Hawker v The Queen [2012] VSCA 219

Court of Appeal (Vic)|2012-09-14|Before: Michael J, Buchanan JA, Redlich JA

R v Hawker (Unreported, County Court of Victoria, Judge Wilmoth, 13 February 2012)

CRIMINAL LAW - Application for leave to appeal against conviction - Applicant convicted of recklessly causing serious injury and acquitted of intentionally causing serious injury, reckless conduct endangering life and reckless conduct placing a person in danger of serious injury - Sentenced to five years' imprisonment with a non-parole period of three years and four months - Where prior written statement excluded from evidence - Whether trial judge erred in directing the jury that they could use a witness's answers to questions relating to the prior statement to assess credit - Whether substantial miscarriage of justice arose by virtue of trial judge permitting evidence of applicant's disposition for violence or failing to direct jury as to the use they could make of that evidence - Applicant denied a real chance of acquittal - Conviction quashed - New trial ordered - No point of principle.

2 I also agree with T Forrest AJA that leave to appeal be granted, the appeal allowed, the conviction quashed and a new trial ordered.

3 On 28 November 2011 the applicant was convicted before the County Court of one count of recklessly causing serious injury. He was acquitted of intentionally causing serious injury, reckless conduct endangering life and reckless conduct placing a person in danger of serious injury. He was sentenced to five years' imprisonment with a non-parole period of three years, four months. He seeks to appeal against that conviction.

4 On 8 January 2009, the applicant was separated from his partner Leah Haylbut. She remained in their former house at 50 Anaconda Rd, Narre Warren ('the house'). In the early hours of that morning, she returned to the house to discover that it had been burgled. She telephoned the applicant and, on her account, he came to the house. She said that a friend of the applicant, Mr Corn, came at about the same time. According to Ms Haylbut, the applicant armed himself with a .22 rifle taken from the garage of the house. He placed a stool in the front garden and remained there in the event that the burglar returned. Ms Haylbut remained inside the house. She said that about 30 minutes later, the applicant ran inside saying that he had shot someone. She said the applicant stated that he had seen two men on the other side of the road. They crossed the road and approached his driveway, and he opened fire on them, firing, he said, approximately ten shots. She

ascribed further incriminating statements to him. She said she had assisted him with the disposal of the firearm. She produced photographs of a firearm and ammunition. She stated that the applicant kept these items in the garage of the house. Ms Haylbut's evidence underpinned the prosecution case.

5 In the early hours of the morning on 8 January 2009 Leigh Brockley was shot in the abdomen outside the house in Narre Warren. Retrieval of the bullet was ruled out by Mr Brockley's treating doctors. On 14 January 2009, Mr Brockley ostensibly made a witness statement whilst an inpatient in hospital.[1] In that statement, which he signed, he is recorded as saying that he noticed the silhouette of a person from the front of the house. He could observe only the outline of that person. Mr Brockley's evidence (as opposed to his statement) was that the person who shot him was not the accused and was skinny with long hair. Thus Mr Brockley, if believed, provided negative identification evidence very favourable to the applicant's case.

6 Wallid Haggag said that he was with Mr Brockley when he was shot. He did not see the shooter. He said he had driven with Mr Brockley to the applicant's house twice on that evening. On the first occasion they entered through an unlocked door and stole certain items. On the second occasion Mr Brockley approached the house. Mr Haggag was some distance behind. He heard 3 or 4 sounds similar to a .22 rifle being discharged. He hid in the bushes and subsequently decamped.

7 In his police interview, the applicant denied shooting Mr Brockley or being present at the house on the morning of 8 January 2009. He stated that he was at the Settlement Hotel in Cranbourne at all relevant times.

8 In essence, the contest came down to whether the prosecution could prove beyond reasonable doubt that the applicant was the person who shot Leigh Brockley. This was the primary issue and the other elements of all charges on the indictment would fall away if the jury were not satisfied that the applicant was the shooter. There was other evidence said by the prosecution to support Ms Haylbut's evidence. I shall refer to this where relevant later in these reasons.

9 The above is the barest summary of the contest at trial. I shall refer in more detail to the evidence when considering the grounds of appeal.

10 The applicant has either abandoned or not pressed a number of the appeal grounds which were originally filed. In the course of this appeal, he has sought leave to add further grounds. We have heard argument on these grounds without determining to this stage whether leave should be granted.

Ground 1. The trial judge erred in refusing to give the dangerous to convict warning.

11 This ground was argued orally before us. Subsequently the applicant provided a Revised Grounds of Appeal and Written Case. The applicant no longer presses this ground.

Proposed Ground 1A. The learned trial judge failed to adequately relate the unreliable aspects of the evidence of Leah Haylbut to the warning for the need for caution in determining whether to accept the evidence and the weight to be given to it pursuant to s 165 of the Evidence Act.

12 Ms Haylbut's evidence was central to the prosecution case. She provided the only evidence that the applicant was the shooter. Her Honour acceded to defence counsel's request for unreliability warnings pursuant to s 165 of the Evidence Act 2008 ('the Act'). Defence counsel requested that her Honour warn the jury of the need for caution in determining whether to accept Ms Haylbut's evidence on the following bases:

(a) Ms Haylbut might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;[2]

(b) she was a longstanding drug user and drug affected on the night in question;

(c) she expressed hostility towards the applicant, was in the process of separating from him and, on her account, had been violently assaulted by him;

(e) she had received an indemnity from prosecution.

13 The applicant on appeal contended that the directions on this aspect were so deficient as to constitute a miscarriage of justice. He accepted that whilst the 'criminally concerned witness' warning complied with s 165(2)(c) of the Act, the directions on the other asserted bases of unreliability did not. The applicant submitted that, at its highest, her Honour simply directed that those aspects of unreliability were to be taken into account and stopped short of directing the jury that these additional bases of unreliability may cause the evidence to be unreliable, the reasons why that may be so, and of the need for caution in determining whether to accept the evidence and the weight to be given to it.

14 For my part, I consider there is nothing in this ground. An analysis of the transcript demonstrates the following:

• The jury were directed appropriately that Ms Haylbut's evidence may be unreliable because of evidence that suggested that Ms Haylbut may be criminally concerned in the impugned events.

• Her Honour appropriately identified the matters that may have caused the evidence to be unreliable on this basis.

• Her Honour appropriately directed the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it on this basis.

• Her Honour then turned to 'additional reasons why she might be unreliable': Ms Haylbut was a drug user and drug affected on the night, she had made prior inconsistent statements,[3] she was hostile towards the applicant, she had prior convictions for dishonesty and she consorted with others with similar criminal histories.

• The jury were then directed appropriately that the evidence may be unreliable because Ms Haylbut had been granted an indemnity from prosecution in return for assisting the prosecution in this criminal trial.

• Her Honour appropriately explained the concept of an indemnity and how it may impact on the witness' unreliability.

• Her Honour appropriately directed the jury of the need for caution in determining whether to accept Ms Haylbut's evidence or the weight to be given to it as the witness was:

15 The applicant contends that the only full s 165(2)(a), (b) and (c) direction was that which related to the 'criminally concerned witness' aspect. I disagree with this submission. In dealing with the indemnity aspect, her Honour warned the jury that the evidence may be unreliable because of it, explained what an indemnity was and how it may impact on reliability and, in my view, adequately directed the jury about the need for caution:

The law says that every jury must take the potential unreliability of the evidence of a witness who was criminally concerned in the events before the court and who has received an indemnity from prosecution into account when considering that evidence. You must take this potential unreliability into account in determining whether you accept Ms Haylbut's evidence at all, and if you do accept it, in whole or in part, in deciding what weight to give to that evidence.

16 In my view, the jury were directed fully and in accordance with s 165(2) in relation to both the criminally concerned witness and indemnity aspects. A direction of this nature does not need to follow any particular form of words[4] and the absence of the word 'caution' does not vitiate the direction, provided the overall effect of the direction is to exhort the jury to exercise real care when considering the witness' evidence.

17 The applicant further contends that the other potential heads of unreliability, namely that the witness was a drug user and drug affected at the relevant time, had made prior inconsistent statements, harboured hostility towards the applicant and was of dishonest character were only identified by her Honour as potentially impacting upon the reliability of the witness and no specific s 165(2)(c) direction was given for the need for caution. It is true that a near microscopic examination of the transcript demonstrates that her Honour failed explicitly to link up these potential sources of unreliability to a direction on the need for caution, but they were 'bookended' by two appropriate directions on the need for caution on other aspects of potential unreliability. All these directions came seamlessly and within four pages of transcript. I consider that the jury could have been left in no doubt that her Honour was warning them that the evidence of Ms Haylbut may be unreliable, identifying all matters that may cause that unreliability and warning them in clear terms to be careful before accepting it or ascribing weight to it.

18 I would not grant leave to appeal on proposed Ground 1A.

Ground 2. The trial judge erred in refusing to conduct an enquiry as to the victim's capacity pursuant to s 13(1) of the Evidence Act in the absence of the jury.

Proposed Ground 2A. The learned trial judge erred in directing the jury that they could use Leigh Brockley's answers to questions relating to his written statement to assess his credit.

20 Some further background is necessary to explain this ground. Mr Brockley was the second witness called by the prosecution. He initially claimed privilege against self-incrimination. Her Honour sought to utilise the provisions of s 128 of the Act. In the jury's presence the following exchange occurred:

Her Honour: That means that you can tell me whether you wish to or don't wish to give evidence if I grant a certificate, and even if I do or do not grant a certificate I can compel you, I can require you to give evidence. So I'm simply asking you now do you intend to give evidence or not? Do you wish to give evidence or not?

Mr Brockley: Miss, if youse had the right person there I'd be quite happy to give evidence but that is not the person that shot me. He might have been at the house that night, I don't know, but he did not pull the trigger.

Her Honour: I'm not asking you about conditions, I'm just saying - - - ?

Despite this unpromising start to his evidence, her Honour persuaded the witness to answer the prosecutor's questions using ss 128(4) and (5) of the Act. Mr Brockley then stated that he had no recall of the events of 8 January 2009. Unsurprisingly the prosecutor sought leave to question the witness, as though he were cross-examining the witness.[5] This was not the subject of objection by defence counsel. Mr Brockley had signed the statement in which is set out a detailed account of his movements on 7 and 8 January 2009. Additionally, at an earlier aborted trial in August 2011, he had made his position clear that the statement he signed was not his.[6] He said on that occasion that the statement was the product of an investigating police officer, he (Brockley) had signed it thinking it was hospital records, he was just out of a coma, and that the man who shot him was not the man in the dock.

21 The prosecutor then commenced to question the witness in the manner of cross-examination. Over a period, virtually the full statement was put to him, although the passages that were read to the witness were interspersed with other cross-examination. Most questions were answered with a denial that the witness had ever said these things to Mr Whitwell (the officer who compiled the statement). The witness said:

See, that's where Whitwell's made up his own little fuckin' statement and I'm not having a bar of it. This is just a boycott that ...

22 Having cross-examined on portions of the statement, the prosecutor sought to tender it, initially for identification (as the witness had not admitted that he had made or adopted it) and later he stated the Crown would 'prove it' through the informant. Defence counsel then made the following set of submissions:

(i) The statement was only admissible 'to the extent it's denied as a prior inconsistent statement, not in toto'.

(ii) The whole statement ought not be admitted into evidence (presumably for any purpose).

(iii) A determination as to the overall admissibility of the statement, including whether it be admissible for all purposes or merely as going to the witness' credit, ought be made before she be required to commence her cross-examination.

(iv) The admissibility of the statement as a whole may have to be determined by her Honour on a further separate basis, namely the witness' capacity to make the statement may need to be determined before it could be admitted.

(v) It may be that the statement ought be excluded 'given the discretionary rules of evidence.'

23 These five separate submissions or foreshadowed submissions are what I have been able to extract from 29 lines of transcript. I should observe that counsel did preface her submissions by stating that she had heard nothing of the prosecutor's proposed tender before this stage (although it could hardly have come as a surprise) and that this was her initial response. Nevertheless, the submissions are contradictory and confusing. Importantly, this seems to be the first occasion upon which defence counsel objected in any form to the introduction of the statement either into evidence, or as a vehicle for cross-examination. By this stage, cross-examination by the prosecutor on the statement was approximately 50 per cent complete and had proceeded without objection.

24 The prosecutor's cross-examination of Mr Brockley on the statement continued, interspersed with objections from defence counsel that are irrelevant to this ground. Finally, the prosecutor put to Mr Brockley that his statement was a full and frank account of his movements, a proposition Mr Brockley denied. During discussion at this stage, defence counsel stated that she did not think she could 'stand in the way of a tender of the statement for identification', but that she needed clarification 'so that I can prepare argument at some stage as for what purpose, prior inconsistent statement, credit only?' She submitted that there ought be a voir dire on 'that issue' and 'perhaps Detective Whitwell be called to address that issue... because as it currently stands I can't imagine I'd have any cross-examination of this witness, subject to the tender of the statement'.

25 As best as I can understand the position reached at this stage, counsel for the applicant was restating her earlier contention that she did not want to cross-examine Mr Brockley until she had clarity on whether the statement was to be admitted for all purposes as a prior inconsistent statement or whether it was to be admitted on some more limited basis.

26 The next morning defence counsel sought to develop a further basis, earlier foreshadowed, for objection to the admissibility of the statement. Her Honour was invited to consider Mr Brockley's capacity to have made the statement in the first place 'in light of s 13'. That such a submission was misguided is common ground between the parties before this Court. Section 13 of the Act applies to witnesses giving evidence about a fact if they meet certain criteria set out in s 13(1). Its application is confined to a witness' capacity at the time of giving evidence and not at some earlier time.

27 All parties, including her Honour, thereafter proceeded on the erroneous footing that s 13 could somehow render the witness statement inadmissible.

28 The trial then proceeded before the jury, with frequent long breaks for often unnecessary legal argument, over the course of a further week. There are approximately 1200 pages of transcript for the period after the jury were empanelled and before her Honour's charge commenced. Of this approximately 700 pages contained argument held in the absence of the jury. The illusory 'capacity issue' was consigned to the 'back-burner' until medical evidence was called from Dr Limb as to the witness' condition when she treated him at the Alfred Hospital from 8 January 2009. Defence counsel renewed an application to conduct a voir dire on this issue. Her Honour ultimately acceded to this application.

29 On 18 November 2011, her Honour ruled as follows:

For reasons which I will provide at a later time, I find on the balance of probabilities that Mr Brockley was not competent to make the statement he signed because of the probability that he had impaired cognitive capacity at the time. I draw that conclusion from the doubts surrounding his ability to recall and provide extensive detail accurately due to the likely effects of medication over a period of three hours, particularly given that he told Mr Whitwell he was getting tired towards the end.

I rule that the statement should not be put to the Dr Limb in front of the jury and should not be tendered in evidence, therefore it is not necessary for me to consider the application of s 137.

It does not appear that her Honour provided any further reasons for this ruling. The effect of the ruling is unambiguous however. The application was to exclude the statement from evidence and it was successful.

30 Thus, by this stage of the trial, her Honour, whether rightly or wrongly, had excluded from evidence the statement of Leigh Brockley. It is apparent from her Honour's ruling that the statement was excluded for all purposes. In my view, defence counsel at this stage had only two sensible alternatives open - she could ask for the jury to be discharged on the basis that the jury had heard the impugned statement in its entirety in the cross-examination of Leigh Brockley or she could seek an immediate direction from her Honour that the jury disregard the fact that Mr Brockley signed the statement and any evidence that related to it.

31 Instead, defence counsel returned to her earlier theme:

The way it stands at the moment all that cross-examination by the prosecutor relates to credit now and credit only. It doesn't go to any, the contents of the statement that were put to him they cannot use that and Your Honour would do that in the normal way with perhaps prior statements or puttage or the answers or the evidence, so forth, the general direction at a later stage. So that I just want them to be told that his evidence or the cross-examination of his evidence and the cross-examination of the doctor in relation to his statement can't take that puttage any higher than as to his credit and they can't use the evidence of the doctor to look into the questions put from the statement because at the moment that's just not evidence. They can use it obviously to assess his credit of the evidence he gives in court, but they can't use the questions put and turn those into evidence, and it may be that is too complex to deal with in a broad brush.

32 Her Honour charged the jury precisely in accordance with this request from defence counsel:

And because of that evidence, I made a ruling that Mr Brockley's cognitive functioning was probably impaired at the time he spoke to Detective Whitwell on the evening of the 14th. And so therefore, the statement that bears what appears to be his signature, is not to be accepted as part of the evidence. So I explained that to you at the time, and I am just repeating that here, now.

You will remember that Mr Lewis put to him, when I permitted him to cross-examine Mr Brockley a number of things from the statement, and because the statement is not to be part of the evidence, you cannot use his answers to those questions as evidence of what did, or did not occur. You can only use his answers to assess his credit, just as you assess the credit of any other witness.

33 I should also observe that in giving the usual direction about the evidence being the answers to the question (as opposed to the question itself), her Honour gave an example linked to Mr Brockley's evidence. She instructed the jury that some of the matters put to Mr Brockley came from his statement:

...which Mr Brockley did not adopt. ... He did not agree that he had told those things to Mr Whitwell. And so the questions he was asked then, in court, are not part of the evidence.

34 This lengthy and convoluted narrative has been necessary to place into context the applicant's argument. His predecessor:

(a) did not raise any preliminary issue as to the witness' statement or the use that may be made of it;

(b) consented to the prosecutor being granted leave to cross-examine his witness pursuant to s 38 of the Act;

(c) waited until cross-examination on the statement was well under way before raising any objection to the statement being used as a vehicle for cross-examination;

(d) introduced an erroneous s 13 capacity argument after the entire substance of the statement had been put to the witness;

(e) succeeded in persuading her Honour of the merits of this unsound capacity argument resulting in the statement being held inadmissible for all purposes in the trial;

(f) failed to apply for the jury to be discharged, or alternatively be immediately and firmly directed that the statement and all references to it be disregarded by them; and

(g) proposed that her Honour direct the jury that the evidence from Mr Brockley about his statement be used only for the purposes of assessing his credit.

35 In the face of this history, the applicant now contends that her Honour fell into error in directing the jury in the way that his predecessor proposed. It is a matter of singular regret that the applicant's counsel is as clearly correct as his predecessor was incorrect. Once the statement had been ruled inadmissible, whether rightly or wrongly, I consider that her Honour had open to her only the two alternatives that ought to have been apparent to counsel. Either the jury should have been discharged, on her Honour's own motion if necessary, or the jury should then have been instructed directly and firmly that the statement was not evidence in the case and that all evidence concerning it must be excluded absolutely from their deliberations. The statement had not been admitted for a limited purpose, as countenanced by s 136 of the Act. It had been absolutely excluded from the evidence.

36 It follows that I am of the view that the applicant has demonstrated error. The consequences of that error have to be considered against the background of the evidence. As I have observed, the threshold issue was whether the applicant was the shooter. Ms Haylbut said that the applicant positioned himself in the front garden area of the house, armed himself with a .22 rifle from the garage and a short time later confessed to shooting someone. She said he disposed of the firearm after wiping it down with a T-shirt. Gunshot residue was later detected on a T-shirt alleged to belong to the applicant. Her evidence derived some further support from other sources.[7]

37 Ms Haylbut's credit was attacked by defence counsel. It was put to her that she was a perjurer and that she had fabricated these allegations to gain advantage in a family law dispute. Ms Haylbut denied that she had falsely implicated the applicant.

38 The Crown case relied very heavily on the evidence of Ms Haylbut. If her evidence were accepted by the jury, the Crown had proved the actus reus. If her evidence were not accepted, the Crown case failed on all charges. It is clear enough that Mr Brockley was potentially a source of valuable evidence for the defence. If accepted, or if it created a reasonable doubt, his evidence of negative identification ('that is not the man who shot me') would have been sufficient to secure the applicant's acquittal on all charges.

39 As a result of the course of events that I have summarised in these reasons, the fact that Mr Brockley had made a prior inconsistent statement was before the jury and capable of use by them in assessing his credit. This occurred in the face of a ruling by her Honour that the statement was inadmissible. Given the potential importance of Mr Brockley's evidence, despite its many limitations, I am of the view that the error identified has resulted in a miscarriage of justice.

40 It is not an answer to this ground of appeal to argue that her Honour's capacity ruling was wrong, the statement should have been admitted into evidence, and that accordingly the jury were seized of what ought to have been admissible at any event. Given her Honour's factual findings within that ruling, she may well have excluded it pursuant to s 137 of the Act.

41 Similarly it is not an answer to this ground to argue that Mr Brockley was such an unsatisfactory witness that his evidence of negative identification would never have been believed even if his statement were ruled inadmissible at the outset. It is true that Mr Brockley was a highly unsatisfactory witness. His evidence was contemptuous, expletive laden and at times patently dishonest. He should have been charged and dealt with for contempt of Court. Most of his inflammatory remarks, however, were reserved for the prosecutor on the very topic of his supposed statement. Had her Honour been asked to rule on the admissibility of the statement in pre-trial argument (which should have occurred) his approach to giving evidence may well have been different.

42 Her Honour was placed in a very difficult position. An extraordinarily difficult witness threatened to derail the trial. She received little help from counsel on the s 13 argument and in fact was led into error by defence counsel. She charged the jury in precise accordance with defence counsel's request, but by this stage the damage was done. With some misgivings I have reached the conclusion that the applicant has been denied a realistic chance of an acquittal.

43 I would allow the applicant leave to appeal on proposed Ground 2A. I consider that this ground of appeal has been made out.

44 The applicant submitted that it was not open on all the evidence to a properly instructed jury to be satisfied beyond reasonable doubt that the applicant was guilty. This submission was advanced in the applicant's revised written case and was not developed in oral submissions. The effect of the submission was that on all the evidence the jury must have entertained a doubt about whether the applicant was the shooter. I have set out the overall effect of Ms Haylbut's evidence and the attack made upon it earlier in these reasons.[8] The applicant's argument is that in addition to this unreliability there was contradictory evidence from Mr Corn (who stated that he was not with the applicant on 8 January 2009) and from Mr Brockley (the negative identification evidence), and an absence of strong evidence capable of corroborating Ms Haylbut's evidence.

45 In my view there was quite a significant body of evidence that lent support to Ms Haylbut's bare assertions. It is sufficient to refer only to the following:

The evidence of Mr Haggag that he came to the house and found the door unlocked. This supported Ms Haylbut's evidence that she had left the door unlocked when she went to the 'pokies'.
Ms Haylbut's evidence that items were stolen from her house including a bag, a cigarette lighter with Richard Hawker's first name inscribed on it and a DVD cover. These items were recovered from the silver Commodore station wagon used by Mr Brockley and Mr Haggag on 8 December 2009. The DVD cover carried Richard Hawker's fingerprint. Mr Hawker is the applicant's brother.
The evidence of Mr Haggag that he and Mr Brockley approached the house just before he heard a noise akin to gunshot.
A T-shirt was found by police by the side of Hallam-Belgrave Road. This T-shirt had both the applicant's DNA and gunshot residue on it. Ms Haylbut gave evidence that the applicant, when disposing of the .22 rifle, had wiped the gun down with his T-shirt and then discarded his T-shirt on Hallam-Belgrave Road.

46 I consider that it was open to the jury to accept the entirety of Ms Haylbut's evidence. I consider her account was plausible and that it gained support from other evidence. It was also open to the jury to reject the accounts of Mr Brockley and Mr Corn. Even if Mr Brockley's statement were correctly excluded, his evidence of negative identification was weakened from within that evidence itself. He conceded the following:

I couldn't describe the face, whether it was a boy or a girl. Fuck, I was bleeding to death. What, do you think I'm gonna to stand there and fuckin' photographic memory of the fuckin' head.

Confronted with this evidence, the jury may have asked, how could he have been definite that it was not the accused?

47 Similarly it would have been open to the jury to reject Mr Corn's evidence that he was not at the house that evening. Ms Haylbut placed Mr Corn at the house before, during and after the shooting. According to her evidence, Mr Corn was in the garage area when the applicant procured the rifle, was present at the time of the shooting, left before the police arrived 'because he was on a stolen motorbike' and assisted later in the day in removing incriminating items from the garage. It was obviously open to the jury to accept Ms Haylbut's evidence and reject the evidence of Mr Corn. In my view this ground has not been made out.

Ground 4. The trial judge erred in refusing to exclude the evidence of gun paraphernalia located subsequent to the shooting.

Ground 5. Inconsistent and unreasonable verdicts.

Proposed Ground 6. The learned trial judge erred in leaving the following items of evidence as capable of being corroborative of aspects of the evidence of Leah Haylbut:

1. The evidence of Haggag that he came to the house and found the door unlocked.

2. The fact that items were stolen from the house.

3. That Haggag later approached the house at the relevant time, with Brockley, just before the alleged shooting.

4. The fact he (Haggag) initially identified a noise he heard as shots fired, although he subsequently also described it as sounding like a car exhaust.

6. Brockley's evidence that he accompanied Haggag to the house and was shot around the relevant time.

49 In this ground, the applicant contends that the impugned evidence was not capable of constituting corroboration 'because it did not implicate the applicant'. Again a different argument is mounted before this Court than was mounted at trial. The focus of objection at trial was the weakness of the evidence rather than its capacity to corroborate. It will be recalled that the defence case was that the applicant was not present at the house that night and that he had been 'set up' by Ms Haylbut.

50 Recently in Sumner v The Queen[9] this Court comprehensively gathered together various principles relating to corroboration. Relevantly they can be summarised as follows:

• For evidence to be corroborative it must be independent of the witness to be corroborated.[10]

• Corroborative evidence must tend to show that the story of the accomplice that the accused committed the crime is true.[11]

• It is unnecessary that the evidence be directly probative of guilt. It need only provide some confirmation, support or strengthening of other evidence such that the other evidence (probative of guilt) is rendered more probable.[12]

• In the case of an accomplice's evidence it is sufficient if the corroborating evidence strengthens the accomplice's evidence by

• confirming or tending to confirm the accused's involvement in events as related by the accomplice.[13]

51 The argument in respect of the evidence identified in Ground 6 is based on a single premise - the evidence identified does not implicate the applicant as being the shooter. It may well be that this submission is correct, but it seems to me that it misapprehends the nature of corroborative evidence. If the evidence is capable of confirming the applicant's involvement in events as related by Ms Haylbut then it is capable of being corroborative.

52 In my view each of the six items identified in proposed Ground 6, whether taken individually or in combination, make it more probable that Ms Haylbut's account is truthful. Ms Haylbut's account sets out a sequence of events:

(b) she returned home to discover it had been burgled. Items were stolen;

(d) he came into the house after 30 minutes and confessed to shooting a man.

53 The six items of evidence, if accepted, made it more probable in my view:

(b) that a burglary had occurred and that items of property were taken;

54 Whilst it is not necessary that the corroborative evidence directly implicate the applicant in the crime alleged, this evidence clearly had the capacity to strengthen Ms Haylbut's evidence by confirming the applicant's involvement in events as related by Ms Haylbut. I would not grant leave to appeal on this proposed ground.

Proposed Ground 7 - the learned trial judge erred in leaving the following items of evidence as capable of being corroborative of aspects of the evidence of Wallid Haggag:

1. Brockley's evidence that he recalled arriving at the house and getting out of the car, and when he got shot he was across the road and out the front of the house.

2. The fact that items were stolen from the house.

3. Brockley approached the house at the relevant time with Haggag just before the alleged shooting.

5. Brockley's evidence that he accompanied Haggag to the house and was shot around the relevant time.

55 This proposed ground advances a similar argument to proposed Ground 6 but in respect of the evidence of Wallid Haggag. Mr Haggag, in substance, stated there was a burglary, items were stolen, he returned to the house with the applicant in a silver Holden Commodore, they approached the house, he heard noises similar to .22 rifle shots and he decamped on foot. Counsel for the applicant at trial raised several hypotheses in cross-examination including that Mr Haggag himself could have been the shooter, that Mr Brockley may have been shot elsewhere, and that he (Mr Brockley) could have been shot whilst driving the car.

56 I have set out the relevant legal principles in para [48] of these reasons. I consider that the five items of evidence identified in proposed Ground 7 had the capacity to confirm Mr Haggag's evidence in material respects. It tended to confirm that there was a burglary, that items were stolen, that he and Mr Brockley returned to the house and that Mr Brockley was shot in the vicinity of that house.

57 I would not grant leave to appeal on proposed Ground 7.

Proposed Ground 8. A substantial miscarriage of justice arose by virtue of the learned trial judge:

a) permitting the prosecutor to ask questions in re-examination as to the applicant's disposition for violence; and

b) in the alternative, failing to give the jury any direction as to the use they could make of this evidence.

58 Ms Haylbut was cross-examined about a number of statements she had made to police. She agreed that in the first statement she had said that she went out that evening[14] and that after she returned home she observed nothing of any consequence. This account was obviously at odds with her evidence, and defence counsel put it to her in cross-examination as a prior inconsistent statement that impacted upon her credit:

Defence counsel: Because we know that the first version you gave to the police on 9 January 2009 in a statement actually has you at home asleep in bed being wiped out on valium, doesn't it? Is that true or not?

Ms Haylbut: Yes, but I told the police officer at the time that there was more to the story, that I couldn't say at the time because Steven was sitting so close to me.

...

Defence counsel: I suggest that that is just a total fabrication on your part to say that you whisper in an experienced police officer's ear and say, 'There's more to the story'?

Ms Haylbut: No, that's what I said to her.

59 In re-examination, the following exchange occurred:

Prosecutor: I want to ask you why it was that you made that first statement with those things in it which were not correct?

Ms Haylbut: I made it, I made that statement because at the time I was still in a relationship with Steven and I was fearful of how he'd react if I had told the truth and the reason why I changed the times is because I know what time the shooting happened so I didn't, you know, to sort of, to cover myself and Steven at the time I altered the times.

Prosecutor: You said you were fearful of how he would react?

Ms Haylbut: Yes.

Prosecutor: Why were you fearful of how he would react?

Defence counsel objected to the last question, essentially on the basis that it opened up a long history of domestic violence and that s 137 of the Act ought operate to exclude the evidence. Her Honour ruled that the re-examination was permissible. It had been put to the witness that she had perjured herself in this first statement and that the prosecution were entitled to seek to clarify or explain why it was that that first statement differed so markedly from her subsequent statements and evidence.

60 In re-examination on this issue, the following exchange took place:

Prosecutor: You had told the court that you were fearful of the accused, do you recall that?

Ms Haylbut: Yes.

Prosecutor: And as I understand it that was the reason that you gave for providing that first statement; is that correct?

Ms Haylbut: Yes.

Prosecutor: I then went on to ask you I think why you were fearful of the accused, can you tell the court why you were fearful?

Ms Haylbut: I was fearful because our relationship had not been a good one in the past.

Prosecutor: When you say it had not been a good one what do you mean?

Ms Haylbut: It had been basically full of domestic violence.

Prosecutor: In relation to that domestic violence, how long had that persisted?

Ms Haylbut: Well for basically the whole relationship.

Prosecutor: I think your evidence was that was approximately a period of seven years; is that right?

Ms Haylbut: Yes.

Prosecutor: Had you taken any steps in relation to applications for intervention orders in relation to those matters?

Ms Haylbut: Yes.

Prosecutor: On how many occasions?

Ms Haylbut: Several. I can't recall exactly how many.

61 The first component of proposed Ground 8 contends that the prosecutor ought not to have been permitted to re-examine in the manner he did. The applicant submitted that the evidence contained powerful prejudice and should have been excluded pursuant to ss 135 or 137 of the Act.

62 The impugned evidence was led to endeavour to re-establish the credit of a witness who had admitted perjury. The applicant does not take issue with the relevance of this evidence but argues that it ought to have been excluded as the 'danger of unfair prejudice' (in the language of s 137) outweighed the probative value of the evidence. Alternatively the applicant contends that in the exercise of the general discretion in s 135 to exclude evidence her Honour ought to have concluded that the probative value of the evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the applicant.

63 I consider that it was open to her Honour to conclude both that the evidence was highly probative and that the prejudice attached to it (whether expressed in s 137 or s 135 terms) was not sufficient to engage either of those sections. For reasons that I shall explain shortly, it seems clear that her Honour evaluated the danger of unfair prejudice, which was in effect the danger of the jury indulging in propensity reasoning, as capable of amelioration by direction. It was against this ameliorated danger that the probative value was weighed. Her Honour foreshadowed that she would direct the jury in this way.

64 This type of ground of appeal is difficult for an appellant to make out. McHugh J observed in Pfennig v R:[15]

... prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial.

Reasonable minds may well differ on the appropriate outcome of this type of comparative exercise. In order for this type of argument to succeed an appellant would need to demonstrate that it was not open to the trial judge to reach the exclusionary conclusion required by s 135 or s 137. In this case I am of the view that the applicant has failed to do that.

65 What was required then was for her Honour to give the foreshadowed direction on the dangers of propensity reasoning.

66 The second argument advanced under this proposed ground is that once her Honour determined to permit this re-examination, a strong direction should have been given immediately about the limited use that could be made of the evidence and the dangers of propensity reasoning. The prosecutor, in fact, urged such a direction, and it seems that her Honour accepted that a direction about the 'proper use of uncharged acts' was appropriate. In the event, her Honour gave no such direction. The respondent concedes that 'it would have been preferable for the judge to have directed the jury not to engage in propensity reasoning in relation to this' but argues that her Honour's charge made it clear that the evidence was relevant to the credit of Ms Haylbut.

67 I have little doubt that the jury understood the relevance of the evidence - the passages I have referred to in paras [58]-[60] are sufficient to demonstrate that this evidence was led for a reason. Once in evidence, however, it was capable of giving rise to impermissible tendency reasoning and should have been the subject of an immediate direction and a further direction in her Honour's charge. I doubt that this oversight by itself has denied the applicant a realistic prospect of acquittal, however I am troubled by it and am fortified in my view, expressed in relation to Ground 2A, that the trial has miscarried.

68 I would grant leave to the applicant to add proposed Ground 8 to his grounds of appeal.

69 I would allow the appeal and direct that the applicant's conviction be quashed. I would propose that the applicant be retried on the remaining charge. The applicant has served most of the minimum term imposed by her Honour. It is a matter for the Director of Public Prosecutions whether or not it is in the public interest to conduct a further trial.

[1] Although Mr Brockley did not admit making the statement I shall refer to it in these reasons as 'the statement'.

[2] It seems to have been accepted at the trial that Ms Haylbut was a criminally concerned witness because she had assisted in the disposal of the firearm. Whether an accessory after the fact is in fact 'criminally concerned' within the meaning of s 165(1)(d) of the Act remains undecided. See R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506; Kanaan v R [2006] NSWCCA 109.

[3] Already the subject of a separate direction.

[4] Section 165(4) of the Act.

[5] Pursuant to s 38 of the Act.

[6] This evidence was given at a Basha inquiry on 8 August 2011.

[7] See [43] and [46]-[52] of these reasons.

[9] (2010) 29 VR 398 ('Sumner').

[10] Sumner (2010) 29 VR 398, 408 (citations omitted).

[12] Sumner (2010) 29 VR 398, 409 (citations omitted).

[14] The times she offered in her first statement differed from her evidence.

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