High Court of Australia|2001-11-15|Before: Callinan JJ

For the reasons that we have given, there has been a miscarriage of justice in this case. It was not a miscarriage to which the fresh evidence rule applied. It is one thing to say that the defence knew or could have found out about various aspects of unsavoury behaviour on the part of Mr Reynolds but an altogether different thing to say that it knew of the special relationship between Mr Reynolds and the police. And although it might also be possible to say that a lucky (if extremely risky) question of him might have elicited an answer which revealed the existence of the letter of comfort and perhaps even its contents, there was no reason why the defence in a criminal trial should be obliged to fossick for information of this kind and to which it was entitled. Nor can we accept, in any event, as the Court of Criminal Appeal held, that reasonable diligence before or during the trial would have unearthed the letter.

The outcome of the appeal depends upon the application of s 6(1) of the Criminal Appeal Act 1912 (NSW), which provides as follows:

(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or 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 only question is whether, as the respondent submits, the appeal should be dismissed because no substantial miscarriage of justice has actually occurred.

The language of s 6(1) is similar to the language of s 4(1) of the Criminal Appeal Act 1907 (UK), which established the Court of Criminal Appeal in England. It has analogues, or virtual analogues, enacted between 1912 and 1924 in the other Australian States. Its history after its original enactment is traced in the judgment of Brooking JA in R v Gallagher[8] in which his Honour remarks on the difficulty of drawing a distinction between a (mere) miscarriage of justice, and a "substantial" miscarriage of justice, being the two expressions which appear in the sub-section, a difficulty upon which many judges before him have commented. In Wilde v The Queen[9], Brennan, Dawson and Toohey JJ however stated the effect of the authorities to be[10]:

"Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen[11] or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey[12]. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen[13]; Reg v Storey[14]; Gallagher v The Queen[15]. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen[16]. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case. In this case the Court of Criminal Appeal answered it adversely to the applicant, and there is nothing to show that the answer was wrong."

The strongest point that the respondent makes is that it is very unlikely that the appellant could have innocently been in possession of, and have been able to sell five indisputably stolen motor vehicles. It is a powerful point. The respondent nonetheless was bound to facilitate fair process by providing to the appellant all materials to which he was entitled to have access. This did not happen.

Because of the over-arching importance of Mr Reynolds' evidence at the trial and the weight that the prosecution placed upon his reliability, we are unable to say that, had the letter been made available to the appellant so that he could cross-examine on it and introduce it into evidence, he would inevitably have been convicted. He has lost thereby a fair chance of acquittal.

The appeal to this Court should be allowed. The order of the Court of Criminal Appeal should be set aside. In place of that order, it should be ordered that the appeal to the Court of Criminal Appeal be allowed, the conviction be quashed and the appellant be retried on each of the counts on which he was convicted.

KIRBY J. This is an appeal from a judgment of the New South Wales Court of Criminal Appeal[17]. That Court, by majority[18], dismissed an appeal by Mr Anthony Grey ("the appellant") against his conviction on five counts of stealing motor vehicles and four counts of disposing of the stolen vehicles.

On any view, the prosecution case against the appellant was very strong. However, after the appellant's conviction, it was discovered that the prosecution's principal witness was an informer for the police who had, for that reason, secured advantages in criminal proceedings in which he had received a lenient sentence. In the Court of Criminal Appeal[19], and in this Court, it was conceded by the prosecution that the failure to draw these facts to the attention of those representing the appellant at his trial amounted to a breach of the prosecution's duty to disclose to the defence a relevant matter[20]. The issue in this appeal is whether the majority erred in the Court below in concluding that, notwithstanding such breach and any miscarriage that it occasioned, the case was one in which the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied, with the result that the appellant's conviction was confirmed.

On 7 December 1993, the appellant was arrested and charged with fourteen offences involving stealing or alternatively receiving five motor vehicles and subsequently disposing of those vehicles knowing the same to have been stolen. The appellant's wife was charged with disposing of the fifth vehicle. She was tried jointly with the appellant. She was convicted and sentenced on the charge. This Court is not concerned with her case.

The key witness in the prosecution case was Mr Leon Reynolds. The prosecution relied on his testimony to describe what it alleged was a course of conduct by which it could be inferred that the appellant had stolen a series of five Ford motor vehicles in the Dubbo district in New South Wales, and then engaged in "rebirthing"[21] them. This process has already been detailed in the reasons of Gleeson CJ, Gummow and Callinan JJ ("the joint reasons")[22]. In respect of at least four of the five vehicles, Mr Reynolds was the supplier to the appellant of the source vehicle comprising a wreck or vehicle of small value. Mr Reynolds denied having taken any part in the substitution of the engine numbers on the stolen vehicles. The appellant, who was not a motor trader, admitted to making some money on the resale of reconditioned vehicles. But he claimed that he was innocent of any wrongdoing.

There was no direct evidence of the appellant's participation in the thefts of any of the stolen vehicles. However, the prosecution relied on circumstantial evidence. It also relied on the doctrine of recent possession[23].

A committal hearing of the charges against the appellant took place in June 1994. At this, the appellant's defence suggested that Mr Reynolds was the person responsible for the "rebirthing" of the five vehicles. In May 1997, a detailed no bill submission was addressed to the Director of Public Prosecutions ("DPP"). This document was subsequently placed before the Court of Criminal Appeal and was before this Court. In it, the appellant complained that Mr Reynolds had criminal convictions for dishonesty arising out of his dealings in the motor industry; that he had been involved in illegal activity "at the very time as the commission" of the offences alleged against the appellant; that Mr Reynolds' main aim in giving evidence "was to avoid implicating himself in the offences allegedly committed by our client[s]"; that Mr Reynolds had defective records and was "accustomed to 'switching' engine and chassis numbers"; and that police were covering up and protecting Mr Reynolds. The no bill submission asked "why was not Reynolds charged with at least aiding and abetting or being an accessory to our client ... when he [Reynolds] allegedly supplied the engine and chassis numbers to [the appellant]?"

Notwithstanding this letter, the DPP, in July 1998, decided that the matter should proceed to trial. That trial took place in August 1998 before Rummery DCJ and a jury. In the course of the trial, Mr Reynolds was called to give evidence for the prosecution[24]. He was cross-examined on behalf of the appellant concerning his criminal record and to suggest that he had the experience, mechanical implements, prior involvement and motivation to play the necessary role in altering the engine numbers of the five vehicles later registered, sold and disposed of by the appellant and his wife. However, it was not put directly to him that he was in fact responsible for the alterations of the engine numbers. The only explanation offered for that omission was the suggestion that, without strong evidence to support such an allegation, counsel was restrained by ethical rules from making that accusation against a witness.

The appellant's case at trial was that he was simply involved in making "a bit of extra money" from the selling of vehicles acquired from Mr Reynolds. He had purchased a number of them and paid for them through his bank account as, it was suggested, he would not have done if he had been aware that the vehicles had been stolen. The appellant gave no evidence at his trial. However, he made an unsworn statement to the jury. In it he denied that he had known that the vehicles were stolen. Of his dealings with Mr Reynolds he said:

"I never suspected there was anything wrong with any of the vehicles, but - that I purchased off him, there was nothing wrong with buying the vehicles off him. There was no reason to suspect anything. I got on really well with Leon [Reynolds], I thought he was a pretty good fellow at the time."

According to the appellant, as far as he was aware, Mr Reynolds would merely transfer parts of vehicles from a wreck, thereby creating "a better vehicle from the two". He stated that later, when police began seizing the vehicles he had sold, he contacted Mr Reynolds. For the first time Mr Reynolds told him: "There could be some problems with some of the vehicles I sold you". He attributed to Mr Reynolds the statement: "If the police look deep enough, there could be a matter of 130 vehicles involved, European cars, Japanese, Fords, Holdens". He justified his sale of the vehicles far from Dubbo (where he and his wife lived) on the footing that such vehicles fetched more money in other places.

After a lengthy retirement, the jury found the appellant guilty of the charges. He was convicted and sentenced. After his appeal was dismissed by the Court of Criminal Appeal, he was granted bail by a judge of the Supreme Court of New South Wales pending a decision of this Court. Now, by special leave, he has appealed to this Court.

As was stated in the no bill submission, and as was put during cross-examination at the trial, Mr Reynolds was convicted of criminal offences in relation to car thefts extending back to 1992. In respect of such offences Mr Reynolds appeared for sentence on 30 September 1993 before Nield DCJ in the District Court of New South Wales. He pleaded guilty and was sentenced to imprisonment for nine months, such sentence to be served by way of periodic detention. The recording of the judge's remarks on sentencing Mr Reynolds was deleted some time between 1993 and the time that their substance came to light after the appellant's conviction and sentence[25]. However, the prosecutor, present in court at the time of Mr Reynolds' sentence, noted on the file an apparent summary of what the sentencing judge had said. This note was produced to the Court of Criminal Appeal. It read: "Save for prior good character, rehabilitation and Exhibit G would have imposed full time gaol"[26].

The exhibit referred to ("Ex G") was not known to the appellant's representatives at his trial. Nor was it contained in the brief of the prosecutor. The co-creator of the document was Detective Sergeant Bandouvakis of the New South Wales Police Service. He also gave evidence in the prosecution case against the appellant. Indeed, he was the informant against the appellant, as he had been, in 1992, in respect of the charges against Mr Reynolds. Det Sgt Bandouvakis did not disclose to the prosecutor in the appellant's trial the letter or the arrangements which Ex G showed he had made prior to Mr Reynolds' sentencing. It is the omission to disclose the existence of this letter to the representatives of the appellant that gave rise to the principal argument before the Court of Criminal Appeal. It now presents the issue before this Court.

The letter, Ex G, described as a "letter of comfort"[27] is dated 23 September 1993. It concludes with the statement set out in the joint reasons[28]. However, I think it is useful to reproduce the substantial elements of the letter:

"Prior to these matters coming to light, the prisoner [Reynolds] provided information which resulted in the recovery of two stolen vehicles, in the Yennora and Guildford areas. One person was arrested in respect of one of the vehicles and served a nine month custodial sentence. The other suspect fled the country, before inquiries could be finalised.

At the present time the prisoner is assisting us with our inquiries in relation to the activities of a group in the Central West of this State, involving the theft and conversion of Ford motor vehicles, on a widespread basis.

To date we have recovered four stolen motor vehicles with an estimated value of $60,000.00. The cars have been recovered intrastate and interstate. The prisoner has stated he is prepared to make further inquiries, in an effort to identify further vehicles which have been stolen and converted by the persons involved in this operation. There is no evidence to indicate that the prisoner is an active participant in this current inquiry.

The prisoner stated he wished to finalise these present matters as soon as possible. He entered a plea of guilty, at the first opportunity, and has maintained that plea ...."

In an affidavit read before the Court of Criminal Appeal, counsel who had appeared for the appellant at the trial declared that at no time prior to, or during, the trial was he aware that Mr Reynolds was a police informer. Counsel stated that it was only in August 1999 that he was given a copy of documents and discovered that Mr Reynolds had provided assistance to police as mentioned in Ex G. Counsel stated that, despite the representations made on the no bill submission which he had drafted, he had never been informed by police or the prosecutor of Mr Reynolds' role as a police informer. The Crown Prosecutor at the appellant's trial also prepared an affidavit that was read to the Court of Criminal Appeal. It deposed that he too had been unaware of the matters in Ex G. He stated that it was his belief that, had he been in possession of knowledge about the letter, he would have disclosed that knowledge to the defence.

In the Court of Criminal Appeal, the presiding judge, Grove J (with whom Sully J agreed)[29], defined the "essential issue" as being "whether the absence of communication of the fact that assistance to police was one factor in gaining leniency for Reynolds demonstrates miscarriage of justice in the appellant's trial"[30]. The cross-examination of Mr Reynolds at the trial was, in Grove J's opinion, unmistakable in its suggestion that at the relevant time, he possessed implements that could be used for the purpose of stamping engine and chassis numbers; that such implements had not been produced to police; that at the time of the offences alleged against the appellant Mr Reynolds faced severe financial difficulties; that his car yard in Yennora, a Sydney suburb, was capable of holding a large number of vehicles; that there were discrepancies in logbooks that he was required to keep relating to the sale and disposal of the subject vehicles; and that during the time he had conducted the wrecking business Mr Reynolds had used the implements to place engine and chassis numbers upon certain vehicles, in particular Ford motor cars, and that this process was "not easy"[31].

In the context of this conduct of the appellant's trial, Grove J was of the opinion that the additional ammunition that knowledge of Ex G would have provided to the appellant was "limited". It was confined to Mr Reynolds' "general credit rather than to the facts of the case"[32]. Although the assistance that Mr Reynolds had given to police and its relevance to his gaining leniency in his own sentencing had not emerged during cross-examination at the appellant's committal[33], Grove J quoted part of the committal evidence to demonstrate that effectively, Mr Reynolds had already been questioned extensively as to his credit and as to evidence he had given in other cases[34].

In the light of the actual conduct of the appellant's defence, Grove J therefore concluded that Ex G should be treated as "fresh or new evidence" and subjected to the tests applicable to such evidence when it emerges for the first time following a criminal conviction[35]. His Honour was of the opinion that reasonable diligence would have detected the fact that Mr Reynolds had sought, and obtained, favourable consideration for his assistance to the authorities. In any case, Grove J concluded that "the addition of one additional factor to the many others addressed to the central Crown witness" did not give rise "to a significant possibility that the jury, acting reasonably, would have acquitted the appellant"[36].

The dissenting judge, Simpson J, confirmed the concession made by the trial prosecutor, that the substance of the arrangements disclosed in Ex G should have been made known to the appellant. She did this by referring to the duties imposed on Crown prosecutors who are members of the New South Wales Bar Association by the rules of that body[37]. Her Honour also referred to the published guidelines issued by the DPP concerning prosecution policy in New South Wales, including in relation to the disclosure of information about informers[38]. Pursuant to the Director of Public Prosecutions Act 1986 (NSW), s 14, guidelines have been issued to police by the DPP requiring disclosure by them to the Office of the DPP of relevant information and material. This includes any information concerning any proposed witness that might be of relevance either to the prosecution or to the defence[39].

In light of these considerations, Simpson J decided that information concerning the arrangements entered between police and Mr Reynolds was relevant to the proper evaluation of Mr Reynolds' testimony[40] and so should have been disclosed both to the prosecution and the defence. Whilst her Honour was prepared to accept that the failure to disclose was not occasioned by bad faith[41] it was, in her opinion, significant. This was because Mr Reynolds' credibility was "the material issue" in the prosecution case[42]. Because the information he gave to police concerned "the very matters with which the appellant was charged"[43], this made disclosure of police arrangements with him "highly relevant to his credibility". The failure to provide that information to the appellant had therefore caused the loss of a fair chance of acquittal[44].

The suggestion that the issue was to be approached on the footing that Ex G was "new evidence", which ought to have been discovered by the appellant's representatives before his trial, was rejected by Simpson J[45]. In light of her conclusion that the convictions had to be quashed and a new trial ordered, her Honour did not address the alternative ground relied upon by the appellant, by leave, namely that, if reasonable diligence by his representatives ought to have uncovered Ex G, he was entitled to relief on the footing of incompetent legal representation[46]. That ground, although mentioned in the majority reasons[47] was not decided by them, except by inference. All of the judges rejected the appellant's complaint that the trial judge had erred in declining to give a direction to the jury based on s 165 of the Evidence Act 1995 (NSW)[48].

Appeal being a statutory process for the correction of error[49], it is necessary, for the appeal to succeed, to persuade this Court that the reasons given by the Court of Criminal Appeal for dismissing the appellant's appeal disclose a relevant error. With respect to the majority of that Court, I consider that their Honours erred in classifying the problem to be resolved in terms of the rules applicable to the reception of new or fresh evidence discovered following conviction of a criminal offence. Such rules apply to limit the reception of evidence whose absence has occasioned a miscarriage of justice[50]. Where evidence was available at the trial or, with reasonable diligence could have been available, there will ordinarily be no miscarriage of justice in the failure to adduce it[51]. However, the assumption behind this rule is, relevantly, that the accused either had the evidence available, or could and should have discovered it, so that a belated reliance upon it ought not to be permitted.

In the present case the appellant's complaint is that Ex G, or some indication of its contents, ought to have been provided by police to the DPP and by the prosecution to the appellant's legal representatives. To treat this case simply as one amenable to the rules governing "fresh" or "new" evidence following a criminal trial is effectively to convert the prosecutor's duty to disclose into an accused's obligation to find out. Because the DPP has conceded that there was a duty to disclose which was not fulfilled, the reasoning of the majority of the Court of Criminal Appeal is incorrect. If the police and prosecution duties had been properly discharged, the appellant's representatives would have been supplied with Ex G or information as to its contents. The appellant would thus have had the necessary materials available to him. No occasion would then have arisen for the present arguments.

Nevertheless, the ultimate conclusion for the majority in the Court of Criminal Appeal appears to have rested on their Honours' application of the proviso[52]. This provision often leads to differences of judicial opinion[53]. Is this appeal simply a case upon which minds might differ in considering the suggested miscarriage of justice that arose in the course of the appellant's trial against the strength of the prosecution evidence against him? Or can error be discerned in the majority's reasons so that Simpson J was correct to reject the application of the proviso?

This is not a case where the verdicts of the jury were unreasonable, based on the evidence adduced before them. Still less is it one where those verdicts were not supported having regard to the evidence. Nor, subject to what will later be said about s 165 of the Evidence Act (the application of which, in turn, depended on the factual foundation for the ruling), is this a case where a wrong decision on any question of law has occurred in the course of the trial. Accordingly, the jurisdiction and power of the Court of Criminal Appeal invoked by the appellant under the Criminal Appeal Act was that a "miscarriage of justice" had been demonstrated because of the failure of the prosecution to disclose to him Ex G or its substance. If such a "miscarriage of justice" is shown, the Court of Criminal Appeal is primarily required to allow the appeal[54].

This Court has pointed out many times[55] that the proviso appears in a section that does not negate the fundamental principle of the administration of criminal justice in Australia. This is that no person should be convicted of a serious crime except (where applicable) by the verdict of a jury after a fair trial held according to law[56]. If the trial ceases to be a fair trial according to law, the verdict of guilty, and the criminal conviction that follows it, is intrinsically flawed. It is then no part of the function of a court of criminal appeal to hold that the accused is "so obviously guilty that the requirement of a fair trial according to law can be dispensed with"[57]. The proviso has no application to such a case. Nevertheless, in a "relevantly fair trial"[58], error, impropriety or unfairness may occur that does not deprive the trial of its essential attributes as such. In those cases, the evaluation required by the proviso must be performed.

In the present appeal, the appellant submitted that the absence of access to Ex G (or knowledge about its contents) rendered his trial fundamentally unfair so that no question of the proviso arose. Alternatively, he submitted that, if the proviso were applicable, this Court, like Simpson J, would conclude that the prosecution had failed to show from the evidence or the inferences available from that evidence, that the jury would inevitably have convicted the appellant[59]. This Court was reminded that once a miscarriage of justice is demonstrated, it is the prosecution that bears the burden of persuasion that the accused had not lost "a chance which was fairly open to him of being acquitted"[60] or "a real chance of acquittal"[61].

In cases where credibility is in issue and where the jury's assessment of the truthfulness of a vital prosecution witness might be important for their verdict, the admission of inadmissible evidence, the rejection of admissible evidence or the unavailability of significant and relevant evidence that later comes to light may, in a particular case, occasion such a miscarriage of justice that a guilty verdict should not stand. In Driscoll v The Queen[62], Gibbs J (with whom Mason and Jacobs JJ agreed) said:

"The case against the applicant may well have been thought to be a strong one. However, ultimately it depended on questions of credibility. It is possible that the jury accepted the police evidence as to the records of interview, and gave weight to that evidence in reaching their final conclusion, and that they would not have been satisfied to accept that evidence if the testimony of [a witness] as to his conversation with [police] had been admitted. Having regard to that circumstance, and to the possible effect of the admission of the inadmissible evidence, I find it impossible to say that the errors have not affected the result or that the jury would certainly have returned the same verdict if the errors had not occurred. I am not satisfied that no substantial miscarriage of justice has occurred ...."

It follows that, whilst the proviso affords relief against the consequences that would otherwise flow from a demonstration of mistakes or imperfections that have occurred in the trial process (where such mistakes or imperfections can properly be viewed as immaterial or insignificant) and whilst courts of criminal appeal are required by the proviso to consider for themselves the evidence and the inferences properly available therefrom, it is not the purpose of the proviso to substitute for trial by jury, in effect, trial "with the Court of Criminal Appeal as the tribunal of fact"[63]. Furthermore, if at the end of the consideration of an application in which a miscarriage of justice is shown there is a proper doubt that the conviction was "inevitable" or that the accused may have lost a fair chance of acquittal, the impugned conviction cannot be sustained. These are the high standards that our system of criminal justice upholds[64]. They are the standards reflected in the terms of the proviso itself.

Having accepted that Ex G (or information as to its contents) ought to have been disclosed to the appellant before his trial, the DPP assumed the burden of supporting the conclusion of the majority of the Court of Criminal Appeal. He argued that the appellant's convictions were inevitable; that they rested on the evidence adduced in a meticulous prosecution case; and that, weighed against the material in that case, and the attacks that had already been made on the credibility of Mr Reynolds, the non-disclosure of Ex G or its contents was far from a substantial, material or significant evidentiary consideration, seen in the context of the trial as a whole. This submission cannot be accepted. It is necessary for this Court to grapple with the evidence and thereby to consider the application of the proviso. In this I agree in the approach of the joint reasons[65].

As described in the evidence, there were very strong common features to the offences of which the appellant was convicted. Those offences were alleged to have taken place between April and November 1992. Each of the five vehicles involved was proved to have been stolen in the Dubbo district. All were said to have been unregistered when purchased or obtained by the appellant. All were registered either by the appellant or his wife just before their sale to innocent purchasers. Each registration and sale occurred in a part of New South Wales distant from Dubbo where the appellant and his wife lived. Each vehicle was later found to have undergone alteration of its original engine number. Although the appellant claimed he had purchased vehicles of small value from Mr Reynolds, he sold the reconditioned vehicles shortly afterwards for much larger sums. In the case of most of the vehicles, later expert analysis of the engine numbers tended to confirm the presence of residual engine numbers substantially corresponding with those of the stolen vehicles.

In respect of all of the vehicles described in the evidence, save for the vehicle the subject of the third set of charges, the appellant had certainly acquired from Mr Reynolds, a vehicle described as the "source". It was proved that such source vehicles originally bore an engine number later found to be consistent with the restamped engine number on the "rebirthed" stolen vehicles. Vehicle three, however, was in a different class. The appellant had purchased a gold Fairlane at auction in Dubbo. He therefore did not acquire this vehicle from Mr Reynolds. However, according to the appellant's unsworn statement to the jury, there was superficial damage to the vehicle when he bought it and he contacted Mr Reynolds who said he could have it repaired. Mr Reynolds proposed that the appellant should purchase another vehicle from him for around $2,000 which Mr Reynolds would use as a source of parts to put the gold Fairlane into good condition. To allow this to be done, the appellant said that he hired a trailer, picked up the gold Fairlane and dropped it at Mr Reynolds' premises in Sydney. Mr Reynolds had the vehicle in his custody for about two months. He later informed the appellant that he had finished his work on it. Mr Reynolds then offered to sell the appellant another vehicle so that he could secure enough money to pay for the registration of the gold Fairlane, whose price, unregistered, would be significantly less than if it were registered. The appellant said that he took this advice and later sold vehicle number three for $9,000. He then paid Mr Reynolds $5,200 in cash, being $4,000 for restoring the vehicle and $1,200 for the sedan used as a source vehicle.

Against the background of this evidence and the appellant's unsworn statement, the DPP submitted that the conviction of the appellant was inevitable. It rested more on the meticulous proof of the pattern of source and stolen vehicles than upon the testimony of Mr Reynolds inculpating the appellant. All of the vehicles had been stolen from the Dubbo district. All of them had been subjected to a process of renumbering their engine or chassis. In each case, the new numbers were consistent with those of a source vehicle. All of them had eventually been sold at a place distant from the Dubbo district. The keys supplied with the vehicles were cut in Dubbo. The person who stood to gain most financially from the sale of the vehicles was the appellant. The common pattern of conduct made it reasonable to test the appellant's protestation of innocence by reference to any one of the transactions. When the appellant's statement to the jury about the complex dealing in relation to the third vehicle in the series was examined, there was no objective evidence to support the involvement of Mr Reynolds in that venture. If the appellant's explanation of how that vehicle came to acquire a false engine number were disbelieved, that fact would cast doubt upon the appellant's unsworn statement about the other vehicles. It was too coincidental that all of the stolen vehicles came from the Dubbo district. To establish that it was Mr Reynolds in Yennora who conceived and executed the "rebirthing" of the stolen vehicles required acceptance of the hypothesis that he had miraculously acquired a stream of vehicles from Dubbo, imprinted them with the false numbers from his source vehicles and then sold them to the appellant who disposed of them for a large profit for himself.

Stacked up against such a strong prosecution case, the DPP argued that no real inroad would have been made (beyond that already attempted) by demonstrating that Mr Reynolds had obtained police favours in his own sentencing by his promise to cooperate with police, including in respect of the proceedings against the appellant. The cross-examination of Mr Reynolds in the trial had adequately identified the hypothesis that the appellant's defence presented to the jury, namely that it was Mr Reynolds, not he, who effected the theft and alteration of the five vehicles. No error was therefore demonstrated in the decision of the Court of Criminal Appeal to apply the proviso and confirm the appellant's convictions.

Deprivation of material relevant to testing witness credibility

The argument that deprivation of access to Ex G, or its contents, represented such a fundamental departure from the requirement of fair trial as to make the proviso inapplicable in this case should be rejected. Within the evidence adduced, the trial was conducted with fairness and accuracy.

Because of the concession Ex G or its contents should have been disclosed to the defence by the prosecutor, and would have been disclosed if it had been known, it is clear that a miscarriage occurred. It was a miscarriage that affected the justice of the trial. This is so because it deprived the appellant of knowledge of a relationship between the investigating police and Mr Reynolds. Such knowledge was relevant both to the appellant's endeavours, by cross-examination, to discredit Mr Reynolds' testimony but also to the request for a direction to the jury sought from the trial judge pursuant to s 165 of the Evidence Act.

There was no contest that Mr Reynolds was a central witness for the prosecution. In effect, two theories were propounded for the course of events established by the evidence and three theories were available for that purpose.

The first theory was that propounded by the prosecution. It was that the appellant had been involved in stealing (or receiving) the five motor vehicles in question, and then (except possibly in the case of vehicle number three) using a source vehicle, acquired from Mr Reynolds to provide a new engine number substituted in the stolen vehicles. According to this theory, Mr Reynolds was (as he claimed in his evidence) completely innocent either of the theft or of the renumbering. All that he did was to supply a vehicle that later became the source of the false identity for the stolen vehicle. On this theory, the renumbering was done by, or for, the appellant who then sold the vehicle for substantial personal gain.

The second theory was that propounded by the appellant. This was that he was innocent of any criminal wrongdoing. He merely acquired reconditioned vehicles from Mr Reynolds. He later discovered that the vehicles bore the engine numbers of other vehicles also originally in Mr Reynolds' possession. The theft and renumbering were entirely Mr Reynolds' doing.

A third theory, suggested in the no bill submission to the DPP, but not pressed at the trial, was that Mr Reynolds was at least an accessory to, or had aided and abetted any offences committed by the appellant. Thus, contrary to Mr Reynolds' assertions, he was the perpetrator of the renumbering of the "reconditioned" vehicles acquired by the appellant.

Mr Reynolds was the one person who, with the appellant, was connected to all five vehicles. He was also the only person, save for the appellant and perhaps his wife, who knew the condition and the status of each "reconditioned" vehicle that was acquired by the appellant from the Yennora yard. In this sense, Mr Reynolds' credit was critical to the jury's resolution of the competing theories of the cases advanced respectively by the prosecution and the defence. By the time the matter came to trial, there was no point in disputing the thefts or the substituted engine numbers. The issue for trial thus became whether the prosecution had shown that the offences had been committed by the appellant or whether the jury had a reasonable doubt that one or some or all of the vehicles, the subject of the counts, had been "rebirthed" by Mr Reynolds without the knowledge or involvement of the appellant.

It is true that Mr Reynolds was cross-examined about his conviction and sentence and also concerning his capability to restamp the engine numbers and his possession of implements capable of doing that. But, in default of having Ex G, or knowledge about its contents, the appellant's counsel was deprived of the valuable knowledge that Mr Reynolds was an informant for the police; that, in that capacity, he had supplied information incriminating the appellant; that the supply of that information stood to Mr Reynolds' personal advantage in his own sentencing proceedings; that he was committed to assisting police with inquiries into the theft and conversion of Ford motor vehicles in New South Wales "on a widespread basis"; that in return for such cooperation he had secured the exceptional support of the police officer who was also later involved in the prosecution of the appellant; and that, as a result, he had avoided the full time custodial sentence that would otherwise have been imposed upon him.

Had trial counsel been aware of the foregoing, it would not only have provided a fertile source for cross-examining Mr Reynolds in ways designed to bring out the motivation that he had to minimise his own criminality and maximise that of others, including the appellant. It would also have given rise to cross-examination of Det Sgt Bandouvakis. For example, the statement by that police officer in Ex G: "There is no evidence to indicate that the prisoner [Reynolds] is an active participant in this current inquiry" (ie the inquiry into the widespread theft and conversion of Ford motor vehicles in the central west of New South Wales) was arguably false. At the very least, Mr Reynolds provided the appellant with four, and possibly five, of the source vehicles incontestably used to disguise the origins of the five stolen vehicles. On the face of things, therefore, false, or at least dubious, evidence was supplied to Nield DCJ by Det Sgt Bandouvakis to sustain a non-custodial sentence for Mr Reynolds. If the cross-examiner could cast doubt on the truthfulness both of the prosecution's prime witness and of the principal investigating police officer, the possibility of the acquittal of the appellant of all or some of the counts could not be excluded. At his trial, the appellant did not have to prove his innocence. It was for the prosecution, from its evidence, to prove his guilt. Undermining the credit of Mr Reynolds and Det Sgt Bandouvakis was a most obvious forensic way to lead the jury to a reasonable doubt that the "rebirthing" could, after all, have been Mr Reynolds' enterprise alone.

In answering the question presented by an invocation of the proviso, courts of criminal appeal are bound to assume that the jury acts reasonably upon the evidence, conforming to the judge's directions on the law. But if the jury, knowing of Mr Reynolds' informer status and motivation[66], had concluded that Mr Reynolds might indeed have been the source of the engine number substitutions of the vehicles sold to the appellant and that the appellant was unaware of the substitution, they could have acquitted the appellant on all counts, or at least on the counts in respect of the first, second, fourth and fifth vehicles where Mr Reynolds' involvement at some level in the process of engine number substitution was very strongly arguable.

This is not a conclusion that a jury would necessarily have reached. Perhaps it does not represent the most probable verdict of a reasonable jury. But it is a definite possibility. And it is one of which the appellant was deprived because he did not have access to information that, forensically, would have strengthened his attack on the credit both of Mr Reynolds and Det Sgt Bandouvakis. The prosecution should gain no such advantage from its conceded default in disclosing this important information to the defence[67].

There is a further consideration that reinforces this conclusion. In Pt 4.5 of the Evidence Act, dealing with "Warnings", s 165(2) provides expressly for a judicial duty to warn a jury, where the judge is so requested by a party, that certain evidence may be unreliable; to inform the jury of the matters that may cause such evidence to be unreliable; and to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

In the appellant's trial, an application was made for a warning along these lines in relation to the evidence of Mr Reynolds. The trial judge declined to give such a warning. However, as recorded by the trial judge, no application was made, in support of the request for such a warning, upon the basis of the examples set out in s 165(1)[68]. Those examples may enliven such warnings. One such example is that contained in par (d) of s 165(1) which reads:

"(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding".

At the appellant's trial, instead of relying on this consideration, the application for a warning was based on the footing that the evidence of Mr Reynolds was unreliable because "he has a bad memory and ... has tried to expunge this period of his life from his mind"[69]. Reference was also made to the fact that the events went back to a time six years before the trial. On these propounded bases, the trial judge was unconvinced that any special warning from him was required. By s 165(3), the judge need not comply with the duty to give a warning "if there are good reasons for not doing so". Having regard to the bases argued before the trial judge, there would indeed have been no foundation for disturbing the ruling that his Honour made.

If, however, the appellant had known of the bargain that had been struck between the police and Mr Reynolds, evidenced in Ex G, significantly different considerations would have arisen for the exercise of the judicial duty to give a warning as s 165 of the Evidence Act contemplates. The Act specifically includes in the examples of instances of "unreliable evidence" the "evidence given in a criminal proceeding by a witness who is a prison informer"[70]. In this respect, s 165 reflects the common law as stated by this Court in Pollitt v The Queen[71]. But some of the considerations relevant to the unreliability of prison informants (particularly that they may be of bad character and may be motivated to fabricate evidence by a perception of a likely benefit for themselves[72]) could, in certain cases, apply to a police informer. At least, it could do so, where that informer stands to gain a personal benefit from the provision of such information to the police and to a court or may be viewed as having been an accomplice[73].

If the appellant's advisers had enjoyed access to Ex G, or its contents, they would have had a much stronger basis for persuading the trial judge to give the jury a warning[74]. Such a warning would have contributed the weight of judicial authority to assist the appellant's arguments, admonishing the jury to be extremely cautious about the evidence of Mr Reynolds. This additional element in the judicial instructions could have assisted the appellant's case. That is enough[75]. Certainly, it is impossible to say that it would not have been of assistance. As it was, Mr Reynolds appeared before the jury as a person who had owned up to his own wrongdoings, suffered his punishment, had turned over a new leaf and was anxious to forget the errors of his past which were, in any case, on his testimony, wholly unconnected with the appellant's crimes. The letter, Ex G, or its substance might, if it had been provided to the defence, not only have placed a different complexion on Mr Reynolds' evidence for the consideration of the jury. It could also have encouraged the judge, when asked, to give a s 165 direction.

It follows that a miscarriage of justice occurred in the appellant's trial. It cannot be said that the appellant's convictions were inevitable. Nor has the DPP proved that the case was otherwise one for the application of the proviso. I therefore agree in the orders proposed in the joint reasons.

HAYNE J. The circumstances giving rise to this appeal are described in the reasons of other members of the Court. I need refer to those circumstances only to the extent that is necessary to explain my reasons for agreeing that the appeal should be allowed.

The respondent conceded that a copy of the "letter of comfort" given by police to Mr Leon Reynolds, a witness called by the prosecution at the appellant's trial, should have been, but through inadvertence was not, given to the appellant before the witness was called. (Counsel who appeared to prosecute at trial did not have the document and did not know of it.) The only issue on this appeal was said by the respondent to be whether the Court of Criminal Appeal erred in holding that there was no significant possibility that the jury, acting reasonably, would have acquitted the appellant if the appellant had known about the letter.

At the appellant's trial, counsel for the prosecution elicited from Mr Reynolds, in examination-in-chief, that the witness had a criminal record for an offence of assisting to cheat and defraud and that the offence involved his having sold parts from motor vehicles that the owners had reported to their insurers as having been stolen. In cross-examination, trial counsel for the appellant explored the circumstances of this offence, or as it emerged, these offences. Counsel also drew out of the witness that, at relevant times, he had a set of stamps that could have been used to stamp engine and chassis numbers, that police had made inquiries of him about the vehicles which were the subject of the charges against the appellant and that various aspects of his banking and other records relating to those vehicles were open to challenge.

At trial, reduced to its essentials, the defence case had been that the appellant had bought four of the five cars in question from Mr Reynolds for prices greater than Mr Reynolds' records revealed, and that the appellant neither knew nor suspected that they were stolen. In the case of the fifth car, the appellant's case was that he had taken a car to Mr Reynolds to have it fixed, Mr Reynolds had given him a car back which he believed to be the car he had delivered for fixing, and that he had sold what he had been given. The veracity of Mr Reynolds was central to the prosecution case.

The letter of comfort was material which the appellant could have invited the jury to take into account in considering whether Mr Reynolds was to be accepted as a witness of truth. It follows that, no matter what other attacks could have been, or were mounted against Mr Reynolds and his evidence, the jury, taking account of what was revealed by the letter, might have entertained a reasonable doubt about his veracity. If that had been so, given the way the trial was conducted, the appellant would have been entitled to be acquitted.

The issue in this Court having been formulated and argued as it was, there is no occasion to consider any wider question about the construction and application of the proviso. The appeal should be allowed, and consequential orders made in the form proposed by Gleeson CJ, Gummow and Callinan JJ.

[1] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 319-320 [22]- [27]. The appeal was against both conviction and sentence. The appeal against sentence was abandoned.

[2] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301 per Toohey and Gaudron JJ.

[3] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 318 [15].

[4] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 322 [35].

[5] [1955] HCA 59; (1955) 93 CLR 493.

[6] [1989] HCA 35; (1989) 167 CLR 259 at 301 per Toohey and Gaudron JJ.[7]

"The judge need not comply with subsection (2) if there are good reasons for not doing so."[8]

[9] [1988] HCA 6; (1988) 164 CLR 365.

[10] [1988] HCA 6; (1988) 164 CLR 365 at 371-372.

[11] [1955] HCA 59; (1955) 93 CLR 493 at 514.

[12] [1978] HCA 39; (1978) 140 CLR 364 at 376.

[13] [1977] HCA 43; (1977) 137 CLR 517 at 524.

[14] [1978] HCA 39; (1978) 140 CLR 364 at 376.

[15] [1986] HCA 26; (1986) 160 CLR 392 at 412-413.

[16] [1955] HCA 59; (1955) 93 CLR 493 at 514.

[17] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314.

[18] Grove and Sully JJ; Simpson J dissenting.

[19] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 315.

[20] cf McIlkenny (1991) 93 Cr App R 287 at 312; Hinton, "Unused Material and the Prosecutor's Duty of Disclosure" (2001) 25 Criminal Law Journal 121; O'Connor, "Prosecution Disclosure: principle, practice and justice" [1992] Criminal Law Review 464. The obligation is a universal one although its content may sometimes be controversial: Harom and Karaginannakis "The Disclosure of Exculpatory material by the Prosecutor to the Defence under Rule 68 of the ICTY Rules" in May, Essays on ICTY Procedure and Evidence (2001) at 315.

[21] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 319 [21].

[23] Trainer v The King [1906] HCA 50; (1906) 4 CLR 126 at 133-135.

[24] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 318 [15], 319 [22].

[25] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 315 [2], 319 [26].

[26] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 315 [2].

[27] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 315 [2].

[29] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 315 [3].

[30] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 315 [3].

[31] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 316 [7].

[32] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 316 [8].

[33] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 316 [12].

[34] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 317 [12].

[35] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 318 [14].

[36] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 318 [16].

[37] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 322 [33]. Rule 66 provides: "A prosecutor must disclose to the opponent as soon as practicable all material available to the prosecutor or of which the prosecutor becomes aware which constitutes evidence relevant to the guilt or innocence of the accused, unless such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person."

[38] The DPP's prosecution guidelines are published in Watson, Blackmore and Hosking, Criminal Law (NSW) (1996), vol 2 at 2-13551. Relevantly, Prosecution Guideline No 16 at 2-13560 provides: "The Office [of the DPP] maintains an index of informers. An informer is a person (not being a victim or a primary witness) who has given assistance to police or investigators as a consequence of knowledge that has come into his or her possession through direct personal contact with an alleged offender ... With the assistance of the Office index the accused should be informed in advance of the trial of:

(b) whether or not the Police Service ... have any information which might assist in evaluating the informer's credibility, particularly as to (i) motivation ... (v) the extent to which public officers have given evidence or written reports on behalf of the informer (eg to courts, ...);

(f) whether any discount on sentence has been given for assistance in the matter ...".

The position in other Australian jurisdictions is surveyed in Hinton, "Unused Material and the Prosecutor's Duty of Disclosure" (2001) 25 Criminal Law Journal 121 at 123-128.

[39] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 321 [31]. Portions of Simpson J's reasons are set out in the joint reasons at [6].

[40] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 322 [34].

[41] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 320 [27].

[42] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 322 [35].

[43] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 322 [35].

[44] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 322 [35] citing Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493.

[45] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 322-323 [36].

[46] Relying on R v Birks (1990) 19 NSWLR 677: see Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 324 [42].

[47] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 315 [1].

[48] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 315 [1], 318 [18], 324-325 [44]-[50].

[49] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 [13], 679 [40].

[50] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 395, 402, 410; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301.

[51] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 516-517; Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 666, 675-677; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301.

[52] Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314 at 318 [16].

[53] Zoneff v The Queen (2000) 200 CLR 234 at 267-268 [85]-[89]; Gilbert v The Queen (2000) 201 CLR 414 at 422 [21], 431 [52]; KRM v The Queen [2001] HCA 11; (2001) 75 ALJR 550 at 565 [72], 575 [128]-[129]; 178 ALR 385 at 404, 418.

[54] Criminal Appeal Act 1912 (NSW), s 6(1); Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at 257 [16]. The terms of the "proviso" are set out in the joint reasons at [24].

[55] eg Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 375.

[56] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 29, 56, 72; Brown [1995] 1 Cr App R 191 at 198.

[57] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 375. See also at 373.

[58] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 375.

[59] Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514.

[60] Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514.

[61] R v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376. See also Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 372.

[62] [1977] HCA 43; (1977) 137 CLR 517 at 542-543; cf Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 382. Note the analogous consideration of the importance of excluded evidence, critical for credibility, in the context of civil trials: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 146.

[63] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 384.

[64] Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514.

[66] Including his exposure to resentencing if he departed from the evidence upon which his earlier sentence was based: Criminal Appeal Act 1912 (NSW), s 5DA.

[67] Hennessey (1978) 68 Cr App R 419 at 426.

[68] The terms of s 165 of the Evidence Act are set out in the joint reasons at [21].

[69] Ruling of the trial judge (Rummery DCJ), unreported, District Court of NSW, 25 August 1998 at 1.

[71] [1992] HCA 35; (1992) 174 CLR 558 at 586.

[72] [1992] HCA 35; (1992) 174 CLR 558 at 585-586.

[73] cf Davies v Director of Public Prosecutions [1954] AC 378 at 399; R v Booth [1982] 2 NSWLR 847 at 849.

[74] R v Clough (1992) 28 NSWLR 396 at 405-406; cf Odgers, Uniform Evidence Law 4th ed (2000) at 416.

[75] cf Keane (1994) 99 Cr App R 1 at 6; Brown [1997] UKHL 33; [1998] 1 Cr App R 66 at 74.

Public Prosecutions Act 1986

Grey v R [2001] HCA 65; (2001) 184 ALR 593; (2001) 75 ALJR 1708 (15 November 2001)

Grey v R [2001] HCA 65;

At a glance

Court

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Judgment (148 paragraphs)

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Legislation Cited (6)

Cases Cited (22)

Grey v R [2001] HCA 65; (2001) 184 ALR 593; (2001) 75 ALJR 1708 (15 November 2001)