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[2007] WASCA 196
Court of Appeal (WA)
2007-09-28
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : McKAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 196
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law and procedure - Disclosure by prosecution - Whether sufficient disclosure of discussions between complainant and police officers about promised cooperation - Whether sufficient disclosure of likely discount on sentence of complaint on other charges - Whether medical evidence fully disclosed - Whether miscarriage of justice - Whether trial of appellant should have proceeded when complainant yet to be sentenced on other offences - Whether evidence of uncharged acts of drug dealing on part of appellant created miscarriage of justice - Whether accomplice direction called for
Evidence Act 1906 (WA), s 50
2 MILLER JA: The appellant, Martin Peter Seroka ("Seroka") and Paul Michael Dipane ("Dipane") were variously charged on an indictment which contained four counts as follows:
"(1) On 30 October 2004 at Bunbury PATRICK NEIL MICHAEL MCKAY and MARTIN PETER SEROKA, with intent to maim, disfigure, disable, or do grievous bodily harm to GLENN WILLIAM BAILEY, unlawfully did grievous bodily harm to GLENN WILLIAM BAILEY.
(2) On the same date and at the same place as in Count (1) PATRICK NEIL MICHAEL MCKAY stole a motor vehicle, namely Toyota Hilux utility registration number 6EO 145, the property of GLENN WILLIAM BAILEY.
(3) On 5 November 2004 at Myalup and elsewhere PATRICK NEIL MICHAEL MCKAY, MARTIN PETER SEROKA and PAUL MICHAEL DIPANE unlawfully detained GLENN WILLIAM BAILEY.
(4) On the same date as in Count (3) at Beeliar PATRICK NEIL MICHAEL MCKAY, MARTIN PETER SEROKA and PAUL MICHAEL DIPANE unlawfully assaulted GLENN WILLIAM BAILEY and thereby did him bodily harm."
3 The appellant and his co-accused were tried in the District Court at Bunbury before Eaton DCJ and a jury between 19 and 30 September 2005 and were convicted on all counts on the indictment.
4 The appellant seeks leave to appeal from his convictions. Roberts-Smith JA ordered on 23 February 2007 that the application for leave to appeal be referred to the Court of Appeal for hearing together with the appeal.
"1. The Prosecution's failure to properly disclose material prior to the Complainant's evidence gave rise to a real risk that the trial miscarried.
Particulars
and the likelihood that he would receive a discount on sentence as a result of such co-operation and evidence that he may give against the Appellant. The additional evidence given by Dr Chen at the trial.
6 The complainant was a 40-year-old resident in the Bunbury area in October 2004. He was a qualified engineer, who had experience in marine engineering. He had worked for many years in the marine industry before he found his way to the south-west of Western Australia. By August 2004, he was maintaining farm machinery around farms near where he lived in Boyanup.
7 In the year 2003, the complainant was introduced to the appellant. He saw him on numerous occasions thereafter. The appellant introduced him to Seroka.
8 In 2004, the complainant, Nicole Triplett and Graeme Parry, manufactured methylamphetamine on a small scale. They were subsequently detected and charged with the manufacture of methylamphetamine.
9 The complainant testified that in mid-2004 he was asked by the appellant to investigate the manufacture of methylamphetamine and he was supplied with equipment in the form of chemistry glassware and chemicals to enable this to be done. The complainant alleged that Seroka became involved in the project as financier. The manufacture occurred at the farm where the complainant was living in Boyanup, but came to an end when police executed a search warrant at the farm and took away all of the equipment, the complainant's computer and a number of chemistry books. The total value of the items seized was upwards of $100,000.
10 The complainant was charged with the manufacture of a prohibited drug and all of the equipment which had been seized was confiscated. It was the prosecution case that the appellant and Seroka were unhappy that the equipment had been seized and they laid the blame at the feet of the complainant. The prosecution contended that, after the complainant had been charged and released on bail, the appellant made it clear to the complainant that he was to blame for the loss of the equipment and that he would have to pay $50,000 to compensate the appellant for the loss.
11 On 30 October 2004, the complainant went to the house of a friend in Bunbury. He was intending to do some work on his motor vehicle. It was a Toyota Hilux utility. During the course of the afternoon, the appellant and Seroka were alleged to have arrived at that address. The complainant said they were in the appellant's Toyota Hilux twin-cab utility. The complainant's evidence was that the appellant said that "we had to go for a drive". The complainant told them that he had to move some furniture, but the appellant and Seroka said they would follow him and then they would "go for a drive and have a talk". In the event, this is what happened. The complainant said that he went with the appellant and Seroka, because if he did not do so, he would have "got knuckled".
12 The complainant said that he was driven in the appellant's vehicle to some scrubland near the beach. It was south-west of Bunbury. The vehicle stopped on a dirt track and they all got out of the vehicle. The complainant said that he was "smashed in the face" and "dropped to the ground". He said that it came "out of nowhere". The complainant's evidence as to what then occurred was as follows:
"So what happened as a result of that?---I dropped to the ground, you know, and then they just laid the boots in.
After that had happened, did any of them leave that immediate area where you were?---Yeah, Doc walked back to - in his ute, and grabbed a big pick handle and come back with that and they made me sit up on the log, you know, and started hitting me with that.
What parts of you was he hitting you with that?---Everywhere.
Did Martin Seroka do anything after that began?---Yeah, he picked up a big log of wood like this out of the bush and come back with that and - - -
...
Okay, and did he do anything with that?---Yeah, he just laid into me from the other side, you know. I just had one on each side, hooking in.
Did that stop at some stage?---Once I was pretty busted up, you know what I mean, yeah.
You mentioned there you were 'pretty busted up'. Were there any parts of your body in particular?---Yeah, because I had to keep my guard up like that and - - -
I see. You are just demonstrating there with your clenched fist up over your face?---Yeah, trying to keep it from - so I didn't get hit in the head, you know, and, yeah, they've smashed this arm; compound-fractured it, forced a bone out through the flesh and everything, you know.
You are indicating your right arm there?---Yep.
You are indicating your forearm as to where the bone was protruding?---Yeah, in here.
So it was actually sticking out of your arm?---Yeah, poking out about two inches; yeah.
Can you recall how it was that that happened? When that happened or what caused that?---Just from the blows from the timber and that, you know, yeah.
Was there any other part of your body that you were experiencing sensations from?---Yeah, you know, they - a broken right leg and - - -
Well, at the time, if you can explain what part of your leg you were feeling - - -?---My whole leg.
I will ask you this. Were you feeling pain from your right leg - from your leg?---Yeah, from my right leg - the knee.
Your right leg, all right, and where was that?---My knee was blown up like a footy.
What part of your leg though?---Just above my knee.
Again, any idea how that occurred?---The same - - -
When that occurred?---From a belting from the timber.
So you have indicated those two injuries. What about elsewhere on your body?---Just about half a dozen ribs. Put this shoulder out - out of its socket."
13 The complainant said that he was then thrown into the back of the Toyota and taken back to the house. An ambulance was summoned and he was taken to Bunbury Hospital. He was transferred by air to Sir Charles Gairdner Hospital, where he remained for a period of six days.
14 Medical evidence at trial revealed that the complainant had been admitted to the Bunbury Regional Hospital at 5.45 pm on 30 October and taken by Royal Flying Doctor to Sir Charles Gairdner Hospital at 8.40 am on 31 October. He had an injury to the cervical spine and to the thoracic spine. He had bruising and superficial abrasions over the right shoulder, right side of the chest and the right buttock. He had swelling and a puncture wound to the right forearm and pain over the right side of the pelvis. There was swelling to the right knee. X-rays revealed a fracture of the ulna bone in the right forearm and a fracture in the lower part of the right femur at the knee joint. There was evidence of bruising to the kidney area.
15 The complainant was discharged from Sir Charles Gairdner Hospital on 5 November. He made arrangements for his friends, Graeme Parry and Nicole Triplett, to collect him. In the event, it was Ms Triplett who came. She did so at around lunchtime on 5 November. The complainant was on crutches and had one arm in plaster. He was discharged with medication and prescriptions for further medication.
16 The complainant left Sir Charles Gairdner Hospital in Ms Triplett's Ford utility, intending to return to Bunbury. The vehicle stopped at a shopping centre in Miami so that they could eat and so that the complainant could have one of his prescriptions filled, and the vehicle then left, heading towards Bunbury. There was a stop for fuel, and then the complainant recalled seeing a BMW parked in a culvert on the left-hand side of the road. The complainant was familiar with the vehicle, which he described as Seroka's wife's vehicle.
17 After driving some little distance, the complainant observed the BMW pull alongside the vehicle in which he was traveling. He said that the vehicle in which he was travelling was forced off the road. The complainant saw Seroka driving the BMW and in the front passenger seat was the appellant. A person whom he had never seen before was seated in the back seat. The complainant later identified him as a person who was referred to as "Paul" (Dipane).
18 The complainant said that he was pushed into the rear seat of the BMW and taken back towards Perth. He was threatened and told that he had to "come up with" the money that he owed for the methylamphetamine manufacturing equipment. He said that he was punched a few times and spat on in the vehicle. Eventually, a dark shirt was placed over his head and shortly afterwards the vehicle came to a stop. The complainant said that he was pulled out of the vehicle and taken into a house. He said that the time was about 5 pm. Inside the house, the shirt was removed from his head and he found himself in a lounge room in the front corner of the house. The appellant, Dipane and Seroka were there. The appellant produced paperwork which "stated that I had given him my car and given him [a Japanese flag] that they were after". He said that he was made to sign it and he did so.
19 The complainant said that Seroka then attacked him with knuckle dusters and Dipane produced a branding iron, which he took outside, heated up and upon his return "branded [his] feet with it and [his] arm and [his] chest". The branding iron was described as looking like a fireplace poker. The leg that was "branded" was the broken leg where the complainant's foot was exposed at the bottom of the splint. He said that he was in agony. The knuckle dusters which Seroka was using were described as homemade and "like out of like a Teflon cutting board". The complainant said that cigarettes were also butted out on his chest, arm and neck. The appellant was present, but did not engage in the assaults. The complainant said that a couple of times he "pulled ... up" the others because they were getting carried away. The complainant said that he was then hit on the head with a "fireplace implement". It caused bleeding and "half knocked" him out.
20 The next thing that occurred was that Dipane came into the room with an electric jigsaw. The complainant described it as "an electric thing ... with a sort of blade that goes in and out for cutting fine timber and stuff". The appellant said, "You won't run away this time. We're going to cut the ends off your feet". Dipane turned on the jigsaw, but the battery was flat. The complainant said that he was told that it would be charged up and that it would take an hour. Dipane suggested that, whilst this was happening, Seroka, the appellant and himself should go and have a drink.
21 The complainant said that he was then taken into the toilet and tied to the toilet bowl with a long telephone cord and grey duct tape. He was then removed and taken into a bedroom, where he was strapped to a mattress with duct tape. He was on his stomach. A blanket was thrown over him. He said that, whilst he was in that position, he saw the appellant slam a door open, as a result of which the door handle hit the wall. Dipane "went crazy at him" and told him not to leave any marks on the walls because his "old man will kill you".
22 The complainant said that he was able to escape. He managed to get out the back door, climb a wire fence and make his way across the street to a nearby house. There, he banged on the door and asked the occupant to ring the police. A police car arrived within 10 minutes. The complainant showed the police the house where he had been and then he was taken to Sir Charles Gairdner Hospital.
23 Dr Alek Chen testified that he was working at Sir Charles Gairdner Hospital on 6 November 2004 when the complainant was admitted. It appears that he was admitted at midnight. He was discharged at 6 am the following day. Hospital notes recorded as follows:
"Was discharged 6 am from Sir Charles Gairdner Hospital after fracture of right radius query distal femur. Burns over right forefoot. Bruising over left side of chest. Cigarette burns to chest and right arm above plaster of Paris."
The notes added that the complainant said that he felt as though the fracture of his right leg had been re-broken. He had a swollen top lip, but no loose teeth. X-rays were taken, but there was no further fracture. The injuries were regarded as due to bruising and the complainant was discharged with analgesia and "dressings on the right foot", where there were burns.
24 The complainant identified in evidence photographs of the BMW which he said belonged to Seroka. A photograph of the vehicle with a child restraint seat in it was shown to the complainant and he said that this child restraint seat had been in the back of the vehicle and had been placed in the boot to enable him to be placed in the back seat. He identified a photograph of a prescription which he said had been stolen by the appellant and Seroka from the vehicle in which the complainant had been travelling towards Bunbury. He was shown a photograph of the appellant's Toyota and he identified the wheels on it as having been wheels from his own vehicle.
25 The complainant ended his testimony by acknowledging that he had been jointly charged with Ms Triplett and Parry with the manufacture of amphetamines and that he had been in prison.
26 The prosecution case was that the assaults on 5 November 2004 had occurred at the home of Dipane's parents at 90 Britannia Avenue, Beeliar. There was evidence that, following the complainant's escape from the house, Dipane had gone to a neighbour's house at around 11 pm. He told a Mr Micale that the family house had been broken into, that he had heard Mr Micale's dog barking and he thought Mr Micale may have seen something. Mr Micale said that he had seen nothing because he was asleep. He then saw Dipane walk towards a vehicle which was parked outside his house.
27 Police and members of the tactical response group forced their way into the house on 90 Britannia Avenue at about 5 am on 6 November. Inside the house, they found evidence which supported the complainant's story that he had been held captive there. There were several pieces of silver gaffer tape inside the bedroom where the complainant said he had been tied to the mattress. There was similar tape in the yard. There was a bloodstained tissue in the bedroom and several cigarette butts were found in the house. When tested for DNA, they variously revealed DNA consistent with that of the complainant and each of the appellant, Seroka and Dipane.
28 On 12 November 2004 police executed search warrants at two Bunbury houses where the appellant and Seroka lived. In the garage of the appellant's house was the complainant's Toyota Hilux utility and documents in the name of the complainant. At Seroka's house, was a plastic knuckle duster which matched the description of that which the complainant said had been used by Seroka when attacking him. Parked in the garage at Seroka's house was a dark blue-grey BMW, inside which was a medical prescription in the name of the complainant. Later the same day, police found the appellant's Toyota Hilux utility at another location in Bunbury. The four tyres on the vehicle were from the complainant's Toyota utility. The appellant and Seroka were arrested on 12 November and charged with the offences which were the subject of the indictment. Dipane was apprehended by police on 5 February 2005 and later charged.
29 In the course of his cross-examination, the complainant said that, as well as being taped to the mattress at the house to which he had been taken, he had been handcuffed with handcuffs that had been stolen from his house. He had not mentioned this to investigating police officers or, indeed, in his evidence-in-chief. He said that his assailants had tried to use them on him on 5 November, but the ratchet was jammed on one of them. He said he had a key for the handcuffs which he wore around his neck at all times. It was with him on the day in question, hanging on a silver chain around his neck. He said he was not handcuffed to the bed, but an attempt had been made by his assailants to handcuff him when his hands were in front of the bed. A ratchet on the handcuffs had not worked, so "they gave it away". The complainant admitted that he had told a solicitor that he had been handcuffed to the bed with his handcuffs, but he said that was incorrect.
30 The prosecution placed significant reliance upon the evidence of the complainant. There was, however, other independent evidence to support the prosecution case. There was the evidence of items found at the house in Beeliar, the evidence that the complainant's utility was parked at the appellant's residence, the evidence of the prescription in the BMW parked at Seroka's residence and there was an item of evidence which revealed that the complainant's blood was found in the rear of the appellant's dual cab utility.
31 Constable Steven Pavlovich gave evidence that, on 12 November 2004, he was involved in a search at a house at 4 Zoe Street, Bunbury. There, he took photographs of a Hilux dual cab utility, registration number 7GS 725. This was the utility of the appellant. In the course of photographing the vehicle, he found a spot on a red and black seat cover from the rear seat of the vehicle. The spot was tested and it gave a presumptive indication of blood. Janeen Anne Bennett gave evidence that she was a forensic scientist in the forensic biology section of the PathCentre, Western Australia. She examined a black and red seat cover which had come from the motor vehicle registration number 7GS 725. She found two stains on the outside front of the seat cover, which gave positive reactions for blood when screened chemically. The bloodstains were only small. They were 1 by 1.5 centimetres and 1 by 2 centimetres respectively. These stains were submitted for DNA analysis. Their DNA profile matched that of the complainant. The probability of finding that DNA profile from somebody other than the complainant, or unrelated to him, was less than one in 10 billion.
32 Graeme Charles Parry testified that, on 5 November, he had been intending to pick up the complainant from Sir Charles Gairdner Hospital. In the end, he was unable to do so because he had torn tendons in his elbows and he could not drive to Perth. He asked Ms Triplett to go for him. She left in his white utility. At or about that time, he received an SMS message on his mobile telephone from the appellant. It read, "Are you going to pick up the scoundrel or shall I". Parry thought that he would have responded by saying that Ms Triplett had gone to get the complainant. Later, he received another SMS message from the appellant. He was requested to advise what time Ms Triplett would be returning. Following this, he got an SMS message from Ms Triplett saying that she was at Lake Clifton and would be home in about an hour. Parry then advised the appellant by SMS message that Ms Triplett and the complainant were at Lake Clifton and should be home in about an hour.
33 Nicole Louise Triplett testified particularly about the journey from Sir Charles Gairdner Hospital to Bunbury when the complainant was a passenger in her vehicle. She recalled a vehicle pulling up alongside their vehicle. It was a silver BMW. She recognised the appellant in it. She pulled over. She said that the appellant had come to her window and had asked how the complainant was. He said that he owed people quite a bit of money and favours. He said that, for the safety of herself and Parry, he would like the complainant to go with him because he had heard that somebody was going to be looking for him. She saw another person, who also got out of the BMW, but she did not know who he was. She said that the complainant got out of her car and into the appellant's car, and she drove away.
34 When Ms Triplett returned, she was alone. Parry gave evidence that when she returned, he telephoned the appellant and asked why he had the complainant. The appellant told him that he was concerned that people in town wanted to get hold of the complainant and he was concerned for Ms Triplett and Parry. He said that he felt that it would be better that he looked after him, because the people chasing the complainant were not "really nice". In response to a request from Parry that he look after the complainant, the appellant said that he would do so.
35 The appellant did not testify at his trial. Through his counsel, he attacked the credibility of the complainant. It was contended that the complainant had falsely implicated the appellant in order that he could get a reduction on his own sentence on charges of manufacturing methylamphetamine. It was also suggested that he had chosen the appellant as a scapegoat because he had no fear of him, but was fearful of the real culprits.
36 No evidence was adduced on behalf of the appellant. The evidence of Ms Triplett and Parry was relied upon to support the proposition that the appellant had not harmed the complainant, but was looking after his interests. There was no answer to the circumstantial evidence of the items found at the address in Beeliar, the prescription found in the BMW vehicle and the blood found in the rear of the appellant's dual cab utility.
37 This ground contends that the trial of the appellant miscarried because the prosecution failed to properly disclose material before the complainant gave evidence. That material related to conversations between the complainant and police officers regarding the likelihood of a discount on the complainant's sentence on charges of manufacturing methylamphetamine in the event that he co-operated and gave evidence against the appellant.
38 The complainant was cross-examined at great length by counsel for the appellant on this issue. It was put to him that he had falsely implicated the appellant in the offences of manufacture of methylamphetamine to hide the identity of the true offenders. The following questions from counsel for the appellant are indicative of how it was put:
"What I am putting to you, sir, is that firstly if you were involved in the manufacturing of methylamphetamine with other people it is not Mr McKay. Do you agree with that or disagree?---No.
You disagree?---Yep.
What I am suggesting to you, sir, is that what you've done is rather than name the true perpetrators of your association in the manufacturing of methylamphetamine you have put Mr McKay into that role. Do you agree with that or disagree?---No, disagree.
Now what you've gone on to do is go further to say that the person who was associated with you in the manufacture of methylamphetamine and subsequently assaulted you is Mr McKay. Do you understand that?---Yeah.
I am saying what you have done is that you have substituted Mr McKay for somebody else deliberately?---Mm.
Yes?---No."
39 The cross-examination of the complainant by counsel for the appellant was very lengthy. It began some time after noon on 20 September and continued for the rest of that day. It resumed the following day and continued until almost the end of the sitting on 22 September. There were numerous interruptions by reason of various submissions, but, in broad terms, the complainant was cross-examined for about a day and a half. It was consistently put to him that he was implicating the appellant for two reasons. The first was to protect the real culprits and the second was to ensure that he received a lesser sentence than he might otherwise have received for the offences of manufacturing methylamphetamine.
40 The proposition that the complainant was to obtain some benefit in sentencing for the methylamphetamine offences related to the assertion that he had falsely implicated the appellant in those offences. The false implication in relation to the indictment was said to be because the complainant knew that the real offenders were others and of them he was afraid. That proposition was put in this way:
"What I'm putting to you, Mr Bailey, is that on 6 November you made a statement to the police officers implicating Mr McKay and Mr Seroka in relation to the manufacture of methylamphetamine or amphetamine?---Yeah, I may have done because they obviously would have wanted to know why the assaults took place.
I'm putting to you, sir, the reason you said Doc McKay was - that if you told the truth about the people that had actually assaulted you, you would have been in trouble?---That's not correct. I was already in trouble with the people."
41 Counsel for the appellant cross-examined the appellant over a wide range of matters. They included the previous offences of the complainant and, in particular, the details of the offences of manufacture of methylamphetamine. Towards the end of the cross-examination, counsel for the prosecution objected to it on the basis that it was "dragging on and on". The jury was clearly concerned. It appears that, after an adjournment at 3.39 pm on 21 September, the jury sent the learned trial Judge a note to the following effect:
"Can the defence lawyer please stick to information relating to the charges we are here to judge?"
42 I will come shortly to the appellant's complaint about the consequences of this note. It is sufficient, for present purposes, to say that the very lengthy cross-examination of the complainant by the appellant's counsel was directed at destroying his credibility as a witness. This was the essential basis of the appellant's defence. He gave no evidence himself and called no evidence. Destroying the complainant's credibility may have assisted the appellant, but he still had to answer to the circumstantial evidence to which I have referred.
43 The complainant's evidence about obtaining a discount on his sentence for co-operation with the police was contradicted by Detective Sergeant Darren Michael Kelly. He gave evidence about searches at different locations and about the charges of manufacture of methylamphetamine preferred against the complainant. In cross-examination by counsel for the appellant, Detective Sergeant Kelly was asked whether any "offers; that is, indemnities or undertakings" had been given to the complainant in relation to assistance that might be given in charges against the appellant for manufacture of methylamphetamine. The following exchange occurred:
"No? Have the West Australia Police Service said to Mr Bailey at any point in time, "When you come to be sentenced we will tell the judge how much you have helped us"?---In relation to what?
In relation to his assistance for the manufacturing charges against Mr McKay?---It's been discussed with Mr Bailey that he may have some option as far as a letter of comfort in relation to testifying against McKay or anyone else involved in the manufacturing counts, but not in relation to these proceedings.
When?---When was that discussed?
Yes?---After 6 August. Specifically what date, those discussions - it was discussed with him on 6 August or 7 August and at various times after that, mainly by Detective Rob Witt."
44 A voir dire was then conducted and Detective Sergeant Kelly elaborated in the following way:
"LEVY, MR: You have heard all that, Detective Sergeant Kelly. I think you said on 6 or 7 August you had discussions with Mr Bailey?---Yes.
Can you tell us what they were about please?---It was generally as to what our requirements were in relation to letters of comfort.
Yes?---If he were to testify against whoever else was involved in manufacturing amphetamine with him.
Okay. And that occurred on the day of the raid at Boyanup?---Yes.
On 6 August 2004, yes?---Yes.
Did you tell him that he would get a reduction in sentence for his cooperation?---Yes.
And that the West Australian Police Service would provide a letter of comfort to the judge?---Yes, and how that worked, yes.
You explained how that worked in terms of you couldn't guarantee it, a reduction, but you would support a discount?---As well as the procedural aspects and the law as far as resentencing goes, yes.
What was his response to that?---He would contemplate it.
Sorry?---I don't recall his exact words but he was thinking about it. It was an option he was prepared to think about.
Yes. Have there been other further discussions between you or to your knowledge between other police officers and Mr Bailey about that topic?---There has. Again, in just general terms. No written undertakings have ever been made by myself or Detective Witt or anyone else that's involved in this case to the DPP or to anyone else along those lines. It has just been generally a discussion as to whether he was prepared to go down that path."
45 Detective Sergeant Kelly was then further cross-examined before the jury. The questions and answers were as follows:
"Detective Sergeant Kelly, just before that break I was asking you questions about offers made to Mr Bailey with respect to the Police Service providing letters of comfort or information to a sentencing court that Mr Bailey had cooperated with the police?---Yes.
Okay. Now, have you had any discussions with Mr Bailey with respect to that topic? That is, offers from the police to give letters of comfort to a sentencing judge?---Yes, in relation to the manufacturing charges; yes.
Yes, and did you have a conversation with Mr Bailey along those lines on 6 August 2004?---Yes.
Did you tell him, that is Mr Bailey, that if he gave evidence against Mr McKay the West Australian Police Service would provide some sort of a letter of comfort or something to a sentencing judge telling the judge that he had assisted the police?---Yes.
URQUHART, MR: In relation to what?
LEVY, MR: In relation to the manufacture of methylamphetamine charges?---Yes, it was - specifically in relation to McKay or any other co-offender involved in manufacturing amphetamine.
Right. Obviously specifically in relation to Mr McKay. Yes?---McKay and whoever else might have been involved.
Did Mr Bailey tell you that he would contemplate the offer?---He did.
...
... a few days before this trial, some 10 days or so before this trial started, you went out to Casuarina Prison and spoke to Mr Bailey?---I did, yes.
You again reiterated to Mr Bailey that if he gave evidence in relation to the manufacturing charges that the Police Service would provide some letter of comfort to a sentencing judge or something along those lines?---Not in those terms.
Well, you tell the jury what you discussed?---He mentioned that he was being represented by a solicitor from Legal Aid and that that solicitor may want to speak to me at some point of time about a letter of comfort over the manufacturing charges, yes.
In your discussions with Mr Bailey about this topic I suggest you explained to him that when people cooperated with the police they generally got a discount in sentence?---Yes.
Obviously it was a matter for the judge but to your - I'd suggest to you that this is what you explained to him; to the best of your knowledge people got a reduction in their sentence for cooperation?---Yes. Yes.
Did you tell him that you got a significant discount if you gave evidence against somebody?---Not the term 'significant'. I said you were entitled to a discount but that wasn't automatic because it also was subject to whether or not that was indeed a case against any other co-offender and they were in fact charged."
46 Following this exchange, counsel for the appellant was in a position where he could have asked for the complainant to be recalled. No such request was made. This was, no doubt, a tactical decision. Nevertheless, it is a tactical decision with which the appellant must live. The consequences of such tactical decisions are summarised by Kirby J in R v Taufahema [2007] HCA 11; (2007) 81 ALJR 800 at [168] as follows:
"Tactical decisions and even-handedness: A particular consequence of the 'common law system of criminal procedure', and of its consequence that accused persons are ordinarily bound by the conduct of their legal representatives, has been a reluctance of courts of criminal appeal to permit an accused, having second thoughts on appeal, to challenge miscarriages of justice said to have arisen from tactical decisions made by trial counsel in the course of the trial. This reluctance has a very practical foundation. Such decisions are made in trials on countless occasions every day. If they were susceptible to being reopened on appeal, few forensic choices could be treated as final. Trials, and appeals, might never conclude. For this reason, in very many cases, this Court has declined to permit accused persons to reopen decisions made by counsel at trial, characterised as those made for tactical reasons." (Footnotes omitted)
47 Notwithstanding the decision not to seek the recall of the complainant, counsel for the appellant was still in a position where he could attack the complainant's credibility by reason of the evidence given by Detective Sergeant Kelly. No doubt he did so in his address to the jury.
48 The learned trial Judge made it clear to the jury that the evidence of Detective Sergeant Kelly might impact on the credibility of the complainant. His Honour said:
"Mr Bailey was asked by Mr Levy, and perhaps other counsel, as to whether he had been made any offers by police in relation to evidence in this matters in the sense that he would get some form of support or consideration when he came to be sentenced for his various charges by reason of the fact that he had given evidence against Mr McKay and Mr Seroka in relation to the charges that are before you. Mr Bailey replied to that by saying that there had been no offer of a reduction of sentence and no pressure from police to give evidence in this matter.
...
Detective Sergeant Kelly told Mr Levy a couple of days ago, 28 September, that there had been discussions with Mr Bailey on or about 6 August 2004 about giving evidence against Mr McKay and anyone else who might be involved in relation to the manufacture of methylamphetamine charges. Of course, discussions on 6 August 2004 were before the events of 31 October 2004 and 5 and 6 November 2004. They predated the events giving rise to these charges.
Detective Sergeant Kelly said that more recently, as recently as 9 September 2005 he visited Mr Bailey in Casuarina Prison and had spoken with him about giving evidence in relation to the manufacture of methylamphetamine and also about whether he was going to give evidence in respect to the matters that are before you. The detective, in his evidence, said that Mr Bailey mentioned his solicitor's name, Mr David McKenzie, in relation to methylamphetamine charges.
The detective said that any discussions with Mr Bailey concerning a reduction in sentence were in respect of the methylamphetamine charges not the matters before this court...
...
... It might well be the case that Mr Bailey will get some support from police when he comes to be sentenced for the manufacture of methylamphetamine matters if it is the case that he has assisted police in the prosecution of others with respect to those matters.
You are not in a position, of course, to speculate about what might happen but it is reasonably well known that people who do assist police might be given some reduction in sentence by reason of that assistance. The matters before you, of course, are somewhat different in character to charges of the manufacture of methylamphetamine."
49 The quotations I have set out are selective paragraphs from lengthy directions to the jury on the subject. It was made very clear that the credibility of the complainant was very much in issue on this subject.
50 Ground 2 of the grounds of appeal is linked with this issue. It contends that the learned trial Judge erred in allowing the trial to proceed at a time when the complainant was yet to be sentenced in relation to "related criminal offences". The particulars annexed to the ground contend (inter alia) that the appellant did not get a fair trial because the charges against the complainant for manufacturing methylamphetamine were not being dealt with prior to the appellant's trial and the trial was conducted in an atmosphere of "irreparable prejudice to the Appellant". Complaint is made that the prosecution led evidence of uncharged acts of drug dealing and manufacturing which created prejudice that could not be guarded against.
51 In my view, there is no substance in the complaints made in grounds 1(a) and 2. The position was that the complainant was charged with manufacturing methylamphetamine. The appellant had not yet been charged. According to Detective Sergeant Kelly, there had been discussion with the complainant about benefits he may receive on sentence for the manufacture of methylamphetamine charges in the event that he gave evidence against the appellant on similar charges. The credibility of the complainant was in issue on this point because the complainant had denied that any such discussions had occurred.
52 However, the trial of the appellant was for the offences which are the subject of the indictment. It was not a trial for manufacture of methylamphetamine. Any evidence that the complainant gave at the trial of the appellant related solely to the offences alleged in the indictment. He could get no benefit in sentence arising out of the fact that he gave evidence at the trial of the appellant on those charges.
53 In my opinion, the learned trial Judge gave a model direction to the jury on the relevant issue. That was whether, in all the circumstances, including the evidence of Detective Sergeant Kelly, the complainant's evidence was credible and acceptable. In all the circumstances I cannot see how there was any miscarriage of justice occasioned to the appellant. In any event, counsel for the appellant chose to continue with the trial without recalling the complainant. This was something he could clearly have made application to do. Such an application would presumably have been granted. A forensic decision was taken to proceed with the trial. The appellant was in as good a position as he could be in, because the issue of the complainant's credibility was highlighted in very clear terms by the learned trial Judge.
54 Counsel for the appellant sought at the hearing to tender the transcript of proceedings before Deane DCJ in the District Court at Perth on 12 September 2006 when the complainant was sentenced for the offences of manufacture of methylamphetamine. He was sentenced to a total of 4 years 9 months' imprisonment on six such counts. Deane DCJ took into account in sentencing the fact that the complainant had co-operated with police. That co-operation related to the involvement of others in the methylamphetamine manufacture. Deane DCJ also took account of the fact that the complainant had suffered injury in the assaults which were the subject of the indictment against the appellant. No specific discount was mentioned.
55 I am prepared to accept as material to be considered by this Court the transcript of the proceedings before Deane DCJ, but it seems to me that those materials do not advance the appellant's case. Whilst as a fact the complainant got some benefit for co-operation with police because of the ordeal he suffered at the hands of the appellant and others, the prospect of that fact was clearly put before the jury by the learned trial Judge.
56 In my view, there is no substance in the assertion that there was a miscarriage of justice to the appellant by reason of the fact that the offences of manufacturing methylamphetamine committed by the complainant were dealt with after the trial of the appellant.
57 The particulars to ground 2 also contend that there was a miscarriage of justice in consequence of background evidence led about the appellant's involvement as a drug dealer; and the appellant's alleged drug related activities constituted by the uncharged acts of drug dealing and manufacturing. It is also contended that the trial was conducted in an atmosphere of irreparable prejudice and that the appellant was denied the benefit of a proper accomplice direction.
58 The evidence in relation to the appellant's "drug dealing" was central to the prosecution case. It explained why the appellant and his co-accused had committed the offences which were alleged. It was inevitable that this evidence should have been before the jury. On the other hand, there was no evidence led to prove the involvement of the appellant in drug dealing other than the contentions of the complainant. The complainant's evidence was very much in issue. All the assertions against the appellant relied upon the testimony of the complainant.
59 The learned trial Judge directed the jury to avoid sympathy or prejudice and made particular reference to the fact that much of the evidence had related to drugs "and associated matters". His Honour said:
"... Generally speaking in assessing the evidence you should bring to that task a dispassionate, clinical approach. There is no room in that task for sympathy or prejudice. We are all subject to sympathies and to prejudices to one degree or another and this is a case where the charges and the subject matter of the charges are not particularly palatable.
We have also heard a great deal about drugs and associated matters. Some people, some among you, may have strong views about such matters. I ask you to put such influences or sensitivities to one side. You are carrying out a public duty. You have taken an oath to bring in a true verdict according to the evidence. It follows that sympathy, prejudice and emotional responses should play no part in the task which you undertake. Your job is very much a clinical one, sifting through the evidence to find firm foundations for conclusions or inferences of fact."
60 I earlier made reference to the fact that members of the jury indicated to the learned trial Judge during the course of cross-examination of the complainant by the appellant's counsel that they desired him, in effect, to keep to the issues.
61 On 21 September 2005, the Court adjourned at 3.39 pm. The proceedings recommenced at 3.50 pm. It appears that during that afternoon adjournment the jury sent a note to the learned trial Judge which read: "Can the defence lawyer please stick to information relating to the charges we are hear to judge".
62 Prior to the 3.39 pm adjournment, counsel for the appellant had been cross-examining the complainant for a very long time. The line of cross-examination during the afternoon session and prior to the 3.39 pm adjournment was first directed at the alleged seizure of the complainant by the appellant during the complainant's journey to Bunbury after discharge from Sir Charles Gairdner Hospital on 5 November 2004. Counsel for the appellant then took the complainant through a prior statement made by him to police. The complainant was then cross-examined about charges of manufacture of methylamphetamine, cultivation of cannabis, possession of bongs and smoking implements, and driving charges. Counsel then concentrated on the circumstances in which the complainant had pointed out to investigating police where manufacturing equipment was at the farm occupied by the complainant prior to his arrest. There was lengthy cross-examination about DNA that might have been found on the equipment, whether the complainant had discussed a forensic chemistry report with a police officer and whether there were further charges that might be preferred.
63 Counsel for the prosecution objected to the cross-examination, contending that it was "dragging on and on". The learned trial Judge asked counsel for the appellant what point he was trying to make. Counsel replied that he was suggesting that the complainant received some sort of favour. There was a further round of objections and counsel for the appellant then advised the learned trial Judge that he wanted to ask the complainant whether there had been any discussions as to why he had not been charged with any further offences. Counsel was allowed to put this question and the cross-examination continued as follows:
"LEVY, MR: Mr Bailey, you heard that. Has there been any discussion between you and police officers as to why there haven't been any further charges?---No.
No?---No.
Do you know - have you got any knowledge of whether the items have been analysed?---No.
Do you even know what's in the brief against you in relation to the manufacturing? When I say 'the brief,' the evidence against you?---No, my lawyer's still at the moment trying to piece it all together, I think.
You're not interested?---Once it's all together I will, yeah.
Are you anxious to have - to be sentenced in relation to all of this - these manufacturing charges?---Yeah, I'd like to get it out of the way, yeah.
You're sitting in custody?---Mm.
Yes?---Yeah. I'm going to do time anyway, so whatever time I'm doing now is going to come off.
Do you have any knowledge about the National Crime Authority following you; following you to Broome - from Darwin to Broome?---No.
Did you ever tell Nicole Triplett that the National Crime Authority were following you?---No.
No?---No.
Your Honour, I'll just check my notes - - -"
At this point the Court was adjourned. Given the way in which the cross-examination had gone, it was not surprising that the jury indicated that they would like to hear cross-examination which related to the charges which they were there "to judge".
64 When the Court resumed at 3.50 pm counsel for the appellant had completed his cross-examination. Counsel for Seroka began to cross-examine. The proceedings continued until 4.31 pm. Shortly before the afternoon adjournment the learned trial Judge addressed the jury about the question of cross-examination. His Honour said:
"EATON DCJ: All right. Ladies and gentlemen, it is nearly half past 4. I should point out that cross-examination can range over quite a wide area and can touch upon matters that are the subject of the indictment, the actual acts that are alleged to have occurred and it can touch upon matters because cross-examination can go both to the facts which are said to comprise the offence but it can also go to just credibility. So to the extent that cross-examination touches upon matters which aren't part of the acts complained of in the indictment but other matters that are removed in time and space maybe the result of cross-examination as to credit.
In other words, cross-examination probing, for example, a person's criminal record with a view to suggesting that they ought not to be believed on their oath. So cross-examination can range over quite a wide area and it is - and generally speaking as a matter of fairness cross-examination by counsel for the accused is given a fairly wide latitude and that is what has happened here. Having said that to you, bear in mind what I said about discussing matters overnight with other people. We are interested in your views and the evidence that you have heard in this courtroom not the views or opinions of others. We will see you for a 10 o'clock start in the morning."
65 The jury retired for the day and the learned trial Judge then informed counsel of the contents of the note. Counsel for the appellant complained that from the tenor of the jury's note they obviously thought his cross-examination was irrelevant. The learned trial Judge responded to counsel by saying that he had pointed out to the jury that the questions were relevant. Counsel for the appellant then sought to discharge the jury but the learned trial Judge refused.
66 At the hearing of the appeal counsel for the appellant contended that the appellant's trial was conducted in an atmosphere of "irreparable prejudice" and the note from the jury was an indication that this was so. The argument proceeded on the basis that had counsel for the appellant known that Detective Sergeant Kelly was going to say that there had been discussions with the complainant about benefits he might receive from co-operation, the cross-examination would not have been so long.
67 Nevertheless, it seems to me that counsel for the appellant took a tactical decision to cross-examine the complainant over the course of the best part of two days. An alternative would have been to conduct a much shorter and more precise cross-examination in which it was put to the complainant (a) that he had blamed the appellant and his co-accused for the commission of the offences when it was others who were responsible; (b) the complainant had attempted to cast the blame upon the appellant and his co-accused because he was afraid of others and not afraid of them; (c) the complainant had engaged in discussions with investigating detectives about what benefits he might receive if he implicated the appellant and others in offences. This could have been done in a more concise manner than counsel for the appellant chose. Although the credibility of the complainant was central to the appellant's defence, this did not necessitate a cross-examination of the length which this one took.
68 In my opinion, the point raised by the jury was valid and the way in which the matter was dealt with by the learned trial Judge was such as to cure any prejudice that may have resulted to the appellant by reason of his counsel's lengthy cross-examination. In any event, the decision to cross-examine the complainant as counsel for the appellant did was entirely a tactical decision and one which binds the appellant. I can find no substance in the complaint that the trial was the subject of irreparable prejudice by reason of what occurred.
69 Ground 2(d) complains that the appellant was denied the benefit of a proper accomplice direction.
70 The first question is whether the complainant was an accomplice.
71 In Khan v The Queen [1971] WAR 44 Burt J at 54 stated that if there be a rule of practice that a trial Judge must warn a jury of the danger of convicting upon the uncorroborated evidence of an accomplice, the rule should for its purpose contain a definition of the word "accomplice". His Honour said:
"The House of Lords in [Davies v Director of Public Prosecutions [1954] AC 378], supplied the answer to that question in these words: 'On the cases it would appear that the following persons, if called as witnesses for the prosecution, have been teated [sic] as falling within the category:-
(1) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours). This is surely the natural and primary meaning of the term 'accomplice'. But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz. :
(2) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny: R v Jennings (1912) 7 Cr App Rep 242; R v Dixon (1925), 19 Cr App Rep 36.
(3) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted, of his having commited [sic] crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such cases the court has held, that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration: R v Farid (1945), 30 Cr App Rep 168.
This is not in terms a definition of the word but it was said to be an attempt 'to define the term' and the House could see 'no reasons for any further extension of the term...'."
72 Burt J identified a difficulty with the definition contained in Davies v Director of Public Prosecutions [1954] AC 378 and held that the requirement that the witness be a participant "in respect of the actual crime charged" must be understood as including a participant in any other crime of which the accused might lawfully be convicted on the indictment (see, particularly, 55).
73 In the present case it is clear that the complainant did not fall within any one of the categories of a witness in relation to whom a corroboration direction was at common law required.
74 The provisions s 50 of the Evidence Act 1906 (WA) provide:
"Corroboration warnings not generally required
(1) In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2) On the trial of a person on indictment for an offence -
(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."
75 Section 50 of the Evidence Act 1906 clearly abrogates the rule of practice that previously existed. Notwithstanding the effect of s 50, it will nevertheless be appropriate in certain cases for an appropriate warning to be given to the jury in accomplice cases. In Foo v The Queen [2001] WASCA 406; (2001) 126 A Crim R 486, Parker J (with whom Steytler J and Olsson AUJ agreed) said at [30]:
"Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters."
76 In Hoy v The Queen [2002] WASCA 275 Wheeler J added at [22]:
"In my view, the enactment of s 50 of the Evidence Act has provided an opportunity to clarify and simplify the form of warning which should be given to jurors, where required in a particular case, without in any way detracting from its force. In particular, it appears to me that it is now not necessary - and in my view it is generally not desirable - for a trial Judge to use the word "corroboration" in explaining these issues to a jury."
77 These observations need to be read in the light of Wheeler JA's judgment in White v The Queen [2006] WASCA 62 at [78]. A warning may be required even where the '"hidden danger" may be appreciated by a jury.
78 In the present case, the complainant could not have been characterised as an accomplice in relation to whom any direction was required.
79 Counsel for the appellant conceded before the learned trial Judge that he could not "call in aid an accomplice direction ... because he's not an accomplice with respect to the charges that [the appellant] is currently facing". Prior to his summing up, the learned trial Judge discussed the matter with counsel and expressed the view that the complainant was not an accomplice and therefore an accomplice direction was inappropriate. Counsel for the appellant agreed.
81 This ground contends that the prosecution's failure to disclose additional evidence given by Dr Chen at the trial gave rise to a real risk that the trial of the appellant miscarried.
82 It appears that, prior to the trial, the prosecution disclosed to the defence a medical report of Dr Chen which made no mention of burns to the complainant's right foot. The complainant was cross-examined on the basis that, when he was readmitted to Sir Charles Gairdner Hospital on 6 November, he was not treated for any burn injuries to his foot. It was put to him that his use of drugs had affected his memory and he had effectively fabricated or invented this evidence. The matter was pursued by counsel for the co-accused, Dipane.
83 On the evening of 22 September 2005, being the day the complainant had finished giving evidence, the prosecution became aware of hospital notes which revealed that the complainant had been treated for a number of injuries which were not disclosed in Dr Chen's report. There was an objection to this evidence being adduced, but the objection was overruled. The learned trial Judge said:
" ... It is the case that the triage notes do tend to bear out evidence in the prosecution case which is before the jury. They were not available to defence counsel until after Mr Bailey had completed his evidence, although clearly they could have been obtained before trial. It is, in my view, unfortunate that they weren't.
It cannot be said that the propositions which the triage notes tend to support were not obvious before the trial began. Clearly they were. In the exercise of my discretion I do not propose to discharge the jury because I do not consider that it would be in the interests of justice to do so. I do not consider that the circumstances that have arisen, which I have described, bring about any manifest unfairness to the accused in the defence of the charges brought against him - against them.
There is, in the overall context of the case, no unfairness in that the prosecution - that the propositions which the triage notes tend to support are clearly part of the prosecution case from the outset. I will allow the evidence to be led from Dr Chen.
84 I agree with the learned trial Judge that counsel for the appellant had the opportunity prior to trial to obtain the hospital triage notes relating to the complainant. They could have been the subject of a subpoena and they would presumably have been produced by a representative of the hospital at the Court on the first day of the trial. They could then have been considered by counsel for the appellant. If necessary, an adjournment could have been called for.
85 It is readily apparent that the triage notes would not have been in the possession of the prosecution. The prosecution said so at the trial of the appellant, but it is common knowledge that hospital notes remain the property of the hospital unless subpoenaed for the purpose of trial proceedings. If the appellant wished to make the subject of the complainant's injuries an issue, it was logical that the triage notes would have been the subject of a subpoena.
86 When Dr Chen gave evidence he produced the triage notes. He read from them and revealed that the complainant had burns over his right forefoot and cigarette burns to his chest and right arm above the plaster of Paris.
87 In my opinion, there was no prejudice to the trial of the appellant. An issue had been raised with the complainant which ultimately fell away. It was not a matter which, in my view, had "the significant effect of bolstering the complainant's credit" as contended by counsel for the appellant. It was simply an issue which no longer became an issue when Dr Chen corrected the position by reference to the triage notes which he brought to the Court.
88 Counsel for the appellant clearly wished to make the matter of injury to the right foot of the complainant an issue, but, in doing so, prudence and caution would have suggested that before embarking upon that cross-examination the full hospital records should have been examined. It was not enough, in my opinion, to rely upon the fact that a statement from Dr Chen contained no reference to the injury. In any event, it must have been apparent that the statement of Dr Chen was inaccurate, because it referred to the discharge of the complainant from the hospital on 2 November. This was clearly an error that must have been known to counsel for the appellant.
89 There is one other point. During the course of examination of the complainant, photographs of his injuries were tendered. One of the photographs showed marks on the top of his foot. The complainant was asked to explain what they were. He said:
"Again, just explain to the members of the jury what they show?---They're where it burnt through the flesh down to into the meat, sort of thing, you know, with the branding iron.
Right?---Yeah. It got pretty badly infected. That's when I had that splint on me the second time. They were going to put some plaster but couldn't put that because of the swelling."
The photographs clearly supported the complaint of the complainant that he had suffered the burn injuries in question.
90 The learned trial Judge made reference in his summing up to the medical evidence and to the fact that it might "corroborate" evidence of the complainant in relation to his evidence of injury to the right foot. The learned trial Judge said:
"So far as that injury is concerned, the medical evidence may tend, you might think - but it's a matter for you - to corroborate the evidence of Mr Bailey as to where, when and how he sustained the injury to the right foot, although it does not corroborate the proposition that it was Mr Dipane who inflicted the injury. To the extent that there is corroboration by way of independent testimony or evidence of what Mr Bailey has said in his evidence you might more easily or readily accept what he said and regard it as being truthful or accurate, or both.
I'm not suggesting that this is the only example of there being independent evidence which tends to corroborate his testimony. It seems to me that the medical evidence generally does tend to corroborate what Mr Bailey said about how and when he suffered the injuries that he clearly had. Whether it does or not and whether you find that there are other aspects of his evidence which are corroborated by independent testimony, that is testimony independent of him, is a matter for you. What the medical evidence does not do is afford corroboration of Mr Bailey's evidence that in the case of count 1 it was Mr McKay and Mr Seroka who inflicted the injuries and in the case of count 4 that it was the three accused who inflicted the injuries."
91 A redirection was given by the learned trial Judge in which it was pointed out that medical evidence could not corroborate "where, when and how" injury was sustained by the complainant. His Honour said that what he should have said was that it could corroborate "when and how" injury was sustained but not where. The directions made it clear to the jury that the medical evidence might be taken to support the evidence of the complainant about the injury he suffered, but they stressed that the medical evidence could not implicate the appellant. The directions did not refer to the photographs, but it seems to me that they too must have supported the testimony of the complainant. In my opinion, there is no substance in ground 1(b).
92 Because I am unable to find any evidence of prejudice to the appellant which occasioned a miscarriage of justice in the trial, it is not a case in which it can be argued that a combination of small errors or defects were such that (although each of the grounds individually failed) the combination or aggregation of defects leads to the conclusion that there has been a miscarriage of justice: R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123 per Batt JA at [114]. In my opinion, no errors or defects have been identified which were such as to occasion a miscarriage of justice to the appellant. No combination of errors or defects could be said to have occasioned such a miscarriage. I would refuse leave to appeal and dismiss the appeal.
(2007) 81 ALJR 800