R v Cummins [2004] VSCA 164

7. For the reasons advanced by Ormiston, J.A., which I have had the benefit of reading in draft form, I agree that the application for leave to appeal against conviction should be allowed, that the verdicts should be set aside, and that there be a new trial.

12. This application for leave to appeal against conviction raises a number of seemingly difficult questions arising out of what might otherwise be thought to be a straightforward trial for armed robbery and theft of a motor car. The applicant was convicted in the County Court at Ballarat on one count of armed robbery, for which he was sentenced to a term of 3½ years' imprisonment, and one count of theft of a motor vehicle, for which he was sentenced to six months' imprisonment. There was no order for cumulation so that, of a total effective sentence of 3½ years' imprisonment, the applicant was directed to serve a minimum period of two years before becoming eligible for parole.

15. Some seven grounds of appeal were relied upon in the applicant's original notice, of which five were argued before this Court. As the detailed grounds are difficult to comprehend without some knowledge of the facts and the trial it is sufficient to say that the first three argued raised questions as to whether the applicant's alleged addiction to heroin was relevant as a motive on a trial for armed robbery and whether a witness, the former de facto partner of the applicant, could give evidence as to the applicant's use of drugs. The second group of grounds raised an issue as to whether the de facto partner was so unreliable a witness that a full warning as to the danger of reliance on her evidence should have been given and as to whether a sufficient warning was given. The next ground argued raised a question whether a later letter written by the partner apparently changing her mind and asserting that the applicant was innocent resulted in her earlier statements being "prior inconsistent statements" requiring some appropriate warning. The next ground argued asserted that the judge's charge to the jury lacked balance such that a fair trial had not been conducted. The last ground alleged that the verdicts were unsafe and unsatisfactory essentially for the reasons already relied upon.

19. The facts relating to the armed robbery and theft are remarkably simple, but the evidence supporting the charges will have to be examined in somewhat greater detail. There is no dispute that the armed robbery took place at about 3.30 in the afternoon on 27 December 2000 at the Wendouree post office. There is no dispute that the actual entry onto the premises and the taking of the money were perpetrated by a person other than the applicant. The issue was whether a person seen briefly and imperfectly outside in a car who picked up the perpetrator was the applicant. It was contended that the applicant acted in concert with the perpetrator and participated in the robbery by driving the perpetrator to and from the post office, thereafter sharing in the proceeds.

22. The various eyewitnesses were able to say that the perpetrator came into the post office, asked a female employee at the counter for money. Some was handed to him immediately, but the perpetrator then leant over the counter with a gun, demanded more and held a dark-coloured bag open while another $4,000 was placed in it by the employee. The perpetrator was partially disguised by the wearing of a black baseball cap and heavy dark sunglasses. All present were shocked by the events. The perpetrator left in a hurry through the front door.

25. The perpetrator was observed by a witness in Howitt Street as he came from the vicinity of the post office, and was again seen to be wearing a black peaked cap and sunglasses with a bag under his arm. He entered the passenger side of a brown Commodore car which drove off quickly. The witness could not see the driver's face but believed that he was wearing a light-coloured top. The car itself had been stolen that morning from a car park in Creswick Road but it was recovered the next day in a side street near Wendouree Village. The best that the police could obtain from the various witnesses was an imprecise photo-fit image of the perpetrator which was published in the Ballarat Courier two days later, but nobody ever identified either of the two people responsible for the armed robbery and theft.

28. It was fifteen months or more before the police obtained any evidence connecting anybody with the armed robbery. It arose because Narelle Nunn, who was the de facto partner of the applicant, fell out with him in about March 2002 and brought their relationship to an end. She had been living with the applicant at the time that the armed robbery took place and had been doing so for some time beforehand, as well as for most of the period after 27 December 2000. It appeared that shortly before the robbery, in November 2000, the applicant had been involved in a motor cycle accident and had suffered head and foot injuries. When he returned from hospital he was still under medical treatment and, according to Ms Nunn, was taking prescription drugs for his head injury throughout December. But when her relationship with the applicant reached a "low ebb", in March 2002, she reported to the police (and made her first statement) that he had been involved in the armed robbery in December 2000.

31. Ms Nunn's evidence was stringently criticised, such that the reliability of virtually every aspect of her account, which will now be summarised, was challenged at the trial. Her evidence had two aspects, the first being her account of events on and after the day of the armed robbery and the second being her description of the applicant's alleged drug taking habits and their effect on him, particularly in the two or three days after the robbery. Ms Nunn described her de facto relationship with the applicant in a house in Wendouree. She told of a man named Brown, a friend of the applicant, whom she had met twice before and who arrived on Boxing Day 2000 to stay for a few days. They had come and gone to and from the house several times on the 27th. In particular they had left together at about three or three-thirty in the afternoon, returning in a hurry about fifteen to twenty minutes later. On their return they ran quickly into the bedroom. They had baseball caps on and were both wearing sunglasses. They changed quickly into tracksuit pants and dark jumpers. She went into the room and saw that they were counting money and that "there was a gun on the bed", which appeared to be a small hand gun. Eventually they came out of the room carrying the dark small sports bag which they had brought into the house on their return by car. They said they were going to a neighbour's house down the road, from which they returned about fifteen minutes later without the bag. They asked her then to drop them off at the Ballarat railway station, saying that Mr Brown wanted to go back to Melbourne and that the applicant was going with him. She did so at about 4.30 p.m. the same afternoon, but they asked her not to drive down Howitt Street, which was the street in which the post office was situated. The applicant had told Ms Nunn that he would return later that night but that he might stay overnight.

34. Ms Nunn then told of her seeing a television report of the armed robbery. On 28 December she had a phone conversation with the applicant after also seeing a newspaper report of the events. She asked him when he was going to return. He asked her if she had seen anything on the news or in the paper and she told him what she had seen. She had told him that she thought he had had something to do with the robbery, which at first he had denied. When she asked him why he had not returned, the applicant then told her, according to her account, that he had done it and that he was worried that the police were going to come around to their house. She was angry with him and told him to come home and that he had to face up to it. He had continued to ask her about the news items and whether there was an ID of anybody involved. She said that she had seen an ID picture after the time she had spoken to him. She had said that it had not looked like either of them. The applicant said he was going to return later that day and would then telephone her. Around 4 o'clock on 28 December he had phoned and she went to the Ballarat station to pick him up. He was wearing the same clothes, looked as if he had not showered, was really tired and "like he was off his head, sort of thing". She then did some shopping with $200 the applicant gave her but he went into a chemist and had purchased some syringes, which she first saw when she came back to the car. She then had a conversation with the applicant about the neighbour's visit while the applicant had been in Melbourne. The neighbour had asked that the applicant see him about the bag which had been placed in his shed by Mr Brown and the applicant. The applicant also told her that if the police came around, that "there was money out in the shed". He was not specific but there was a shed in the backyard of their home.

37. Ms Nunn said that on the night the applicant returned to Ballarat they stayed at a motel in Sturt Street together with her two children, because the applicant did not want to stay at the house at Wendouree, saying "that he was worried about the police coming around and he wasn't ready to face up to it". She described the applicant's condition on that night in terms that he "just seemed to be really stoned, like he had been on drugs ... and he was pretty stressed out about everything ...". This line of questioning about drugs had been objected to on the ground that it was inadmissible as not properly going to any question of motive, an objection which had been earlier overruled by the judge. The questioning continued by asking whether she had seen the applicant take drugs before these events took place. She had seen him use heroin and had seen him similarly affected in the past.

40. Returning to the events immediately following the robbery and the applicant's return from Melbourne, Ms Nunn said that when he came back he wanted to get rid of his clothing "that he had been wearing on the day of the robbery". Shortly afterwards the applicant had left the house and dumped the clothes somewhere which he said was on the road towards the Ballarat airport. There followed further questioning about the applicant's condition in this period from 29 December onwards. She said that the applicant was stoned "all day for about three days". He would come in and out and he frequently would go to the shed in their backyard. Then it seems, despite his condition, he would get in the car and leave and return a little later, repeating the exercise every couple of hours or so.

43. Ms Nunn was then cross-examined in great detail, about which it can fairly be said that her credibility was questioned and a considerable number of inconsistencies in her testimony were revealed. Except for referring to a letter put to her in which she apparently had later changed her mind and asserted that the applicant was innocent, it is preferable to leave these matters to the discussion of the specific grounds relied upon. It is sufficient to say that the judge acceded to a request that she be treated as an unreliable witness of a kind which required the jury to be warned of the dangers of accepting her uncorroborated evidence and of the need to scrutinise her evidence very carefully before convicting, reliance being placed on the decision in R. v. Faure[1].

46. The letter in question was written by Ms Nunn to the applicant some six months after she had made her first statement to the police, namely, on 12 September 2002. It was expressed in affectionate terms, most of which it is unnecessary to repeat here. After saying that she misses him and that he is always in her thoughts, she turned to the court proceedings which were about to take place the following day. She said she hated herself, explaining: "The only reason I told the police the things that I did was because they made me feel like I didn't have a choice." She had feared that, if anything happened to her, her child Maddison would be placed in foster care, so that she "went along with what they wanted me to say ...". She admitted that one of her reasons was that the applicant had been seeing other girls and "jealousy was eating me alive". Again, after a full paragraph of expressions of affection, she said her biggest wish was that she could "take back every bit of the crap that I told the police and undo every bit of hurt that I have ever caused you". She said she hoped that he would find it possible to forgive her for "the things I have done wrong to you". She then wished the applicant the best of luck for the case, saying that she hoped he would not need it "because we both know that you are innocent". Not surprisingly that letter formed the basis of much of the cross-examination and was certainly treated as one of the principal reasons for treating her evidence as that of an unreliable witness.

50. At the trial a number of days, on and off, were first spent in dealing with certain aspects of the evidence and with a number of objections made by counsel for the applicant. Several aspects of Ms Nunn's evidence were challenged in various ways. Some parts of her statements were ruled inadmissible, but the argument concentrated on those parts of her proposed evidence which referred to the applicant's use of drugs and, in particular, his condition after the alleged robbery, especially after his visit to Melbourne. Certain difficulties had been created by the fact that an additional statement had been obtained from Ms Nunn directed primarily to the applicant's alleged drug-taking. That had not been tested at the committal proceedings so that, assuming that some part of the material was to be allowed in evidence, it was accepted that what is conventionally called a Basha inquiry on voir dire would have to be held before the trial could proceed. The Crown stated that the relevance of the evidence was that the applicant's heroin use was a motive for the armed robbery. Counsel then appearing for the applicant (who was different from counsel who appeared on this appeal) argued primarily that the evidence was prejudicial or at least so prejudicial as to outweigh its relevance, but he also contended that Ms Nunn was not capable of expressing an informed opinion as to the reason for the applicant's apparent condition at the relevant time, so that she could not say that he was affected by heroin or any other drug.

53. The arguments put to the learned judge were not precisely those advanced on this appeal, but, though they covered similar ground, it is not necessary to examine them in detail. The objection to the evidence of drug-taking was based on the absence of any evidence as to any specific desire of the applicant for drugs before the robbery took place or as to his lack of immediate cash to buy drugs. A concern as to the evidence's potential for prejudice was dealt with by the judge's assurance that a full warning would be given as to misusing the evidence to draw conclusions from the applicant's drug habits as demonstrating bad character, a warning in fact given by the judge in his charge. Nevertheless counsel persisted in his argument and his Honour then found the evidence was relevant and ruled it admissible. It seems that neither counsel nor his Honour viewed the evidence as "propensity" evidence[2], so there was no discussion of s.398A of the Crimes Act nor any ruling based on that section. Moreover the judge rejected the objection that Ms Nunn was not qualified to express an opinion that the taking of drugs caused the applicant to appear to be "stoned" after his return from Melbourne, though he agreed that the witness would not be able to identify heroin as the particular drug responsible for that appearance.

56. It seems also that the learned judge was prepared to give the jury a direction upon the basis that Ms Nunn was an unreliable witness and, without there being any discussion of the subject that I can detect, he proceeded to give a direction as to the need to scrutinise her evidence very carefully in the course of his opening remarks immediately after counsel had completed their opening addresses. At that stage it was not framed in such strong terms as were used later in his charge but it appears that it was largely based on the fact that Ms Nunn was the former de facto of the applicant and that she had not chosen to tell the police of these matters for over fifteen months after the armed robbery. [It appears that at that stage Ms Nunn's letter of September 2002 seemingly recanting her accusation had not been put to the witness either at the committal or on the voir dire, so that it came as a surprise to the prosecutor (and others) when it was put to Ms Nunn towards the end of her cross-examination at the trial.]

59. The trial proceeded and the various witnesses gave their evidence, some of whom were cross-examined, especially Ms Nunn. At the close of the Crown case the applicant chose not to give evidence, so that counsel then addressed and the judge charged the jury.

62. I do not propose to go through the judge's charge in detail at this stage but there are some matters relating to its structure which might be conveniently described here. It commenced in the conventional way, with broad instructions as to the jury's function, the burden of proof and the way in which certain evidence should be dealt with. It differed from what might be called a conventional charge in that the judge thought it unnecessary to direct the jury as to the elements of armed robbery and theft since counsel had made it clear that the applicant was not disputing that both the armed robbery and the theft had in fact taken place on 27 December 2000. There were also some brief directions about acting in concert. Much of the charge, thereafter, was directed to the nature of the evidence before the jury and how they should approach it. There followed some conventional directions about a circumstantial case. The judge, as already noted, then gave a firm warning as to the use of the evidence that the applicant was a heroin user and how that evidence had been admitted only to prove a possible motive. His Honour clearly directed the jury that they should not reason that the applicant was a bad person and therefore must have committed the robbery, nor could they find him guilty merely because he was a heroin addict.

65. Much of the rest of the charge was directed to the proper approach that the jury should take to Ms Nunn's evidence. The judge pointed out that, unless they accepted her evidence, they would not be able to be satisfied beyond reasonable doubt that the applicant was guilty of the offences charged. He then gave a short summary of her evidence on this issue. A brief direction was given on consciousness of guilt, directing the jury's attention to those aspects of the applicant's behaviour after the event from which that might be implied. The judge then gave a brief direction as to motive, to which I shall return when dealing with the grounds relating to that question. His Honour then gave a very brief outline of the criticisms made of Ms Nunn's evidence by counsel for the applicant, as to which he said that there was "virtually" and, on another occasion, "practically", no corroboration, again a matter to be discussed later. The recitation of these criticisms then merged into the warning the judge gave against the danger of convicting the applicant on the evidence of Ms Nunn, referring to a number of matters which provided "a basis for potential unreliability undoubtedly". Again the nature of that warning was the subject of criticism and will be discussed later under the relevant grounds. Thereafter the judge referred to a number of responses made by counsel for the prosecution at the trial in which he had argued that her evidence had not been fabricated, indeed, could not have been fabricated because of her detailed recollection even fifteen months later. This extended for several pages of the transcript and was followed by a brief repetition of the danger of relying on what applicant's counsel had described as an unreliable witness. There was no further summary of the evidence - perhaps it was not necessary - and there was no further summary of the arguments of counsel, especially of counsel for the applicant. This has led to the ground asserting that there was an unbalanced charge, to which reference will likewise be made below.

69. On this appeal counsel for the applicant first of all argued three grounds together, primarily relating to motive and Ms Nunn's ability to speak of the alleged drug addiction of the applicant, namely grounds 1A, 1B and 6(iii). Ground 1A asserted that the judge erred in finding that Ms Nunn "qualified as an expert as to the effects of heroin" and that the trial had miscarried due to the admission of her evidence about the applicant's heroin use. Ground 1B asserted that the judge erred in admitting evidence of the applicant's history of drug use both before the date of the offence and afterwards during the month of December 2000. Ground 6(iii) asserted that the charge given by the trial judge lacked balance in that the jury were not directed sufficiently as to the motive that Ms Nunn had "to fabricate the allegations".

72. In essence, it was said, the alleged drug use could not properly be relied on to prove the applicant's motive to commit the armed robbery and theft. Incidentally, it was said that the judge had failed to direct the jury that the alleged motive, namely a desire to obtain money to feed his drug addiction, should have been proved beyond reasonable doubt, but that in any event Ms Nunn could give no proper evidence as to the condition of the applicant and as to whether drugs were the cause of his condition at any time.

75. Issues raising motive have been discussed in both simple and complex terms many times in recent years, although it must be conceded that it was discussed not infrequently in the older text books on evidence and procedure.[3] Sometimes relevance has been the critical question; at other times it has been how the jury should be directed to deal with either its presence or absence. Recent decisions in the High Court may be said to be not entirely consistent[4] and certainly the most recent decision of De Gruchy v. The Queen exhibits differences of opinion.[5] The truth may be that such a subject, requiring an examination, to some degree at least, of the mind of an accused (or other party) is necessarily imprecise and the inferences to be drawn are often uncertain. A quick perusal of the authorities suggests that motive is almost invariably seen as having some relevance, but the issue more often is the degree of its relevance and what a jury should be told about its assumed presence or absence.[6]

78. Frequently motive arises directly and eloquently in cases of murder and other charges involving the causing of injury where the intent of the accused is clearly in question; in others where the identity of the assailant is raised. Motive is so frequently identified as arising out of personal jealousies, rivalries and other animosities that it is hard to apply every apparent "rule" in this area to cases where no personal element can be said to be present. Nevertheless a distinction cannot be made between offences involving personal injury and those involving property because not infrequently theft and other like offences are motivated by personal dislike. Moreover it is difficult to argue, except in cases of strict liability or where the offences are committed by persons so drink - or drug - affected as not to know why they have committed particular offences that motive can ever be totally irrelevant. Most crimes are actuated by some motive, some purpose beyond the mere intent to carry them out. What significance that motive has is another matter, especially where intent is not in issue. In cases of uncertain identity, such as the present, can individual motive have much bearing on the outcome? As De Gruchy suggests[7], it may well be relevant in cases where intention is not disputed and, as a generality, one cannot disagree with that conclusion. A hatred or dislike of a particular bank or other institution, as well as personal envy, may sometimes explain a property offence, but that must be relatively uncommon. Most offences of that kind are actuated by a desire to obtain money, nothing more and nothing less, howsoever the miscreants are likely to spend it.

81. One may, nevertheless, assume that in the ordinary case proof of a motive will be relevant in the sense that, when taken with other relevant facts, it may render more probable than not that the offender has committed the act charged. Usually, however, where motive is explicitly sought to be established, one can see a connection with the alleged crime and its victim which makes it more likely that the accused has committed the crime, either because his or her intent to cause the victim harm can be seen to be the more probable or because he or she may more easily be identified as a likely perpetrator of the crime. In either case a specific animus or hostility, for good or bad reason, against the victim is usually seen as helping to establish the prosecution case. A motive of that kind to cause harm can thus be a powerful weapon in the prosecution armory, indeed sometimes so powerful that warning may need to be given against placing too much weight upon it.

84. What is alleged here, however, is a motive of a quite different kind and quality. The need to satisfy a craving for drugs is a commonly enough asserted motive for armed robbery, burglary or theft - indeed so common that it is probably put forward on pleas in almost half of the cases of that kind that come before the courts. Likewise a mere desire for money or "greed", as it is sometimes characterised, is frequently enough found to be the motive for this kind of offence. It would not, however, conduce greatly to the proof of most such crimes to assert that the accused was in fact actuated by greed, assuming it could be proved. Likewise here, assuming the accused's craving for drugs was sufficiently made out, it is hard to see that it truly advanced the prosecution case to any significant extent. In a circumstantial case (such as the present) such an addiction to or craving for drugs can ordinarily be said to have some relevance, as it has been held on at least two occasions[8], but that does not mean that it should always be admitted in proof of a property offence.

87. In the present case there clearly was no issue as to intent - all relevant elements of the crimes were conceded, including the necessary mens rea, as necessarily it had to be in a case when the taking of money was the deliberate object of the offenders. So its only true relevance to a live issue was to the issue of the identity of the offenders and in particular the identity of the driver of the car. If there had been only two persons who could have been the driver on that afternoon, then the evidence may (I repeat, may) have assisted the Crown case. But here what real persuasive effect could knowledge of the applicant's craving for drugs have where a significant but uncertain number of other unfortunate drug addicts would qualify as possible willing participants for the very same reason?[9] It seems to me that such a (regrettably) common place motive must be viewed as being at the remote end of the scale of relevance in a case such as the present. Indeed a proclivity for light-fingered activities would seem as relevant and that is clearly excluded as a matter of policy, subject only to the provisions of s.398A of the Crimes Act 1958.

90. Nevertheless, the issue can be resolved in the way it was argued below, albeit that seemed to ignore the rather more stringent requirements of s.398A. There can be no doubt that the evidence was prejudicial in the sense that it showed the applicant to be so far addicted that his conduct was seen by his own partner to be repulsive and thus capable of persuading a jury that he was the sort of person capable of committing any kind of offence to satisfy his craving. Of course the judge gave, on two occasions, a strong direction that the jury should not misuse that knowledge, but, as was pointed out, if the evidence was to be admitted as proof of motive alone, then a very fine line was being drawn between propensity and motive. The issue, however, is whether it can properly be said that the evidence's prejudicial effect outweighed its probative value. Whenever evidence is truly relevant and cogent in proof of a particular fact, that is often a difficult issue and a jury warning in strong terms may be the only solution. Here, however, the evidence was only marginally relevant and I would have no difficulty in concluding that the prejudicial effect did outweigh that slight probative value, such that it was unfair to allow its admission. In this case the evidence should have been excluded on that ground alone. Under s.398A, moreover, it should have been held that it was not just to receive this evidence.

93. The assumption that motive here was relevant was, moreover, one which had a very slight basis. As counsel pointed out, the only evidence was of the applicant's behaviour after the commission of the crime, indeed after his visit to Melbourne. What did this say of his condition and thus his motive before the crimes were in fact committed, that is on the morning and early afternoon of 27 December 2000? Counsel conceded properly below that, if there had been evidence of a craving for drugs before the events and of words or other conduct which showed that the applicant was desperate for money to purchase drugs to satisfy his addiction, then there may have been a basis for even this very limited evidence of motive, assuming it could truly assist in establishing the identity of the offender in this case. But there was no attempt by the prosecution to prove anything relating to this earlier period, save that Ms Nunn said that in the past she had observed her partner heavily affected by drugs, though it was in no way suggested that this had occurred in the weeks immediately preceding the robbery. Indeed it seemed from evidence adduced at the trial that the applicant had suffered a leg injury which required him to take a considerable number of prescription drugs in the month or so before the robbery was carried out. Perhaps his time away from addictive drugs had produced a craving which led to his participation in this robbery, but there was no evidence to that effect.

96. The best that could be said for the prosecution was that the jury were being asked to infer from later events that the applicant desperately needed the money which presumably was used to buy the drugs which produced his condition observed by Ms Nunn on his return from Melbourne and for some time thereafter. It is possible, even in a criminal case, to ask a jury to draw inferences from subsequent events which might assist in establishing guilt of an offence at an earlier time. Although this form of retrospectant evidence, as it is often called, is sometimes seen to be confined to evidence of consciousness of guilt, there are undoubtedly other circumstances in which inferences of that kind may be drawn, the most common of which is in cases of "recent possession". But to infer from a later physical condition, such as is produced by an addiction to drugs, a similar physical condition at an earlier time is by no means so easy, especially where the question is one of criminal responsibility. Moreover in strictness addiction does not prove motive, it only suggests a reason why there may have been a motive for action. More precisely the motive must have been a desire to obtain funds to satisfy his addiction and of that there was certainly no direct evidence. There was no evidence of his financial position and to argue from his later condition to that kind of motive at an earlier time raises a number of questions. There is, for example, nothing to show that he had not committed some other robbery or theft while he was in Melbourne, as the source of his funds at that stage was never established. The only occasion when it seems arguable that he used some part of what had been obtained from the robbery was when he apparently took money[10] from the shed after he returned to Ballarat, but to use that evidence to prove a prior motive largely puts the cart before the horse, for it assumes that he was in fact party to the robbery. All in all, although it is not necessary to resolve the matter finally, evidence of motive proved in this way seems so slight as to have been of no consequence at all.

99. The other point argued in some detail before the Court was whether Ms Nunn could give evidence as to his addiction to heroin. Again the matter need not be resolved, but the evidence seemed well within the capacity of Ms Nunn to give, just as it is within the capacity of witnesses to say that somebody appears to be in a drunken condition. It may be that she could not have identified the particular drug but that was of little or no consequence in the case, for the argument depended on showing that he was, as she described it, "stoned" and the particular drug responsible for his condition was of no significance. Finally on these grounds it was argued that motive was a fact which had to be proved beyond reasonable doubt and the judge had failed to give the jury an appropriate direction to this effect. Reliance was placed on R. v. Murphy[11] and Penney, but whatever may have been the appropriate conclusion in those cases, it cannot be a general proposition where motive forms only part of a number of items of circumstantial evidence. That those authorities cannot be read so widely has been recognised both in this State and in New South Wales: see R. v. Kotzmann (No. 1)[12] and R. v. Fowler (No. 3)[13]. I would not have upheld this contention.

102. For reasons already stated I would conclude that the evidence as to motive should have been excluded. The basis for that exclusion doubtless suggests that the admission of it might fairly be expected to have led to a miscarriage of justice. I should, nevertheless, emphasise a few matters which would support the conclusion that a miscarriage resulted and that there should be a retrial on that ground alone. The admission of this evidence as to the applicant's drug addiction and his so-called motive was not merely a casual reference or a brief mention of drug-taking which might fairly have been overcome by an appropriate direction, but the issue appeared to infect the whole trial in a manner surprising having regard to its marginal relevance. The prosecution appeared to think that proof of his drug behaviour was a critical matter in establishing both motive and participation in the offences. Thus not only was the evidence led but it was elaborated in great detail, with reference to the applicant's drug habits both before and after the events, albeit that there was no evidence of a craving immediately before the robbery took place. A second statement had been prepared for Ms Nunn to sign and the second part of her evidence-in-chief was largely directed to the applicant's later behaviour and condition. The evidence having been allowed in, it was thus necessary for defence counsel to test that evidence and so it obtained an even greater prominence at the trial. In those circumstances, having regard to the conclusion already reached, I would have little difficulty in concluding that the admission of the evidence of motive did lead to a miscarriage of justice, so that ground 1B has been made out.

106. The conclusion thus expressed should lead to the applicant's success on this application and in his obtaining an order for a new trial. The other grounds relied on therefore should be dealt with only insofar as it is necessary to express some opinions which may provide guidance for that trial. Grounds 3A and 3B were also argued together[14], in which it was contended that the learned judge erred in failing to direct the jury sufficiently or at all as to corroboration and as to the application of the principles of corroboration to the facts of this case, and secondly, that he failed to direct the jury sufficiently that it would be dangerous to convict the applicant on the uncorroborated evidence of Ms Nunn.

109. Upon the assumption that Ms Nunn was a witness whose evidence required a warning as to the danger of convicting upon it unless it was corroborated, the vice of the judge's charge was not so much in a failure to explain what corroboration was but in his inappropriate use of expressions such as "virtually no corroboration" and "practically no corroboration", as well as other references to the fact that the absence of corroboration was "conceded largely" and that counsel's assertion that there was no corroboration was "to a large extent" true. The fact was that there was no corroboration, for even the evidence of the night spent by Ms Nunn and her children with the applicant at the motel was essentially self-supporting in that, although there was independent evidence of a visit to that motel by Ms Nunn, there was no evidence which confirmed or corroborated the presence of the applicant there on that night. Nor was anything said by her confirmed by any observations made of the driver of the car, for they were slight and, for what the difference was worth, the observations were not consistent with her evidence.

112. If a judge is seeking to give a warning of a kind which is essentially based on the absence of relevant confirmatory or corroborative evidence, as in the Longman and Faure warnings, then it is important that the judge makes clear to the jury what may or may not constitute the requisite confirmatory evidence. For reasons stated a number of times in the past which I shall not enumerate, I believe it is preferable not to use the words "corroboration" or "corroborative", unless that is technically required, for they are terms of art, not readily appreciated by lay jurors, and the essence of the issue in each case is whether there is material which might confirm in some relevant respect what the impugned witness has been saying in evidence. Nevertheless to suggest, even faintly, that there might have been corroborative evidence was doubly unwise. Without further elaboration the jury, as in this case, was unable to discern what the judge might have been referring to. Secondly, as stated, it suggested that there was such evidence when in fact there was none. Ms Nunn's evidence stood or fell on her own credibility and that was strongly contested. It was vital to the prosecution case and the warning was impermissibly watered down by these four hints that there was something else in the evidence which might have supported what she had said. The absence of any identification of that evidence and an appropriate direction as to how the jury might properly use it would likewise have been erroneous, if indeed there had been such confirmatory evidence.

115. I am by no means so confident about the second matter raised by counsel on these grounds. The assumption behind them was that the judge, with the acquiescence of both sides, had treated the witness as satisfying the criteria for unreliable witnesses so that her evidence required a warning to the effect that it would be dangerous to convict on her evidence alone unless, after having scrutinised it very carefully, the jury were satisfied that she was telling the truth. Undoubtedly there was much to criticise in Ms Nunn's evidence and the source of those criticisms is not hard to find. She was a jilted lover, she wanted the applicant in gaol, her recollections of the events were more than fifteen months old when she first sought to recall them and she had later again seemingly changed her mind by writing a letter asserting that the applicant was "innocent". To that might have been added her seemingly erratic answers in the course of cross-examination. Her attempts to deal with the timing of the events created more and more difficulties for her. For example, she sought to say that on the day following the robbery she had spoken to the applicant who had asked her about the ID appearing in The Courier. She had said that neither could be recognised but that ID did not appear until the following day in The Courier, so that the conversation on this subject, if it took place, must have occurred on the following day. Unfortunately, she was then by then committed to a version of events which had the applicant returning to Ballarat on Thursday 28 December. Not only that but she sought indirectly to confirm that by saying that he had stayed with her at the motel on that night because he had not wished to go to the house in Wendouree where the police might visit them. That might have been explained by an error of recollection which could have placed the conversation about the ID and the motel visit on the following day, the 29th, but unfortunately the Crown provided proof by way of a receipt that she had in fact stayed at the motel on the 28th, with whom now seems uncertain. Moreover the date given in her statement for that motel visit was the 30th, inconsistent with both versions. Furthermore she had the greatest difficulty in explaining the later affectionate letter seemingly withdrawing her allegations against the applicant. Finally, she admitted that the part of her statement, in which she said that the applicant had stated how much he had received from the robbery, was a fabrication.

118. I am, however, by no means sure that these sins of recollection and obvious defects point to the kind of unreliability which requires a judicial warning. A mere unreliability can never be the only test, for that could be said of a large number of witnesses at criminal trials: ultimately, in any event, that is a matter for the jury. Lack of confirmatory evidence when the witness is the only one to speak directly of the guilt of an accused may be a more sure starting point, if one is looking outside the categories of witness such as accomplices, informers and witnesses to events long past, for which the High Court have already laid down rules. In R. v. Miletic[15] it was suggested that the touchstone was whether a judicial warning was required because judges, by their experience, should know that particular witnesses were likely to be unreliable for reasons which were not apparent to members of the jury or for reasons which could not be fully explained to them. But the defects of this witness's evidence were more than apparent and surely did not require a judge to tell them of something which would have been apparent to the members of the jury by reason of their ordinary, everyday experiences. It ought not require a judge to tell members of the jury that a jilted lover may not always be telling the truth about a former partner. Nevertheless, perhaps because of the unusual delay brought about by these circumstances, the judge perceived it as his duty to give a warning and both parties acquiesced.

121. I do not propose to go through the warning in fact given which can be said, as was argued, to have had a number of defects. His Honour did not make clear that he was giving a warning as required by law but merely appeared to be making a comment on the evidence, a subject which he said was for the jury to determine. Nevertheless, bearing in mind that considerable flexibility exists in such circumstances and the fact that Ms Nunn's defects would have been more than apparent to the jury themselves, I have not in the end reached the conclusion that the warning was so deficient as to form the basis for setting aside the verdict. It is sufficient to say that on a retrial it should be more carefully expressed and no doubt left as to the absence of any confirmatory evidence.

124. In ground 4 the applicant complained that the judge failed properly to direct the jury as to the use that could be made of Ms Nunn's letter, particularly the expression "we both know that you are innocent". Variously it was claimed that the letter amounted to a prior inconsistent statement, so requiring a warning to that effect and secondly that a warning ought to have been given as to her reliability as a witness. As to the latter, I fail to comprehend why that was not covered by ground 3B, which has already been dealt with. As to its being a prior inconsistent statement, no doubt it was inconsistent with what she said in the witness box but the conventional directions were given as to that statement, which are essentially unfavourable to the person who uses it to the extent that it requires the jury to be told that the contents of such a statement are not evidence unless and until it is adopted by the witness. In fact the jury were told about the letter by the judge and, after a re-direction was sought on a number of matters, the judge decided that he would remind them of its contents and significance and he did so, in the course of which he said that it might "cause you to doubt the truth of her evidence", although they might decide that she was in fact truthful. There is no substance in the ground.

127. Ground 6 complained that the charge given by the judge lacked balance, giving four particulars:

(i) that the jury were directed as to the reasons for convicting on numerous occasions;

(ii) that the jury were not directed as to the only independent evidence as to the identity of the driver and that witness had said that the driver was in light coloured clothing, whereas Ms Nunn had said he was wearing a dark coloured top;

(iii) the jury were not directed sufficiently as to Ms Nunn's motives to fabricate the allegations; and

(iv) that the jury were not given a sufficient summary of the defence submissions.

I confess to thinking that there is some substance in this complaint. The judge did his best, according to his own lights, to comply with the precepts laid down in Alford v. Magee[16], so confining his directions to the matters truly in issue. Thus he quite properly omitted any discussion of the elements of armed robbery or theft, since they were never in dispute. He tried also to discuss the other evidentiary issues raised at the trial. Again, properly, he tried to avoid a recitation of the evidence by giving little more than a summary of it and then referring to a number of issues raised in the trial about that evidence. For this purpose he conceived it appropriate to omit any general summary of counsel's addresses, as frequently appear towards the end of what may be called conventional charges. This was a worthy objective, but the reality, in my opinion, fell far short of that objective in its execution. Perhaps the judge saw the unreliability of Ms Nunn's evidence as not merely crucial to the case but so obvious that it did not need repeating nor require that counsel's criticisms should again be dealt with in detail. Thus there were only a few short paragraphs in which defence counsel's criticisms were summarised in any way. Then, unfortunately, albeit no doubt in an attempt to emphasise those criticisms by giving the agreed warning, he expressed that warning imperfectly although in terms which might not otherwise have seemed unfair.

133. The difficulty is, however, that his Honour then proceeded to set out and explain prosecution counsel's arguments in support of Ms Nunn's evidence in considerably more detail and more systematically than he had chosen to summarise the defence argument. Not only that but he added a number of comments of his own which seemed to add additional weight to the prosecution arguments, in effect adding his own reasons for saying to the jury that it was unlikely that Ms Nunn had fabricated her version of events. The judge spent some four pages of transcript in this justification of the chief prosecution witness and then concluded with only a fairly peremptory repetition of the warning, in effect saying that it was a matter for the jury in the end.

136. The result was that the effect of the warning was largely watered down by the special pleading of the judge. One may give one example. He suggested (as appears to have been his own idea) that Ms Nunn could not have made the detail up of the allegations "unless there was an old Ballarat Courier lying around in March 2002". That may have been true as to the incidental parts of her version, which might be said to have been consistent with the robbery, but in fact most of the detail of Ms Nunn's account was of events personal to her and the applicant, and of their activities and those of Mr. Brown, immediately after the event which could not have come from The Courier or any other newspaper. Of course she would have to have known of the robbery, but she lived only a short distance away from the post office and no doubt it was notorious at the time. Not only that but there seems little doubt that the applicant was a friend of Mr. Brown. She may well have gathered a good deal more about the robbery from Mr. Brown even if the applicant had had nothing to do with it. The judge's explanation was over-simplified and unnecessary and almost suggested to the jury an argument along the lines: what motive would Ms Nunn have for lying about these events?

139. In their context the judge's comments were powerfully expressed and largely unfair to the defence case which had been so inadequately summarised otherwise. These claims of lack of balance are often matters of impression and one is ordinarily loath to criticise judges where the actual atmosphere of the trial has long since passed, including the nature and form of the closing addresses which precede the address. Nevertheless this seems a case where the applicant did not receive a fair trial and I would therefore have concluded, on this ground also, that there was a miscarriage of justice and that the verdicts, as claimed in the last ground, ground 7, were unsafe and unsatisfactory.

142. For these reasons I would grant the application, allow the appeal, set aside the verdicts and order that there be a new trial.

[1] [1993] VicRp 87; [1993] 2 V.R. 497.

[2] From the discussion it appears that the judge took the view that drug-taking did not evidence a propensity for committing armed robbery: but see R. v. Best [1998] 4 V.R. 603 at 608.

[3] See, e.g., Stephen: History of the Criminal Law Vol.3 p.389.

[4] De Gruchy v. The Queen [2002] HCA 33; (2002) 211 C.L.R. 85; and cf. Penney v. The Queen [1998] HCA 51; (1998) 72 A.L.J.R. 1316 and Velevski v. The Queen (2002) 76 A.L.J.R. 442.

[5] Ibid. Unfortunately this decision was not cited to the Court on this appeal, although no proposition contained in any of the judgments can be said to be critical to the arguments presented here.

[6] Note the distinction drawn in the majority judgment in De Gruchy between absence of motive and absence of proof of motive.

[8] See R. v. Hall, 18 April 1988, South Australian Court of Criminal Appeal, BC8800352 per King, C.J. at 4 and Cox, J. at 9; 142 LSJS 406 at 408, followed in R. v. Mayfield (1995) 63 S.A.S.R. 576 at 582 per Cox, J., with whom Duggan and Nyland, JJ. concurred.

[9] It is impossible to know how many people in the surrounding area at that time might have been suffering from a drug addiction so strong as to tempt them into robbing or stealing from people in order to satisfy their habit, but, even if it were only a relatively small number, the probative value of this motive for identifying the applicant as the driver must have been slight. Indeed the impossibility of knowing and identifying who would have qualified as having a similar motive emphasises the point.

[10] Even this conclusion rests on a rather uncertain inference.

[11] [1985] 4 N.S.W.L.R. 42.

[12] [1999] VSCA 27; [1999] 2 V.R. 123

[13] [2003] N.S.W. C.C.A. 321 at paras.[73]-[77] per Tobias, J.A.

[14] Ground 2, as well as ground 5, were not pursued on the hearing of the application.

[15] [1997] 1 V.R. 593.

[16] [1952] HCA 3; (1952) 85 C.L.R. 437.