R v Ali [2002] VSCA 194

Court of Appeal (Vic)|2002-12-02|Before: PHILLIPS, C.J., CHARLES and BATT, JJ.A.

CRIMINAL LAW - Appeal against conviction - Ground of appeal alleged failure to give a direction in terms of Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 - Appeal allowed.

The applicant, who is aged 29, was convicted in the County Court at Melbourne on 27 October 2000 on a count of intentionally causing serious injury to a man named Michael Tully. This offence, which carried a maximum penalty of 20 years' imprisonment, had allegedly occurred at the Melbourne Custody Centre attached to the Melbourne Magistrates' Court on 29 April 1999.

The applicant admitted a number of prior convictions for offences of dishonesty and drug related offences dating back to 1991. He also admitted a conviction for resisting a police officer for which he received a suspended sentence of six months' imprisonment in 1996 and two convictions for assault in 1997 for which he received short sentences of imprisonment.

After a plea for leniency, the learned judge sentenced the applicant to be imprisoned for 16 years. A non-parole period of 13 years was fixed and a declaration made of 599 days pre-sentence detention. The applicant later lodged notices of application for leave to appeal against conviction and sentence pleading certain grounds. Those touching conviction were amended by the learned Registrar on 30 October 2002. In the resolution of the application touching conviction, it is only necessary that I set out two of those grounds, which I would uphold. They are grounds 1 and 2 (e).

It is now necessary that I set out in summary form the evidence adduced at the applicant's trial.

On 29 April 1999 the applicant, Mr Tully and ten other men were detained in barbarous circumstances in cell 28 at the Custody Centre. That cell measures 3.1 by 3.4 metres. Mr Tully had been brought there from Mont Park Psychiatric Hospital in relation to a charge of armed robbery. At 1.00 p.m. the courts adjourned for lunch and at about that time the applicant was temporarily removed from the cell by a prison officer due to his involvement in an altercation with Mr Tully. The prison officer told the applicant that "things had to settle down or more drastic action would have to be taken". The others in the cell were given a general warning.

In a corner of the cell, so as to enable its monitoring by a prison officer, there was a security video camera. Shortly after the applicant's return to the cell, he told another prisoner, Turner, to cover the lens of the camera. This Turner did with a sticky label from a lunch box. Six prisoners of those present gave evidence to the court. They were, Anusomchonse (referred to at the trial as Wera), Smith, Turner, Langenhoff, Wilson and Richmiller. (There was evidence led at the trial, and now impugned, that one of the other prisoners refused to make a statement to the police and others made statements to the effect they saw nothing. Another prisoner who made a statement later took up the position it had not been made voluntarily and was not called.)

Most of the prisoner witnesses called gave evidence of seeing the applicant "kick", "jump" or "stomp" on the victim. Other prisoners in the cell were splashed with the victim's blood. There was evidence the applicant tried to wash blood from his sneakers in the hand basin in the cell and that he also used coffee for this purpose.

Blood which remained on one of the applicant's shoes, a sock and tracksuit pants matched the DNA profile obtained from the blood sample from the victim.

About ten minutes after the assault prison officer Hasen saw Mr Tully lying amid blood, on the floor. He raised the alarm. The prisoners were moved to another cell and the applicant later relocated to a separate isolation cell. There was evidence that the applicant said to the other prisoners that "no-one say anything" and that he raised the notion, with the authorities, that Mr Tully had an epileptic fit, saying to an officer, "What happened to him, boss, did he have an epileptic fit?"

The injuries to Mr Tully were substantial. Medical evidence showed "a right parietal skull fracture with very small bilateral acute sub-dural haematomata" and that he had "diffused brain injury". After a long convalescence he remained basically immobile with marked spasm of the limbs requiring constant and complete nursing care. It was thought unlikely he would improve or would ever reach a stage of independence.

I now turn to the arguments of counsel on the grounds above specified.

Mr Tehan, for the applicant, began his submissions by accepting that this case concerned a serious assault by one prisoner upon another. He submitted that the Crown case at trial, which was that the applicant was the sole offender, relied a great deal on the evidence of five prisoner witnesses. The defence case was that the offence was committed by three of the prisoner witnesses, Smith, Turner and Langenhoff and that prisoners had "put their heads together" to falsely blame the applicant.

"The learned trial judge erred in failing to give any directions as to alleged lies, post offence conduct and consciousness of guilt."

Counsel argued that because of the approach taken by the Crown Prosecutor at the trial, it was likely that the jury turned to, and considered significant, evidence other than the direct observations of the assault given by the prisoners, in reaching their conclusion of guilt. He particularised this evidence.

* The blood of the victim was found on the shoes, a sock and the tracksuit pants of the applicant.

* The applicant was observed to wash his shoes after the assault.

* A prison and a police officer found the applicant's shoes to be damp, but not those of the other prisoners.

* The applicant's statement to Hasen when questioned about the altercation with Mr Tully, that Mr Tully had spat on him.

* The applicant's statement after the attack "What's happened to him, boss, he must have had an epileptic fit?"

* Wera's evidence that the applicant gave his jacket to him to wear, Wera's singlet having been spattered with the victim's blood.

* Wera's evidence that the applicant said "No-one say anything" after the attack.

In order to show how the trial had been conducted, counsel then turned to aspects of the Crown Prosecutor's addresses. He had said, in opening, that the applicant had "lied" to the prison officer, Hasen, in asserting that it was Mr Tully who had spat upon him (p. 5). He also referred (p. 9) to the applicant's conduct in suggesting that Mr Tully must have had a seizure. In his final address, the Crown Prosecutor had said:

"That's a review, members of the jury, of the prisoners in the cell and I don't want to take that any further. I just want to now say well, is there other evidence that incriminates Ali apart from this direct evidence by the fellow prisoners? Yes, there is." (362) (Counsel then went on to refer to the victim's blood being found on the applicant's shoe and clothing.) "The other evidence that supports the prisoners is, of course, the very observations by the prison officer, Hasen, which I've now referred you to." (364) (Counsel went on to refer to the applicant's statement to Hasen that Mr Tully had spat on him describing it as "an interesting lie" on the basis of Langenhoff's evidence that the applicant was the spitter.) "...There's also the interesting fact of the damp shoe or shoes. Nobody else in the prison cell had a damp shoe, only Ali. Why is his shoe damp? Because he was getting blood off it. Why was he getting blood off it? Because he was the guilty man. His conduct afterwards demonstrates his guilt. He's the only one who says to Mr Hasen, two or three times or what did he say, more than two, less than three or four. OK. He says to Mr Hasen, "he must have had a seizure or something." Ali knows, of course, that that is not true. Ali knows what has happened in that cell. Why does he say? His attempt and the only one to say anything like that, his attempt to hide what he has done is demonstrative and eloquent of his guilt." (365)

Mr Tehan then turned to matters which emerged from the trial transcript. After counsel's addresses, the learned judge said to the Crown Prosecutor: "...consciousness of guilt, cleaning the shoes and (indistinct) sponged Ali. You would expect me to direct the jury on that issue?" Counsel responded "Well, it's put as part of the prosecution case, Your Honour, that those things demonstrate a consciousness of guilt, but is Your Honour thinking of a direction something along the way that lies are dealt with? I just don't quite understand. I don't think that calls for any special direction, Your Honour, it's simply part of the case that the prosecution puts that those things are demonstrative of consciousness of guilt."

After further discussion his Honour, referring to his notes, said to the Crown Prosecutor "When you addressed on the question of a damp shoe, you said that conduct demonstrated guilt". Counsel replied, "Yes. Well, I stand by that, Your Honour." After further discussion, counsel for the applicant referred to Edwards v. R.[1] and R. v. Renzella[2] and his Honour stated that he was asking counsel whether he was being asked or not asked to give a specific direction "as a result of what the prosecutor has said to the jury". In argument which followed, the Crown Prosecutor asserted that a direction "about lies" would complicate "the issue terribly" and that it was not resolvable in terms of "the usual Edwards direction" which would not assist, but rather confuse the jury, and not help the accused. He concluded by stating, in my opinion unfortunately, when his Honour was plainly relying on counsel, "I really don't know why he's (defence counsel) inviting Your Honour to even consider it." Thereupon defence counsel asked for an opportunity to consider the matter over night. This was allowed him.

On the morrow, the applicant's counsel said to the judge, "...in my submission Your Honour shouldn't direct them about whether they should consider that Mr Ali told lies, and that that somehow indicates a consciousness of guilt". An appropriate direction, he submitted, should relate only to whether the jurors found "such matters" (presumably the "lies") corroborative of the direct witnesses and whether there was any innocent explanation for them.

The Crown Prosecutor then said "I take it my learned friend isn't asking for an Edwards direction." Defence counsel replied, "No." The judge remarked "Yes. Well, that's the testing point." The Crown Prosecutor said, "Is he asking for an Edwards direction? It seems that he's not, and I don't myself, Your Honour submit that Your Honour ought to give the jury an Edwards direction." The judge then said, "Well, I have reconsidered the matter and I am pleased that counsel have come to that conclusion."

In the event, and with no exception being taken, no directions were given touching lies, post offence conduct and consciousness of guilt. That circumstance, Mr Tehan submitted, caused the trial to miscarry.

Mr Tehan argued that the applicant's counsel had asked for "a limited Edwards direction." But, if this was not so, and if counsel erred in his judgment, Mr Tehan submitted, as a matter of law the point "could not be given away". If an issue of lies, post offence conduct and consciousness of guilt was raised in the proceedings, it was the judge's duty to give appropriate directions concerning it.

Counsel cited the following passage from the majority judgment in Edwards.

"Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest...And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it...and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of "a realization of guilt and a fear of the truth". Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt...A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission." (210/11)

Reference was also made to Zoneff v. The Queen[3]. In that case, the majority of the court, Gleeson, C.J., Gaudron, Gummow and Callinan, JJ. observed:

"There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron, JJ. in Edwards `the accused knew that the truth...would implicate him in (the commission of) the offence' and if, in fact, the lie in question is capable of bearing that character."

Mr Tehan submitted that in the instant case the Crown Prosecutor's address clearly brought it within that rubric. Further reference was made to R. v. Renzella[4] wherein it was said:

"An Edwards direction is required where the Crown invites the jury to use a lie told by the accused...as evincing a consciousness of guilt and the lie is of a kind which could found an admission...The direction is required because the lie is relied on as an implied admission, whether or not it is an essential part of the Crown case." (92)

Mr Tehan relied heavily upon a decision of this Court in R. v. Rhodes[5]. This was a murder case involving the matters of post offence conduct, lies, flight and consciousness of guilt, summarised by the Court as follows:

"The issue that has concerned the court is the question whether, in all the circumstances of the case, it became necessary for his Honour to give the jury a direction as to whether certain alleged lies told by the applicant or his attempts of flight from the scene entitled the jury to infer a consciousness of guilt of the murder..." (4)

Mr Tehan submitted the ratio of the case was to be gleaned from the following:

"When the prosecution places reliance upon lies or flight as demonstrating a consciousness of guilt on the part of an accused, the jury must be warned that there may be explanations for the telling of lies or for flight which do not involve a consciousness of guilt." (7) (Edwards was then cited.)

Mr Tehan argued that the applicant's counsel at trial had in effect asked for such a direction:

"Your Honour should only direct them...they have got to consider whether there is any other explanation other than it leads to a conclusion that it supports the direct witnesses, whether there's any innocent explanation." (396)

Mr Tehan also contended that in Rhodes the prosecutor had, in his final address, pointed to aspects of the applicant's flight describing it as "the act of a desperate man trying to get away before the police find out exactly what it is that he has done". His untrue statements to the police were also mentioned. The trial judge referred to these matters in his charge in a manner described by the court as follows:

"...His Honour may have been taken to imply that the applicant, both by his lies and his attempts at flight, had, in effect, confessed to his guilt of the murder..." (6 and 7)

"...In the light of the various passages to which we have already referred both from the prosecutor's address and his Honour's charge, the learned judge should have warned the jury that there might be reasons for the telling of lies by the applicant, and for his attempts at flight, other than his realisation of guilt." (8)

Counsel argued that in the instant case it may have been, for example, that the applicant washed his shoes, although innocent of the offence, because he believed his earlier altercation with Mr Tully would cause suspicion to wrongly fasten on him.

Finally, counsel referred to R. v. Nguyen[6]. In that case of murder, post offence conduct of the applicant in getting rid of a weapon and thereafter pretending to the police that the victim was shot by an intruder, was heavily relied upon by the Crown to rebut the proffered defence of accident. Winneke, P., with whom the other members of the court agreed, said that the jury should have been told that conduct of the sort relied upon by the Crown could stem from reasons other than consciousness of guilt of the crime charged, such a direction being necessary "because the circumstances of the shooting and the background and culture of the applicant were capable of providing a rational explanation for his post offence conduct other than a realisation of his guilt of the offence charged" (490).

Mr McArdle, for the Crown, submitted that this ground (and indeed the others) were substituted in late October this year, almost two years after the trial and that none of the complaints made therein concerning his Honour's directions were the subject of complaint, opposition, objection or request for redirection or further directions at trial. As to this ground specifically, he submitted that the reality was that the applicant's counsel, after deliberating on the matter overnight, said he did not want a consciousness of guilt direction, which matter had been directly raised with him by his Honour. There was, accordingly, no question of a hasty or erroneous decision.

Mr McArdle argued that the applicant's attempts to wash blood from his shoes could be properly viewed as part of, or so closely connected with, the actus reus and were therefore not post offence conduct. The immediate throwing away of a murder weapon, he contended, was an action of the murderer and not an admission. Generally, he contended, the cases on implied admissions (consciousness of guilt) appear to relate to matters that occurred some time after the killing. He cited Nguyen supra and R. v. Bradley[7]. He pointed out that in the instant case the "post conduct evidence" was given by witnesses to the event. What they described was "part of the offence" and not post offence.

In any event, counsel submitted, should the charge be held inadequate, because of the paucity of references to consciousness of guilt by the Crown Prosecutor, the proviso, s.568(1) of the Crimes Act should be applied by this Court.

"2. The learned trial judge erred in giving adequate warnings in relation to the evidence of the prisoner witnesses (charge at 361-362) and, in particular he erred: (e) In failing to identify the evidence said to be capable of supporting the versions given by the prisoner witnesses."

Mr Tehan began his arguments touching this ground by asserting that the prisoner witnesses were "accomplices" or (relying on aspects of Pollitt v. R.[8]) "informers". However, in the run of argument, I understood him to come to accept that, while there was no evidence (only suggestions) that they committed the offence, they were more appropriately to be treated as persons who, although not technically involved in it, were likely to have similar motivations to accomplices and informers. After all, it was plain beyond doubt that they had all been present at the commission of the offence and while there was evidence, in one instance, of a mild verbal protest, none of them did anything to discourage or prevent its commission. Nor did any of them report it to the authorities when an opportunity to do so shortly arose. (See McNee v. Kay[9] and Khan v. R.[10], both cases concerning accomplice warnings. In the latter, Virtue, SPJ remarked: "...in the exercise of his judgment a judge should give such a warning if he considers a witness, though not in law an accomplice, comes within the spirit of the rule." pp. 49/50).

Mr Tehan pointed out, correctly in my view, that at trial both counsel and the judge were in agreement that some warning as to the evidence of these witnesses needed to be given. The warning in fact given was as follows:

"Such persons (the prisoner witnesses) are dangerous witnesses, because in the course of trying to distance themselves from the events, they may slant their evidence to blame others. You should treat the evidence of such witnesses with caution, remembering that they may have a motive to conceal, to exaggerate or even to lie. You should scrutinise their evidence, looking for any inconsistencies, comparing it with the evidence of other witnesses, and generally you should be slow to rely on such evidence unless it is inherently probable or is supported by other evidence from a reliable source. This is a general direction to be applied by you to any of the prisoners who gave evidence. Provided you comply with this direction and exercise caution in your scrutiny of their evidence and your consideration of any supporting evidence, it is a matter for you, members of the jury, what evidence you accept in this case." (418)

Counsel submitted these directions were inadequate, and went so far as to proffer a set of "suggested directions". I do not propose to cite these in full, but they included a reminder to the jury that the prosecution case was based almost entirely on the five prisoner witnesses called; a direction that it was dangerous to convict on the evidence of such witnesses unless their evidence is supported by other evidence from an independent source; a further direction that scrutiny with great care of the witnesses evidence was necessary; reasons why corroborative evidence was required and identification of the pieces of evidence which the Crown contended is independent evidence supportive of that of the prisoners.

Mr Tehan submitted that the inadequacy of his Honour's directions consisted of a failure to direct that it was "dangerous to convict" on the evidence of the prisoner witnesses and a failure to identify the pieces of evidence which were capable in law of constituting corroborative evidence if the jury accepted them. The jury, he contended, "were simply left at large on that question". This latter failure had the result, he argued, of leaving the jury, for example, to regard as corroborative evidence the alleged "lie" about the spitting when that evidence was supplied by another prisoner, Langenhoff, a "tainted" source. He allowed he could not point to a case where it had been held that one prisoner witness could not corroborate another, but, he contended, the accepted reasoning as to accomplices in this matter ought to apply and should have been part of his Honour's directions.

He further complained that the direction was misleading and erroneous in that no explanation was given for the term "inherently probable" and that, in terms, it could have the effect of suggesting to the jury that if they found some corroboration it was safe to rely on the impugned evidence. Counsel referred to R. v. Kendrick[11]. In that matter, which involved the evidence of an accomplice, Winneke, P., with whom the other members of the Court agreed, stated:

"The fact that the trial judge has given to the jury the required warning is not the end of the matter. The trial judge is required, as a matter of law, to determine whether there is any evidence in the case capable of mounting to corroboration. If there is, then it is for the jury to determine whether that evidence is in fact corroborative and, if so, what weight to give to it." (705)

His Honour then cited R. v. Baskerville[12] and later added:

"The task of the trial judge, in determining whether there is evidence in the case which is capable of amounting to corroboration of the kind so defined, is a significant one, because if the jury is told that evidence is capable of amounting to corroboration which is not then, to that extent, the warning which is required to be given is eroded." (706)

Mr McArdle, for the Crown, began his submissions by pointing out that this case did not involve prison informers - prisoners who give evidence of admissions said to be made to them by other prisoners. In this case, he argued, the prisoners simply gave evidence of what they saw, nor was there any evidence of any "reward" for their evidence. He allowed that the trial judge had an obligation to give any warning necessary to avoid a miscarriage of justice, "an over-arching duty to give directions to ensure a proper trial", but submitted that the warnings appearing in the charge were adequate. He stressed no exception was taken to them nor was any further direction sought.

Counsel further allowed "If there was a deficiency it was a failure to identify items capable of providing corroborative evidence.

In any event, Mr McArdle submitted, the "proviso" should be applied by this Court. Had the judge gone through the "ample" truly corroborative evidence, that process would have had a "devastating effect" on the defence. Accordingly, a fair trial to the applicant was not denied.

As I have already indicated, I would uphold both these grounds. I now give my reasons.

That defence counsel at trial asked for a partial Edwards direction I would beg to doubt. He might at one point have intended to do so, but if he did he failed to clearly articulate it to the judge. In any event, he later disavowed any such request. But as the authorities I have referred to clearly show, that circumstance did not relieve the learned judge from giving an Edwards direction appropriate to the circumstances of the trial. Counsel cannot concede a matter of law to the disadvantage of the accused (R. v. Stokes and Difford[13]). The case warranted, at least, a direction warning that there may be explanations for the telling of lies or other post offence conduct which do not involve a consciousness of any guilt. As Mr Tehan pointed out, such explanations were reasonably available in this case. Such a warning was not given.

I do not accept the argument that the proviso should be applied because of the paucity of references to consciousness of guilt by the Crown Prosecutor. I have already cited relevant references in paragraph [14]. Further, in his charge the learned judge described as some of the "critical issues" the very same behaviour relied on by counsel for the Crown as consciousness of guilt - the cleaning of the shoes and the statement by the applicant to the prison officer Hasen "He must've had a seizure". This ground must be upheld - an unpalatable result for our justice system - but binding authority compels it.

I accept there was a failure by his Honour to identify for the jury those pieces of evidence capable in law of constituting corroboration of the prisoners' evidence. I would accept Mr Tehan's submission that the jury were "left at large" in this matter. In my opinion, the pieces of evidence having the above capacity were:

* Sergeant Well's evidence that when he received the applicant's shoes from him they were (in contradistinction to those of the other prisoners) damp.

* The evidence of prison officer Payne that after the injuries were inflicted to Mr Tully the applicant said to him three times, "What happened, boss? Did he have an epileptic fit or something?", the other prisoners remaining silent.

* (Taking Sergeant Wells' evidence into account), the forensic evidence that DNA retrieved from blood found on a shoe of the applicant matched the DNA profile obtained from a blood sample from Mr Tully.

* The evidence of prison officer Hasen that the applicant said to him "more than twice" upon the injured Mr Tully being found, "He must've had a seizure".

Looking at the charge overall, his Honour referred to "other evidence from a reliable source" and "any supporting evidence" in the context of "dangerous witnesses" and the desirability of the jurors looking to it. But he never defined it. His review of the evidence included mentioning such matters as the evidence of the prisoner Turner that he put sticky paper on the video lens at the direction of the applicant; Wera's evidence the applicant gave him his jacket to wear and that the applicant said, after the event, "No-one say anything". There is, in my view, an unacceptable risk that the jurors treated one, some, or all of these matters, as supporting evidence when they were not capable in law of such a characterisation.

I would not accede to the submission that this Court should apply the proviso because a recital by the trial judge of evidence potentially corroborative would have had devastating effects on the defence. In truth the pieces of evidence correctly so described were not numerous.

It follows that in my opinion, the conviction sustained in the court below by the applicant should be set aside and this Court should order that a new trial of him be had. As such a trial may or may not follow the pattern of that which has been

concluded, I do not think it is necessary to say anything about matters thrown up by the other grounds of appeal other than to observe that parts of Sergeant Wells' evidence were plainly inadmissible and careful attention should be given to that aspect of the case before the re-trial.

As the application touching sentence was fully argued, I am minded to say something about it. For the applicant it was submitted that, as far as counsel could ascertain, it is the longest sentence ever imposed for the offence upon which he was convicted. This may be so, but, in my opinion, should the applicant be again convicted, a sentencing judge should not, by that matter, be deterred from consideration of a like sentence, having regard to all the circumstances including the extreme gravity of the crime committed. Of course, evidence relevant to such a sentencing may, in the event, be different from that presently before this Court.

I agree with the Chief Justice that the application for leave to appeal against conviction must succeed on ground 1 and for the reasons given by his Honour. I do so with some regret, since both the trial judge and defence counsel at first took the view that an Edwards direction was required, and both appear to have been dissuaded from this view, to some extent at least, by the intervention of the prosecutor, whose address to the jury clearly made necessary some such direction. I also agree that in any retrial a direction as to prisoner witnesses should be given, and in that regard I also agree with the observations of the Chief Justice.

I reluctantly agree that authority binding on us requires us to allow this application on the ground that the trial judge was bound to give the jury an appropriately worded Edwards direction in relation to the post-offence words and

conduct of the applicant even though ultimately the applicant's counsel below did not seek such a direction. I regret to say that his Honour, who originally was clearly of the view that he should give such a direction, was deflected from that course by the observations of the prosecutor and the ultimate decision of the applicant's counsel. With regard to ground 2(e) I have some reservations because the defects in the direction could have been cured had an exception been taken. I prefer, therefore, to decide this application simply on ground 1, but I make clear my agreement with the Chief Justice's remarks as to the content of the direction that should be given in relation to prisoner witnesses in any re-trial.

This is yet another case in which new counsel briefed for an applicant raise at the last moment a host of grounds of appeal (in this case nine) which were not taken or foreshadowed below or in the original notice of application for leave to appeal against conviction and in which some at least of the grounds necessarily, albeit impliedly, involve that the case was misconducted below. That it can happen that a conviction can be quashed on a ground not taken below, and even disavowed there, and raised by a very late amendment necessarily serves to bring the administration of criminal justice into disrepute. The court has voiced its concerns about this many times over the last few years, but the problem still remains. It may be that other measures will have to be considered.

Whatever our decision may do for the interests of justice as a whole, I have grave doubt whether it will work for justice in this particular matter, as the Crown case was, in my view, a strong one and one wonders whether the Director will be able to marshall all the evidence again. Although the Crown case was strong, I consider, having regard to the source of much of the direct evidence, that the proviso could not be applied.

I agree with the disposition proposed by the Chief Justice and, subject to the foregoing, with his Honour's reasons.

[5] unrep. judgment delivered 20 December 1995

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