Evidence Act 1906 (WA), s 21, s 22

Evidence Act 1929 (SA), s 18

Lowery v The Queen [1974] AC 85

R v Corelli [2001] Crim LR 913

R v Rowson [1986] QB 174

R v Soma [2003] HCA 13

Winning v R [2002] WASCA 44

1 PARKER J: I have had the considerable advantage of reading in draft the reasons of Templeman J.

2 I entirely agree with the analysis and conclusion of Templeman J that there were no inconsistencies between Mrs Combo's evidence at trial and her earlier statements to police officers which were not explored in cross-examination.

3 It is my view, therefore, that whatever the correct position on the question of principle raised in argument, the decision actually made by his Honour in this case was correct. For that reason, the appeal fails on its merits and should be dismissed.

4 As the question of principle was effectively conceded by Crown in the circumstances of this case, I would prefer to reserve my position on that question.

5 TEMPLEMAN J: The appellant, Fariborz Kazemi, and a co-accused, Raluca Ana-Maria Combo ("Mrs Combo") were convicted after trial by Judge and jury in the District Court, on a single count of possessing heroin with intent to sell or supply it to another.

6 The appellant now appeals against his conviction on the ground that the learned trial Judge erred in ruling that certain statements made by Mrs Combo in the course of interviews with police officers were inadmissible.

7 This error, it is said, resulted in the appellant being denied the opportunity of cross-examining Mrs Combo on the excluded parts of her statements - which are said to be inconsistent with her evidence at trial - and thereby attacking her credibility to a greater extent than was possible on the balance of her evidence.

8 The issue is, therefore, whether an accused is entitled to cross-examine a co-accused on a prior inconsistent statement which has been ruled inadmissible against that co-accused.

9 In this appeal, the Crown accepts that the Judge erred, but contends that in all the circumstances, no substantial miscarriage of justice actually occurred, so that the appeal should be dismissed, pursuant to s 689(1) of the Criminal Code.

10 In making the concession it has, the Crown contends that different approaches have been taken in other jurisdictions to issues of the kind

raised in this appeal. The Crown therefore invites the Court to clarify the law applicable here.

11 On 30 May 2001, the appellant and Mrs Combo were both at Mrs Combo's residential unit in Subiaco. At about 3:00 pm on that day, the appellant left the unit and drove off in Mrs Combo's car, which he had borrowed.

12 The car was stopped shortly afterwards by police officers. They searched the car and found in it a leather bag which Mrs Combo later identified as belonging to her. The bag contained a number of items, including a laptop computer, $7,000 in cash wrapped in a sheet of newspaper, a white plastic shopping bag containing three packets of freezer bags, two sets of scales and a small round package wrapped in red insulating tape. The scales and the round package were together in a plastic freezer bag which was itself sealed with red insulating tape. The appellant's fingerprint was found on one of the freezer bags.

13 The round package was later dissected and found to contain 23 individually wrapped packages of white powder, weighing 9.85 grams in total, and having a heroin content of 23 per cent.

14 The appellant and Mrs Combo were charged jointly with possessing the heroin with intent to sell or supply it to another. The Crown case at trial was that either the possession was a joint enterprise, or that the appellant knew the bag contained heroin and was aiding Mrs Combo to move it from her unit to another location.

15 The appellant gave evidence in his defence. He said that although he was in possession of the bag, which he knew to contain the computer, he had not known the bag contained heroin, money or scales. He had been given the bag by Mrs Combo who asked him to place it in her car. The appellant gave an explanation for his fingerprint being on one of the freezer bags: he said he had been helping to paint Mrs Combo's unit, and that in so doing, he had moved freezer bags found in a kitchen drawer.

16 Mrs Combo also gave evidence. She said she had put the computer in the bag, with the help of the appellant. However, she had not looked inside the bag and did not know it contained anything else. Mrs Combo said also, that shortly after the appellant arrived at her unit, she left in order to buy food; and that she was away for about 30 minutes.

17 Although neither the appellant nor Mrs Combo directly accused the other of putting the heroin in the bag, there was clearly an inference that if one was telling the truth, the other was lying. That being so, counsel for the appellant sought to attack Mrs Combo's credibility in his cross-examination of her.

18 Mrs Combo had been interviewed by police officers on three occasions in the course of their investigations. The interviews were recorded on videotape. However, before the trial, it was agreed between the Crown and those representing Mrs Combo, that only a part of the first recording would be played to the jury. The appellant was not a party to that agreement.

19 As part of his attack on Mrs Combo's credibility, the appellant's counsel wished to cross-examine her about statements she had made in the course of the other interviews. These statements were said to be inconsistent with her evidence-in-chief.

20 Mrs Combo's counsel objected to his course, on the ground that the interviews had not been given voluntarily and would have been ruled inadmissible as against Mrs Combo if the Crown had sought to rely on them.

21 Faced with this issue, the learned trial Judge conducted a voir dire to determine the admissibility of the additional material. His Honour then ruled that:

(1) Mrs Combo had not participated voluntarily in the first interview, the record of which was therefore inadmissible;

(2) Mrs Combo had participated voluntarily in the second interview, but parts of it were 'inherently objectionable' and should be excluded as a matter of discretion, to avoid unfairness to her;

(3) the third video record of interview was admissible.

22 By this ruling, the Judge deprived the appellant's counsel of the opportunity of attacking Mrs Combo's credibility by cross-examining her about statements made in the interviews, which statements were said to be inconsistent with her evidence at trial.

23 The appellant accepts that the learned Judge was correct in ruling that the first video record of interviews and the objectionable parts of the second were inadmissible as against Mrs Combo. The applicant submits, however, that the evidence should have been admitted as part of his case, whether or not it prejudiced Mrs Combo.

24 The appellant does not contend that Mrs Combo made any admissions against her interest in the excluded parts of the interviews. For that reason, it is not necessary to enter into the debate about the existence or otherwise of an exception to the hearsay rule in relation to such admissions: see Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1; Robinson v The Queen (1996) 15 WAR 191.

25 The appellant's case must therefore be based on the statutory right of a party to cross-examine a witness about a previous inconsistent statement proved to have been made by that witness: Evidence Act 1906, s 21.

26 In Lui Mei Lin v The Queen [1989] 1 AC 288, Lord Roskill, giving the judgment of the Privy Council, said:

"Ever since section 5 of the Criminal Procedure Act 1865 ... - it has been permissible in every criminal and indeed in every civil trial to cross-examine a witness as to any previous inconsistent statement made by him in writing or reduced into writing subject, where the inconsistent statement is said to be in writing, to his attention first being called to those parts of any writing which were to be used in order to contradict him. The only limit on the right of a co-accused to cross-examine another co-accused in these circumstances is, in their Lordships' opinion, relevancy. If one co-accused has given evidence incriminating another it must be relevant for the latter to show, if he can, that the former has on some other occasion given inconsistent evidence and thus is unworthy of belief." (my emphasis)

27 It is clear from this passage that the English provision has been reproduced in substantially similar terms in s 21 and s 22 of the Evidence Act 1906.

28 If, as Lord Roskill said, the right to cross-examine is limited only by the relevance of the previous inconsistent statement, there can be no residual judicial discretion to prevent cross-examination on the ground of prejudice, where the witness is a co-accused.

29 However, counsel for the respondent in this appeal submits that in Question of Law Reserved (No 3 of 1997) [1998] SASC 7135; (1998) 70 SASR 555, the majority of the South Australian Court of Criminal held that such a residual discretion does exist.

30 In Question of Law Reserved (supra) the Court of Criminal Appeal considered three questions referred by the trial Judge, who had been asked to make rulings and give directions in advance of the trial of three co-accused, (Smith, Wanganeen and Love) charged with the murder of one Read. The Crown case against the accused was that they had assaulted Read in fulfilment of a common purpose.

31 Read had been found lying unconscious in a lavatory next to a public house known as the Stable Bar, in North Terrace, Adelaide. Shortly after Read was found, the accused Wanganeen was seen in North Terrace. Wanganeen was interviewed by detectives. In the course of that interview he denied having been at the Stables Bar. Later, he admitted he had been in both the bar and the lavatory at about the time of the assault on Read.

32 Wanganeen sought to have excluded from the trial, all of the evidence relating to his interview with police officers. The trial Judge conducted a voir dire. Relevantly, for present purposes, the Judge ruled that the part of the interview with police officers at which Wanganeen admitted he had been in both the Stables Bar and the lavatory would be excluded because the interview had not been recorded on videotape, in breach of a statutory requirement to make such a recording when it was reasonably practicable to do so. The Judge held that "it could be unfair to (Wanganeen) to admit that evidence".

33 Having given his ruling, the Judge was informed by counsel for Smith that he would make every endeavour at the trial to have the excluded material admitted and would do so by an appropriate cross-examination of one of the interviewing detectives or (if the Crown did not call those detectives) by calling them as witnesses in Smith's defence. Counsel said also, that he would seek to cross-examine Wanganeen should he give evidence.

34 Counsel for Smith submitted to the Judge that several bases existed for the admission of the excluded parts of the Wanganeen material as part of Smith's case. Only one of the grounds seems to have been directed generally to Wanganeen's credit.

35 In these circumstances, the trial Judge referred the following questions for consideration and determination by the Full Court:

"1(a) So far as one can judge, from the committal papers and the voir dire (including my ruling) and the submissions of counsel, would the excluded interrogation evidence be admissible, and should I admit it, in a joint trial, either through cross-examination of [police officers] or by way of cross-examination of the accused Wanganeen about it at the instance of the accused Smith (or the accused Love)?

(b) If so, for what purpose or purposes should it be admitted?

(c) If such evidence is admitted, should the jury be told that they should not place any weight on it in considering the prosecution case against Wanganeen and, if so, should they be told the reason for that?

2. Should I indicate now, with respect to the projected joint trial, that, if the Crown case takes its expected course, counsel for the accused Smith will be permitted to ask one or other of the investigating detectives, when he gives evidence for the Crown, to give in evidence the questions and answers that constitute the excluded interrogation?

3. Should I grant the (contingent) applications for separate trials?"

36 In the Court of Criminal Appeal, these questions were considered by Prior, Perry and Williams JJ.

37 In answering question 1, Prior J referred first to the submissions by counsel for Smith in which reliance was placed on a number of lies said to be contained in Wanganeen's excluded statement. Counsel had submitted that the lies were evidence of a consciousness of his guilt. Prior J then referred to a submission that Smith and Love were entitled to introduce evidence of the statement made by Wanganeen that he was in the Stables Bar at the material time; and that by implication, he was not then in company with the co-accused. It was submitted that this statement could be introduced as evidence of its truth.

38 It is clear from these submissions that the Court was being invited to consider hearsay evidence, and whether any exception to the hearsay rule applied in the circumstances.

39 However, in answering question 1, Prior J referred also to the use of previous inconsistent statements to attack the credibility of the maker. This is made clear in the following passage at (1998) 70 SASR, p 563:

"I would answer the first question by saying that the excluded interrogation evidence is not admissible through cross-examination of police officers during the prosecution case to prove the truth of any asserted fact. It or part of it may be admissible as going to the credit of Wanganeen should his evidence at the trial be inconsistent with that statement or parts of it. If such evidence was admitted the jury should be told not to place any weight on it in considering the prosecution case against Wanganeen and the reasons for that.

The relevance of some things said in the excluded interview justifying attempts to introduce them in evidence on behalf of an accused seeking to inculpate another may permit some portions of that interview to be disclosed at particular stages in any joint trial. I do not think that this Court can deal with those possibilities absent disclosure of precisely what each accused may allege or properly introduce in his trial. Suffice to say that the answers now given do not exclude the possibility that some parts of the excluded interview could be relied upon, not as evidence of the truth of what is asserted but, consistent with principles reviewed in the authorities, as evidence of real relevance to a particular, clearly disclosed answer to the charge. Even then a judicial discretion to exclude evidence otherwise admissible may arise." (my emphasis)

40 Thus, Prior J acknowledged that even though Wanganeen's excluded statements could not be used against him to prove the facts stated, they might be used to attack his credit, as previous inconsistent statements. This is made abundantly clear in the answer given by Prior J to question 2:

"It is not appropriate to canvass all manner of possibilities at this stage where the answers of the defendant's to the charge are far from specific and clear. Things said to police could be introduced in the trial given certain circumstances, for example, the proper application of ss 18 and 29 of the Evidence Act." (my emphasis)

41 Section 18 of the Evidence Act 1929 (SA) is concerned with the competency of an accused person to give evidence. It is s 29 which is the equivalent of our s 21 and s 22.

42 Perry J noted that there were judicial pronouncements in the decision of the Privy Council in Lui Mei Lin (supra) and of the House of Lords in R v Myers [1997] UKHL 36; [1998] AC 124 which gave "a degree of buoyancy" to the arguments advanced on behalf of Smith. Perry J said:

"Both cases go a long way towards recognising a right on the part of one defendant in a joint trial to cross-examine another defendant or adduce evidence by other means indicating that the other defendant has made an otherwise inadmissible statement out of court said to be of assistance to the defendant seeking to adduce the evidence."

43 Perry J went on to say that he would not analyse the judgments in those two cases in detail because to do so would not advance the matter:

"This is because the judgments of the High Court in (Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1), properly understood, fall short of endorsing an exception to the hearsay rule of the kind now suggested."

44 Thus, Perry J came to the conclusion that the evidence which was the subject of question 1, would not be admissible in any event, because it did not fall within any exception to the hearsay rule. Perry J did not deal specifically with the statutory entitlement of a party to cross-examine a witness about a previous inconsistent statement.

45 The third member of the Court, Williams J, also answered questions 1 and 2 on the basis that the excluded statements made by Wanganeen constituted evidence to which the hearsay rule applied and were therefore inadmissible. His Honour continued:

"As to the possibility that Wanganeen might be cross-examined by Smith's counsel with respect to the excluded statement, it seems to me that circumstances could arise which would justify the statement being put to Wanganeen - in particular, so as to bear upon his credit. I agree with the comments of Prior J upon this topic, but whilst the situation remains so fluid in terms of the defence cases I prefer to say nothing more at this stage." (at p 574)

46 Because the decision in Question of Law Reserved (supra) was provisional it was neither necessary nor desirable for the Court to express a concluded view as to whether the "proper" application of the equivalent of our Evidence Act, s 21 and s 22 is governed only by relevance or is subject to a general judicial discretion.

47 This question was considered in R v Myers [1997] UKHL 36; [1998] AC 124, which was cited to the Court of Criminal Appeal in Question of Law Reserved (supra).

48 In Myers, the House of Lords considered a point of law of general public importance. It was raised by the following question:

"In a joint trial of two defendants A and B, is an out of court confession by A which exculpates B but which is ruled, or is conceded to be, inadmissible as evidence for the Crown nevertheless admissible at the instigation of B in support of B's defence, or does such a confession in all circumstances offend the rule against hearsay?"

49 Lord Slynn (with whom Lords Steyn and Hutton agreed) held that the question certified was much wider than the facts of the case. He therefore declined to answer the question any further than was necessary to dismiss the appeal.

50 Although the question was directed primarily to the hearsay rule, Lord Slynn observed (at 136):

"...there is a long line of authority showing that a defendant must be allowed to cross-examine a co-defendant as to a previous inconsistent confession so long as the material is relevant to the defendant's own defence. In my opinion, a defendant should also be allowed to put a co-defendant's confession to witnesses to whom the confession was made so long as the confession is relevant to the defendant's defence and so long as it appears that the confession was not obtained in a manner which would have made it inadmissible at the instance of the Crown under section 76(2) of the Act of 1984. There may be doubt as to whether the co-defendant will be called (so that it may not be possible to put the confession to the co-defendant directly) and not to allow the defendant to introduce it by way of cross-examination of prosecution witnesses could lead to great unfairness."

51 The reference to "section 76(2) of the Act of 1984", is to the Police and Criminal Evidence Act (UK). It provides:

"(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained:

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him on consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."

52 Thus, Lord Slynn added a further qualification to the proposition stated by Lord Roskill in Lui Mei Lin (supra) that the only limit on the right of a co-accused to cross-examine on a previous inconsistent statement was relevance: at least where the previous statement was a confession.

53 Lord Hope of Craighead, (with whom Lord Mustill agreed) expressed a similar view. At 145, Lord Hope said, in relation to s 76(2) of the Act of 1984:

"That subsection does not refer to the position of a co-defendant who might wish to lead the same evidence. But it is hard to see why a co-defendant should be in a better position than the Crown if the confession was obtained in such circumstances. A confession which has been obtained by oppression or which, for other reasons, was not freely given and is unreliable, is worthless evidence. It is beyond question, as a general rule, that an accused person has the absolute right to lead all relevant evidence in his defence. He is not subject to discretionary control by the court, which has no power to exclude such evidence on the ground that it may prejudice the co-defendant or because it was obtained by improper or unfair means. This point was recently reaffirmed in Lobban v The Queen [1995] 1 W.L.R. 887. As Lord Steyn explained, at p 889B, the principled objection to the argument that there is a discretion to exclude such evidence is that it conflicts with a defendant's absolute right, subject to considerations of relevance, to deploy his case asserting his innocence as he thinks fit. Thus the trial judge does not have a discretionary power, as between co-defendants, to exclude relevant evidence on the ground that he is choosing the course which involves the lesser injustice as between the defendants. But there was no suggestion in that case that the statement by the co-defendant which, in part, was self-incriminating had been obtained from him by unfair means or was other than voluntary. It is at least open to question whether the rule extends to a case where the evidence which the defendant wishes to put in evidence consists of a confession which was made by a co-defendant in the circumstances which section 76(2) of the Act of 1984 describes. While it would appear not to be accurate to describe such a confession as irrelevant, in a case where the defendant's case is that the offence was committed by the co-defendant, the circumstances in which it was obtained may be said to have been such as to render it worthless for all purposes, whoever it is who seeks to rely on it. On this view it would be a proper exercise of his discretion by the trial judge to exclude such evidence even although the other defendant wished it to be put in evidence."

54 In the present case, we are not concerned with the right of an accused to cross-examine a co-accused about a previous confession: only about an apparently inconsistent statement.

55 However, since the purpose of such cross-examination is to attack the credit of the co-accused, it may be pointless to allow it, where the previous statement was made in circumstances which render it unreliable (if made as a result of threats or inducements, for example) such as to render it inadmissible against the maker.

56 There are, of course, many grounds in which statements made out of court may be ruled inadmissible. The point was made by Lord Hope in Myers (supra) at 146:

"The certified question does not, in my opinion, sufficiently analyse the issues which have arisen in this case. It does not distinguish between confessions which are inadmissible on grounds of oppression or unreliability and confessions which are held to be inadmissible on other grounds, and it approaches the matter as if it can be resolved simply by considering whether to admit the evidence would offend the rule against hearsay."

57 In this jurisdiction, evidence of an admission is rendered inadmissible, pursuant to s 570D of the Criminal Code unless recorded on videotape: inadmissible, that is, against the maker of the admission. However, the section says nothing about the use which may be made of an admission by a co-accused who wishes to use it as the basis for a cross-examination as to credit.

58 In my view, there is much to be said for the proposition that the right of an accused to lead all relevant evidence in his defence should be paramount: and that a trial judge should not exercise a discretion, as between him and a co-accused, to exclude relevant evidence.

59 If the reliability of a previous inconsistent statement is questionable, because of the circumstances in which it was made, the maker of the statement could give an appropriate explanation in cross-examination. Such an explanation would usually be final: the cross-examiner would not be entitled to adduce evidence in rebuttal.

60 While I consider that should be the general rule, I recognise also that it might be appropriate in some exceptional circumstance for a trial judge to exercise a discretion to exclude otherwise admissible evidence. I see no inconsistency between that view, and those expressed in Question of Law Reserved (supra) and R v Myers (supra). Although there is no mention of any such discretion in Lui Mei Lin (supra) the question of the admissibility of the relevant evidence had not arisen in that case.

61 For these reasons, I accept the appellant's submission (and the respondent's concession) that the learned trial Judge erred in principle in ruling that the appellant's counsel could not cross-examine Mrs Combo on those parts of her out of court statements which were inconsistent with her testimony at trial, simply on the grounds that the earlier statements were not admissible against her, as part of the prosecution case. The appropriate course would have been for the Judge to permit cross-examining counsel to follow the procedures contained in s 21 and s 22 of the Evidence Act 1906 and to limit any proposed cross-examination only by reference to relevance. However, for reasons to be given below, I consider that the Judge's decision was correct: in summary, because the excluded parts of Mrs Combo's out of court statements were not inconsistent with her evidence-in-chief.

62 In the appellant's outline of submissions it is contended only that:

"The learned trial Judge's ruling prevented the (appellant) from putting relevant parts of Combo's first video record of interview to her." (my emphasis)

However, for the submission to carry any weight, those "relevant parts" should have been identified specifically, as would have been required at trial if the procedures required by s 22 of the Evidence Act had been followed.

63 On the hearing of the appeal, it became apparent that counsel for the appellant was relying not so much on some inconsistency between Mrs Combo's evidence at trial and her previous out of court statements, but the inadequacy of those statements.

64 In her evidence-in-chief, Mrs Combo said she had taken the laptop computer with her from her mother's house and that she intended that afternoon to pay some bills. She said:

"I wasn't sure whether I was going back to Mum's house or coming back to Subiaco for the day so I asked (the appellant) if he could take the laptop." (AB 179E)

Mrs Combo said that because she had been unable to lock the door at her unit in Subiaco, she did not want to leave the laptop there. She therefore asked the appellant if he could take the laptop "and eventually ... drop it off at Mum's house".

"Did you do something in connection with you laptop? --- Yes. Initially I was looking for something, a towel or a cloth or something to wrap it in. There was nothing at the house so we saw the bag.

When you saw the bag, whereabouts was the bag? --- I remember it was in between the kitchen and living room.

Is that bag yours? --- Yes.

How long, roughly, have you had the bag for? --- Years.

Prior to seeing the bag on this particular day, when was the last time you had actually used that particular bag? --- I remember mum had it with her when she travelled to Germany a few years back. I remember seeing it then but - - -

You saw the bag, I think you've told us, in the corner is that right? --- Yes.

What did you do? --- Pointed out that I could put it in there. We put it in the bag.

When you say 'we' put it in, it's important we know what you did and it's important we know what [the appellant] did. Tell me what you did? --- I pointed to the bag. I leaned over to put it in. He grabbed one of the handles so I put it in.

You're showing a motion of putting the computer into the bag, is that correct? --- Right.

Did you put anything else into the bag? --- No, just the accessories that - - -

The cord? --- Yeah, the charger.

And when you put that into the bag, what did you then do? --- Right after that gave it to [the appellant]. He picked it up and just left."

66 Mrs Combo was then asked whether she had known that the bag contained the cash or the heroin wrapped in red tape. She said she had not known. She was then asked to remove the various items also found in the bag and to hold them up one at a time. These included a bundle of screws, an air freshener, a scrunchie, some tablets, part of a socket set and some loose screws. Mrs Combo was asked in relation to each item, whether she had placed it in the bag. She said she had not. She was not asked whether the items belonged to her although, in relation to the tablets she said "Just my vitamins".

67 In the first part of the first interview (which was played to the jury) Mrs Combo denied any knowledge of the cash in the bag. In the second part of the interview, which was excluded, Mrs Combo appeared to admit that everything in the bag except the scales and the red ball was hers. There was therefore no inconsistency in relation to that aspect of her evidence at trial and her previous statement to police officers. Nor was there any inconsistency between her evidence about the way in which the computer was placed in the bag: questions of that nature were not asked of her during the first interview.

68 There was some inconsistency between Mrs Combo's evidence at trial and the statement she made at the second interview about the way in which the computer was placed in the bag. However, those parts of the statements at the second interview were not excluded and were the subject of cross-examination by counsel for the appellant. I refer to Mrs Combo's statement at the second interview which is recorded on p 399 of the appeal book where she said she had put the computer in the bag. In the course of her cross-examination (AB 264) that statement was put to her and the assertion made:

"At no stage did you ever mention the fact that (the appellant) assisted you to put the computer in?"

In response to that assertion, Mrs Combo repeated her evidence that the appellant had assisted her by pulling the handle and helping to open the bag. That is what she had said previously. It was put to her that she had not mentioned the appellant during the second interview. She responded:

69 That, I think, was the truth of the matter. However, the significance of those answers was clearly a matter for the jury. I note that that Judge gave the jury a clear and appropriate direction about the use which they might make of previous inconsistent statements (AB 337).

70 On the hearing of the appeal, counsel for the appellant said he had wanted to cross-examine Mrs Combo not only about the way the computer had been placed in the bag but about "other points as well". Counsel did not identify specific inconsistencies between Mrs Combo's evidence at trial and the excluded parts of her earlier statements. Apparently, these matters related to the source of money found in Mrs Combo's possession. I note, however, that this was the subject of a very effective cross-examination by counsel for the appellant. Mrs Combo was unable to explain how she, as a single mother in receipt of Centrelink benefits of $580 - $600 per fortnight, albeit supplemented by working casually, came to have the substantial amount of cash found in her possession.

71 In short, there were no inconsistencies between Mrs Combo's evidence at trial and her earlier statements during the course of interviews with police officers which were not explored in cross-examination: and Mrs Combo was cross-examined effectively about her financial position.

72 I am therefore of the view that despite the error in principle, on the part of the learned trial Judge, his Honour's decision was correct. I would therefore dismiss the appeal, without resort to the proviso.

73 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Templeman J. I agree with those reasons and I would dismiss the appeal.