(e) evidence given in a criminal proceeding by a witness who is a prison informer;
(f) …
(2) If there is a jury and a party so requests, the judge is to:
(a) Warn the jury that the evidence may be unreliable; and
(b) Inform the jury of matters that may cause it to be unreliable; and
(c) Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
5 The warning that her Honour gave to the jury in respect of Mr Newbold was in the following terms (as transcribed):-
"I need now to give you some directions as to how you should approach an assessment of Mr Newbold's evidence in those circumstances. That is where he has agreed to give evidence against Mr Kutschera when the offending for which he was sentenced occurred on that same night that Mr Kutschera is charged with having murdered the deceased. It is a bit like the warning or caution that I gave you in the context of identification evidence. The direction that I am now going to give you is given in all cases where a person has, because they have agreed to give evidence, had that taken into account when sentenced. …
The warning that I give you is this. A person who gives evidence in Mr Newbold's position may be giving unreliable evidence. May be giving unreliable evidence, not always, does a person in Mr Newbold's position give unreliable evidence. Experience has shown that witnesses in Mr Newbold's position may construct untruthful stories tending to downplay the involvement that they had in the events they are giving evidence about and to play up the role of others. People in Mr Newbold's position or witnesses generally in that position may make false claims out of hostility or revenge. People in Mr Newbold's position may feel locked into a version, inculpating, that is saying the other person is guilty, even if that version contains inaccuracies or even untruths. So you should approach his evidence with some caution. In taking that direction into account as you must, you are entitled to look at all the evidence to see whether the other evidence in the case resolves any concern you may have about Mr Newbold giving evidence in this case on his undertaking to give that evidence when that matter was to be taken into account on sentence. I need to tell you this. Mr Newbold was not in fact sentenced to any period of imprisonment. His sentence then was not reduced because he agreed to give evidence, because he was not sentenced as such.
He was however told that if he did not give truthful evidence, that he could be brought back before the judge who sentenced him as the law provides, that is the judge who made a decision about what sort of punishment he should be given for what he did that night and to have the question of his punishment revisited if he did not give truthful evidence."
6 On behalf of the Appellant it is contended that this direction was inadequate in that:-
(a) It does not refer to the circumstance that, on the version of events given by Tony Matthews, Mr Newbold might well be regarded as having been criminally involved in the murder.
(b) It does not refer to the circumstance that the police, no doubt on the basis of what they had been told by Matthews, charged Mr Newbold with murder.
(c) It focuses exclusively on the circumstance that the appellant had agreed to give evidence against the Appellant when being sentenced for relatively minor matters which had nothing to do with possible involvement in the murder.
(d) The significance of the agreement to give evidence against the Appellant was effectively negated by telling the jury that he did not in fact have his sentence reduced and that he was told his sentence might be revisited "if he did not give truthful evidence".
(e) No reference was made to the fact that Mr Newbold, having been present at the scene of the murder, had the opportunity to weave the details of what happened into his account to make it appear plausible.
7 It was further submitted that matters that might cause the evidence of Mr Newbold to be unreliable and about which her Honour did not inform the jury were:-
(f) On the version of events given by Tony Matthews, Mr Newbold might well be regarded as having been criminally involved in the murder. If he was criminally involved in the murder, he would have a powerful motive to give any unreliable account which exculpated himself or minimised his part. He would also have a motive to fabricate the role of the Appellant. As was stated in Jenkins v The Queen (2004) 79 ALJR 252; [2004] HCA 57 at [30], "accomplices are regarded by the law as a notoriously unreliable class of witness, having a special lack of objectivity". Mr Newbold was arrested very soon after the murder and told that he would be charged with murder, so that his motive to give an unreliable account existed prior to him giving his version of events to police.
(g) The charge of murder had been dropped against Mr Newbold, partly as a result of his record of interview, in which he had minimised his part and implicated the Appellant. He would necessarily feel bound to repeat the version given to the police when he gave evidence as am matter of self-protection, in order to avoid prosecution for involvement in the murder (cf Kanaan v The Queen [2006] NSWCCA 109] at [166]).
8 Additional criticisms were:-
(h) The jury were not warned that the much more serious consequences of criminal involvement in a murder, compared with commission of the offences in respect of which Mr Newbold pleaded guilty required a correspondingly greater need for caution in respect of his evidence, and that need for caution was not removed by the fact that the murder charge against Mr Newbold had been dropped, since it could be prosecuted later.
(i) Although the jury were told that they were "entitled to look at all the evidence to see whether the other evidence in the case resolves any concern you may have about Mr Newbold giving evidence in this case…" no reference was made to the fact that Mr Newbold, having been present at the scene of the murder, had the opportunity to weave the details of what happened into his account to make it appear plausible.
(j) The jury were not told of the strongest possibility that potentially undermined Mr Newbold's reliability, namely that he himself had been criminally involved in the murder.
(k) Her Honour, in deciding the ambit of the warning she should give, took into account evidence that was not before the jury.
9 In response, the Crown submitted that no further warning than that given was requested, that her Honour was entitled to take the view that Mr Newbold was not, in the words of s165, "a witness who might reasonably be supposed to have been criminally concerned in the events", and that the trial judge had good reasons for not giving a warning more extensive than she did. The Crown also relied on r4 of the Criminal Appeal Rules and, in the last resort, on the proviso to s6 of the Criminal Appeal Act.
10 To appreciate the strength of these contentions and the extent of the possible involvement of Mr Newbold, it is necessary to refer to further details of the trial. Mr Gleeson's death occurred as a result of being run over by a vehicle while on the footpath a short distance to the north-east of 68 Sydney Street, Muswellbrook. Two witnesses, Mr Newbold and a Mr Tony Matthews, gave direct evidence to the effect that the Appellant was driving the vehicle at the time and there was circumstantial evidence tending in the same direction. However, Mr Matthews also gave evidence that at the time the deceased was run over, Mr Newbold was in the vehicle with the Appellant and not long before had alighted from the vehicle, assaulted the deceased, and then re-entered it. It was common ground that not long afterwards the Appellant and Mr Newbold walked down to the vicinity of where the deceased had been run over, were spoken to by police and Mr Newbold was arrested and charged with murder. The Appellant was arrested early on the following day.
11 Before however dealing with the evidence of Mr Newbold and Mr Tony Matthews further, it is convenient to refer to other evidence in the trial.
12 Sydney Street runs in a south-west to north-east direction. Denman is to the south-west. Moving north-east, places or objects that are of relevance to events described in evidence include:-
(i) Firstly, Skellatar Street, that crosses Sydney Street at right angles;
(ii) Secondly, 98 Sydney Street, the second allotment north-east of Skelletar Street. This is where the Appellant lived;
(iii) 68 Sydney Street, on the south-east corner of Sydney Street and Jordan Street;
(iv) Sydney Street Tyre and Battery Centre, on the north-east corner of Sydney Street and Jordan Street.
(v) Maitland Road, which intersects with Sydney Street at right angles.
(vi) The Prince of Wales Hotel at 36 Sydney Street, being the corner of Sydney Street and Maitland Road.
(vii) A subway somewhat to the north of the north-eastern end of Sydney Street;
(viii) The Railway Hotel which is a little distance to the north-east of the north-eastern end of Sydney Street.
13 The Appellant was the owner of a silver 4-wheel drive Nissan Patrol vehicle registered number AD78NH. That vehicle had 3 tyres that were described as cross-over tyres - suitable for on and off-road travel but its left rear tyre was primarily an off-road tyre, commonly called a "mud-digger". The vehicle that ran over the deceased had the same track, i.e. the distance between wheels on opposite sides, as that owned by the Appellant. According to unchallenged evidence from Constable Harman, a member of the Newcastle Crash Investigation Unit, that vehicle also had a rear left tyre that was of the mud-digger type and a rear right tyre that was of a cross-over type. Evidence from a Detective Buining of the Taree Crime Scene Section was that one tyre that went over the deceased was of a cross-over type and had a tread pattern that matched the front driver's side tyre of the Appellant's vehicle.
14 Both officers acknowledged, no doubt because many tyres have similar characteristics, that they could not say that the vehicle that had driven over the deceased was the Appellant's.
15 Tyre marks on and near the deceased indicated that a vehicle had been driven over him twice. On one occasion the vehicle had been driving towards the north-east in Sydney Street for some time on its incorrect side of the road, had diverged onto the footpath on that side, driven over the deceased's body with one or both driver's side tyres, described a 180 degree turn returning to the same side of the road and driven off in a south-westerly direction on what was then on its correct side. On another occasion the (or a) vehicle had driven south-west, i.e in the opposite direction, along the footpath passing its passenger side tyres over the deceased's head and then driven off the footpath at a slight angle, to be again on its correct side of Sydney Street as it drove south-west. On that occasion the vehicle had crossed onto the footpath as if angling from being driven south-west in Sydney Street but there was no physical evidence of its direction prior to crossing the gutter. There was no challenge to this evidence.
16 Included in the evidence was evidence of events earlier in the night at the Railway Hotel and of altercations near there and between there and where the deceased died. The evidence of a number of witnesses was suggestive of the Appellant being involved in these altercations, an involvement that he denied though admitting being at the hotel for a time. It is clear that a fair proportion of these witnesses had spent much of the night drinking. However, except so far as the identification of the Appellant is concerned, there was relatively little challenge to their evidence. Because some of the identification was by description of appearance and clothing it should be mentioned that at the time the Appellant had curly or wavy black hair down to his shoulder and a goatee. A neighbour Mrs Hickey said that the hair was pulled back in a pony tail, that the Appellant always wore dark clothes and that he had a tattoo on his neck. The Appellant gave evidence that the tattoo was on the left side of his neck and that it was not a spider or a star but Tibetan or Asian writing.
17 Mr Newbold's evidence, supported by police photographs of the items, was that he was wearing a grey sloppy-joe, white corduroy pants and a white and red Holden baseball cap.
18 Tegan O'Brien gave evidence that the deceased had been at the hotel in the company of Tony Matthews and another friend Anthony. Ms O'Brien also saw there Adam Newbold with some of his friends including -
· one with black curly, shoulder-length hair, taller than Mr Newbold
· one wearing a red and black beanie, about Mr Newbold's height, and
· one with a tattoo on his neck, who was short.
19 Natasha Matthews gave evidence similar to that of Ms O'Brien as to the presence there of the deceased, her brother Tony Matthews, and another friend. She saw there also Adam Newbold. She described an incident where a man spoke to another of her brothers, Michael, and of the man giving an angry look at the deceased. In her police statement she had described the man as having a tattoo, possibly a star or spider, on the right side of his neck, black curly hair, wearing a black hat, jeans and a long-sleeved shirt. At the police station, on a date that was not specified but may have been when she made a statement on 22 July, she identified someone in one of 20 photographs she was shown as the person who had given the angry look. The photograph (and a copy) became Exhibit K and, according to unchallenged evidence of a Detective Gregory who prepared the series of photographs shown to a number of witnesses for identification purposes, is a photograph of the Appellant. Ms Matthew's identification of the photograph as of the person she saw was not challenged.
20 Michael Matthews gave evidence of his brother Tony being at the hotel with the deceased and of Adam Newbold being there with someone with black short curly hair and a black goatee. In a non-responsive answer he referred to that other person as "Michael".
21 Mr Luke Polzin gave evidence of being at the Royal Hotel and seeing there the deceased, Adam Newbold with "Mick", a person whom and whose Christian name he knew and who had long dark curly hair, a little goatee, a long-sleeved shirt and jeans, these last 2 items being dark or black. Mr Polzin said the he had a conversation with Mick but was not asked whether the person "Mick" was the Appellant. Mr Polzin also spoke to Nathan Hickey.
22 Mr Nathan Hickey, who will be referred to again below, gave evidence of seeing at the Hotel Mr Polzin having a conversation with the Appellant who was then wearing a black striped T-shirt. All seemed to be in a good mood. - T206
23 Jade Smith gave evidence of working at the Railway Hotel that night. She noticed there the deceased, someone else who was tall, with dark curly hair and wearing dark clothing and, near that person, another person wearing a white shirt, and a red Holden hat. The Hotel closed at 2.30am. After dropping some friends home and going to a service station, she and a friend Cassie drove south-west along Sydney Street and saw 2 ambulances and a blanket apparently covering a body. The car she was in then did a U-turn and drove north-east. At the subway she saw the persons, one with curly hair and one with a red hat, that she had noticed at the Hotel walking south-west in Sydney Street. About 5 or 10 minutes later, when the car in which she was, was again proceeding south-west in Sydney Street, she observed the 2 persons in that street still walking south-west and 2 blocks or so to the north-east of where the deceased died. In cross-examination she agreed that it was after 3.20am that she first saw the men in the street.
24 Cassie Munro gave similar evidence to that of Jade Smith though she referred to only seeing one person who she said had shoulder-length curly black hair. She did not think that person had any facial hair. She said that on the first passing along Sydney Street, she saw one ambulance and no police vehicles. Later she saw two ambulances. Near the sub-way she saw one person, the man with the shoulder-length curly black hair, and later saw him walking along to the south-west of the ambulances and talking on a phone.
25 Justin McGrady was also at the Royal Hotel. After he left at closing time and was waiting outside, a man bumped into him. The man was about the same height but a bit smaller in build than Mr McGrady, white skinned, with wavy black hair to or just below his shoulders and wearing a black shirt. Mr McGrady thinks he then pushed the man. Mr Tony Matthews then threw a punch at the man (that may or may not have connected). Mr McGrady told Mr Matthews to stay out of it and the latter walked away.
26 Mr Orre Davison, who agreed that he was very much affected by alcohol on the night, said that after he left the Royal Hotel at 2.30am he saw across the road a scuffle between Justin McGrady and a bloke with long black hair, a black buttoned-up shirt and jeans. Later as Mr Davison was walking along Sydney Street with 2 mates, Brogan Barnes and Corey Beshman, he observed ahead of them "a long haired bloke and another bloke" wearing a white jumper and red cap and baggy jeans. The deceased and Tony Matthews were walking behind but then caught up with Mr Davision's group. At the Prince of Wales Tavern at about 36 Sydney Street, Mr Davison caught up with the persons with the long hair and red cap and asked the latter why he had been picking on the deceased at the pub (an allegation the deceased had made to Mr Davison). The man with the red cap then ran away. Mr Madison and Mr Barnes followed in pursuit but the man pursued ran out of sight. The deceased, Tony Matthews and the man with the long curly dark hair were still outside the Prince of Wales. Mr Davison saw the commencement of a scuffle between the man with the long curly dark hair and Mr Matthews, the latter being the aggressor.
27 Mr Barnes gave evidence that he saw the scuffle between Justin O'Grady and a man he could not describe, a second outside the Prince of Wales involving one of the Matthews and that he and Mr Davison chased a person who ran off.
28 Mr Phillip Allen lived in Skelletar Street some few blocks behind the Appellant. Mr Allen spent the night drinking first at the Prince of Wales Hotel and later at the Railway Hotel, having he said 6 or 7 schooners of full strength beer and 2 cans of bourbon. He left the Railway Hotel at 2.30 and commenced to walk south-west in Sydney Street towards his home. He noticed no-one else until he reached the Prince of Wales where about 5 people, in one group of 3 and another of 2 ran past him. The 2 had a scuffle a little further down Sydney Street and the other 3 kept on running towards a street further down on the northern side. One of the 2 was a big fellow who seemed to be getting the better of the other who finished up on the ground at some time. The second man was thinner with a beard and shoulder-length curly black hair. He was shorter than Mr Allen's 6'2". Mr Allen kept "plodding along" and then the man with the beard ran flat out past him at a time when Mr Allen was approaching 68 Sydney Street. Mr Allen said that the large man remained standing there.
29 As Mr Allen continued past about 78 Sydney Street, a silver Nissan came speeding towards him driving in the middle of the road and then Mr Allen heard a screeching noise as if the Nissan was doing a slide turn. Mr Allen turned around by which stage the Nissan was heading back towards him. It passed him and stopped in the driveway of number 98 Sydney Street. The driver, who was the person with the black curly hair and beard seen earlier alighted from the car, and went into the house. No one else alighted from the car. In the house there then seemed to be a loud argument involving male and female voices and the male then came out again and stood by the driver's side of the vehicle. Mr Allen continued home where his wife greeted him with the remark, "It's 3 o'clock. Where have you been?" The only significant challenge to Mr Allen's account was whether the man who alighted from the Nissan was the same man as Mr Allen had seen earlier.
30 A 000 call was received by police at 2.57am. The incident log showed that the call came from Mr Tony Matthews and phone number 0422 065 330. In the call Mr Matthews reported that his 21 year old mate had been assaulted and was unconscious, that he himself was "running from 'em" being 4 or 5 persons in a 4-wheel drive. Mr Matthews identified the location as Beaurepaires in Sydney Street, Muswellbrook. The ambulance service was contacted at about 3.01am, there was a police broadcast of the incident at 3.03 and another at 3.11 that was acknowledged by "Muswellbrook 15".
31 Mr Dunn, who worked in the Northern Operations Centre of the Ambulance Service, gave evidence of the receipt of a 000 call from Mrs Sandra Burke at 3.05.44am on 21 July. The record produced by Mr Dunn, Exhibit P, showed that the call (I infer action pursuant to it) was cancelled prior to despatch because it was a duplicate call.
32 Mrs Burke of 68 Sydney Street gave evidence of the making of the call after being woken at about 3am by her dog barking and then being told by someone outside that his mate had been run over and he needed to ring someone. Mrs Burke went out and saw the body lying on the footpath outside the tyre service station. The person outside was very agitated or very upset. She later saw him directing the ambulance. There was no movement on the street between the time she first spoke to the man and the arrival of the ambulance. Mr Burke gave similar evidence.
33 An ambulance officer Mr Pollack gave evidence of receiving a call at about 3am of an incident at Beaurepaires in Sydney Street, that Beaurepaires was in fact in Maitland Street, of attending there, seeing nothing, driving out of Maitland Street into Sydney Street where he was flagged down by Mr Tony Matthews near another tyre place. Mr Pollack arrived there at 3.11am. By reference to some document that seems not to have found its way into evidence, Mr Pollack said that the co-ordination centre in Charlestown would have received a call notifying it of the incident at 3.01am.
34 Mr Callinan, a second ambulance officer, gave evidence of receiving a call at 3.04am, proceeding to a site described as Beaurepaires in Sydney Street, Muswellbrook, and then being redirected to the Sydney Street Tyres and Battery Store where he saw another ambulance driven by Mr Pollack and the deceased. There Mr Callinan spoke to Mr Tony Matthews who had no injuries but appeared distressed. At about 3.25, Mr Callinan also spoke to someone and stopped that person who was walking in the direction of the deceased's body. The person then crossed Sydney Street and walked in a south-westerly direction down the street. Later, at about 4.10 pm, Mr Callinan saw the same person standing under an awning of a shop next to the Tyre and Battery Store. The person was Caucasian, about 6 feet high, thick build, dark wavy shoulder length hair and a dark beard. Mr Callinan later identified 2 photos from a collection of 20 that police showed him as those who looked most like the person he had seen. One of the photographs he identified was of the Appellant. Another was of someone onto the image of whose face an image of the Appellant's hair had been transposed.
35 Constables Smith and Lea gave evidence that about or not long after 3am on the morning of 21 July 2007 they were in a police vehicle "Muswellbrook 15" conducting a regular patrol in the streets of Muswellbrook. In the course of that patrol they turned from Skellatar Street right into Sydney Street. Both constables said that during or immediately after the turn was occurring they saw a male person walking from the front gates of 98 Sydney Street towards the front door of those premises. Constable Smith said that there was sufficient street lighting to effect a clear recognition and she saw that the person was the Appellant. Constable Lea said that he also observed a silver 4-wheel drive vehicle just inside the closed gates of the premises, with its rear to the road, its tail lights on and smoke emanating from the exhaust. The male person was near the car. There was no challenge to any of this evidence.
36 The police then returned to the police station some 400 or 500 metres or more away, proceeding down Sydney Street. They saw no activity in the area where Sydney Street is intersected by Mill Street and Mitchell Streets, the area that contains premises at 68 Sydney Street and premises of Sydney Street Tyre Service, these properties being close to one another but separated by Jordan Street. Jordan Street intersects Sydney Street between the intersections of Mill Street and Mitchell Streets. After returning to the station, they then had a cup of coffee and were making notes of their patrol when they heard a police radio broadcast at 3.11am and to which they responded at 3.12, arriving at the scene at 3.27 or 3.30.
37 While there they had a conversation with Mr Matthews who appeared, according to one officer, very shaken up and, according to the other, very upset. Inspector Tracey arrived and not long afterwards Constables Smith and Lea spoke to the Appellant and Mr Adam Newbold who were side by side at the time they were seen. Constable Smith estimated that this conversation was within 10 minutes of their arrival. Constable Lea estimated 10 minutes but said it would not have been more than 15 minutes.
38 Evidence was also given by a number of neighbours of the Appellant who spoke of matters they had noticed at 98 Sydney Street and of sounds heard or observations made during the night of 20-21 July 2007. All spoke of the Appellant's 4-wheel drive and that he was the only person they had seen drive it.
39 Mr Terence Hickey who lived at 96 Sydney Street said that on the afternoon of 20 July he had seen the Appellant washing down a white Commodore in his back yard. By reference to a photograph Mr Hickey fixed the position of where the Commodore was when he saw it being hosed down. That was at the rear of the allotment, close to the side fence furthest from Mr Hickey's place, and opposite the front gates.
40 In addition to the Commodore and the 4-wheel drive, there was also an early model black Ford kept at 98 Sydney Street. At 3.39am next morning - a time he says was exact - Mr Hickey was woken by the sound of a noisy V8 next door starting up. Mr Hickey had heard the sound before.
41 Mr Hickey's wife described seeing the Appellant at 98 Sydney Street and gave a description of him that was "tattoo on the neck, wavy black hair to the shoulder, pulled back in a pony tail, always used to wear dark clothes". Mrs Hickey said that at about 10pm on the night of 20 July she saw someone walking down the side of the Appellant's house and saw the Appellant address him by the name "Adam". Mrs Hickey said she also was woken by a loud noise of the black car leaving the premises at 3.40am.
42 Mr Ronald Foot lived at 103 Sydney Street and said this was opposite number 98. He said that he was very familiar with the sound of the Appellant's 4-wheel drive. He was woken at, or very close to, 3am by gates being opened directly across from his place. This was followed by the sound of a heavy vehicle motor that was the sound of the 4-wheel drive. The motor was revving "with a lot of despatch" and the vehicle drove off in a north-easterly direction. About 20 minutes later the sound returned and seemed from the sound to turn into a driveway.
43 Mr Matthew Wickes lived at 105 Sydney Street which was almost opposite the Appellant's residence. He described the Appellant as having a thin build, long and curly dark hair and a goatee beard. Mr Wickes said that he had heard the sound of the Nissan starting and running and that it did not sound like a V8 super car. He was also familiar with the sounds of the gate at the Appellant's residence opening. During the night of the deceased's death he was woken by his dog barking, looked out and saw a Ford Fairlane starting up, move forward and then drive off towards Denman. During the course of these events Mr Wickes saw someone behind latticework on the front verandah of number 98, the gates were opened, the car came out, the gates were closed and the person ran back behind the lattice work. Mr Wickes was sure that the person was not the Appellant who was seen by Mr Wickes jumping in the car. The person behind the latticework seemed to have white pants on, and what looked like a pair of disposable overalls around their waist. Mr Wickes looked at his clock when he went back to bed. The clock showed 3.11 but was about 13 minutes fast.
44 Later in the early morning of 21 July Sergeant Williams of the Gosford Crime Scene section attended at the Appellant's premises, made observations similar to those of Inspector Tracey and took photographs. At the rear of the premises there was the Nissan AD78NH and 3 wheelie bins. On top of one of the bins was a bottle of detergent. There were scattered grass patches around the vehicle with the surrounding soil being damp. Nearby the rear door of the premises was a tap with a hose attached. In his examination of the vehicle, Sergeant Williams saw no signs on the vehicle of any contact with a person or object.
45 There were a number of other police witnesses to whose evidence it is unnecessary to refer, either at all or at least in detail. Mr Lawrie, a vehicle examiner, inspected the Nissan. He said that the windscreen was clear glass but the other windows had an extremely dark tinting which, if there was no light inside the vehicle and if they were up would obscure the view looking into the vehicle considerably. There was noting to impede light outside from entering the vehicle through the windscreen. He found a screw-driver on the floor of the vehicle with which the steering could be unlocked and the car started.
46 Inspector Tracey attended the scene. He spoke to Mr Tony Matthews and from his own observations and what he had been told by ambulance officers formed the opinion that Mr Matthews was upset. After speaking to Constables Smith and Lea he went with Constables Rodgers and Hawes to 98 Sydney Street. There he saw the Nissan and saw that the grass in front of the vehicle was wet. The front driver's side tyre was wet and there was a puddle near that wheel. There were droplets of water on the bonnet. There was a puddle of water on the ground beside the front passenger wheel. Located next to the back door of the house was a garden hose with a spray nozzle attached. On the opposite side of the door was a wheelie bin with a bottle of washing detergent on top. Inspector Tracey said that there had been no rain. The Nissan was parked behind and parallel to the rear of the house.
47 Police knocked on the front and back doors of the house but there was no answer. Constables Rodgers and Hawes were left at the premises to protect what Inspector Tracey regarded as a crime scene.
48 Constable Hawes gave similar evidence to that given by Inspector Tracey as to events at 98 Sydney Street, adding that it was at about 4.55am they attended.
49 Later in the early morning of 21 July Sergeant Williams of the Gosford Crime Scene section attended at the Appellant's premises, made observations similar to those of Inspector Tracey and took photographs. Near the rear door was a tap with a hose attached. In his examination of the Nissan vehicle AD78NH that he saw there, Sergeant Williams saw no signs on the vehicle of any contact with a person or object.
50 The position Mr Hickey identified as that where the Commodore was washed down would seem to be some little distance away from where the Nissan was seen by Sergeant Williams. The appearance of the ground and location of the tap and vehicles in photograph 163 may have led the jury to the view that the washing of the Commodore was unlikely to have accounted for the puddles and damp patches referred to by the police officers.
51 Detective Sergeant Prentice gave evidence that about 9.10am on 21 July the Appellant was arrested at 98 Sydney Street. Later that day the Ford Fairlane was recovered from the premises of Mr Adam Newbold.
52 Detective Bulmer gave evidence of being present when the Nissan was moved from 98 Sydney Street. He said that it could not be moved without unlocking the steering and that he could not find a screwdriver on the floor. He located one in a toolbox in the back and unlocked the steering.
53 Detective Hardy gave evidence of being present when Mr Tony Matthews was shown photographs for possible identification. She said that she asked Mr Matthews if he had seen any of the persons under any circumstances. Her reply was, "Only that fellow" referring to photo 2. Then asked where and when, Mr Matthews replied "At the pub and when he ran Lucas over". The photograph Mr Matthews selected was of the Appellant.
54 Against that background, I turn to the evidence of the principal witnesses, Mr Newbold and Mr Tony Matthews.