R v BAKER No. SCCRM-00-167, SCCRM-00-168 [2000] SASC 407

Court of Criminal Appeal: Duggan, Nyland and Bleby JJ

1 DUGGAN J. I agree with the conclusions reached by the majority on all grounds of appeal with the exception of that relating to the directions on corroboration.

2 After summarising the main features of the evidence led by the prosecution, the learned trial judge proceeded on the basis that it was not in dispute that Ben Hoban was an accomplice. She then cautioned the jury about the use of accomplice evidence:

"There is a warning that I need to give you in respect of the evidence of Ben Hoban, and Ms McDonald has already referred to this in the course of her address. You may think it absolutely clear that Ben played a role in this arrangement whereby S was to receive money in return for dropping the charges. It would not matter, for this purpose whether he were charged with a similar offence to that which the accused faces, nor, indeed, if he were charged, whether he would have a defence. What is clear is that he was indeed an accomplice in this unlawful enterprise. Consequently, his evidence attracts a warning from me. Let me explain why that is so.

It has been found from experience that there are certain classes of witnesses whose evidence is inherently suspect for one reason or another. Accomplices are one such class. That is because their involvement in the crime in issue may incline them to falsely implicate another person, either with a view to exculpating themselves or with a view to minimising their own role or perhaps with a view to currying favour with the police. In other words, they are not impartial witnesses. They may be promoting their own cause when giving evidence. That is the rationale for the warning. This is the warning.

The law says that where an accomplice gives evidence implicating another person in the crime it is dangerous to act upon that evidence in the absence of corroboration. Corroboration is evidence which is independent of the accomplice and which supports the accomplice's evidence in a material particular. It is for me to direct you on what items of evidence may be considered as corroboration and it is for you to determine whether you are prepared to treat them as such.

In the absence of such corroborative evidence, you must heed the warning I give you. In the absence of corroborative evidence, you may still act upon the evidence of Ben Hoban, if you so choose, but you must understand that you would be doing so notwithstanding my direction as to the dangers in doing so. In essence, (in the absence of corroboration) you must scrutinise the evidence of Hoban with great care and you may only convict of the offence if you are satisfied of the truth and accuracy of his evidence, having given it the scrutiny of which I speak.

As to what evidence may amount to corroboration, I give you the following directions. Now, we are not here looking for evidence that supports that the unlawful enterprise to offer S a benefit occurred. Rather, we are looking for evidence that supports Ben in his evidence implicating the accused in that enterprise. There are three items of evidence which I direct you may amount to corroboration of his evidence."

3 After dealing with these three items of evidence the learned trial judge said:

"Ladies and gentlemen, I stress that those are items of evidence which you may choose to view as corroboration. It is your choice. If you decide that they do amount to corroboration or, indeed, if you decide that any one of them amounts to corroboration, then you may disregard the warning that I have given you."

4 I agree that the matter should not have been left there. It would have been appropriate for the trial judge to explain that, if there was evidence which corroborated the accomplice, the jury were entitled to disregard the warning that it was dangerous to convict in these circumstances, but that they should nevertheless have regard to the reasons which can make accomplice evidence unreliable and to take particular care in assessing evidence from that source.

5 In determining the consequence of a failure to direct the jury in specific terms on this last mentioned aspect, it is appropriate to have regard to the comments of the Chief Justice in R v Power and Power [1996] SASC 5653; (1996) 87 A Crim R 407 at 411. The Chief Justice referred to the fact that, after giving the jury a warning about the need for care in considering the evidence of B, an accomplice, and directing the jury about evidence of flight which was put forward as corroboration, the trial judge said:

"If you accept some corroboration against a particular accused is made out on your view of the evidence, then you may disregard the warning I have given you with respect to acting on Nick's [a reference to B] evidence against a particular accused."

6 The Chief Justice dealt with the ground of appeal arising out of that direction in the following passage of his judgment:

"Complaint was made that by saying that the judge implied that once corroboration was found, the warning about B as an accomplice ceased to have effect.

The judge began this aspect of the summing up by warning the jury that it was dangerous to convict unless B's evidence was corroborated. Then he told the jury that if there was no corroboration, they should scrutinise B's evidence with special care, and should not act upon it unless fully convinced it was thoroughly reliable. Then came the passage complained of. Along the way he referred to parts of the evidence.

In my opinion, the comment of which complaint is made is one that should be avoided, even though a matter of logic it is accurate, because the warning is directed towards uncorroborated evidence. As King CJ said, when dealing with a similar complaint in Lawford and Van de Wiel [1993] SASC 4247; (1993) 61 SASR 542 at 555; [1993] SASC 4247; 69 A Crim R 115 at 128:

'The traditional corroboration warning is concerned with uncorroborated and not corroborated evidence. However, a comment to the effect that the warning no longer applies if corroboration is present can give the impression that special care is no longer needed in assessing the witness's evidence: Radford (1993) 66 A Crim R 210 at 238.'

It seems to me that what his Honour said in the present case ran the risk of giving rise to a misdirection because, as Phillips CJ and Eames J said in Radford (at 238):

'To suggest that once corroboration is found the jury might then treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness would be a misdirection; an accomplice remains a person with a potential motive to lie and he is not an independent witness free of interest in the outcome of the case ...'

However, I am satisfied that no misdirection in fact occurred and no miscarriage has resulted from what his Honour said.

His Honour reminded the jury on another occasion of his warning, without repeating the qualification (summing up at p 22). His Honour also separately reminded the jury at length of reasons for treating B's evidence with caution quite apart from his role as an accomplice (summing up pp 5, 6, 12, 14-15 and 25-42). His Honour, on a number of occasions, referred to evidence which might corroborate B, thus reminding them by implication of the importance of corroboration.

No request was made for a redirection on this point, suggesting that at the time the comment was not seen to have any great significance.

I do not consider that there was in fact a misdirection because I do not consider that the comment suggested that B's role as an accomplice could be disregarded. What was said was directed more to the need for special care in the absence of corroboration. The difference is slight, but it is the difference between suggesting that B could be regarded like any other witness and simply stating the need for 'special care' does not arise if corroboration is present. I am also influenced by the care taken in other respects to remind the jury of suggested motives for B to lie unrelated to his role as an accomplice.

7 It is my view that in the present case also, the comments made by the trial judge did not imply that Ben Hoban's role as an accomplice should be disregarded altogether. The emphasis was on explaining that the specific warning that it was dangerous to act on such evidence was no longer applicable if corroboration was present.

8 In Radford (Supreme Court of Victoria, 28 February 1992, unreported) an accomplice who had been given immunity from prosecution gave evidence against the appellant. No direction was given on the significance of the immunity and, although the trial judge gave an accomplice warning, he added the following:

"Were you to find that the evidence of the accomplice Peter Hogan, is properly corroborated or supported by other independent evidence, no particular problem arises. You would consider the accomplice's evidence in the same way and subject it to the same tests as you might think appropriate for the consideration of any other evidence in the case."

9 Crockett and Beach JJ dealt with this direction in the following passage:

"If his Honour meant by those statements that once the jury found some corroboration of Hogan's evidence, Hogan fell into the same category as any other witness in the case then his Honour was, we think, in error. Hogan remained an accomplice and thus a witness who must be treated as one who still has or might have a motive not to tell the truth (R v Button 54 A Crim R 1 at p 10 per Byrne J.). He does not by reason of the presence in the evidence of corroboration become an 'independent' witness; i.e. a witness deemed free of an interest in the outcome of the case. But the remark of the judge, erroneous as we consider it strictly speaking to be, cannot be held in the circumstances to have been responsible for a substantial miscarriage of justice."

10 Crockett and Beach JJ dismissed the appeal. In rejecting this ground of appeal they said:

"Any deficiency in the trial judge's charge in the present case was capable of cure. The fact that no redirection was sought by counsel who then appeared for the applicant would tend to confirm that counsel for the applicant was quite satisfied with the manner in which the trial judge dealt with the evidence of Peter Hogan. In our opinion when one has regard to the whole of the trial judge's charge the jury could have been left in no doubt as to the care it had to take in scrutinizing the evidence of Peter Hogan before acting upon it. There is nothing in the present case to suggest that any injustice was caused to the applicant by the manner in which the trial was conducted and in our view the first ground must fail."

11 Smith J, who dissented, referred to the passage from the summing-up which is quoted above and said:

"A further problem to the passage I have quoted, is the suggestion that if an accomplice's evidence is corroborated, the accomplice's evidence should thereafter be treated in the same way and subject to the same tests as might be appropriate for the consideration of any other evidence in the case. This does not follow. An accomplice remains an accomplice and his credibility is still affected by the fact that he has a motive to lie. This fact remains and must be weighed in the balance with all relevant matters - including the corroborating evidence. In this case he also differed from other witnesses, in that he was an indemnified witness liable to have the indemnity withdrawn if he failed to swear up to his statement and implicate the accused. These matters distinguished Peter Hogan from any other witness in the case and still needed to be borne in mind in determining whether to accept his evidence, notwithstanding that there was corroboration.

The issue could have been corrected by redirection but no exception was taken and the issue arises as to whether the grounds should be entertained in this application. I will return to that question after considering the other specific matters raised."

12 Smith J dissented. He would have allowed the appeal against conviction because of the directions on corroboration and the failure to direct on the issue of indemnity. It must be borne in mind, however, that the court was there dealing with a direction in specific terms that, if corroboration was present, the accomplice's evidence was to be subjected to no greater scrutiny than the evidence of the other witnesses in the case.

13 In Radford (1993) 66 A Crim R 210 at 237 objection was taken to the corroboration directions which included the following passage:

"Were you to find that the evidence of the accomplice is properly corroborated by other independent evidence, no particular problem arises. You would consider the accomplice's evidence in the same way and subject it to the same tests as I mentioned to you yesterday that you should subject all the evidence to. The same test that you might think appropriate to the consideration of any other evidence in the case. In his case one of the things you should bear in mind is that being an accomplice he may well have a motive to tell an untruth. Were you to reject all such apparently supporting evidence, either because you do not believe it or do not consider that it provides corroboration of the accomplice, then the evidence of the accomplice would be uncorroborated and you should apply to it the following warnings. First, you should bear in mind that it is dangerous to convict an accused person upon the uncorroborated evidence of an accomplice. Secondly, you should know that you are entitled to convict an accused on the uncorroborated evidence of an accomplice, but you may only do so after you have subjected the evidence to close scrutiny, that is, that you have looked at it carefully, cautiously and critically as I said you should look at all the evidence. After you have subjected the evidence to close scrutiny and by such scrutiny have reached a conclusion that in the particular case it is safe to rely on the evidence notwithstanding that it is uncorroborated and comes from a tainted source. The two matters of law are that you should remember that it is dangerous to convict an accused upon the uncorroborated evidence of an accomplice. Nonetheless, you are entitled to convict an accused on the uncorroborated evidence of an accomplice and can only do so after you have subjected that evidence to close scrutiny and after that scrutiny, have reached a conclusion that in the particular case it is safe to rely on the evidence notwithstanding that it is uncorroborated and comes from a tainted source."

14 Phillip CJ and Eames J commented on the direction in the following passage:

"The first complaint of the appellant is that although the jury could properly find that the evidence of an accomplice was corroborated the fact that the jury does find that there is such corroboration does not therefore mean that the warning attracted by the evidence of an accomplice ceases to have effect. We agree that that is so. To suggest that once corroboration is found the jury might then treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness would be a misdirection; an accomplice remains a person with a potential motive to lie and he is not an independent witness free of interest in the outcome of the case: see Radford (unreported, Court of Criminal Appeal, Vic, Crockett, Beach and Smith JJ, 28 February 1992). The direction given by his Honour that 'no particular problem' arose once the jury found there was corroboration and that the evidence of the witness should thereafter be treated in exactly the same way as that of any other witness was in terms almost identical to the terms of the charge which the Full Court considered deficient in the case of Radford. On the appeal the prosecutor conceded that the learned trial judge had apparently fallen into error and that failure to give an adequate warning as to corroboration would require that the conviction be quashed (see Longman [1989] HCA 60; (1989) 168 CLR 79; 43 A Crim R 463) but he submitted that the error was corrected by the additional comments, set out above, that the jury should still bear in mind the motive which the accomplice may have to lie.

We consider that whilst there is a misdirection evident in the terms in which his Honour charged the jury we agree with counsel for the respondent that the subsequent comments of the judge removed any possibility of injustice in this case unlike that considered by the Full Court in the earlier trial of the applicant."

15 In the present case the learned trial judge told the jury that the witness was an accomplice. She then referred to the experience of the courts which showed that such evidence was inherently suspect. She told the jury why this was so. She then explained that this was the reason for the special warning that it was dangerous to convict in the absence of corroboration. She explained that this particular warning would not apply if there was corroboration, but she did not undo or play down her earlier comment that the evidence of accomplices is inherently suspect.

16 I have said that in my view the trial judge should have gone on to explain that particular care was required even in the absence of corroboration. However, in the circumstances of this case I am not convinced that the failure to add this direction amounted to a misdirection. I have drawn attention to the trial judge's comments as to why accomplice evidence is inherently suspect. These comments were not qualified and, in the context of the evidence and addresses, it is my view that the jury would have understood that it was necessary to treat such evidence with care.

17 But, in any event, although the further direction should have been given, I am nevertheless of the view that no substantial miscarriage of justice occurred. I do not think that, by reason of the failure to give the further direction, the appellant has lost a chance which was fairly open to him of being acquitted. In addition to the reasons which I have already given, I think it is of significance that the experienced counsel in the case, both of whom referred to the problems associated with accomplice evidence in their addresses, did not seek a redirection. As was said in R v Power and Power and the first Radford case, this tends to suggest that the direction was not understood as suggesting that the jury could ignore altogether the fact that Hogan was an accomplice when considering his evidence.

18 In the circumstances I would apply the proviso in s 353(1) of the Criminal Law Consolidation Act 1935 and dismiss the appeal against conviction.

19 As the majority of the court is of the view that the appeal should be allowed, there is no need for me to consider the appeal against sentence.

20 NYLAND and BLEBY JJ: This is an appeal against conviction and sentence. The appellant was found guilty by verdict of the jury of providing a benefit to a witness in judicial proceedings contrary to the provisions of s 244(1) of the Criminal Law Consolidation Act 1935. Particulars of the offence were that the appellant between 17 July 1999 and 23 July 1999 at Whyalla gave, offered or agreed to give a benefit to S who was required to be a witness in judicial proceedings, as a reward or inducement for not attending as a witness or not giving evidence at those proceedings. The appellant was sentenced to be imprisoned for a period of two years and three months with a non-parole period of one year. The sentence was not suspended.

21 In about the month of April 1999 a complaint was made in Whyalla by S that she had been raped by John Baker, the appellant's son. John Baker was subsequently charged with the crime of rape. Shortly after providing her statement to the police S moved to Western Australia. While residing in Western Australia she received a telephone call from Ben Hoban whom she knew from Whyalla. At that time Ben Hoban was aged about 15. Ben Hoban told S that he had done some research and said that John Baker was his uncle. S was initially offered $2,000 (but subsequently accepted $5,000) to withdraw the complaint against John Baker. S was told that she had to travel to Whyalla to collect the money but air tickets would be provided. S eventually returned to Whyalla pursuant to the arrangement with her partner K. They were met at the airport by Ben Hoban and his father and driven to Mr Hoban's house. Mr Hoban and another man eventually drove S and K to the police station at Whyalla and on 21 July 1999 S completed a form requesting that the charges against John Baker be withdrawn. Thereafter S and K returned to Western Australia with the $5,000 in cash. S said that she had felt threatened and pressured into withdrawing the complaint. She returned to Whyalla about a week later and spoke to the police following which John Baker was charged with several counts of rape. On 30 August 1999 police officers attended at the appellant's home in Whyalla. They spoke to the appellant and John Baker. John at that stage was residing at the appellant's home as a condition of his bail on the rape charges. The appellant indicated that, apart from the rape case against his son, he did not know what was going on. In due course he exercised his right to silence.

22 In the course of a search of the appellant's premises certain documents were located in a desk in the spare room. P1 was a piece of paper which had a note of some prices for return air fares to Perth. P2 was a computer generated itinerary for travel from Perth to Whyalla via Adelaide bearing the names of S and K. P1 was identified by Miss Rademaker, a travel consultant with Traveland in Whyalla, as being in her handwriting. She said she had provided the quote for airfares from Western Australia to Whyalla and back to an older and younger gentleman who had attended at the Traveland office. Mr Heron, a travel consultant also employed by Traveland at Whyalla, identified P2 as the itinerary provided to two people who had attended the office and had paid in cash for tickets in the name of S and K.

23 In the course of the search of the appellant's premises the police located $2,400 in a filing cabinet. The money consisted of $50 notes bundled together in a plain envelope.

24 Apart from S the main witness for the prosecution at the trial was Ben Hoban. He said he had met S in Whyalla. She was a friend of his girlfriend. He was aware that she had made a complaint against the appellant's son, John, although initially he did not know John Baker. Ben Hoban subsequently met John at the home of Ben's father, Geoffrey Dennis.

25 The day following that meeting Ben's father took him to the Blackguards Club where Ben again met John Baker. They stayed outside the fence but John Baker came out and had a private word with Ben's father. John Baker then came back and said to Ben that he would give him $1,000 if he could get the charges dropped. Ben agreed to ring S at his father's request. He said he made the call through fear. His father was a drug dealer and used to getting what he wanted. His father told him to say that John Baker was his uncle and that if S could drop the charges she would get $2,000. The following day Ben spoke to S's boyfriend K. K said they wanted $5,000. Ben said he immediately told his father that they wanted $5,000 and his father nodded his head in acquiescence and Ben told K that was okay. Ben said that he and his father organised the tickets for S to come to Whyalla by plane. They went to Traveland and were given a price of $2,870 which was written on a piece of paper which he identified as P1.

26 They then went to an address at 49 Bastyan Crescent, Whyalla. Ben said that he had not previously been there. When they arrived someone called to go around the back. Ben said they saw "an old person, like, with grey hair and that". Ben made a dock identification of the appellant as the person he had seen on the day in question. He said that when they went out the back his father introduced him and said "This is John's dad, Peter" and the man Peter nodded his head. Ben said that the two men had a conversation in his presence. His father told the appellant that it was going to cost $2,870 for the airline tickets. He said the appellant went inside and got some money and then handed it over to his father whereupon they left and went back to Traveland. There they handed over the money to pay for the two tickets. Ben said that on the second visit to Traveland they were provided with P2 and the computer printout itinerary which was retained by his father. They arranged for the Traveland people to transfer the tickets to Perth so that they could be collected by S and K in Perth.

27 In cross-examination, Ben also referred to another visit to the house at 49 Bastyan Crescent when he and his father had a cup of coffee and Ben patted the dog. Ben did not see the appellant on this occasion. He thought it was after the second visit to Traveland.

28 A couple of days later, S and K arrived in Whyalla. Ben went with his father to collect them from the airport in his father's car. They returned to Ben's father's house where they stayed for one night. The next day Ben said that they were at the Ropena Football Club. His father instructed him to make a phone call to the police to say a friend had been assaulted and to find out how the charges could be dropped. Ben did as he was told and was informed that the procedure was to come into the police station and sign a "207 Form". Ben said he relayed that information to his father. That night Ben, together with his father, and another man called Rob Drew, as well as S and K, went to the police station. S went in and asked whether she could have the appropriate form. Ben said they remained while S filled it out. A detective then spoke to S privately. When S left the police station she did not have a copy of the form with her. Ben's father wanted her to return to see if she could get one. S subsequently said that the police would not give her one.

29 Ben said that they then dropped everyone home and he went with his father back to the house at 49 Bastyan Crescent. They told the appellant that they could not get a copy of the form that S had completed. His father said to the appellant "You are just going to have to trust us." Ben described the appellant as being pretty cool about that. Ben said that the next day he went back to the appellant's house on Bastyan Crescent. He knocked on the door and the appellant invited him in. Ben said the appellant produced a bag with a lot of money in it. He was told to hold his hands out, put his hand underneath it. The appellant checked it out and said "If you screw around you're fingerprints are on it." Ben said the money was in $50 and $100 notes (although later in cross examination he agreed that there was only one $100 note). Ben said that in accordance with his instructions from his father he then delivered the money to S. S and K were meant to the leave the following morning on the plane but missed the plane. Ben's father arranged for a flight the following day and S and K then left Whyalla. Ben said he never received the $1,000 which had been offered to him.

30 The appellant gave evidence at his trial. He said he was aged 57 years. He was born in the United Kingdom and came to Australia about 1974. He was married with four children of whom John was the eldest. After leaving school he had served with the army for about three years. Thereafter he gave details of regular employment. For about four years prior to the trial had been in receipt of an invalid pension. He had no criminal convictions. He resided at 49 Bastyan Crescent, Whyalla, with his wife. His son John had had drug problems for a number of years and had been convicted of possessing amphetamine for sale. He knew that his son had been charged with the rape of S because he had acted as a guarantor for his bail. It was a condition of John's bail that he reside at the appellant's address. John continued to reside with the appellant until his arrest on 30 August 1999.

31 The appellant said that his son was very upset about the charge of rape but would not speak about it. The appellant said that he did not know Ben Hoban nor his father Geoffrey Dennis. He had never given either of them an amount of $2,870 nor had he ever given Ben Hoban the sum of $5,000. The appellant was present when the police seized P1 and P2 from his desk but said he did not recall previously seeing them. He agreed that the police seized a large sum of money from his filing cabinet. He said that it was kept there for household and car expenses. He said his wife withdrew money from the bank and put any change in the drawer. He did not know how P1 and P2 got into his desk. In cross examination the appellant said that he believed his son might have put them there.

32 The grounds of appeal are set out in the amended notice as follows:

"1. The learned Trial Judge erred in failing to give a warning that the jury could not use the evidence of Ben Hoban as to what he said his father had said, namely 'This is John's dad, Peter' as evidence of the truthfulness of the assertion contained within those words (page 8.6 of summing up).

2. The learned Trial Judge erred when, in the course of directing as to the first of the three items of evidence identified as potentially corroborative, she said

'If he (Ben) had not been to those premises in the circumstances he described and seen the accused there, then you may ask: How did he know that a person of that description, who was, in fact, John Baker's father, lived there?' (page 16.4)

(a) such evidence was not potentially corroborative because it was not independent of the witness Ben Hoban.

(b) it assumes as a fact the truthfulness of Ben Hoban's evidence, namely there was an occasion when he met a man of the appellant's description at that address.

(c) it assumes as a fact an issue in dispute, namely, was it John Baker's father who was at that address at the relevant time.

3. The learned Trial Judge erred when the jury were directed that the presence of the documents P1 and P2 within the desk of the accused could be corroborative of the evidence of Ben Hoban (page 16.5 - 16.8). The evidence was not capable of being corroborative because it was equally consistent with the innocence as with the guilt of the appellant.

4. The learned Trial Judge erred when giving the direction described in ground 3 above in that the jury should have been instructed that it could not use the evidence of the location of exhibits P1 and P2 unless it was satisfied beyond any reasonable doubt that the appellant, as opposed to any other person, had been in possession of those documents and placed them in the desk.

5. The learned Trial Judge erred in directing the jury

'If you decide that they (the three pieces of evidence identified as potentially corroborative) amount to corroboration, or indeed, if you decide that any one of them amounts to corroboration, then you may disregard the warning that I have given you.' (page 17.5)

In the alternative, if it was not an error to direct the jury that it may disregard the warning, the learned Trial Judge erred in failing to remind the jury of the dangers of acting on the evidence of the witness Ben Hoban, whether corroboration was present or not.

6. The learned Trial Judge erred when directing as to the use to be made of the appellant's absence of any prior convictions (page 18.2 - 18.8). The learned Trial Judge should have directed the jury that it should consider the accused's previous good character in assessing the credibility of any explanation given by him and in assessing his credibility as a witness.

'The onus of proof does not change just because the accused gave evidence and nominated his son as a person you might think might have helped him. The absence of John Baker from the witness box is a factor you are entitled to consider, but it does not change the burden of proof." (page 20.4).

(a) does not tell the jury how it is entitled to use such an absence in it's [sic] consideration; and

(b) contains a direction in the nature of a Jones v Dunkel observation in circumstances that did not require such an observation.

8. The learned Trial Judge erred in permitting the prosecutor to cross examine the appellant by putting to him the photographs (Ex. P6) when such photographs had not been disclosed by the prosecution before trial, even though the defence had requested disclosure of any photographs (pp119-121 transcript)."

33 Leave to appeal against conviction was granted with respect to Grounds 1, 2, 5, 6, 7 and 8. The application for leave to appeal with respect to Grounds 3 and 4 was referred to the Full Court to be heard at the same time as the other grounds of appeal.

34 Ground 1 relates to the evidence of Ben Hoban as to his first meeting with the appellant and the alleged comment by his father "This is John's dad, Peter." The appellant complains that the evidence of Ben Hoban on this topic is hearsay and that the evidence was not admissible to prove the truth of the assertion. The jury should therefore have been warned accordingly. This matter can be dealt with quite shortly. Identification had to be proved by circumstantial evidence. If the man at the house assented to the proposition that he was "John's dad" this was a circumstance which the jury was entitled to take into consideration. The description of the man as an old person "with grey hair and that" could also be used as part of the circumstantial case. Against the background of the evidence and the judge's summing up it was, in our opinion, unnecessary to point out to the jury that they were not to use the evidence of establishing the truth of the assertion. This ground of appeal therefore fails.

35 Grounds 2, 3 and 4 all relate to the issue of corroboration. The judge in her summing up directed the jury that Ben Hoban was an accomplice in an unlawful enterprise and therefore warned the jury that it would be dangerous to act upon his evidence in the absence of corroboration. The judge went on to explain to the jury that there were three items of evidence which might amount to corroboration. The first item which she mentioned as being potentially corroborative is the subject of Ground 2 of the appeal. It relates to the evidence that Ben nominated 49 Bastyan Crescent as the address at which he had twice seen the older man who had been introduced to him as John Baker's father. Ben described the man as an older person with grey hair. The judge said: "If [Ben] had not been to those premises in the circumstances he described and seen the accused there, then you may ask: how did he know that a person of that description, who was, in fact, John Baker's father lived there?" Mr Crocker, who appeared for the appellant on the hearing of the appeal, submitted that the fact that the appellant resided at that address did not assist the jury. That this was the appellant's home address was equally consistent with his innocence. To direct the jury in these terms assumed that Ben was telling the truth. The evidence therefore did not have the independent quality required for corroboration.

36 In our view, however, the judge correctly directed the jury as to this matter. This displayed esoteric knowledge which supported Ben's account of what had occurred. The appellant gave evidence that he resided at that address. He had never seen Ben Hoban at the house. There was no evidence of any occasion other than those described by Ben when Ben might have seen him. The appellant was in his 50s. Ben described the person to whom he was introduced as an older person with grey hair. In our opinion this ground of appeal must fail.

37 Grounds 3 and 4 relate to the judge's direction of the finding that the travel documents (P1 and P2) were capable of corroborating the evidence of Ben Hoban. Mr Crocker submitted that the presence of the travel documents in the desk could not be used by the jury in that way unless they were satisfied that the appellant was responsible for placing them there. He pointed out that there was no evidence to indicate that the documents had ever been in the possession of the appellant. Ben Hoban never suggested that they were given to the appellant. There was no evidence that the appellant was present at the travel agency on either of the occasions on which P1 and P2 was created. Ben Hoban said the documents were given to his father. Mr Crocker submitted that there was an opportunity for Ben Hoban's father to have given the documents to John Baker, namely the occasion described as the one on which Ben was patting the dog when the appellant was not present. Mr Crocker argued therefore that the presence of those documents was equally consistent with the innocence of the appellant as well as his guilt and as such could not amount to corroboration.

38 The finding of the travel documents in the appellant's desk was, however, circumstantial evidence which connected the appellant to an involvement in this crime. The documents were identified by the witnesses from the travel agency as being associated with the issue of the tickets to S and K. They were located in a desk at the appellant's home which the appellant agreed was used by him. 90 per cent of the papers kept in the desk belonged to the appellant. The other 10 per cent were empty envelopes. There were no documents in the desk which were identifiable as belonging to John Baker or anyone else. The appellant was unable to give an explanation to the police as to their presence in the desk.

39 In the course of cross examination the appellant suggested that his son might have put them there. The judge in directing the jury referred to the evidence of the appellant that his son was living in the house at the time. She mentioned that they would consider the possibility whether it was John Baker who put the documents there. The fact that there was the possibility of an innocent explanation for the presence of the documents in the desk did not rob the evidence of its capacity to amount to corroboration. In Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 211 the High Court said (per Deane, Dawson, Toohey, Gaudron and McHugh JJ):

"The essence of corroborative evidence is that it 'confirms', 'supports' or 'strengthens' other evidence in the sense that it 'renders [that] other evidence more probably': Reg v Kilbourne [1973] AC 729, at p 758, per Lord Simon of Glaisdale. It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it 'shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused': R v Baskerville [1916] 2 KB 658, at p 667.

It is well settled that corroboration may be in the form of circumstantial evidence: Baskerville: see also Reg v Tripodi [1961] VicRp 30; [1961] VR 186, at pp 190-191; Reg v May [1962] Qd R 456, at p 459, per Gibbs J; Reg v Lindsay (1977) 18 SASR 103, at p 117, per Zelling and Wells JJ; Medcraft v The Queen [1982] WAR 33, at p 40. Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded: see Hodge's Case (1838) 2 Lewin 227 [168 ER 1136]; Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, at pp 634, 651-652, 661; Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, at pp 375, 381; Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584, at pp 605-606; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, at p 252; Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, at pp 104, 109. But, if some lesser standard will suffice, the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved: see Peacock (1911) 13 CLR, at p 638, where Griffith C.J noted the different considerations applicable to circumstantial evidence in civil and criminal cases.

It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice: see Baskerville; Reg v Hester [1973] AC 296, at p 325."

40 In our view this evidence was properly left to the jury as potential corroboration. In any event, prior to the summing up, counsel representing the appellant conceded that this evidence was capable of amounting to corroboration. These two grounds of appeal were referred to this court to consider a grant of leave. In our opinion, leave is probably not required as they raise questions of law but, in our opinion, both of these grounds must be rejected.

41 We now turn to Ground 5. This ground relates to the direction given by the judge that if the jury decided that any of the items to which she referred amounted to corroboration then they were entitled to disregard the warning that she had given to them. The appellant argued that this direction was contrary to the principles espoused in Radford (1993) 66 A Crim R 210 at 238 and R v Lawford [1993] SASC 4247; (1993) 61 SASR 542 at 555.

42 The judge initially referred to the evidence of Ben Hoban without comment. Shortly thereafter the judge invited the jury to think Ben was "the most important" witness but made no comment as to the approach to his (or anyone else's evidence). The judge subsequently described Ben as an accomplice in this unlawful enterprise. In explaining the reason for the accomplice direction which followed said:

"It has been found from experience that there are certain classes of witnesses whose evidence is inherently suspect for one reason or another. Accomplices are one such class. That is because their involvement in the crime in issue may incline them to falsely implicate another person, either with a view to exculpating themselves or with a view to minimising their own role or perhaps with a view to currying favour with the police. In other words, they are not impartial witnesses. They may be promoting their own cause when giving evidence. That is the rationale for the warning. This is the warning ..."

43 The judge then gave the warning in unexceptional terms and continued:

"In the absence of such corroborative evidence, you must heed the warning I give you. In the absence of corroborative evidence, you may still act upon the evidence of Ben Hoban if you so choose but you must understand that you will be doing so notwithstanding our direction as to the dangers in doing so. In essence (in the absence of corroboration) you must scrutinise the evidence of Hoban with great care and you may only convict of the offence if you are satisfied of the truth and accuracy of his evidence having given it the scrutiny of which I speak." (Emphasis added)

44 The direction then continued as to what constituted corroboration. The last word said on the topic was:

"If you decide that they do amount to corroboration or, indeed, if you decide that any one of them amounts to corroboration, then you may disregard the warning that I have given you."

45 Looking at the direction in its entirety, there was a statement about the possible lack of impartiality of accomplices generally, but only as an explanation of the reason for the warning which then followed. The directions as to the need for care and scrutiny of Ben Hoban's evidence were emphatically conditional upon the absence of corroboration. The clearest implication from the concluding direction was that such care and scrutiny was not necessary if corroboration was found.

46 There was no other direction concerning the approach to be taken to Ben Hoban's evidence, yet he was plainly an accomplice. Without his evidence, the prosecution would have failed. There were some unexplained differences between Ben's evidence and that of S on some important topics. He was a person who was plainly influenced by his father at the time these events took place but, by the time of the trial, he had fallen out with his father and had no time for him. Apart from the appellant, he was the only accomplice to give evidence and he was shown to have lied to S when he first spoke to her.

47 In our opinion, therefore, the circumstances of this case required a warning about the special scrutiny that should be given to his evidence, in addition to the warning which was in fact given, but which was limited to the situation in which there was an absence of corroboration. The need to give Ben's evidence special care and scrutiny in the event of a finding of corroboration was expressly removed by the final direction.

48 Courts have counselled against giving such a direction as to disregarding the warning. They have only held that it does not constitute a miscarriage where other compensatory directions have been given.

49 In R v Radford (1993) 66 A Crim R 210 at 237 the direction given was:

"Were you to find that the evidence of the accomplice is properly corroborated by other independent evidence, no particular problem arises. You would consider the accomplice's evidence in the same way and subject it to the same tests as I mentioned to you yesterday that you should subject all the evidence to. The same test that you might think appropriate to the consideration of any other evidence in the case. In his case one of the things you should bear in mind is that being an accomplice he may well have a motive to tell an untruth."

50 Phillips CJ and Eames J (at 238) pointed out that the direction that "no particular problem" arose once the jury found there was corroboration and that the evidence of the witness should thereafter be treated in exactly the same way as that of any other witness was a direction which had been found to be wanting in the earlier trial of Radford. They considered that, without more, that did amount to a misdirection. What saved the direction in that case were the words which followed.

51 Any such words are lacking in this case. The direction as to what the jury should do if they found corroboration existed was, in our view, inadequate to raise a warning that should, in the circumstance, have been given. As Phillips CJ and Eames J said in Radford (at 238):

"The first complaint of the appellant is that although the jury could properly find that the evidence of an accomplice was corroborated the fact that the jury does find that there is such corroboration does not therefore mean that the warning attracted by the evidence of an accomplice ceases to have effect. We agree that that is so. To suggest that once corroboration is found the jury might then treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness would be a misdirection; an accomplice remains a person with a potential motive to lie and he is not an independent witness free of interest in the outcome of the case: see Radford (unreported, Court of Criminal Appeal, Vic, Crockett, Beach and Smith JJ, 28 February 1992)."

52 Nothing said in Radford was qualified by what Duggan J said in R v Lawford [1993] SASC 4247; (1993) 61 SASR 542 at 555:

"The traditional corroboration warning is concerned with uncorroborated and not corroborated evidence. However a comment to the effect that the warning no longer applies if corroboration is present can give the impression that special care is no longer needed in assessing the witness's evidence: R v Radford (1993) 66 A Crim R 210 at 238. The jury may well have to be reminded of the dangers of acting on the evidence of the witness whether corroboration is present or not and of course a warning of the type contemplated in Webb need not necessarily refer to corroboration."

53 We have already referred to the circumstances which justified a greater warning about Ben Hoban's evidence than was given in this case.

54 The approach of this Court in R v Power and Power [1996] SASC 5653; (1996) 87 A Crim R 407 is also instructive. We consider that it goes further than merely saying that a direction of this type is unwise. Doyle CJ (at 411) recognised that such a direction, by itself, ran the risk of giving rise to a misdirection. What saved the direction in that case was again some qualifications made in the summing-up which are absent here. Doyle CJ said at 411:

"His Honour reminded the jury on another occasion of his warning, without repeating the qualification (summing up at p 22). His Honour also separately reminded the jury at length of reasons for treating B's evidence with caution quite apart from his role as an accomplice (summing up pp 5, 6, 12, 14-15 and 25-42). His Honour, on a number of occasions, referred to evidence which might corroborate B, thus reminding them by implication of the importance of corroboration.

No request was made for a redirection on this point, suggesting that at the time the comment was not seen to have any great significance.

I do not consider that there was in fact a misdirection because I do not consider that the comment suggested that B's role as an accomplice could be disregarded. What was said was directed more to the need for special care in the absence of corroboration. The difference is slight, but it is the difference between suggesting that B could be regarded like any other witness and simply stating that the need for 'special care' does not arise if corroboration is present. I am also influenced by the care taken in other respects to remind the jury of suggested motives for B to lie unrelated to his role as an accomplice."

55 In this case, however, there were no such qualifying directions. The only qualification expressed by the trial Judge was in relation to the situation where no corroboration was found. There was a statement in general terms why accomplice directions are necessary, but its effect in relation to Ben Hoban's evidence was negated by what followed. In our opinion, therefore, this ground of appeal is made out.

56 Ground 6 relates to the good character direction. The judge referred to the evidence of the appellant as to his age, work history and his voluntary work for the State Emergency Service. The judge then referred to the evidence that the appellant had never been convicted of a criminal offence. She went on to say:

"I direct you that you are entitled to bear in mind the fact that the accused has no prior convictions as a factor affecting the likelihood of the accused committing the crime with which he is now charged. It is for you to say whether that evidence, that he has no prior convictions, makes it less likely that he would have committed the offence for which he is on trial before you. That is a factor to which you are entitled to weigh in the balance in determining whether the prosecution has proved its case."

The judge then returned to a discussion of the evidence in the case.

57 Mr Crocker referred to the propositions laid down by King CJ in R v Trimboli (1979) 21 SASR 577 wherein he said (at 578):

"I think that it is possible to lay down some propositions which might be of assistance to the judge at the new trial and to other trial judges.

1. It is desirable in all cases in which there is evidence as to the accused's good character that a direction be given as to the use to which that evidence should be put.

2. No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused's previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused's previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.

3. The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused's previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit."

58 Mr Crocker maintained that the judge should not have had limited her direction to the issue of a lack of prior convictions. Following Trimboli the judge should have also told the jury that the evidence of good character was not only relevant to the likelihood of the appellant committing the crime but was also relevant to the assessment of his credibility.

59 The relevance of evidence of good character has recently been considered by the High Court in Melbourne v R (1999) 198 CLR 1. In Melbourne the court held that a judge was not obliged to direct a jury about an accused's good character but had a discretion whether or not to do so after evaluating the probative significance of the evidence in relation to the accused's propensity to commit the crime charged and the accused's credibility. McHugh J said (at 14):

"In my opinion, notwithstanding the rules laid down in these English and New Zealand cases, this Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility.

The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character."

"In my opinion, the character evidence relating to Mr Melbourne was not of such probative significance in relation to his credibility as to require the trial judge to give a direction that the evidence bore favourably upon Mr Melbourne's credibility. The evidence was that the accused had no previous convictions other than a conviction for drink-driving in 1975 and was not 'adversely known to the police'. Various descriptions of his character and personality were given by those who knew him, such as: (a) evidence from Mr Gooch that the accused was a 'quiet man', a man who was 'always gentle', and who, apart from this occasion, had 'never' been 'aggressive'; (b) evidence from Mrs Barnes that the accused was 'very quiet'; (c) evidence from Mr Daniels that the accused was 'a very amiable sort of person'; (d) evidence from Mrs Hinde that the accused was 'a very quiet, well-behaved gentleman'.

None of this evidence had any direct probative bearing on the truthfulness or credibility of the accused. It was all directed to the unlikelihood that he would commit the office charged. The trial judge gave an adequate direction in this regard. Whether or not the trial judge intended, but forgot, to give a credibility direction with respect to the character evidence, no miscarriage of justice has occurred. If her Honour had given such a direction, it would have given the accused an advantage to which in point of law he was not entitled. Not only was this not a case requiring a credibility direction, in my opinion it would have been a wrongful exercise of discretion to have given it."

The foregoing is reason enough to reject the notion, found in many English decisions, that 'good character' is synonymous with the absence of prior criminal convictions. The latter may be an indication of the former; but it is not necessarily so. I agree with Henry J's remark in R v Falealili [1996] 3 NZLR 664 at 667, per Henry J, with whom Eichelbaum CJ, Richardson P and Neazor J concurred that 'there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person's good character. It may be a factor in assessing good character, but standing on its own it is generally neutral.' Proof of an absence of previous convictions, without more, would not, therefore, attract a judicial obligation to give directions about 'good character'. Fairness and balance in a charge to a jury might warrant mention by the judge of that fact. But for a 'good character' direction, more evidence would be needed. To the extent that this distinguishes the rule applicable in New Zealand from that applicable in England, Munday, 'What Constitutes a Good Character?' [1997] Criminal Law Review Journal of Criminal Law, vol 55 (1991) 521, at p 533, I prefer the former."

62 In this case there was no evidence called to establish the appellant's good character. The evidence did little more than establish an absence of prior convictions. This was a factor to be taken into account by the judge in tailoring a direction to suit the circumstances of the case. No complaint was made by counsel at the trial as to the inadequacy of the judge's direction on this matter. We think it was sufficient. We would dismiss this ground of appeal.

63 Ground 7 relates to the comments made by the trial judge as to the fact that John Baker was not called as a witness. In order to consider this ground it is necessary to put the judge's remarks in context. The judge said to the jury:

"Ladies and gentlemen, you may have wondered why John Baker did not give evidence perhaps asserting that it was he who placed P1 and 2 in his father's desk. You did not hear that evidence, but I want to point out to you two matters about John Baker and his absence in this trial. First, there is not any onus on the accused to call his son as a witness, nor, indeed, to call anyone else. The onus of proof does not change just because the accused gave evidence and nominated his son as a person whose evidence you might think might have helped him. The absence of John Baker from the witness box is a factor you are entitled to consider, but it does not change the burden of proof.

The other matter arising out of that is this. The fact that John Baker was arrested yesterday - if that be a fact - would not, in any sense, impede the accused in calling him as a witness. There is no bar to calling a person who is on remand or, indeed, a person who is a prisoner, to give evidence, and so do not think for that reason that John Baker did not attend here." (Emphasis added)

64 The reference to John Baker's arrest arose in the following way. In the course of the cross-examination, the Crown prosecutor asked the appellant when he had last seen his son. The appellant responded "Today". In re-examination the appellant's counsel said to the appellant "You said to Ms McDonald that you saw your son this morning, what is your understanding of where he is at the moment?". The appellant replied "I believe he was arrested." There was then some argument as to this evidence. The Crown was concerned that the jury would be left with the impression that John Baker had been precluded from giving evidence as a result of his arrest. The judge said that she would resolve this issue in her direction to the jury which resulted in the direction referred to above.

65 Mr Crocker, argued that the direction amounted to what is commonly called a Jones v Dunkel direction (such a direction having evolved from the principles enunciated by the High Court in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). Mr Crocker submitted that, following the decision of the High Court in RPS v R [2000] HCA 3; (2000) 168 ALR 729, a Jones v Dunkel direction would seldom, if ever, be appropriate in a criminal trial and, more particularly, was not appropriate in the circumstances of the present case. Mr McEwin, who appeared for the DPP at the appeal, disputed this was a Jones v Dunkel direction but maintained, in any event that, in the circumstances of this case, such a direction would have been permissible.

66 The essential element of a Jones v Dunkel direction which generally gives rise to complaint upon appeal, is a statement by the trial judge directing the jury as to what inferences they may draw from the failure of a party to call a certain witness or witnesses. In the present case, the learned trial judge did not direct the jury as to what inferences they could draw from the failure to call John Baker. Her Honour merely said that "[t]he absence of John Baker from the witness box is a factor you are entitled to consider." The judge did not, however, give the jury any assistance as to how they should take John Baker's absence from the witness box into their deliberations.

67 It is well established that a judge should be particularly cautious in a criminal trial when deciding whether to make a comment about the failure of an accused to call a witness. This caution stems from the strict burden of proof applicable to criminal trials and the rights which are granted to an accused therein, rights which do not have the same application in a civil trial. In RPS v R the majority (Gaudron ACJ, Gummow, Kirby and Hayne JJ) stated (at para [28]):

"In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations."

68 Callinan J, in a separate judgment (which arguably went further on this point than the majority) held (at para [111]) that a Jones v Dunkel direction;

"may not be given in relation to an accused person or an accused person's witnesses who, if the matter were a civil trial, might be expected to be called. A direction with respect to a defence case, based upon Jones v Dunkel would not only infringe s20(2) but also would erode the basic principle of the presumption of innocence. The principles stated in Jones v Dunkel by their very nature presuppose that there is a need, or an occasion, for evidence to be called by a party, or an expectation that evidence could and should be called by a party. An accused person in criminal proceedings labours under no such need, occasion or expectation."

69 Although Callinan J would appear to take a stronger position on this topic, it is clear that cases in which a Jones v Dunkel direction would arise in a criminal trial are likely to be rare. A judge has to guard against appearing to reverse the onus of proof and there is the difficulty of a jury knowing how to deal with such a direction. Before a jury can make the suggested inferences it must first determine whether the relevant witness(es) might be expected to have been called, otherwise there are no grounds for making any inferences at all from a failure to call them. Given the complex evidential and tactical reasons which lie behind the decision to call a witness, such a determination may be difficult or even improper for a jury to make. In Newland (1997) 98 A Crim R 455, a case dealing specifically with the application of the Jones v Dunkel direction to criminal trials, Gleeson CJ highlighted these concerns (at 461-2):

"How were the jury to decide whether, in the circumstances, the Crown or the accused 'should have called him to give evidence'? The jury knew nothing about the principles governing the obligation of a Crown Prosecutor to call evidence. They had received no instruction about the provisions of the Evidence Act which might have been called in aid by the prosecutor had Collins been recalcitrant. They knew nothing about what Collins had said to the police, or to the court which dealt with him, concerning any involvement of the appellant in the crimes committed by Collins and Floyd."

70 Perhaps the most significant difficulty for the jury is the fact that it is not always clear which party should have called a given witness. If an accused declines to call a witness for some reason, it might happen that the Crown should call the witness in the discharge of its duty fairly to present all of the evidence. The majority of the High Court in RPS noted this as a relevant concern (at para [29]):

"If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor 'has the responsibility of ensuring that the Crown case is presented with fairness to the accused' and in many cases would be expected to call the witness in question as part of the case for the prosecution." (footnotes omitted)

71 Also, as Gleeson CJ said in Newland (1997) 98 A Crim R (at 462):

"In some cases the question of who might reasonably be expected to call a witness might be answered simply as a matter of common sense. In other cases, of which the present is an example, it might be a question the answer to which is far from simple. Cases of that kind require a deal of caution before Jones v Dunkel is involved."

72 These words of caution are relevant to the present case. The summing up suggests that the appellant was the one who might have been expected to call John Baker "perhaps asserting that it was he who placed P1 and 2 in his father's desk." On the evidence, however, John Baker was a party to criminal activities and might or might not have given evidence implicating the appellant.

73 In RPS the High Court commented (at para [43]):

"To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case. Had the judge's instructions about the significance of the appellant not giving evidence stopped at pointing out that he was not bound to do so, that there may have been reasons why he did not do so (and the jury should not speculate about those reasons), that it was for the prosecution to prove its case beyond reasonable doubt, and that the jury should draw no inference from the appellant not having given evidence, no complaint could be made."

74 In this case the judge's comments clearly arose out of the need to say something to the jury about John Baker's arrest. This was a topic raised late in the trial and which was likely to have been playing on the minds of the jurors. To direct the jury that the absence of John Baker from the witness box "is a factor you are entitled to consider" without giving them any assistance as to how they should consider it and the effect thereof was a singularly unhelpful direction and better not said. The judge could have simply told the jury not to speculate about what John Baker might have said had he been called. Nevertheless, when reading the judge's directions as a whole, We do not think her comments led to a miscarriage of justice. This was not in the form of a Jones v Dunkel direction. The jury were not instructed about inferences that they could draw, adverse to the accused or otherwise. The judge reminded the jury on several occasions that there was no burden of proof upon the accused. She reminded the jury that the onus of proof did not change. There was no danger of impermissible reasoning. In our opinion Ground 7 of the appeal fails.

75 Ground 8 is a complaint concerning the cross examination of the appellant with respect to photographs taken of the money which was located in the filing cabinet. At almost the end of the cross-examination of the appellant, the prosecutor produced some photographs which showed that the money located by the police in the filing cupboard was packaged $50 notes. This was to challenge the evidence of the appellant that money kept in the desk was change accumulated over a period of years after payment of household expenses. Prior to the trial the appellant's solicitors had sought a copy of all the photographs which were in possession of the prosecution and had been informed that the photographs would be provided. These particular photographs were not disclosed. The appellant complains that the non-disclosure thereof embarrassed him in his defence because it took him and his counsel by surprise. If his counsel had known the existence of photographs which showed bundles of $50 notes the appellant would have been provided with an opportunity to explain the presence of the money packaged in that fashion.

76 There is no dispute that these photographs should have been disclosed to the appellant prior to trial. It is regrettable that they were produced at such a late stage of the proceedings. The money in the filing desk was however a live issue in the trial. Mr Gray was the police officer who located the money. In giving evidence in the prosecution case, Mr Gray described the money as consisting of $50 notes bundled together in a plain envelope. That evidence was not challenged. In cross-examination it is difficult to see how, in that situation, the photographs took the appellant by surprise. We would reject this ground of appeal. We would therefore dismiss the appeal against conviction.

77 The appellant has therefore only been successful with respect to ground 5 of his appeal. In the circumstances of this case, however, this was a serious misdirection as it could have given the jury the impression that if they found corroboration they no longer needed to use special care in assessing Ben Hoban's evidence. We would therefore allow the appeal, quash the conviction and sentence and order a retrial of the charge against the appellant. In the circumstances it is unnecessary to deal with the appeal against sentence.