court of Criminal Appeal held) that the evidence was "not relevant to any issue before the court and before the jury, and secondly that if it was led it would be a breach of section 150 of the Criminal Procedure Act".

Applying the proviso

The application of the proviso must then be considered in the light of several different aspects of the way in which the appellant's trial proceeded. First, there was the wrong decision of the question of law about the relevance of having the appellant put on the balaclava and overalls found at his house and the sunglasses produced by the prosecutor. Secondly, there was the wrong decision of the question of law or the miscarriage of justice (it matters not which) constituted by the refusal to permit the appellant's father and brother to give evidence about his practice of working on vehicles far away from the scene of the robbery at the time and on the day when the robbery occurred. Thirdly, there is the combination of the trial judge's failure to give reasons for rulings which she considered required reasons and the misstatement to the jury of the effect of what had happened at the trial which together may suggest that the trial judge did not have sufficient mastery of the conduct of the trial to ensure a fair trial and that there was, therefore, "on any other ground whatsoever ... a miscarriage of justice"²¹.
The appellant submitted that the combination of errors made at trial was such a "serious breach of the presuppositions of the trial"²² as to deny the application of the proviso.
Since at least Quartermaine v The Queen²³, reference has been made in decisions of this Court to the possibility that the proviso may not be engaged if a trial was so irregular that no proper trial had taken place. In Wilde v The Queen²⁴, three members of the Court spoke of "a proceeding which is fundamentally flawed" and said that "[t]he proviso has no application 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". Neither Quartermaine nor Wilde was identified as such a case and this Court has not since authoritatively decided what kind of departures from essential requirements may be said to go to "the root of the proceedings". In Weiss²⁵, it was not necessary to consider the question. In Libke v The Queen²⁶, those members of the Court who decided that the conduct of the prosecutor at trial was such that an appellate court could not be satisfied that no substantial miscarriage of justice had actually occurred dissented from the Court's orders.

"[O]ne negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty." (emphasis added)

Applying this negative proposition will very often resolve any question of applying the proviso where it is said that there has been a radical departure from the requirements of a fair trial. The graver the departure from the requirements of a fair trial, the harder it is for an appellate court to conclude that guilt is established beyond reasonable doubt. It is harder because the relevant premise for the debate about the proviso's application is that the processes designed to allow a fair assessment of the issues have not been followed at trial.
The present case illustrates the point. Here the appellant was denied the opportunity to call alibi evidence. That denial might be characterised as refusing the appellant the opportunity to put his defence. So characterised, the refusal to admit the evidence could be described as a grave departure from the requirements of a fair trial. But applying that description to what happened may, in the end, serve only to distract attention from the closer analysis of the matter that the consideration and application of the proviso requires.
On its face the DNA evidence appears overwhelming and the appellant's explanations for how a cap with his DNA came to be found at the scene of the robbery were thin. (He asserted that the robber must have planted the cap there and he offered some suggestions of who might have procured that.) But the apparent thinness of this explanation for the incriminating evidence of the cap may, we do not say must, have taken on a different appearance if his alibi witnesses had given evidence and were believed.
It may readily be accepted that the evidence called at the appellant's trial demonstrated, beyond reasonable doubt, that the cap found at the robbery scene was his cap. But a further question had to be decided. Was it the appellant who had taken the cap to and dropped it at the robbery scene? No one said the robber had worn the cap. Had someone else taken the cap there, whether in the overalls the robber wore or the bag the robber carried, and dropped the cap? That was what the appellant sought to put in issue with the alibi evidence, not whether the cap found was his. How should the Court of Criminal Appeal have approached that issue in deciding whether the proviso applied?
First, the appellant's denial of committing the robbery may very well have been undermined by having him dress as the robber had dressed and show himself to the jury. It is not possible to say what effect this had on the jury's assessment of him as a witness. The verdicts returned by the jury at the appellant's trial thus provide little if any assistance in assessing the record of trial³². Secondly, in the Court of Criminal Appeal, the appellant relied on affidavits sworn by his brother and father deposing to the evidence that each would have given at trial. Those affidavits spoke of the appellant's practice rather than of any specific recollection about what happened on the day of the robbery. The brother swore that he did not recall the appellant "having any breaks from this job or ever not turning up for work"; the father swore that he could not recall the appellant ever missing a day of work.

Orders

The appeal should be allowed. The orders of the Court of Criminal Appeal should be set aside, and in their place there should be orders that (a) the appeal to that Court is allowed, (b) the appellant's convictions are set aside, and (c) a new trial be had.
KIRBY J. This appeal challenges orders made by the Court of Criminal Appeal of New South Wales³⁴. By those orders, that Court, whilst finding that error of law or a miscarriage of justice had been established by Mr Graham Evans ("the appellant"), dismissed his appeal. It did so by the application of the "proviso" to s 6(1) of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act"). It follows that the Court concluded that "notwithstanding … that the … points raised by the appeal might be decided in favour of the appellant … no substantial miscarriage of justice has actually occurred".
I agree with the conclusion expressed by Gummow and Hayne JJ ("the joint reasons") that the application of the "proviso" was erroneous³⁵. The Court of Criminal Appeal ought to have ordered a retrial. That is the order that this Court should now make.
In most respects, I agree in the joint reasons. However, I disagree with the analysis in the joint reasons where they strike out, for the first time, upon a line of reasoning that was not previously argued or considered³⁶. On this aspect of the case, I agree in what Heydon J has written in his reasons, although I differ from the ultimate conclusion reached by his Honour³⁷. Save for this difference, which reflects an earlier divergence in this Court on a like question³⁸ (and which, as there, does not ultimately produce a different outcome) my own analysis and conclusion result in my agreement in the orders proposed in the joint reasons. The appeal must be allowed.

The facts and legislation

The facts relevant to the appeal are stated compendiously in other reasons³⁹. It would be superfluous for me to restate them.
Similarly, the other reasons explain comprehensively the course followed in the appellant's trial including in the questions addressed to witnesses about the appearance of the clothing (overalls and a balaclava) worn by the offender when committing the offences and aspects of the trial judge's conduct of the proceedings about which complaint is made. I will repeat none of this material.
The applicable provisions of the Criminal Appeal Act⁴⁰ and of the Evidence Act 1995 (NSW)⁴¹ ("the Evidence Act") are also stated elsewhere. I incorporate all of those provisions by reference. Adopting this course allows me to proceed directly to the points of agreement with, and difference from, the views expressed by my colleagues.

The issues

The other reasons clarify the issues that now fall to be decided. Those issues are the ones expressed in the appellant's several grounds of appeal to this Court which are helpfully set out in the reasons of Heydon J⁴². So presented, the controversies that this Court is asked to resolve may be summarised as follows:

(1) The relevance of clothing issue: Whether the Court of Criminal Appeal erred in failing to hold that the trial had miscarried as a result of the admission of the evidence of witnesses concerning items of clothing taken from the appellant's home some 22 months after the offences, suggested to be similar to clothing worn by the offender at the time of the offences and, on that ground, relevant to questions for decision by the jury⁴³;

(2) The demonstration issue: Whether the Court of Criminal Appeal erred in concluding that s 53 of the Evidence Act did not apply to an in-court demonstration in which the prosecutor required the appellant to perform by dressing up in a balaclava and overalls, walking in front of the jury and saying words attributed to the offender by one witness⁴⁴ ("the demonstration"). If s 53 of that Act did not apply to the demonstration, did any residual rules of the common law apply to render such questioning and conduct impermissible? Whether, otherwise, such evidence was inadmissible as prejudicial and unfair, or as involving the splitting of the prosecution case, or as condoning improper conduct on the part of the prosecutor, in respect of which the Court of Criminal Appeal should have provided redress to the appellant?

(3) The judicial warnings issue: Whether the Court of Criminal Appeal ought to have held that a miscarriage of justice had occurred by reason of the failure of the trial judge to direct the jury concerning the specific dangers occasioned by the demonstration, questioning and procedures referred to in issues (1) and (2)⁴⁵. In particular, whether, in the circumstances, the attempted warning given by the trial judge to the jury about the dangers inherent in the use of in-court evidence for a suggested similarity between descriptions and appearances of items of clothing, the appearance of the accused when dressed up, walking and speaking⁴⁶, and the imperfect evidence of surveillance videotapes, taken at the time of the offences, were defective for the lack of specific warnings to the jury about the dangers of convicting the appellant on the basis of any such perceived resemblance or similarities;

(4) The sufficiency of reasons issue: Whether the Court of Criminal Appeal erred in failing to uphold the appellant's complaints about the omission of the trial judge to give adequate reasons for critical rulings made in the course of the trial (including in respect of some issues for which reasons were reserved but never subsequently stated)⁴⁷; and

(5) The proviso issue: Whether, in light of the resolution of the foregoing issues and the appellant's complaints of consequential or other errors of law and miscarriage of justice (including the wrongful exclusion of alibi evidence) or for reasons of a departure of the appellant's trial from the fundamental assumptions of a fair trial⁴⁸, the Court of Criminal Appeal erred in dismissing the appeal on the basis of the "proviso" to s 6(1) of the Criminal Appeal Act.

Narrowing the issues

Reducing the differences: In the approach that I take, by reference to the foregoing, it is possible to confine the issues that I must decide still further. I can do this either because I am in substantial agreement with what my colleagues have written on some of the issues or because a decision on some of the issues is ultimately superfluous to the disposition of this appeal.
The relevance of clothing questions: Alike with Heydon J⁴⁹, I would reject the appellant's argument that the prosecution's questions, addressed to the description of the balaclava and overalls (including by comparison with items of the same type found much later in the appellant's residence), were not relevant to the issues in the trial. I agree with Heydon J's reasons in this respect.
I also agree with the conclusion stated in the joint reasons⁵⁰ that the procedures adopted, in showing the items recovered from the appellant's home to witnesses and asking for their comments, were not unfairly prejudicial to the appellant. They did not attract the application of s 137 of the Evidence Act so as to render the evidence inadmissible. Nor did they demonstrate that the trial judge had erred in declining to exercise her discretion under s 135 to exclude the evidence⁵¹. The first ground of appeal, and every element of the challenge on the first issue, therefore fails.
In-court demonstrations: So far as the submissions on the second issue are concerned, it is convenient to isolate three subordinate submissions regarding which I do not demur from the conclusion reached in other reasons. Thus, alike with the joint reasons⁵², I accept the conclusion reached by Heydon J⁵³ that s 53 of the Evidence Act does not apply to an in-court "demonstration, experiment or inspection". The section is not therefore applicable to the demonstration conducted in court pursuant to the prosecutor's request that the appellant dress up in overalls and a balaclava; wear them whilst seated in the dock; walk in the courtroom in front of the jury; and say words in their presence which had earlier been attributed to the offender.
Although there are arguments both ways (and the resulting gap in the application of the Evidence Act in respect of in-court demonstrations is awkward and arguably unintended), the powerful examination by Heydon J of the statutory text, the preceding common law and the reports of the Australian Law Reform Commission, bring me with a certain reluctance to the same conclusion as his Honour has reached. This is that s 53 of the Evidence Act is confined to demonstrations . The section did not apply to such activities undertaken , necessarily in the presence of the judge and jury.

In-court demonstration: relevant but unfairly prejudicial

A new "relevance" issue: I now arrive at the point where I depart from the joint reasons. Those reasons⁷⁵ conclude that no issue about the lawfulness of a "demonstration" arises (whether under the Evidence Act or the common law). For the joint reasons, an anterior legal question is presented. This is whether what was done at the prosecutor's request was "relevant". The joint reasons conclude that this is the "determinative" question. Those reasons answer the question adversely to the prosecution. That answer is fatal to the reception of such evidence. The evidence should not have been received not because it was unfairly prejudicial to the appellant but because it was legally irrelevant to the issues arising in the appellant's trial.
I disagree with this analysis. Its only merit, as I see it, is that it obviates consideration of questions otherwise arising as to how Pt 2.3 of the Evidence Act (or the residual common law) would apply to the use of any "demonstration" actually carried out⁷⁶.
Rejection of irrelevance: There are several reasons why, in my view, this Court should not adopt the analysis embraced in the joint reasons.
First, it is not an argument that is raised in any of the appellant's grounds of appeal before this Court. To the contrary, as the relevant ground (ground 2.2), set out in the reasons of Heydon J, demonstrates⁷⁷, the appellant's objection to the demonstration before this Court was not made on the footing that such conduct proffered no relevant evidence for the consideration of the jury. His ground of appeal impliedly accepts that what the appellant was asked to do could be judged by the jury to be relevant to the critical issue for decision, namely the identification of the appellant as the offender. Instead, the attack in this Court, according to the applicable ground of appeal, was on the permissibility of the demonstration, measured on the footing that it was designed to elicit evidence that was relevant but unfairly prejudicial to the appellant.
This Court is a court of error. Under the Constitution, appeals to this Court are limited to correcting errors of the courts below⁷⁸. The purpose of a constitutional "appeal" is to quell a controversy between the parties, brought to this Court for resolution⁷⁹. Ultimately, unless an issue is raised on the record, as for example by a ground of appeal (or cross-appeal or notice of contention) or where the parties and the court agree to a relaxation of the rules so as to allow an issue to be raised more informally, there is no relevant controversy for the Court to quell. This Court does not enjoy a roving commission to create new grounds of appeal so that it might decide an appeal upon some basis about which no party is complaining.

"(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible."

The foregoing tests are stated in all their generality for application to millions of questions asked every year in the great variety of cases to which the Uniform Evidence Acts apply. According to s 55(1) of the Evidence Act, the test for relevance requires no more than that the evidence "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". That test must necessarily be given an extremely broad ambit.
Other provisions of the Evidence Act reinforce the impression that the test of relevance is not a narrow or stringent one (see eg ss 57, 58). A broad interpretation alone is the one compatible with the purpose of the Act which is to aid the court process (effectively of quelling controversies brought to the court for that purpose, taking into account all evidence which has a bearing upon the questions in issue) rather than to delay or needlessly complicate the resolution of that process**⁹⁰**.
What is, or is not, relevant to an issue in proceedings is much more likely to be perceived by advocates and judges of trial than by an appellate court. Still more so than by the ultimate national appellate court, concluding for the first time for itself that an issue, which everyone else has considered to be relevant, is irrelevant.
I cannot say that this course could not properly happen. Indeed, in the experience of this Court it has already happened, at least once, in Smith v The Queen⁹¹. I disagreed with the approach on that occasion⁹². In this appeal, I have considered whether the circumstances of the case are sufficiently analogous to require me to suppress my objection to the course favoured in the joint reasons and to conform to it. However, questions of relevance are always highly fact-specific. No general rule could be laid down that was not anchored in the proof of the facts in issue in the particular proceeding.
Many of the reservations that I expressed in Smith can therefore be repeated in this appeal⁹³:

"[There are] reasons for caution in permitting a case to take on a completely new complexion, especially where the new point concerns the relevance of evidence. Questions of relevance raise the logical connection between proof of a propounded fact and a conclusion about a matter having persuasive significance for an issue for trial. Notions about the relevance of particular facts to ultimate conclusions in a trial can vary as between the parties, who may see the issues differently. Perspectives of relevance may also develop during the course of a trial as the issues become clearer, as immaterial issues fall away and as understandings of the applicable law become more certain. This is why appellate courts ordinarily defer to the rulings of trial judges about the issue of relevance. Such deference also rests upon a recognition of the fact that practical considerations usually require such rulings to be made on the run … Rulings as to relevance therefore depend substantially upon judicial impression. In the face of the fact that relevance is, in part at least, determined by impression, it is significant that neither the trial judge, nor the appellate judges nor counsel earlier perceived the evidence in question to be irrelevant. In now expressing an opinion about relevance, this Court has neither the advantages of an express ruling on the point by the trial judge nor analysis and opinion of the Court of Criminal Appeal."

Every word in this extract applies to this appeal. Even more so because here the question of relevance did not arise (as in Smith) in a preliminary ruling, made before the trial evidence was adduced. Here, the question fell to be decided at an advanced stage in the conduct of the trial when the prosecution case had closed, when the appellant had given his evidence-in-chief and when the issues for the jury's verdict had been sharpened and clarified. It would be a bold decision for this Court to come to its own conclusion that the evidence proffered by the prosecution in the contested demonstration was irrelevant to the proof of a fact in issue (as distinct from unfairly prejudicial to the appellant or inadmissible on some other ground).
Fifthly, when one reflects on whether the evidence that the prosecutor was seeking to adduce could "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding", one such fact was clearly whether the appellant was the offender who had committed the crimes alleged. Relevant to that question was (to put it broadly) whether, when dressed in overalls and a balaclava; when walking in front of the jury; and when saying words ascribed to the offender at the scene, there were apparent similarities, in the jury's view, between the appearance and conduct of the appellant and the earlier evidence and descriptions given (or viewed on videotape) concerning the offender.
Of course, there were differences. Thus, there was no relevant sound of the offender on the videotape; the words he was asked to utter were not exactly those said by the witness Mrs Gleeson to have been mis-stated by the offender. The video and photographic stills lacked sharpness and clarity. The circumstances of the appellant sitting (on one estimate) for 10 minutes in the witness box were seriously unfair. But depending on what evidence the jury accepted, it cannot be said that the evidence was irrelevant to the obvious purposes for which it was proffered by the prosecutor. It was open to the jury to consider that all or some of the evidence was relevant to their decision. Dangerous, unfair, humiliating and prejudicial, yes. But irrelevant, no. Some of the most prejudicial evidence in a trial is that which is potentially most relevant in the opinion of lay jurors.
As in Smith, it is, in my view, a mistake to attempt to get the relevance test to do the work of excluding evidence such as that of the demonstration that took place in the appellant's trial. Such an approach would shift the debate of exclusion to unduly subtle preliminary argument. It would divert the decision-maker's mind from the real grounds provided by the law for exclusion of evidence which, although relevant, is unfairly prejudicial and to be excluded on that ground.
Addressing unfair prejudice: The foregoing are the reasons why I am unable to avoid the balancing test of probative value and prejudice presented by the demonstration. Attractive as such avoidance might seem, it is neither presented by the grounds of appeal as framed nor sound in principle or in law.

The proviso was not applicable to this appeal

At the invitation of this Court, the parties provided supplementary written submissions addressed to the proper approach to the application of the "proviso" in the common form in which criminal appeal legislation is expressed in Australia¹⁰³. Some concern and uncertainty appears to have arisen in intermediate courts¹⁰⁴ over the reconciliation of earlier authority of this Court on the "proviso"¹⁰⁵ and what was more recently said in the joint reasons in Weiss v The Queen¹⁰⁶. There was some consideration of this question in Libke v The Queen¹⁰⁷.
The central holding in Weiss, which followed suggestions to similar effect in relation to the role of appellate courts both in criminal¹⁰⁸ and civil¹⁰⁹ appeals, was that the appellate function must, in every case, be discharged by the intermediate court for itself. It must be done by reference to principles derived from the statutory language. It is not to be discharged by incantations involving speculation concerning what the jury or judge at trial (or a future jury or judge) would, or might, or should have done if this or that had happened or not happened. About this much, there is, I believe, unanimity in this Court. It has emphasised the very substantial role and duty of appellate courts to review the evidence and to reach conclusions for themselves by the application of the statutory tests.
There is also unanimity (for the possibility is expressly reserved in Weiss¹¹⁰) that there may be cases where "errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso".
Beyond these points, there remain questions that I regard as still alive for final resolution if tendered to this Court in a suitable case. In a sense, those questions may be a product of the "conundrum" which the joint reasons in this appeal recognise as appearing on the face of the common form legislation in which criminal appeal jurisdiction is expressed throughout this country. Elsewhere and earlier, the "conundrum" was described as "a riddle of the kind which Plutarch records caused Homer to die of chagrin".

Orders

It follows that I agree in the orders proposed in the joint reasons¹²².
HEYDON J. Graham John Evans ("the accused"), after a jury trial in the District Court of New South Wales before Backhouse ADCJ, was convicted on two charges of armed robbery and one charge of assault with intent to rob. The events leading to these convictions took place on Thursday 28 February 2002 in the chambers of Strathfield Municipal Council. At about 4.10pm a man entered the chambers. He was wearing dark blue overalls. His head was covered by a red balaclava. He was wearing sunglasses. He was carrying a sawn-off rifle. He took cash belonging to the Council from Laura Gleeson, a Council employee. He then menaced a member of the public, Zbigniew Marszalek, with the rifle and robbed him of some of his cash. Finally, he menaced another member of the public, Bo Qin Huang, with the rifle and forced him to place some of his cash on a counter, though he did not in fact take this cash away.

The appeals

The accused appealed against his convictions to the Court of Criminal Appeal of New South Wales (James, Hidden and Hoeben JJ) under s 5(1) of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act"). Section 6(1) of that Act provides:

"The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion ... that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

The accused's arguments that there had been an error of law or a miscarriage of justice succeeded in two respects. However, the Court of Criminal Appeal applied the proviso to s 6(1) in favour of the prosecution because it considered that no substantial miscarriage of justice had actually occurred. It therefore dismissed the appeal¹²³.

The accused appeals to this Court against that order. He seeks in lieu of it an order that his conviction be quashed and that either a verdict of acquittal be entered or a new trial be ordered. The appeal should be dismissed. Before turning to the grounds of appeal, and the reasons why the particular arguments advanced on behalf of the accused are to be rejected, it is desirable to explain the evidentiary background.

The evidentiary background

At the trial there was no dispute that the crimes alleged had occurred. The key issue was whether the accused had committed them.
The prosecution case. The prosecution case rested principally on the following evidence. A cap had been dropped by the offender at the scene of the crime. The DNA profile of material lifted from that cap matched the DNA profile of a buccal swab which had been taken from the accused with his consent. That DNA profile would be expected to occur in fewer than one in 10 billion people. On 30 December 2003 police officers searched a house owned by the accused's father in which the accused resided: they found a red balaclava in his bedroom and a pair of blue overalls in the laundry. The accused said he owned the balaclava and that it had been there for two years. The balaclava was similar to a large number of red balaclavas found in a box in the basement. These balaclavas had been obtained by the accused in 2000. The accused had discolouration and scarring on his arms, giving him, if he were the offender, a reason for wearing the overalls – to cover up a possible means of identification. The prosecution contended that the balaclava and the overalls were at least similar to those worn by the offender. While under cross-examination, the accused was asked by prosecuting counsel to put on the balaclava and overalls. The jury were asked to compare the appearance and other traits of the accused at the trial in the balaclava and overalls with the appearance of the offender in film of the crimes taken on surveillance cameras, and in still photographs derived from that film, and with descriptions by seven eyewitnesses of the offender's gender, voice, height, age, build, skin complexion, hair and manner of walking. Two witnesses said the offender had an Australian accent. It was said that he spoke in a slow purposeful way and with a "very slow", "very dull" voice. One witness said the offender asked for the "serious cash" and three said he asked for "serious money" or otherwise used the word "serious". One witness said that when he said "'[T]his is serious', it almost came over as, 'sherious', or something like that". There was evidence from five witnesses that the offender was five feet six inches to five feet eight inches tall; on the other hand, one said he was five feet two inches tall and another 180 centimetres tall (ie nearly five feet 11 inches). There was evidence from two witnesses that the offender was aged 30 to 45. Six witnesses said that the offender was of slight or thin or slim or skinny or very slender build. Three said he had fair to medium or fair or pale or white skin. One said he had dark, almost black hair. His mode of walking was said by Mrs Gleeson to be "a real relaxed walk; it was not a run. It was just bouncing, walking out". She also agreed that it was "a swagger style of slow walk". Four witnesses said the overalls the offender was wearing appeared too large on him and one said the balaclava he was wearing was too big for his head.
The defence position. The accused gave evidence. He advanced an alibi defence in the sense that he denied being at the Strathfield Council chambers on 28 February 2002 and he denied committing the offences, but he said he could not be sure where he was. He said his ordinary practice on Thursday afternoons was to work at his brother's business at Campbelltown, which is about 43 kilometres from Strathfield. Evidence from his father and brother of that practice was rejected because notice of intention to rely on the alibi defence had not been given.

Ground 2.1: showing the balaclava and overalls to witnesses

The first ground of appeal was:

"The Court of Criminal Appeal should have held that the trial miscarried as a result of the admission of evidence of eyewitnesses concerning items of clothing that had been randomly seized from the [accused's] home twenty two months after the offence."

Pre-trial events. Defence counsel made a pre-trial application to exclude from evidence excerpts from a film of the police search of the accused's residence which resulted in the balaclava and overalls being removed. In the course of that application, however, he made it plain that he did not object to evidence that the police had located the balaclava and the overalls there, or evidence of what the accused said about that. It was implicit in this stance that he did not see the balaclava and overalls as inadmissible, for if he had, evidence of their finding would also be inadmissible.
Prosecution's opening address. Prosecution counsel said in her opening address to the jury that the offender's overalls were blue and he was wearing a red balaclava. Then she said:

"On Tuesday 30 December, 2003 the police attended the accused's home at Campbelltown and they found a red balaclava with eye and mouth holes cut in it in a bedroom, and the accused then directed them to a box of similar red balaclavas which were in a storage area under the house. The police also found a pair of blue King Gee overalls in the laundry, and the accused told the police that they belonged to him."

Defence counsel did not object to these statements.

The eyewitness evidence. The balaclava and the overalls were marked for identification as MFI1 and MFI2 respectively during the examination in chief of the first prosecution witness, Helen Connell. She was an employee of the Council. She said the balaclava was similar in colour to the offender's headgear. She said it could be the same as the headgear worn by the offender because it was too big for him. It appeared to be of the same thickness. She said the overalls were of a similar style to those worn by the offender, although they were a lot dirtier and a little faded. Defence counsel did not object to the items being shown to the witness or to the questions about them. Indeed he asked questions of his own about them highlighting the evidence in chief so far as it pointed to differences between MFI2 and the overalls worn by the offender.
The second prosecution witness, Patricia Smith, a Council employee, described the offender as wearing heavy duty dark coloured overalls that appeared to be too large for him. She described the balaclava as bright coloured and made of thick fabric. A little later she was shown both MFI1 and MFI2. She said that the knit of the fabric in the balaclava was similar to the fabric of the offender's balaclava. She said that the studs, pockets and collar of the overalls were similar in style to his overalls, although the colour of the offender's overalls was perhaps darker. Again there was no defence objection to this procedure. Defence counsel drew the witness's attention to a prior statement of hers in which she had said the overalls were red and clean. Eventually the witness said the balaclava was "red or a bright colour orange" and appeared to suggest that in her prior statement she was not intending to convey anything about the colour of the overalls.
The third witness was Lesley Thompson, an employee of the Council. She said the offender wore a worn red balaclava and fairly old King Gee overalls which were a blue colour lighter than navy blue. She said the balaclava had white stitching around the opening of the eyes, nose and mouth. Prosecuting counsel then asked the witness to look at MFI1, the balaclava. Defence counsel objected on the ground that its appearance was inconsistent with the description which the witness had given of the offender's balaclava. The defence objection was overruled. The witness said that MFI1 was "very similar" to the offender's balaclava in that it was of exactly the same style, though she remembered white stitching. Defence counsel then contended that the condition of MFI2 was different from the condition of the overalls the witness said she observed on the offender. Hence he objected to questions about MFI2 as irrelevant, and also unfair, in view of the risk of what he called a "displacement effect" – the risk that showing an object to a witness would influence the witness towards an unreliable identification of it. This objection too was overruled. He continued to accept that evidence of the finding of MFI2 by the police at the accused's residence was admissible. Mrs Thompson said MFI2 looked like the offender's overalls, being of the "same style", but she remembered the offender's overalls to be a "bit paler". Defence counsel, in his cross-examination, highlighted the fact, in contrast to Mrs Thompson's recollection of what the offender was wearing, that MFI1 did not have white stitching and MFI2 was paler.

"Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting."

Had the witnesses been shown MFI1 before the trial, it might have been arguable that the memory of MFI1 might have been more clearly retained than the memory of the original sighting of the offender's balaclava, and might have displaced that original memory, so that the in court comparison of MFI1 with the memory of the offender's balaclava might be tainted by a displacement in the witness's mind of the memory of the original perception of the offender's balaclava by the memory of MFI1. Prosecution counsel said that none of the eyewitnesses had been shown MFI1 or MFI2 before entering the box. Several witnesses confirmed this. Defence counsel never cross-examined to the contrary, never complained of any failure by the prosecution to call evidence of that kind in relation to the other witnesses, and never denied prosecution counsel's assertion. Hence no displacement effect could have operated.

A closer analogy is with dock identification. That analogy was relied on by counsel for the accused in this Court¹²⁹. The danger was described thus by Mason J in Alexander v The Queen¹³⁰:

"Traditionally it has been accepted that a witness identifies the accused at the trial as the person whom he observed at the scene of, or in connexion with, the crime. This 'in court' identification, sometimes described as primary evidence, is of little probative value when made by a witness who has no prior knowledge of the accused, because at the trial circumstances conspire to compel the witness to identify the accused in the dock."

In relying on that analogy, counsel for the accused in this Court drew attention to the dangers associated with the supposed identification of mass produced objects¹³¹. So, it might be said, a witness might reason that prosecution counsel would not be showing MFI1 to a witness unless the police thought the accused was connected with MFI1; hence the witness might feel pressure to exaggerate similarities between the two balaclavas, or to identify them as being the same.

This analogy is not sound. A witness who is invited to identify the offender is under considerable pressure not to select anyone but the person sitting in the dock: to do otherwise is to risk looking foolish. The witnesses in the trial of the accused were not under pressure to say anything about MFI1. The questions of prosecution counsel lacked any leading character. Taken as a whole, the seven eyewitnesses revealed a variety of recollected perceptions and a variety of capacities for testimonial expression, strongly suggestive of bona fide attempts to say what they could recollect about a frightening series of events which took place unexpectedly over a very short time more than two years earlier. The lack of uniformity in their evidence about MFI1 is a sign that they felt no pressure to give one particular set of answers. There might have been pressure of that kind if prosecution counsel had employed leading questions in relation to MFI1 – an error into which it is easy to fall when witnesses are questioned about chattels present in court. But counsel avoided that trap. The Court of Criminal Appeal correctly concluded that the eyewitnesses were not led into giving evidence which did not reflect their recollections¹³².
Once these considerations are put aside, there is no unfair prejudice. The more the evidence of the eyewitnesses convincingly revealed similarities between what they described in MFI1, the more that evidence "prejudiced" the accused. The less it revealed similarities, the less it "prejudiced" the accused – indeed it benefited him. But this "prejudice" was not distinguishable from the probative value of the evidence; it is not prejudice as that term is used in s 137, and is certainly not unfair prejudice. "Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted."¹³³ Since the witnesses had provided descriptions of the offender very soon after the crimes, and these were available to defence counsel, it was possible for him to cross-examine them effectively on any departures from these statements, as he did. While the defence tactics were not to object to the questioning of the first two witnesses, but to object to the questioning of the third, whose evidence was more favourable to the accused, the prosecution tactics of showing the third witness MFI1 were objectively fair in their tendency to elicit evidence favourable to the accused.
For the same reason neither MFI1 nor the questions about it were "unfairly prejudicial" within the meaning of s 135. Nor were they "misleading or confusing". Nor did they "cause or result in undue waste of time": they comprised a small fraction of the evidence as a whole. Hence the trial judge's failure to exercise her discretion under s 135 to exclude the evidence has not been shown to be wrong.

Ground 2.2: accused wearing balaclava, walking before the jury wearing overalls, and saying "serious"

The second ground of appeal was:

"The Court of Criminal Appeal should have held that:

(a) section 53 [of the Act] applies to 'in court' demonstrations; and/or

(b) the prosecutor should not have been permitted to require the applicant to put on a balaclava and overalls, walk up and down in front of the jury and say words which were attributed to the robber by one eyewitness."

The events complained of came to pass in the following way.
The physical features of the accused. Early in the cross-examination of the accused, he gave evidence that at the time of the crime he was 47, he was five feet eight inches tall, his hair was dark, his skin complexion was very fair and he weighed 73 kilograms. Without objection, he was asked to take his jacket off, roll up his sleeves and show the jury the insides of his arms. He said areas of pigmentation or discolouration were caused by industrial solvents and areas of scarring were caused by industrial accidents.
The balaclava and the sunglasses. The first event complained of related to Ex M (the balaclava) and some sunglasses. First, the accused was asked to place the balaclava over his face. After a defence objection was overruled, the accused complied. Prosecution counsel then began to make a statement about what those in the courtroom could see, to which defence counsel objected. In the presence of the jury, debate about that objection proceeded over more than two pages (which in this Court counsel for the accused contended took 10 minutes and which certainly took some minutes). The debate concluded with prosecution counsel withdrawing her question and the trial judge saying she would not interfere. At that point prosecution counsel asked the accused to remove the balaclava. She then asked him to take a pair of sunglasses. Defence counsel objected, and prosecution counsel made it plain that she wanted the jury to compare the appearance of the accused wearing the sunglasses and the balaclava with what they saw on the video and the photographs taken during the crime. After a debate about admissibility in the absence of the jury, the trial judge permitted the course proposed by prosecution counsel to take place. The essence of counsel's objection was that it was "blatant unfairness" to dress the accused up so as to make him look like a robber. After putting on the sunglasses and the balaclava, the accused complied with requests to face the jury and turn side-on to the jury.
The Court of Criminal Appeal held that the trial judge erred in asking the accused "to put on sunglasses which had not been admitted into evidence, which had not been shown to any witness and which were produced for the first time when the prosecutor asked the [accused] to put them on".¹³⁴ That conclusion was not challenged by the prosecution on this appeal.
"Give me the serious cash." The second event complained of followed soon after the accused had removed the sunglasses and the balaclava. Prosecution counsel asked the accused to say: "Give me the serious cash." A strongly-put defence objection was rejected. The accused then said, at the request of prosecution counsel, "Give me the serious cash" and "I want the serious cash". It will be remembered that Mrs Gleeson had suggested that the offender may have pronounced "serious" as "sherious".

"52 Adducing of other evidence not affected

This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

53 Views

(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A judge is not to make an order unless he or she is satisfied that:

(a) the parties will be given a reasonable opportunity to be present, and

(b) the judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present,

(b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence,

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,

(d) in the case of a demonstration – the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,

(e) in the case of an inspection – the extent to which the place or thing to be inspected has materially altered.

(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.

(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.

54 Views to be evidence

The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection."

For the accused it was submitted in the Court of Criminal Appeal and this Court, though not at trial, that s 53 applied, and that it had not been complied with in that the trial judge did not follow the process mandated by s 53. In this Court it was also submitted for the first time that no consideration of s 192 had been undertaken¹³⁹. Counsel submitted that "demonstration" evidence was a substantial limb of the prosecution case: this may be an exaggeration, for it took only a very short time, but it was referred to in prosecution counsel's final address.
The Interpretation Act 1987 (NSW) ("the Interpretation Act"), s 34(1), provides:

"(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable."

Section 34(2)(a) provides:

"(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer."

Section 35(2)(c) provides that marginal notes shall be taken not to be part of the Act. Hence among the material not forming part of the Act is the marginal note to s 53 ("Views") and the marginal note to s 54 ("Views to be evidence"). Further, s 3(3) of the Act provides:

"Without limiting the effect of, and subject to, section 34 of the Interpretation Act 1987, material that may be used in the interpretation of a provision of this Act includes any relevant report of a Law Reform Commission laid before either House of the Parliament of the Commonwealth before the provision was enacted."

The Australian Law Reform Commission published two reports on evidence – an Interim Report (ALRC 26) and a Final Report (ALRC 38). The former was tabled in the Parliament of the Commonwealth on 21 August 1985 and the latter was tabled there on 5 June 1987. Hence, like the marginal notes, they may be used for the purposes stated in s 34(1).

The law which pre-existed s 53. The starting point in construing s 53 must be the common law.
At common law a "view" was an out of court examination of land, or of chattels too large to be taken into court and tendered as exhibits. The purpose of a view was to assist the trier of fact, by enabling an examination of the dimensions, appearance and relative positions of the features of the things viewed, "to understand and weigh the oral evidence"¹⁴⁰. A "view" was distinguished from an out of court demonstration or reproduction of a past event which had been described by witnesses in court. According to Fullagar J, the court could not treat a demonstration or reproduction as in truth a demonstration or reproduction of what witnesses had described unless one of two conditions was satisfied. The first was that the parties specifically admit that "the demonstration was, or [agree] that it should be treated as, a reproduction of what the witnesses had attempted to describe". The second was that it be "proved by evidence ... that the demonstration really did reproduce what the witnesses had attempted to describe"¹⁴¹. On the other hand, Dixon CJ, Webb, Kitto and Taylor JJ favoured a stricter test: apart from power under rules of court, they said experiments or demonstrations (as distinct from views) could not be taken into account unless they took place "at the request of or with the complete concurrence" of all parties¹⁴².
A demonstration was described thus by Lord Denning (delivering the judgment of the Privy Council) in Tameshwar v The Queen¹⁴³:

"It is very different when a witness demonstrates to the jury at the scene of a crime. By giving a demonstration he gives evidence just as much as when in the witness-box he describes the place in words or refers to it on a plan. Such a demonstration on the spot is more effective than words can ever be, because it is more readily understood. It is more vivid, as the witness points to the very place where he stood. It is more dramatic, as he re-enacts the scene. He will not, as a rule, go stolidly to the spot without saying a word. To make it intelligible he will say at least 'I stood here' or 'I did this,' and, unless held in check, he will start to give his evidence all over again as he remembers with advantages what things he did that day. But however much or however little the witness repeats his evidence or improves upon it, the fact remains that every demonstration by a witness is itself evidence in the case. A simple pointing out of a spot is a demonstration and part of the evidence."

In Karamat v The Queen, Lord Goddard (delivering the judgment of the Privy Council) gave the following example of a demonstration¹⁴⁴ :

"... the evidence of a police constable or other witness who might testify that he was keeping watch on a certain place and saw an incident might be challenged on the ground that from the place where he was concealed he could not possibly have seen what he said he had. It might be of the utmost value then to let the jury see the place with the witness in the position to which he had spoken; he might well be able to demonstrate that while a shorter man would not have been able to see the incident or a taller man might have been exposed to view, he could, though concealed, have seen what he said he did."

Hence the expression "demonstration" includes the operating of a machine said to have caused an injury¹⁴⁵.

A reproduction or reconstruction goes further. Examples include the repetition of a pantomime¹⁴⁶ and the screening of a film simultaneously with a performance by a band¹⁴⁷.
The common law, then, draws a distinction between views, demonstrations and reconstructions¹⁴⁸:

"It seems to be generally accepted that a view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation of the events. A demonstration is a view incorporating an explanation by a witness of the incident in question or a demonstration of the machine or other object in operation. A reconstruction goes further still and is an attempt to recreate the incident (whether in full or part) with witnesses and testimony."

The subject-matter of s 53. Section 53 uses the expressions "inspection", "demonstration" and "experiment", but none of these expressions is defined in the Act. Section 53 deals with views in the common law sense, although it calls them inspections: whether "inspection" in s 53 extends more widely, to any examination of an exhibit by a witness in court, is considered below¹⁴⁹. Section 53 also deals with demonstrations. It does not deal with reconstructions under that name, and the word "experiment" is not apt to cover an attempt to recreate an incident, since it would seem that "experiment" in s 53 means a test or trial or tentative procedure or other operation for the purpose of discovering something or testing a principle or hypothesis¹⁵⁰. But s 53(3)(d) suggests that reconstructions fall within the expression "demonstrations", since that paragraph assumes that the goal of a demonstration is to reproduce a particular piece of conduct or event.
The true construction of s 53. Section 53 does not apply to what happens in the courtroom at the trial, for the following reasons.
First, if the word "inspection" in s 53 has the same meaning as "view" at common law – and it is hard to see how it can have any wider meaning – in that application s 53 is limited to visits outside the courtroom to inspect some place or some thing which cannot conveniently be brought to court. This suggests that s 53 does not apply to what happens in the courtroom in any of its applications.
Secondly, if s 53 did apply to conduct in the courtroom, s 53(2) would be otiose in that application of s 53. That is because in all litigation (except ex parte applications) the parties have a reasonable opportunity to be present in court, and the judge, and if there is a jury, the jury, will be present. The absurdity of imposing as a precondition to an order under s 53 a state of affairs which inevitably exists points against a construction of s 53 which would extend to courtroom conduct.
Thirdly, if s 53 did apply to conduct in the courtroom, s 53(3)(a) would almost always be otiose in that application of s 53. That is because in most litigation (leaving aside special cases like those involving accused persons who have absconded, and leaving aside cases where defendants in civil cases have failed to attend the trial, or where an ex parte application is made) the parties will be present. There is serious implausibility in a construction of s 53 which would require the court to take account of a factor which almost always will exist.
Fourthly, s 53(3)(e), so far as it concerns "places" to be inspected, points against the application of s 53 to conduct in the courtroom. The requirement that the judge take into account the extent to which a place to be inspected has materially altered is wholly inapplicable to conduct in the courtroom, for trials about the condition of a courtroom are rare, and are unlikely to take place in that courtroom.

"The judge or jury may leave the court to observe places or objects that cannot be brought to or reproduced successfully in the court. Such an excursion is a view. At the scene of the view, evidence may be led in the form of a demonstration or an experiment. Although there is some uncertainty as to the existing law, particularly in England, a distinction is drawn between a view and a demonstration – only the latter is classified as evidence. The former is material assisting the tribunal of fact in understanding evidence adduced in the court." (emphasis added)

The opening and closing words make it plain that the types of conduct which are made the subject of these distinctions are all conduct out of court. The balance of the paragraph developed arguments to the effect that it is wrong in principle that a view – an "excursion" beyond the courtroom – is not "classified as evidence". The second paragraph, on the strength of those arguments, proposed that "a view be treated as evidence"¹⁸⁷, a recommendation now reflected in s 54 of the Act. Plainly the second paragraph, like the first, was concerned with out of court visits. That conclusion is supported by the opening words of the third paragraph: "But the use of out of court inspection must be subject to limitations ..."¹⁸⁸. The limitations recommended correspond with those appearing in s 53(3)(b)-(e) of the Act. The fourth paragraph recommended, in relation to "an inspection out of court", what is now s 53(2)¹⁸⁹ and the fifth paragraph¹⁹⁰ dealt with what it called an "analogous area to out of court inspection", namely "inspection by a jury in the jury-room, considered by the High Court in Kozul v [The Queen]"¹⁹¹. The Commission said¹⁹²:

"While, under the proposal, such inspection by a jury would be considered part of the evidence in the proceeding, it would be impractical to require the presence of the trial judge, or to provide the parties or their counsel with an opportunity to be present. There is always a risk, however, that the jury will not just inspect the relevant object but also experiment with it."

The Commission dealt with the impracticality referred to in the first sentence just quoted by inserting in each of its draft Bills a clause which now corresponds with s 53(5). Of that clause as appearing in the draft Bill in its final report the Commission said that it "makes it clear that the existing practice of the jury or the court inspecting exhibits may continue"¹⁹³. Hence s 53(5) cannot be read as suggesting that s 53(1)-(3) applies to in court conduct.
The Commission dealt with the risk of jury experiments by recommending that the jury be directed not to carry out experiments with exhibits; this is consistent with s 53(4) of the Act.
Two further points may be noted. The first is that to speak of the inspection of exhibits in the jury room as being part of the evidence in the proceeding is to reveal a misunderstanding of the problem: a jury which looks at the exhibits three times is not receiving three times as much evidence as if it looked at them once¹⁹⁴. The point of the recommendation, adopted in s 54 of the Act, that the jury can draw inferences from what it sees, hears or otherwise notices during a demonstration, experiment or inspection, was to bring the common law rule for out of court views into line with the common law rule for out of court demonstrations and reconstructions. That recommendation could have no impact on what happened inside the courtroom, because there has never been any doubt that what happens inside the courtroom is more than an aid to understanding the evidence. And it cannot have sensible operation on what happens inside the jury room. That is because what the Commission calls "inspection by a jury in the jury-room" of a document or chattel which has become an exhibit is a totally different process from the out of court examination of premises or chattels which the common law calls a view and s 53 calls an inspection.
The second point is that the issue of whether experiments conducted by the jury in the jury room should be allowed is an issue which is entirely distinct from the issue of whether the s 53 conditions apply in relation to events in court. The solution propounded by the Commission in relation to the former issue says nothing about the latter. To seek to draw stray implications from passing remarks by the Commission ignores the fact that the overwhelming body of the discussion in ALRC 26 is directed, and directed only, to conduct outside the courtroom. If ALRC 26 is a permissible aid to the construction of s 53, it completely contradicts the construction of s 53 advanced on behalf of the accused.
The Bill recommended by ALRC 26 contained two clauses (cll 138 and 139) which are substantially to the same effect as ss 53 and 54 of the Act, save that there was no reference to the judge's order being made on application. The Bill recommended by ALRC 38 was the same save for an amendment to make it plain that the judge's power to order the holding of a demonstration, experiment or inspection was to be exercised on application. Neither ALRC 38 itself nor the commentary on the clauses throws any light on the present issue, namely whether s 53 applies to in court demonstrations, experiments or inspections.

"[A demonstration] involves an attempt to reproduce the conditions or features of the thing demonstrated to provide information about that thing, usually because the thing itself is not available or directly observable. The information provided by the demonstration allows the jury, or the fact finder, to draw some inference about the actual condition or features of the thing the demonstration was designed to recreate. However, that is different to the situation where the thing is directly observable and there is no need to provide information or evidence about it."

The submission continued:

"[T]he appearance of the items as worn by the [accused] was not a demonstration of some thing, it was not designed to provide information about a thing not directly discernible. His appearance in the items was the thing itself and the jury could observe it for themselves. They were not being asked to infer from the appearance of the [accused] wearing the items something about the condition or appearance of something else, the presentation was not evidence about something not available to them. It was the very thing the jury were to observe so that they could have a direct perception of that appearance."

Prosecution counsel said that the jury were being invited to compare what they could gather about the offender's appearance and voice from the evidence of the witnesses, the security video and the still photographs with what they could see of the accused. The accused agreed that there were similarities between his physical characteristics at the trial and those he had on 28 February 2002. When he was asked to don the balaclava and sunglasses to face the jury and turn side on to the jury, to don the overalls, to walk in the overalls, and to say "serious", an appeal was being made to the jury's direct observation of the accused so that the jury could weigh that direct observation against the evidence about the offender. The accused was not asked to point out any particular features of a place or an object. He was not asked to describe by reference to a place or object what happened at that place or to that object. Nor was he asked to recreate or repeat some event which had happened in the past. All that happened was that an attempt was made to highlight some features of the accused so that the jurors could judge for themselves whether they were features which the other evidence revealed the offender to have. The process is what Wigmore characteristically called "autoptic proference"²⁰⁹.
This argument of prosecution counsel is correct. The evidence of the eyewitnesses about what they saw and heard, and the video film and photographs, were admitted without objection. In evaluating it (and counsel for the accused was correct to submit that the video film and photographs were of very poor quality), the jury were entitled to look at the accused in the dock – noting his age, the colour of his hair and skin, his build. When he walked from the dock to the witness box they could take note of his style of walking. The evidence elicited by prosecution counsel about his age, hair colour, skin colour and build was admissible and not objected to. As he answered questions the jury could compare his voice with the descriptions given by eyewitnesses of the offender's voice. All these matters could be taken into account because the "events that occur in the presence of a jury in the regular course of a trial are material which the jury can – as it no doubt does – take into account in the finding of contested facts"²¹⁰. The three events to which exception is taken were nothing more than techniques for highlighting particular features of resemblance which the accused may or may not have had with the offender. They did not involve him demonstrating anything about what happened; they simply involved him revealing particular features of his appearance, gait and pronunciation, as revealed in sentences similar to those the offender was said to have uttered. Even if s 53 applies to in court conduct, they were not "demonstrations" designed, in the language of s 53(3)(d), to "reproduce the conduct or event to be demonstrated".

"This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment."

Section 11(1) of the Act provides:

"The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment."

Nothing in Pt 2.3 provides that any common law rules which apply to in court conduct of the type challenged in this appeal are abolished, and that is so even if, contrary to the conclusion just stated²¹¹, that conduct is characterised as being a demonstration, experiment or inspection.

Counsel for the accused then submitted that the impugned events were demonstrations, and the common law rules which applied were similar to those stated in s 53(3). That is true to the extent that even if the evidence were tendered under a common law rule, s 135 would have to be complied with, and its meaning in substance is the same as s 53(3)(c); and it is also true to the extent that the factors listed in the other paragraphs of s 53(3) are material at common law, for they go to relevance. However, contrary to a submission by the accused, if the evidence were tendered under a common law rule, it would not be necessary to comply with s 192.
One difficulty with the submission that common law rules similar to s 53 apply is that for reasons given above²¹² the three events were not "demonstrations" or, more correctly, "reconstructions". It is true that if the attire the accused was asked to wear, the actions he was asked to perform and the things he was asked to say were significantly different from what the eyewitnesses had said the offender had worn, done and said, the requests that the events in court take place should have been refused – but on grounds of relevance, not any special rule about "demonstrations" or "reconstructions". However, there was evidence that the offender had worn a balaclava and overalls similar to those which the accused was asked to wear. There was evidence of how he walked and how he pronounced "serious". The jurors were entitled to make findings – by assembling a mosaic from small pieces of evidence given by different witnesses if they saw fit – about what the offender was wearing, how he walked and how he pronounced "serious". If what the accused looked like, walked like and spoke like corresponded with that mosaic, it would assist the prosecution case. If it did not, it would assist the accused. The evidence was sufficiently relevant. No specific "reconstruction" rule requiring equivalence to, substantial similarity with, or a faithful reproduction of, some earlier condition or event applied. The evidence was therefore admissible unless s 135 or s 137 applied. Putting aside the unduly long time during which the accused wore the balaclava, there was no unfair prejudice: the three impugned events took place very briefly; it was reasonably necessary for the case which the prosecution wished to advance for them to take place, and the conduct of prosecution counsel did not exceed those legitimate necessities; the events appeared to have generated evidence favourable to the accused in one respect, and defence counsel contended to the jury that they did so in more than one respect; and so far as they were prejudicial, the prejudice lay in their probative value. It is true that, as was submitted for the accused, the trial judge did not refer to s 137 (or, if it was relied on, s 135); nor perhaps did the trial judge analyse the issues coherently. But her decisions to allow the impugned events to take place were correct.

"[I]f things are to occur such as how he looks in a balaclava ... one could easily ... get another person of his height and shape and put a balaclava on their head. One could actually lead evidence in the Crown case of some of these things, but the fact that it occurs in the defence case ... only makes the situation worse, not better."

Whatever difficulties there were in the course adopted by prosecution counsel, they would have been accentuated if the person asked to wear the balaclava had been, not the accused, but someone said to share his height and shape.

Ground 2.3: jury warnings

This ground is:

"The Court of Criminal Appeal should have held that there was a miscarriage of justice occasioned by failure to direct the jury on the dangers of the procedure outlined in ground 2.1 and/or 2.2 (above)."

The first complaint, then, is that the trial judge failed to warn the jury about the dangers in the evidence of the eyewitnesses about the balaclava and the overalls. The second complaint is that there was a failure to warn the jury about the dangers of the accused wearing a balaclava, wearing overalls and walking in front of the jury, and saying two sentences containing the word "serious".
These are narrow complaints. The first complaint is an afterthought. It is not a complaint made in the grounds of appeal in the Court of Criminal Appeal and the terms of the Court of Criminal Appeal's judgment suggest that it is not a complaint which that Court was conscious of having been made in argument to it.
After counsel had addressed the jury and before the summing up, they made submissions about the directions which the trial judge should give on various points. Defence counsel did not at any stage request either of the directions which, it was said in this Court, should have been given. What he did say was that the case was a circumstantial case, there being "no direct evidence" that the accused was the offender. The trial judge then said that although all the circumstantial evidence was tendered to show that the accused was the offender, she did not see how "the usual direction given by judges in respect of identification" could be given. That view was correct. It may be accepted that an example of "identification evidence" arises where the identifying witness relies on the clothing worn by the person identified²¹⁴. But no witness suggested that the accused was or resembled the offender; hence the definition of "identification evidence" in Pt 1 of the Dictionary to the Act was not satisfied, there was no need to give the warning that there is "a special need for caution before accepting identification evidence" mandated by s 116(1), the evidence did not fall within the words "identification evidence" in s 165(1)(b) of the Act, and thus no s 165(2) warning was required on that account²¹⁵.
At one point the trial judge and defence counsel agreed that there was a need to warn the jury to "[e]xercise caution", but whether it was caution about what the witnesses saw of the offender's balaclava and overalls or caution about something else is not clear. Later, prosecution counsel instigated a brief discussion of s 165. Defence counsel submitted in relation to s 165 that "whilst it's not intended to be exclusive, there is an indication of the types of evidence by the inclusions". The trial judge then said: "It's if they have given different evidence on another occasion, something like that. I don't think it is appropriate here. But is it substantially a circumstantial case?" Defence counsel said: "It is absolutely a circumstantial case in my submission." Defence counsel did not say anything more on the point. Hence, contrary to the submissions of counsel for the accused in this Court, there was no statutory requirement to give a s 165 direction because it cannot be said that his predecessor made a "request" for a s 165 warning within the meaning of s 165(2). The conditions necessary to satisfy the word "requests" in s 165(2) in relation to a warning about "evidence of a kind that may be unreliable" would involve counsel making the request identifying what the "kind" of evidence was, why it was unreliable, and what the terms of the warning requested were. None of these points were identified. Defence counsel certainly did not specifically ask for warnings on the subjects set out in ground 2.3, let alone formulate in terms what the content of those warnings might have been. Prosecution counsel did suggest, however, that the trial judge should "modify the identification evidence directions but refer to it as resemblance evidence, not identification evidence".

"Nevertheless you do have evidence from a number of witnesses describing the appearance of the person who came into the council demanding money on 28 February '04 [sic] and you do have witnesses who describe the wearing apparel and you have also got the security video and the stills, the still photographs. And when the accused gave evidence he was asked to do certain things in relation to exhibits M and O, that was to put on the red balaclava and the pair of overalls so a comparison could be made between the person described as the robber by the various witnesses and the accused."

Later she said:

"[A]lthough I have said to you there is no visual identification in the ordinary sense of the word ... I am still bound to give you a direction which in effect is a special caution about identification evidence.

I say to you at the outset that in the case of identification evidence the warning of a need for special caution before accepting of [sic] identification is one which is given in every case in which such evidence is disputed by the accused. It is not given because of any particular view which I may have formed concerning the reliability of – when I say that I am not really giving you this direction at the moment. I am telling you this is the sort of direction that is given in every case and the principal reason for it being given is because of the nature of this type of evidence and I will direct you now specifically that the type of evidence that you have heard in this case here which goes to the identification in the Crown case which is led for the purpose of or the foundation of its submission in the evidence is of such a type that you could safely act on it providing you are satisfied yourselves about the evidence and you accept the evidence.

What I am endeavouring to say to you is that for this type of evidence that you have had before you it also calls for a special caution and as I say that is not because I formed any view concerning the reliability of the evidence in this case. In other words it is given universally in relation to any identification. There is universally given a special caution. Now what I am going to say to you is this, the weight to be given to that evidence is a matter for your decision, not mine, and I have nothing to do with that decision which you have to make.

You should not interpret these directions as indicating any particular view which I may have formed one way or another. As I said you must approach this evidence with special caution. There are however a number of matters in this case which I propose to draw to your attention which are relevant to the reliability of the evidence that has been given and my direction is that you are bound to consider those matters in determining whether you will accept that evidence as reliable."

She then referred to the limited time which the eyewitnesses had to make observations and the particular circumstances they were in.

These directions were correctly criticised by the Court of Criminal Appeal on grounds which it is unnecessary to repeat²¹⁶. The criticisms were not criticisms made by defence counsel when the judge was hearing submissions about further directions after the close of the summing up. In this Court counsel for the accused made a broad ranging attack on these directions. The first criticism was that the trial judge's statement that she was giving the directions because she was required to and not because of any view of the facts she had formed weakened her directions²¹⁷. The second was that the conventional identification warning had not been given. Neither of these are points of criticism identified by ground 2.3. A third criticism was that strong warnings are needed where claims of similarity are made in relation to voices²¹⁸, clothing²¹⁹ or objects²²⁰. None of these three criticisms grounded any request by defence counsel for a further direction at the close of the summing up; indeed he made no request for a further direction of any kind. Prosecution counsel, however, did draw attention to the trial judge's failure to give a "resemblance warning" about what the eyewitnesses said about the balaclava and the overalls – the matter she had suggested as desirable in the debate before the summing up. The transcript records the following after the jury were asked to retire:

"CROWN PROSECUTOR: One further direction.

HER HONOUR: About the editing, that one?

CROWN PROSECUTOR: No, about the resemblance evidence of the civilian witnesses concerning Exhibits M and O, your Honour hasn't given the direction concerning special caution in respect of that evidence."

The jury then left the court, and the debate continued thus:

"CROWN PROSECUTOR: Your Honour has referred to it generally in terms of the witnesses' descriptions of what the offender was wearing and carrying, in context of the special caution direction, but your Honour did not specifically include a reference to their evidence about Exhibits M and O. When they were shown them.

HER HONOUR: You mean the sort of – where I think Mr Marszalek – are you thinking of his sort of answer?

CROWN PROSECUTOR: All of their answers in –

HER HONOUR: All of the evidence in relation to?

CROWN PROSECUTOR: They all generally said, if I can use the expression, resembled.

HER HONOUR: It resembled.

CROWN PROSECUTOR: With what the offender was wearing. They each said varying things about the items, and we agreed that was to be referred to as resemblance evidence, and my suggestion is that your Honour needs to say that that special caution that you have given applies to that evidence as well.

HER HONOUR: Applies especially to the evidence that each of them gave about – Did you want to say something?

[DEFENCE COUNSEL]: My understanding of the caution your Honour did give was applied to the descriptions of the person, and apparel, that is as I heard the caution your Honour gave, it was applicable to both the description of the person and the apparel.

HER HONOUR: Even if I didn't specify, I certainly had in mind. Well I think I would have had in mind both. Put it that way.

[DEFENCE COUNSEL]: Your Honour did say apparel.

HER HONOUR: You don't have any difficulty, do you, if I have them back in and I will just tell them that the – particularly the caution that related to the balaclava and the overalls."

In fact there is nothing to suggest that the trial judge did thereafter give any "caution that related to the balaclava and the overalls".

Contrary to a submission made by counsel for the accused in this Court, the Court of Criminal Appeal was correct to say that in that passage counsel for the accused "did not support and actually opposed" prosecution counsel's submission²²¹.
The relevant course of events before the summing up, then, was that prosecution counsel suggested a "resemblance warning" akin to an "identification warning", and raised the question of a s 165 warning; defence counsel asked for "the usual warnings" without saying what they were, and did not make any request for a s 165 warning. After the summing up, prosecution counsel reminded the trial judge of the need for a "resemblance warning" about what the eyewitnesses said about Exs M and O, but defence counsel twice indicated it was not necessary. Even though the trial judge said she would give it and did not, the failure of defence counsel to press for it after prosecution counsel raised the point, and thereafter to remind the trial judge of her failure to fulfil her promise that she would comply with prosecution counsel's request, disables counsel for the accused now from saying that the failure to give the two warnings which it is now said should have been given amounted to a miscarriage of justice. To examine witnesses by reference to the balaclava and overalls in the manner employed in this case, though permissible, is not a particularly common event. To ask the accused to don the items, walk before the jury and speak as requested is less common. On the other hand, the difficulties of drawing inferences from mass produced items are fairly obvious, and were stressed by counsel for the accused in address. The jury must have appreciated the diverse reactions of the eyewitnesses to the offender's clothing. Further, the events to which the two warnings which it is said should have been given related took up very small amounts of time – a miniscule fraction of the whole trial. Rather than asking for unspecified "usual warnings", it was incumbent on the defence, if it was thought the unusual nature of the events called for specific directions, to formulate the precise words of any direction sought and either read them to the judge at dictation speed or hand up a document containing them. What McHugh JA said of civil jury trial is true for criminal cases as well²²²:

"If a party is to rely as a ground of appeal on a misdirection in a summing-up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give."

The conduct of defence counsel, who at all times showed a vigilant determination to protect his client's interests as energetically as possible, suggests that he did not see his client's position as being damaged by the summing up, that he considered that the prosecution counsel's request might not advance it, and that he did not think his client's position would be improved by the very subtle and detailed warnings which it was submitted to this Court should have been given.

Ground 2.4: failure to give reasons

This ground was:

"The Court of Criminal Appeal erred in:

(a) Inferring reasons for judgments of the trial judge in circumstances where on applications of substance, there were no such reasons given;

(b) Failing (as a matter of procedural fairness) to uphold the appeal in circumstances where on applications of substance there were no reasons given by the trial judge;

(c) Holding that there was no error in the reasons of the trial judge where no reasons were ever given by the trial judge and those reasons were rather, the reasons that the Court of Criminal Appeal had itself inferred."

Counsel for the accused submitted that the trial judge failed to give reasons or gave only incomplete reasons for:

(a) overruling the defence objection to the questioning of Mrs Thompson about the balaclava and the overalls;

(b) deciding not to rule inadmissible all the evidence given about the balaclava and the overalls, the items themselves, and their finding at the accused's residence;

(d) deciding to refuse to waive the notice requirements relating to alibi evidence and to refuse to allow evidence of alibi;

(e) deciding to overrule objections to the accused being made to wear the balaclava, the sunglasses and the overalls, to walk up and down and to say "serious";

(f) refusing to give an identification direction either under s 116 of the Act; or s 165 and

(g) refusing an application to discharge the jury.

Counsel for the accused submitted of these failures: "The rulings ... were central to the trial and the failure to give reasons, despite repeated request[s], pervaded the entire trial." In assessing the meaning and validity of this submission, the following matters are relevant.
First, counsel for the accused does not now complain, and did not complain in the Court of Criminal Appeal, about the grant of leave to amend and the refusal to discharge the jury. The failure to give any reasons for the grant of leave or to give full reasons about the discharge application may thus be left out of consideration.
Secondly, the Court of Criminal Appeal found that the trial judge had erred in relation to the alibi question and the sunglasses. The failure to give reasons for these rulings could scarcely improve the accused's position on these issues in this Court.
Thirdly, of the remaining rulings, reasons were not sought by defence counsel in relation to the ruling about Mrs Thompson, the rulings about the accused wearing, doing and saying various things, or the identification directions. The only remaining ruling for which reasons were sought and promised was the decision not to hold inadmissible all the evidence given by eyewitnesses about Exs M and O, the exhibits themselves, and the circumstances of their finding.
Fourthly, it is very unusual for trial judges to give reasons, beyond what they say in dealing with argument, about why they propose to give some directions to the jury but not others. It is not generally desirable to require them to go further.
There are innumerable rulings given in trials in response to objections for which reasons should normally neither be requested nor given – those relating to the form of questions, those relating to their capacity to elicit inadmissible evidence, those relating to their tendency to infringe privilege. Sometimes reasons for rulings on relevance and privilege should be given, because they offer a guide to counsel in their future conduct, and the time lost in giving the ruling is outweighed by the time saved in ensuring future compliance with it. But if reasons were to be given for every ruling, trials would become interminable. Although no trial is perfect, if the present trial had any significant fault, it was the lengthy periods which the trial judge permitted counsel to take up in debating questions of admissibility.
The Court of Criminal Appeal criticised the failure of the trial judge to give reasons for some of her rulings. That criticism was correct, at least in cases where defence counsel requested reasons and they were promised. However, the Court of Criminal Appeal held that the failure to give reasons was not "such a fundamental procedural irregularity as to warrant setting aside the [accused's] convictions"²²³. This was because, as the Court of Criminal Appeal correctly said, the relevant applications were usually argued at length, so that the evolving views of the trial judge were apparent from what she said in argument.

"The approach adopted of 'inferring reasons' puts intolerable burdens on courts of appeal and leaves litigants unable to properly present their cases on appeal. The procedure adopted at trial and on appeal denied procedural fairness to the [accused]. A miscarriage of justice was thereby occasioned."

The first sentence is correct in some circumstances, but was not shown to be correct in the circumstances of this trial. For that reason the conclusions in the second and third sentences do not follow.

Ground 2.5: the proviso

This ground was:

"The Court of Criminal Appeal erred in applying the proviso notwithstanding that it upheld the [accused's] complaint in relation to:

(a) The prosecutor requiring the [accused] to put on the prosecutor's 'old skiing glasses' which had not been admitted into evidence, had not been shown to any witness and which were produced for the first time when the prosecutor asked the [accused] to put them on ...

(b) The error identified ... in refusing to waive the notice requirements relating to alibi evidence and the refusal to allow alibi evidence in the trial."

The arguments of the accused in this Court concentrated on the alibi evidence²³², and practically nothing was said about the sunglasses. It is necessary to approach the question of the proviso to s 6(1) of the Criminal Appeal Act on a slightly wider basis than the Court of Criminal Appeal did because it was concluded above that, apart from the two respects in which the Court of Criminal Appeal favoured the accused, an irregularity possibly amounting to a miscarriage of justice took place when the accused responded to prosecution counsel's request to put on the balaclava and sat with it on for some minutes in the presence of the jury while an objection was being debated²³³.
The accused's alibi evidence. The accused said during examination in chief that he could not remember where he was on the afternoon of 28 February 2002, save that he was not at Strathfield. He said it was his practice on Thursdays to prepare limousines for display from 5pm in his brother's car hire business at Campbelltown. This took him from 2 or 3pm to 5pm. After an adjournment, prosecution counsel submitted that the accused's alibi evidence had been given without complying with s 150 of the Criminal Procedure Act 1986 (NSW), which requires the leave of the court where notice has not been given. Counsel said she would cross-examine him about the evidence he had given, but would object to alibi evidence from other witnesses. The cross-examination in question was not directed to establishing that the practice about which the accused had testified did not exist. Instead it was directed, successfully, to establishing that there were no records to confirm that the accused had worked in accordance with his practice on that particular afternoon, and no evidence available from anyone working in nearby businesses to that effect.
The alibi ruling. The trial judge refused to grant leave "retrospectively" to rely on alibi evidence, and refused leave to call evidence about alibi from the accused's father and brother. But she did not strike out the accused's evidence. Contrary to a submission advanced on behalf of the accused the Court of Criminal Appeal was right to say that the evidence which the accused gave in support of the alibi "was not withdrawn from the jury"²³⁴. Indeed, although neither counsel addressed the jury about the accused's evidence of practice, both referred to his evidence that he was not at Strathfield.
The evidence of the accused's brother and father. The accused's brother gave evidence on various topics. But, conformably with the trial judge's refusal of leave to call alibi evidence, defence counsel elicited none. The same approach was taken with the father.

"The accused ... has given evidence himself and he's also called evidence, that is his father and his brother in support of his case, to the effect to support his denial of his being present and committing the offence ..."

It was not correct to say that the father and brother had given evidence to support the accused's denial of being present. They had testified, but the trial judge had ruled that they could not give evidence on that particular point.

The uncalled evidence of the father and the brother. In an affidavit read to the Court of Criminal Appeal, the father said that the accused had the task of preparing five cars for display outside the brother's shop on Thursdays, usually starting just after lunch and finishing between 4 and 5pm. He did not recall the accused ever missing a day's work. An affidavit by the brother was to similar effect, save that he said the work took the accused five hours, and that he did not recall the accused having any breaks or not turning up for work.
The accused's submission. Counsel for the accused submitted that the "defence case" was that the accused's practice on Thursdays was to work in his brother's business at Campbelltown at times inconsistent with being at Strathfield at 4.10pm. While the accused gave evidence supporting that case, he was prevented from putting it fully because he could not call his father and brother to support that practice. For that reason, it was submitted, the appeal fell within the following words in Weiss v The Queen²³⁵:

"[T]here may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind."

It was also submitted that the errors amounted to "such a serious breach of the presuppositions of the trial as to deny the application" of the proviso²³⁶. Thus, it was submitted, it did not matter how strong the other evidence against the accused was: the proviso could not be applied. If that argument were to fail, the question would be whether the evidence which the trial judge did not permit the accused to call could have raised a reasonable doubt about the prosecution case.

Conclusion. There was extremely strong evidence against the accused, even assuming that no connection between the offender's balaclava and overalls and the accused was proved. The evidence was that before the robberies the floor of the chambers was clean. The surveillance video, and the sequence of photographs derived from it, showed that there were no items on the floor in front of the counter as the offender was standing there at 16.09:35, and that by 16.09:45 two items appeared in that area. One is clearly a tissue. Although there plainly is a second item, it is more difficult to discern. The inescapable inference is that the items were dropped by the offender. The area was cordoned off so that the items were not disturbed. They were photographed in situ and those photographs, taken close up and in colour, clearly depict a green baseball cap. In his final address to the jury, counsel for the accused said that the photographs appeared to show two items on the floor, and said: "One is probably the tissue and the other is probably the cap." In addition, after the robberies, three witnesses saw a green baseball cap on the floor. That cap – the cap photographed in the cordoned-off area – had the accused's DNA on it. Finally, when the cap was shown to the accused in the witness box, he said it was "vaguely familiar" and that his father may have had a hat like that. His father said that he had won similar caps, he had left them in the garage of the house where the accused resided, and that anyone could wear them.
In this Court it was submitted for the accused that "there was no evidence at the trial that the robber dropped more than one item or specifically a cap". That submission is true if it means that there was no direct testimonial evidence to that effect. In every other sense it is untrue, because the video, the photographs, and the testimonial evidence established beyond doubt that the offender left the cap behind him.
In those circumstances, what explanation for the presence of the cap with its incriminating DNA could be offered to suggest a reasonable doubt about the accused's guilt? In his final address to the jury counsel for the accused submitted that the cap was deliberately placed on the floor by the offender with DNA other than his own on it – that is, that false evidence was planted. This implies that the offender deliberately obtained a cap with the accused's DNA on it. If the evidence had not been planted, the only explanation capable of raising a reasonable doubt is that the cap left by the offender had, by accident, the accused's DNA on it. There is no evidentiary basis for treating either of these suggestions as possibilities, let alone reasonable possibilities. They are utterly implausible. The theory that the accused's DNA found on the cap could have been deposited there by transference of blood, semen or saliva, rather than from contact with the accused's skin faces the difficulties that there was no evidence of staining on the cap, that the DNA was found on the inside brim area, where one would expect to find it if it were worn facing forward, and that, in the words of the relevant defence expert, there "was a bucket of DNA present".

Order

The appeal should be dismissed.
CRENNAN J. I agree with Heydon J that the appeal should be dismissed and I agree with his Honour's reasons.
The evidence of the accused referred to as evidence of an alibi was not evidence of an actual recollection of being elsewhere than at Strathfield on the afternoon of 28 February 2002. Rather, it was evidence of a practice of the accused to attend his brother's business at Campbelltown on a Thursday for a period of time inconsistent with being at Strathfield at 4.10 pm. The evidence of the accused's father and brother which was not called supported the accused's evidence of the practice. The accused was not challenged in cross‑examination about the practice. Neither prosecution counsel nor defence counsel addressed the jury about the accused's evidence of his practice which went to the jury.
When those matters are considered together with other evidence described by Heydon J as "extremely strong evidence against the accused"²³⁹, the errors complained of did not amount to "such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso"²⁴⁰.

Footnotes

Evans v The Queen (2006) 164 A Crim R 489. ↩
(2006) 164 A Crim R 489 at 508‑512 [163]‑[197]. ↩
(2006) 164 A Crim R 489 at 516‑519 [222]‑[242]. ↩
(2006) 164 A Crim R 489 at 518 [236]. ↩
(2006) 164 A Crim R 489 at 523 [285]. ↩
(2006) 164 A Crim R 489 at 524 [288]. ↩
(2006) 164 A Crim R 489. ↩
Evidence Act 1995 (NSW) ("the Act"), s 53. ↩
[2007] HCA Trans 368 at 1507. ↩
[2007] HCA Trans 368 at 1507‑1509. ↩
Wigmore, Evidence in Trials at Common Law, (Chadbourn Rev) (1972), vol 4, § 1150. ↩
(2001) 206 CLR 650. ↩
The Act, s 55(1). ↩
(2001) 206 CLR 650 at 655 [11].

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Deep Dive

What happened

Cited legislation

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Judgment

Footnotes

Parties

Legislation Cited (12)

Cases Cited (55)

Cited By (1)

AI Analysis