R v El-Azzi

background 71 On 8 October 2002 the appellant was presented for trial on an indictment containing three counts, each alleging an offence against the Drug Misuse and Trafficking Act 1985. The final count alleged an offence against s24(2) of that Act, of knowingly take part in the manufacture of not less than the large commercial quantity of methylamphetamine. The second and third counts, brought under s26 of the same Act, each alleged conspiracy to manufacture not less than the large commercial quantity of methylamphetamine. 72 The offence the subject of count 1 was alleged to have been committed between 1 December 1995 and 31 January 1996 at Dee Why in an apartment rented by Peter Dinham and Andrew Stenz, the rental of which had been arranged by the appellant. (On this count the appellant was acquitted.) 73 The offence the subject of the second count was alleged to have been committed between 1 January 1996 and 30 April 1996, at Dooralong, on the Central Coast, in premises arranged by Damien Drew, an acquaintance of the appellant. The appellant was convicted of this offence. 74 The offence the subject of count 3 was alleged to have been committed between 1 April 1996 and 30 June 1996, at Sylvania Waters, at premises occupied by Rodney Hearne, who was a friend of Robert Proctor, himself a friend of the appellant. The appellant was convicted on this count. 75 On each of the two convictions, the appellant was sentenced to imprisonment for seven years, to commence on 26 December 2002, with a non-parole period of five years and three months. 76 The appellant now appeals against the two convictions, and seeks leave to appeal against the sentences imposed. 77 Each count involved an allegation that the appellant in some way participated in an enterprise of manufacturing methylamphetamine. Also involved, on the Crown case, in each instance, was Richard James Simpson, who was, it seems, put forward as the lynchpin of the venture. 78 Evidence was given in the trial directly implicating the appellant in each venture. Simpson was the principal Crown witness. On the prosecution case, and on his own admission, Simpson had been involved in illegal drug manufacturing from the early 1980s until 1996. He was highly experienced in the techniques. He received supplies of chemicals from a man called Craig Haeusler. Simpson met the appellant late in 1995. This was in the context of a charge (of manufacturing amphetamines) that Simpson then faced. The appellant, a former police officer, was retained by Simpson to advise and assist him in defending that charge. 79 Before giving evidence Simpson received indemnity against prosecution from the Attorney-General of NSW. That indemnity does not appear to have gone into evidence, and the extent of the indemnity, its precise terms and the offences to which it related, are not clear on the evidence. In any event, Simpson gave evidence that, having pleaded guilty to an (unidentified) offence, his sentence was reduced by 20% as a consequence of his undertaking to give evidence against the appellant. 80 Simpson gave evidence of a developing friendship between himself and the appellant during the preparation for and the course of the trial in which the appellant assisted and advised him. Simpson said that the appellant had expressed interest in learning how to manufacture drugs and had offered a partnership in which his contribution would be an understanding of police and police surveillance techniques, and the provision of protection against exploitation. As a consequence they agreed to form a partnership in which they would divide the proceeds of manufacture, after allocating a share to Haeusler in return for his supplying the raw materials. Simpson's trial began in about February 1996. The first task allocated to the appellant was to locate suitable venues for the manufacture. 81 Simpson gave evidence that the appellant secured the premises at Dee Why, located and purchased chemicals, artefacts and other items required for the manufacture, gave assistance in the manufacturing process itself, transported Simpson to and from the premises, and instructed Simpson in anti-surveillance techniques in order to avoid detection. He gave detailed evidence, which it is unnecessary here to recount, of the manufacturing enterprise at Dee Why. This included evidence of the appellant's presence, on more than one occasion, at the Dee Why apartment, and of his participation in what was referred to as "the cook". 82 Simpson also gave evidence concerning the Dooralong allegations. He said that he first went to the Dooralong address with the appellant in the beginning of 1996. From February 1996, while Simpson was on trial in the Downing Centre District Court on the charge mentioned above, and the appellant had been assisting him, the two men had regular contact for the dual purposes of Simpson's defence and the pursuit of their then current manufacturing venture. During that time Simpson was given the opportunity of obtaining chemicals that would enable him to manufacture a batch of amphetamine. The appellant undertook to locate suitable premises for that purpose. He did so with the assistance of Damien Drew. This was a country house in Dooralong. Simpson gave evidence of the drug manufacturing process there, of the appellant's presence there and of his involvement in the organisation. 83 Police raided the Dooralong premises on 15 April 1996. Neither the appellant nor Simpson was present at the time. 84 Simpson also gave evidence about the Sylvania Waters allegations. He said that he and appellant went to those premises, on the recommendation of a friend of his (Simpson's), and discussed with the occupier (Hearne) the use of the premises for the processing of methylamphetamine. He gave evidence that the appellant arranged for raw materials and equipment to be delivered to Sylvania Waters. 85 Other witnesses gave evidence implicating the appellant in each of the manufactures. A number of these witnesses were, like Simpson, individuals who had themselves been involved in one or more of the three manufactures. For example, Ken Knight and Georgina Phillips, both of whom participated in the Dee Why manufacture, gave evidence of having seen the appellant at those premises, while manufacturing was in process. (Knight agreed, in cross-examination, that he had not seen the appellant do anything in relation to the processing. The evidence of his presence was, however, of added significance because the appellant denied ever having been to the Dee Why address.) These witnesses also gave evidence of having seen the appellant at Dooralong, Phillips of having observed the appellant with Simpson, setting up the process in a shower recess. (In cross-examination, Phillips agreed that she may have been mistaken in saying that the appellant was present when Simpson set up a reaction flask.) Kathleen Simpson gave evidence of the appellant's presence at Dee Why and Sylvania, and of conversations between the appellant and Simpson about the organisation of the enterprise, and the manufacturing process. 86 Besides Simpson, six witnesses were in receipt of indemnities against prosecution from the Attorney-General of NSW in respect of their involvement in drug manufacturing. As with Simpson, neither the full extent of, nor the terms of the indemnities was disclosed on the appeal. 87 There was also evidence from another man, Arthur Launt. Launt had given evidence in committal proceedings, but had died before the trial. Two statements were (in part) read to the jury, as was part of the transcript of his cross-examination at the committal proceedings. The most significant aspect of Launt's evidence was that he had been a supplier of chemicals for illegal drug manufacture, but that he had adulterated the chemicals, either by adding water or by substituting one chemical for another. The consequence of the adulteration was that any attempt to manufacture methylamphetamine from raw materials supplied by Launt would fail. The materials were not capable of producing the drug. In an interview with Detective Inspector Willingham, Launt identified chemicals seized at the Sylvania Waters premises as having originated from his property in Queensland. 88 There was also evidence of police officers who had, for some time, maintained surveillance of Simpson and the appellant. This related only to the Sylvania Waters charge. On 13 June 1996 police entered the Sylvania Waters premises. Simpson and the appellant were present. They were arrested. There was evidence of some conversation overheard between the appellant and others prior to their arrest. This conversation was incriminatory. There was also evidence of police having observed the appellant actively involved in the manufacturing process. 89 The appellant gave and called evidence. The defence case was, essentially, a denial of complicity in any of the manufactures. He confirmed his association with Simpson in the context of Simpson's trial and his providing assistance from the vantage point of being a former police officer. He denied any discussion of drug manufacture at any location. He denied having been either to the Dee Why or the Dooralong premises. He claimed that 13 June 1996, when he was arrested at Sylvania Waters, was the first time he had been at those premises and that he had been there only for twenty minutes or half an hour. He said he had agreed to drive Simpson there so he could collect some materials Simpson needed for the trial which was still proceeding. 90 It is unnecessary here to refer further to the evidence of the witnesses called in the appellant's case.

ground 1: separation of counts 91 Ground 1 consists of three components. As finally presented, the ground was framed as follows: "Ground 1(A) His Honour erred in not ordering a separate trial of the first count on the indictment.

Ground 1(B) His Honour erred in ordering that the evidence in each count was admissible in respect of the other two counts pursuant to s98 Evidence Act as coincidence evidence.

Ground 1(C) Further, his Honour did not give sufficient instructions to the jury in the summing-up when directing them to consider the three charges separately, and did not properly identify or segregate the admissible evidence in respect of each count." 92 Initially it was contended that each count ought to have been the subject of a separate indictment and separate trial. That position was abandoned. What was ultimately pressed on appeal was that there ought to have been two trials, the first a trial of the first count alone, and the second a joint trial of counts 2 and 3. 93 The Crown proposed to present an indictment charging the appellant with all three counts. On or about 26 September 2002 counsel for the appellant sought an order that each count be tried separately from the others - that is, for an order that three trials take place. On the same day Armitage DCJ rejected the application. It seems that an earlier application in similar terms had been made to and rejected by Stewart ADCJ in 2001 and early 2002. In giving reasons for rejecting the application before him Armitage DCJ noted that the evidence before him was, by consent, the evidence given in the application before Stewart ADCJ. That evidence was not put before this Court. 94 Armitage DCJ gave reasons for his decision to refuse the application. He recorded the submissions by the parties to him. It seems that the Crown proposed to proceed on a joint trial of the three counts on the basis that it proposed to rely upon evidence specifically relevant to any individual count in support of each other count. In doing so, the Crown relied upon s98 of the Evidence Act 1995. S98 is relevantly in the following terms: "(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) ... (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar.

(3) ..." 95 Counsel then appearing for the appellant argued that the events the subject of the charges were not "related events" in that they were not substantially and relevantly similar, and the circumstances in which they occurred were not substantially similar. His Honour rejected that submission and held that the events were plainly "related events". He accepted that the evidence to be led by the Crown did amount to coincidence evidence within the terms of s98, and that the probative value of the evidence substantially outweighed any prejudicial effect it may have had upon the appellant. In doing this he reminded himself of s101 of the Evidence Act which relevantly provides as follows: "101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) ... coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

His Honour also referred to s137 of the Evidence Act . 96 His Honour referred to an argument put to him concerning the possibility of collusion between the various witnesses. He referred to the decision of the High Court in Hoch v The Queen [1988] HCA 50; 165 CLR 292. 97 He rejected the proposition that the evidence challenged should be seen as the product of collusion. He then held that "the other matters" relied upon by the Crown in support of joint trials were sufficient to entitle the Crown to a joint trial of all three counts. 98 As I have indicated above, the ground of appeal finally advanced challenged the decision to refuse the application for a separate trial of count 1. In my opinion that ground is properly construed as asserting error in the decision at the time at, and in the circumstances in, which it was made. It is for that reason that I have commented on the absence of the evidentiary material that was before Armitage DCJ. It is impossible to assess the correctness of the decision without that evidence. However, the appellant's submissions on this ground were directed to, and drew support from, what took place in the trial. I will return to this. 99 Notwithstanding his Honour's stated view on 26 September that the evidence tendered by the Crown could be used as coincidence evidence within the meaning of s98, at the conclusion of the trial (which continued over a more than two month period) when he came to summing up to the jury, he declined to give any directions in accordance with that earlier conclusion. 100 This gave rise to a factual dispute on the appeal. The transcript records: "As far as I am concerned Mr Crown, I don't know whether you intend leading coincidence evidence for the jury ..."

He then went on to discuss circumstantial evidence. 101 Counsel for the appellant submits that this represents a transcription error, and the transcript should read: "As far as I am concerned Mr Crown, I won't allow you to lead/argue coincidence evidence for the jury ..."

The Crown disputes this. 102 In the course of the discussion with counsel about circumstantial evidence, his Honour said: "For example, I formed the view in relation to coincidence evidence, and you, Mr Waterstreet [trial counsel for the appellant], want me to direct on matters which are to be looked at completely independently ..."

This does not assist in the determination of the accuracy of the earlier quoted transcript. 103 To the extent that it is necessary to do so, I think this issue must be resolved, in favour of the appellant's proposed version, by reference to an affidavit sworn by the solicitor, Mr King, who represented the appellant both at trial and on appeal. Mr King deposed that he was present in the court during most days of the trial, including 16 December when the disputed remark was made. He deposed to a specific recollection of hearing Armitage DCJ saying to the Crown Prosecutor: "I won't be letting you put coincidence evidence to the jury"

or words to that effect. 104 Mr King supported this recollection by reference to other circumstances, including the fact that use of coincidence evidence had been the subject of competing submissions made by the Crown and defence counsel. On balance, I think Mr King's recollection should be accepted as accurate. He was not required for cross-examination, and the accuracy of his recollections was not challenged. 105 In any event, neither the Crown, in his closing address, nor the trial judge in his summing up, adverted to coincidence evidence and I would infer from this that, whatever was said in that part of the discussion as to which the transcript is disputed, Armitage DCJ had, by the end of the trial, taken a different view of the availability of evidence to be used as permitted by s98. In taking this course he acceded to the submission of counsel for the appellant, who strenuously opposed any direction on coincidence evidence being given to the jury. * * * 106 In the judgment of 26 September, Armitage DCJ identified six features of the evidence on which the Crown relied as coincidence evidence. These were: "1. In each case there was an agreement that Haeusler supply Simpson with the raw materials. 2. In each case Simpson was to use his expertise to produce methylamphetamine and Haeusler was to take a share of the product; the balance was to be shared between Simpson and others who were accomplices. 3. In each case the premises used for 'the cook' were bathrooms in residential premises and in each case those premises were leased or occupied by a friend or acquaintance of the accused or Simpson. 4. In each case Simpson was the cook. 5. In each case the accused assisted the enterprise by arranging the premises to be used, by helping to transport chemicals and equipment, by being present and helping to supervise 'the cook' on site and by advising Simpson on anti-surveillance techniques. 6. In each case the method of manufacture was a heating process and in each case it was substantially the same." 107 His Honour also noted that the Crown relied upon other matters in support of his contention that all three counts should be tried together. These were:

(i) "the obvious similarity of circumstances alleged";

(ii) "the time span over which the offences were alleged to have been committed, that is of a period of six or seven months";

(iii) "that 'a significant evidentiary overlap' existed between the three counts". 108 His Honour then referred to a number of witnesses who would give evidence in relation to all counts (such as Simpson) or to two of the three counts. 109 On appeal, counsel for the appellant has taken issue with certain of the factual matters upon which Armitage DCJ relied. I do not find it necessary to resolve the question of any factual error in his Honour's approach to the question of separate trials. Although, as is common ground, the availability of coincidence evidence was a significant basis for his Honour's rejection of the appellant's separate trials application, at the close of the evidence he determined that he would not permit coincidence reasoning to be put to the jury. Coincidence evidence was not, ultimately, an issue. 110 No complaint was made in this Court that his Honour did not direct the jury against coincidence reasoning: nor could it, counsel for the appellant at the trial having strenuously resisted any such direction being given to the jury. Of course, it was open to counsel to seek an explicit direction cautioning against coincidence reasoning. This counsel did not do, no doubt for considered reasons. 111 At the time of the trial s64 of the Criminal Procedure Act provided as follows: "64 Orders for amendment of indictment, separate trial and postponement of trial ... (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. ..."

This provision has been renumbered as s21(2) but is otherwise in identical terms. 112 S29 of the Criminal Procedure Act now provides further for an order for separate trials, but it was not in force at the time Armitage DCJ made his decision. I see no error in the approach taken by Armitage DCJ at the time the application was made and decided. No real argument was directed to the correctness or otherwise of the decision at the time it was made. 113 As I have mentioned above, the argument on this ground proceeded on the basis, not of the evidence that was before his Honour at the time he made the decision, but of the evidence as it emerged in the trial. The ground was advanced, not as one focussing upon error in the decision at the time it was made, but as one to the effect that the trial subsequently miscarried by reason of the refusal to order separate trials. 114 In support of this ground counsel argued, in written submissions, that no common factual origin in the three counts existed. This they sought to support by noting that the first count represented a statutory offence, and the second and third counts separate and distinct conspiracies with different participants, premises and methods. 115 I would reject the argument. The Crown allegations were that the appellant became involved in the drug manufacturing business as a result of his association with Simpson. That alone is sufficient common factual origin. That count 1 represented a statutory offence and the other counts conspiracies makes not the slightest difference. There were many additional common elements. 116 There was a great deal of evidence common to two or more counts in the indictment. The jury was properly directed of the need to consider each count separately. In my opinion no miscarriage of justice has been seen to arise as a result of the trial judge's decision to refuse the separate trials application. If further support for this conclusion were needed, it is to be found in the acquittal of the appellant on the first count. This demonstrates, to my mind conclusively, that the jury properly approached the task committed to them.

ground 1(B) 117 There is little more to be said about this ground, the issue of coincidence evidence having evaporated by the end of the trial. I should, however, mention one argument that was advanced on behalf of the appellant. This arose out of the decision of the High Court in Hoch. Hoch was relied upon as authority for the proposition that the possibility of concoction among witnesses constituted a basis for the separation of trials; on that basis, it was argued, separate trials should have been ordered because of the opportunity that plainly existed for the indemnified witnesses to collaborate and produce a consistent story. What this submission overlooks is that the possibility of concoction referred to in Hoch was the possibility of concoction among complainants - that is, the initiators of the charges faced by the accused person. To my knowledge it has never been the case that the possibility of concoction amongst other witnesses is a potential basis for an order for separate trials. The possibility of concoction, where it exists, remains present whether the evidence is given in separate trials or a joint trial. 118 It is of some importance to focus upon what emerged as the real factual issues in this trial. A great deal was not in dispute. It was not in dispute, for example, that Simpson was involved in the manufacture, or attempted manufacture, of amphetamines at the three laboratories. It was not in dispute that Knight and Phillips assisted in the process at Dee Why and at Dooralong. The significant factual matter that was in dispute was simply whether the appellant was involved in any one or more of the manufacturing enterprises. Resolution of that factual dispute did not depend upon coincidence evidence, but upon the direct evidence of Simpson and the other indemnified witnesses. Some further evidence ("circumstantial evidence") was called in which it was suggested the jury might draw inferences supportive of the direct evidence. 119 The decision in Hoch was, fundamentally, a decision about the admissibility of what was then called similar fact evidence. The possibility of concoction there considered went to the probative value, as assessed by the trial judge, of that evidence. In this case, the possibility of concoction was relevant, but it was possible concoction amongst direct evidence witnesses, not "similar fact" (or coincidence) evidence witnesses. 120 As I have said earlier, it is unnecessary to consider further whether Armitage DCJ was in error at the outset of the trial in refusing the application on the basis that the evidence in each count would be admissible in respect of each other count as coincidence evidence, since he acceded to the submission by counsel for the appellant that no coincidence reasoning direction should be given. The question for determination is whether any miscarriage of justice has been shown to have resulted from the refusal. In my opinion it has not.

ground 1(C) 121 By ground 1(C) complaint is made of the directions given to the jury; specifically, it is asserted that the directions did not sufficiently identify the evidence relative to each individual count. At the outset - p1 - of the summing up his Honour said: "I emphasise that there are three separate charges and that it is your duty to weigh up the evidence in respect of each of those charges quite separately. In effect, those three charges are being dealt with together as a matter of convenience. They are completely and utterly separate charges and you must weigh up the evidence in respect of the charges. Obviously, in due course, you will be required to return a separate verdict in respect of each of those charges." 122 Later - much later - in the context of reminding the jury of the arguments that had been put to them by the Crown Prosecutor, his Honour made detailed reference to what had been said by him in relation to the evidence going to each count. 123 His Honour gave a careful direction to the jury about the caution with which they should treat Simpson's evidence. This was done particularly in the context of count 1 as to which, his Honour said, Simpson was the only witness who could depose to the identity of the substance being manufactured. 124 A little later his Honour said: "In this case the Crown seeks to prove the participation of the accused by the direct evidence of Mr Simpson and Gina Phillips, that is in relation to Dooralong. I will remind you later of what that evidence is. In relation to Sylvania Waters, the Crown relies on the direct evidence of Mr Simpson, Kathleen Simpson, formerly Ingall, and the police evidence as to the events of the evening of 13 June 1996. In relation to both conspiracy charges, the Crown relies on inferences to be drawn from the surveillance evidence and the telephone intercepts ..."

It was accepted on appeal that the evidence of surveillance and telephone intercepts related only to the Sylvania Waters count. His Honour was therefore in error to the extent that he thought the surveillance and telephone intercept evidence also related to Dooralong. 125 As I have noted, Armitage DCJ concisely summed up the Crown submissions as to the evidence relevant to each count. The Crown's address, which has been transcribed, was in fact very detailed as to this, and extends, on this issue, over a number of pages of transcript. In this case, it was sufficient, in my view, for his Honour to endorse, as he did, the manner in which the Crown had identified the evidence relevant to each count. This is not one of those aspects of a summing up, such as a direction of law or a matter of caution, in which the authority of the court is required to be put behind the proposition stated, and it is insufficient for a judge merely to restate arguments that have been put by one counsel or the other. What the jury needed was to be reminded of the evidence relevant to each count. This jury was so reminded. 126 A specific complaint was made that no direction was given in terms outlined in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82. The reference is to a proposed direction, in a trial involving multiple counts, as to caution that might be exercised by a jury in the event that they doubt the credibility of a witness sufficiently to acquit the accused in relation to one count, on the remaining counts. The specific passages in Markuleski on which reliance was placed are to be found at [186], [257] - [266], and [279]. 127 The reliance on Markuleski is misplaced. Markuleski is concerned with the trial of multiple counts where, to use the words of the Chief Justice at [186], the case is one of "word against word". Although, in the present appeal, issues about corroboration have been raised (to which it will be necessary to come) given the number of witnesses who were to be regarded as "accomplices", this was certainly not a case of "word against word". 128 On the appellant's argument, the asserted inadequacies in the directions had an unfair consequence upon the trial in a number of respects. Counsel pointed, for example, to a submission made to the trial judge on behalf of the appellant that, in relation to count 2, concerning the Dooralong premises, there was no evidence involving the appellant in manufacturing other than that of Simpson; and argued that the absence of a direction by the judge isolating the relevant evidence on each count: "did not enable the jury to consider the arguments and submissions advanced on behalf of the appellant." 129 Two responses might be made to this. Firstly, the factual basis for the submission is incorrect. Phillips gave evidence of seeing the appellant, with Simpson, setting up the process in the shower recess, and of hearing Knight speaking to the appellant, Simpson and Drew about a problem in the process (although she agreed in cross-examination that she may have been mistaken about the former assertion). Further, as the Crown pointed out in its written submissions, there was a good deal of evidence showing the appellant's presence at Dooralong on several occasions, and of the circumstance that the premises were occupied by an acquaintance of the appellant. Secondly, it does not follow that, even if the judge had not isolated the relevant evidence on each count, the jury were unable to consider the arguments and submissions advanced on behalf of the appellant. 130 A criminal trial involves the interaction of a number of parties, including Crown and defence counsel and the judge. It is not necessary for the judge to repeat everything that has been put to the jury by either counsel. Juries can be and are trusted to consider the arguments put to them by counsel. That is the essence of the process on which the criminal justice system has relied for generations. Armitage DCJ was at pains to remind the jury, and did so comprehensively, of the arguments put to them by counsel. 131 A further matter to which counsel for the appellant referred concerned an asserted misdirection as to the evidence supporting the two conspiracy counts. The particular complaint concerned the passage in the summing up as follows: "... The Crown seeks to prove the agreement, or the nature of the agreement, by direct evidence from Mr Simpson, and also by inferences from the evidence of Kim Knight, Georgina Phillips, Kathleen Simpson (formerly Ingall), Robert Proctor and also the telephone intercepts." 132 This, it was contended, was in error in that two of the witnesses named (Proctor and Kathleen Simpson) gave no evidence as to count 2, and two (Knight and Phillips) gave no evidence as to count 3; and the telephone intercepts related only to the Sylvania Waters charge. The direction, it was argued, was capable of confusing the jury by leading them to believe that they could use evidence generally to support inferences of agreement. 133 If the passage stood alone, there may be some substance to the appellant's complaint. However, on the very next page of the transcript of the summing up, the trial judge is recorded as having referred to the direct evidence relating to Dooralong and Sylvania Waters. The complaint is, accordingly, without foundation. 134 Another complaint made under this head, although seemingly only peripherally related to it when regard is had to the terms in which it is framed, concerned a direction given, at the request of counsel for the appellant, on circumstantial evidence. In order to give the directions sought, the trial judge obtained from the Crown Prosecutor a list of items of circumstantial evidence on which the Crown relied. The Crown Prosecutor provided to the judge a list. The judge, in effect, adopted the list and read it to the jury. The list consisted of items such as the appellant's contact with a rented motor vehicle, the surveillance officers' observations of the appellant and nobody else driving this vehicle, the content of conversations between the appellant and another man which were the subject of interception and a white drum found at the house of another person. His Honour then said: "In addition to those three matters, as circumstantial evidence the Crown relies upon the accused's contact with Peter Dinham, Pauline Dinham, Damien Drew and Tony Brizzi." 135 The complaint now made is that, in giving the jury these directions, the trial judge failed to identify to which count each matter related, and ran together evidence relevant only in relation to one count or another without differentiation. In respect of the white drum to which his Honour referred, he did in fact note that that drum was connected with the third count; but otherwise what is said on behalf of the appellant is substantially correct. 136 One thing that makes this ground difficult for the appellant is that, two days before the direction was given, the Crown Prosecutor had handed his proposed list to the judge, who read it onto the transcript for the benefit of counsel for the appellant. Neither then, nor in the following two days, did counsel for the appellant complain that to direct the jury in accordance with the Crown Prosecutor's suggestions would be confusing or misleading. 137 Just why his Honour was persuaded to give any direction concerning circumstantial evidence is not apparent. This was not primarily a circumstantial evidence case. The principal evidence, and there was a great bulk of it, was direct evidence of various aspects of the appellant's involvement in each of the drug manufactures. There is a distinction between a trial that depends entirely or substantially upon circumstantial evidence, and a trial in which inferences might be sought to be drawn from pieces of evidence of themselves not probative of any issue. It is true, of course, that by the second and third counts the appellant was charged with conspiracy and this entailed the drawing of inferences about his state of mind (bearing in mind that Simpson gave detailed evidence of actual agreements) but the evidence of what the appellant did by way of participation and furtherance of the conspiracy was largely direct evidence. When the matter was raised by his Honour, counsel for the appellant submitted that, for example, the surveillance evidence: "... must be circumstantial in a conspiracy case such as this, namely, that it is a circumstance that leads to the inference of agreement, not to the inference of the fact of the sighting or whatever the matter be."

He went on to submit that such circumstances had to be proved beyond reasonable doubt. 138 In Shepherd v The Queen [1990] HCA 56; 170 CLR 573 the High Court clarified a misunderstanding about the directions required in a criminal trial that depends upon circumstantial evidence. It recognised that, in some cases, "an indispensable intermediate step" is required before guilt can be inferred beyond reasonable doubt. Such a fact must itself be proved beyond reasonable doubt. There is no such fact here; as I have said the Crown case depended primarily upon direct evidence supported by indirect evidence from which the Crown sought to have inferences drawn. 139 In my opinion, the jury could not have been confused about the evidence that was called circumstantial. Although his Honour was, in another place, in error in suggesting that the surveillance evidence was relevant to count 2, it was clearly only relevant to count 3. There was no suggestion in the evidence that there had been any surveillance at Dooralong or Dee Why. The same applies to telephone intercept evidence. 140 The diversion into circumstantial evidence considerations was, in my view, a red herring, but one which occupied a miniscule part in the overall trial and summing up and could not be thought to have given rise to any miscarriage of justice. I would reject this ground of appeal.

ground 2: evidence of Arthur Launt 141 Ground 2 is concerned with the admission of evidence of Arthur Launt. Launt had, from Queensland, provided chemicals for drug manufacturing. When he was interviewed by police he gave induced statements on 1 August 1998, and 17 November 1998. He was interviewed by police on 3 September 1998, and this interview was recorded on video tape. He gave evidence in committal proceedings against the appellant in 1999. He died before the appellant's trial commenced. 142 After hearing argument, Armitage DCJ permitted the Crown to read onto the trial record parts of the statements of 1 August and 17 December, and relevant portions of his cross-examination in the committal proceedings. The videotape of the interview of 3 September 1998 was played to the jury. 143 Ground 2, like ground 1, is a composite of three matters. It is as well to set them out. They are: "Ground 2(A) His Honour erred in failing to exclude the evidence of the late Arthur Launt pursuant to ss65, 135 or 137 Evidence Act

Ground 2(B) Alternatively, his Honour erred in failing to exclude parts of the evidence of the late Arthur Launt ...

Ground 2(C) His Honour instructed the jury that the evidence of the late Arthur Launt had ' some significance' but failed to properly instruct them concerning his unreliability pursuant to s165 Evidence Act ..."

grounds 2(A) and 2(B) 144 These grounds can be dealt with together. 145 The Crown gave notice of its intention to tender the statements of 1 August and 17 December 1998, relying on s65 of the Evidence Act, which relevantly provides as follows: "65 Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it.

(9) ... " 146 As was the case in relation to the application for separate trials, a similar issue had arisen earlier in 2002 and was dealt with by Stewart ADCJ. Again, in ruling upon the admissibility of the evidence, Armitage DCJ noted that the evidence before him was, by consent, the evidence given before Stewart ADCJ. Notwithstanding this, that evidence was not placed before this Court. This Court has had access to the judgment of Stewart ADCJ of 25 January 2002, and the transcripts of the evidence. His Honour held that parts of the statements were admissible under s65(2)(c) and (d) but not s65(2) (a) or (b). It appears that he ruled in this way over the contrary submission of then counsel for the appellant. He also rejected an argument that the evidence should be excluded under either s135 or s137 of the Evidence Act. 147 Before Armitage DCJ the issue appears to have been approached differently. The first attack made upon the admissibility of the evidence, as recorded by Armitage DCJ in his judgment, was on the ground of relevance. His Honour also recorded a submission that the evidence should be rejected in accordance with s137 of the Evidence Act. Armitage DCJ held that the evidence was admissible under s65: "for the purposes stated by the Crown Prosecutor"

and added: "It was not suggested by Mr McGrath [who apparently appeared for the appellant on this application] that if I rejected his submissions as to why the challenged evidence would be excluded, I should nevertheless exclude it on the basis that it did not come within s65(2)(c) or s65(2)(d)." 148 His Honour declared his concurrence in the analysis of Stewart ADCJ and his Honour's conclusion and stated that he could: "... detect no reason why I should reject it pursuant to s137." 149 In written submissions counsel for the appellant complained of a number of aspects of Armitage DCJ's judgment. These were put as:

(i) that Mr Launt was an indemnified witness, but that neither judge (i.e. Armitage DCJ, and Stewart ADCJ) alluded to the fact that he had been indemnified, or to the consequent unreliability of his statements.

(ii) that Launt, when giving evidence at committal, received a certificate under s128 of the Evidence Act ;

(iii) that Launt had not finally been dealt with at the time of giving evidence in the committal proceedings;

(v) "the inability of the defence to properly cross-examine [Launt] at committal";

(vi) "the bizarre preparation of Mr Launt's statements";

(vii) "the prejudice of the evidence". 150 The factual assertion contained in the first complaint is untenable. Stewart ADCJ said: "These representations were made in a series of induced statements. Launt was aware that he could not be prosecuted for what he said and, according to [the police officer through whom Launt's statements were tendered], Launt was well aware, having been made aware by [the police officer], that he was required to tell the truth because, if he did not, he would be in serious trouble. This is acknowledged in the preamble, at least on the face of it, in at least some of the statement." 151 In each of Launt's statements that were ultimately read, the first paragraph is in the following terms: "I am making this statement after a promise held out to me by Detective Inspector Michael Drury and Detective Sergeant Paul Willingham that no information given in this will be used in any criminal proceedings against me in any court of law of New South Wales except in respect of the falsity of my statement or for the purpose of establishing falsity of evidence given by me as a witness." 152 Thus, Stewart ADCJ, whose reasons Armitage DCJ adopted, expressly alluded to Launt's indemnified status, and the fact of the indemnity was plain on the face of the statements tendered. 153 As to the second matter of complaint, concerning the s128 certificate, it is true that neither judge expressly referred to it. However, that certificate adds nothing to the indemnities which were known to their Honours. 154 As to the third matter, it was asserted in written submissions that Launt was sentenced on 17 August 1999 after giving evidence in the committal proceedings involving the appellant. The argument appears to be that the incentive for Launt to give fabricated evidence was so great as to render it suspect so that it should not have been admitted. 155 In relation to Launt's asserted "admitted unreliability" and the lack of opportunity of defence counsel to cross-examine him, it was stated that: "Mr Launt was not available at committal for general cross-examination by the appellant's counsel ..." 156 The committal transcript does not suggest at all that any restriction was placed upon the cross-examination of Launt. Counsel for the Crown on appeal has conceded that there may have been some such restriction. He did this by reference to a passage in the judgment of Stewart ADCJ. The passage reads: "At the Local Court the whole of the statement of 17 December was apparently tendered but the Magistrate rejected some parts. Cross-examination was conducted in relation to some parts of that statement on behalf of the accused by counsel then appearing for him ... It is quite vague which parts were allowed and which were not and no real attempt was made by the Prosecutor to make it clear." 157 I am not satisfied that the concession made by the Crown was properly made. I do not read that passage in the judgment of Stewart ADCJ as denoting any restriction on cross-examination of Launt by counsel: I read the reference to "which parts were allowed and which were not" as relating back to the observation that some parts of the statements had been rejected. 158 As to the characterisation of the preparation of Launt's statements as "bizarre", and of his evidence as prejudicial, it seems that the major complaint made in this respect is that, in admitting the evidence, Armitage DCJ regarded it as part of the coincidence evidence - a notion on which he later turned his back. Indeed, Launt's evidence may well have been seen as powerful coincidence evidence - it was his evidence that established that the chemicals provided for the operations at Dooralong and Sylvania Waters had been adulterated, rendering achievement of the purpose of the conspiracies impossible: but, in the process, showing a connection between the two that tended to exclude coincidence. 159 It is unfair to say that Armitage DCJ failed to have regard to the prejudice of the evidence. His Honour said: "This prejudice arises, in Mr McGrath's submission, because of the impossibility of cross-examining Mr Launt about that purported identification." 160 He then outlined in some detail the basis on which the Crown sought to tender the evidence. The trouble for the appellant is that his Honour also found the evidence was "highly probative" and saw, with one reservation, no reason to reject it under s137. The reservation concerned identification made by Launt. His Honour held that there was no danger of unfair prejudice. 161 As to Launt's reliability, counsel for the appellant relied upon a number of passages of evidence given by Detective Inspector Willingham in the proceedings before Stewart ADCJ. Launt had been an informant of both NSW and Queensland police but, it appeared, an unsatisfactory one. Detective Inspector Willingham described him as "uncontrollable". It was also put that Queensland police regarded Launt as "unreliable"; however, this has to be seen in the terms of the evidence given by Inspector Willingham which was that NSW police had terminated one investigation in which Launt had been involved, and one of the main reasons for this was Luant's unreliability. However, Inspector Willingham went on to say that that unreliability was: "... as far as following instructions in a controlled operation environment." 162 It is unnecessary to go on with the complaints made about Launt's reliability. It was open to counsel to put all this to Inspector Willingham at the trial, and, indeed, he did so. Inspector Willingham was asked if he was aware that Launt "was a very reliable informer" to which he replied: "Very difficult to manage, yes."

He agreed that Launt was "a very strange customer", and that he had been "an induced witness". 163 There could be no doubt that doubts about Launt's reliability and veracity were before the jury. 164 In oral argument an additional criticism was made of the judgment. That concerned this passage: "It was not submitted by Mr McGrath that if I rejected his submissions as to why the challenged evidence should be excluded, I should nevertheless exclude it on the basis that it did not come within 62(2)(c) or 65(2)(d)." 165 Counsel for the appellant argued that this was incorrect and that such a submission had been made to Stewart ADCJ. That may be so. But the observation made by Armitage DCJ at the outset of his judgment was that the evidence before him was the evidence given before Judge Stewart. There is no reason to believe that counsel also sought to rely on the argument before Stewart ADCJ and the fact that fresh argument was put before Armitage DCJ in relation to other matters suggests to the contrary. 166 I would reject grounds 2(A) and 2(B).

ground 2(C) 167 By this ground complaint is made that Armitage DCJ failed properly to instruct the jury, in accordance with s165 of the Evidence Act, concerning the asserted unreliability of Launt's evidence, given by the reading of his statement. 168 This ground has been fully dealt with in a general ground raising s165 under ground 7. 169 It is, however, necessary to mention specific complaint made under this ground. Counsel submitted that: "The failure to mention the experience of the courts in dealing with accomplices was crucial in the case of Mr Launt because his statement was unable to be the subject of any real testing." 170 As the reasons given for rejecting ground 7 make abundantly plain, the direction given concerning witnesses criminally involved in the offence giving rise to the charges was adequately dealt with in the summing up; the second part of the complaint now made, that Launt's statement was unable to be the subject of any real testing, simply disregards the specific passage in the summing up in which it was pointed out to the jury that the defence was at a significant disadvantage because of the absence of cross-examination. 171 In addition, the judge directed the jury that his evidence had been given in a Local Court and was given before he was sentenced: it was pointed out that this created incentive for him to say what he thought would suit prosecuting authorities. This direction was said to be "out of context". 172 There is absolutely no merit in this complaint. The directions given in relation to Launt's evidence were complete, detailed and accurate. I would reject ground 2(C).

Ground 5: cross-examination of the appellant in relation to a criminal conviction 173 What follows are my reasons for concurring in the conclusion of Sperling J in relation to that part of ground 5 which concerns the leave given to the prosecution to cross-examine the appellant in relation to the prior criminal conviction for corruption. 174 I should note that I agree with Sperling J that the cross-examination of the appellant concerning the two departmental disciplinary matters ought not to have been permitted. It had no probative value whatsoever, and was, as Sperling J has characterised it, "utterly irrelevant" to the applicant's credibility. I also agree with Sperling J that no harm was done by the permitted cross-examination in relation to threats alleged to have been made by the appellant to Simpson and Ingalls. I agree that, in relation to the evidence concerning the disciplinary matters, no substantial miscarriage of justice could have been caused by the admission of the evidence, and that the proviso to s6 of the Criminal Appeal Act 1912 should be applied. 175 I take a different approach, but leading to the same result, to Sperling J, however, in relation to the cross-examination that elicited from the appellant an admission of a previous conviction for a corruption offence. My analysis is as follows. 176 At the conclusion of the Crown case the Crown Prosecutor sought leave, pursuant to s104(2) of the Evidence Act to cross-examine the appellant about a series of matters that were acknowledged to be relevant only because they were relevant to his credibility. On 6 December 2002 Armitage DCJ gave leave in relation to the four matters identified in ground 5, and set out in the judgment of Sperling J. Armitage DCJ rejected the leave sought in relation to certain other matters, to which it is not necessary to go. Armitage DCJ published two judgments on 6 December, which should, in my opinion, be read together. In the first he dealt at some length with the principles applicable to the determination of such an application, and ruled on most of the matters in respect to which the Crown had sought leave. The second judgment appears to have been made necessary as the result of a misunderstanding or oversight and dealt only with the matter the subject of the present ground, which had not been included in the first judgment: that is, the appellant's prior criminal conviction. 177 As is evident from the fact that the application was made under s104(2), the evidence was, and could have been (and it was so acknowledged) relevant in respect of no issue other than the appellant's credibility. It was therefore made inadmissible by s102, unless, in accordance with s103(1), it was held to have "substantial probative value", and, under s104(2), leave was given to the prosecution to cross-examine the appellant on that subject matter, such leave to be given in the light of the s192 considerations. I emphasise the conjunction in the previous sentence: for the Crown to be entitled to cross-examine the appellant on this subject matter, it was necessary that it get over two hurdles, the first that created by s103(1) and the second that created by s104(2). In my opinion, rather than being the subject of separate determination, ss135(a) and 137, on which reliance was also placed, raised considerations relevant to the grant of leave: that is, if, in terms of s135(a), the trial judge were of the view that the evidence would be unfairly prejudicial to such an extent as to outweigh its probative value, then leave under s104(2) ought to have been refused; similarly, if, in terms of s137, he came to the view that the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant, then he was obliged to refuse leave. 178 A common theme, expressed in slightly different ways and prescribing slightly different tests, runs through s135(a), s137, and s192(2)(b). That theme is unfairness. 179 The first question for determination was the question raised by s103(1): did the evidence have "substantial probative value"? That raises a further question: "substantial probative value" of what? 180 "Probative value" is defined in the Dictionary to the Evidence Act as: "... the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 181 That definition, however, does not apply to the use of the term "(substantial) probative value" as it is used in s103(1). In R v RPS, unreported, NSWCCA, 13 August 1997, Hunt CJ at CL, with whom Gleeson CJ and Hidden J agreed, said: "Section 103 of the Evidence Act limits cross-examination as to credit to adducing evidence which has 'substantial probative value'. The 'probative value' of evidence is defined in the s3 Dictionary as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue', but both the context in which that phrase appears and the subject matter of s103 indicate that that definition does not apply. That is made clear by the terms of subs(2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. Such an interpretation accords with the intention of the Law Reform Commission. The addition of the word 'substantial' nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one." ('not' in the second sentence is italicised in the original; the emphasis placed on the fourth sentence is added; internal references omitted) 182 That view of the meaning of the term was endorsed by the Full Court of the Federal Court of Australia in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51, per Sackville J, with whom Whitlam and Mansfield JJ agreed. (RPS was the subject of a successful appeal to the High Court: RPS v The Queen [2000] HCA 3; 199 CLR 620, but on matters unrelated to the present question.) 183 In my opinion, for this evidence to have had substantial probative value within the meaning of s103(1), it must have had the potential to have a real bearing upon the assessment of the appellant's credibility - and, particularly, to the appellant's credibility in relation to the evidence he had given, or would give, at the trial. It cannot have had substantial probative value for the purposes of s103(1) unless it was capable, in a significant way, of bearing upon that assessment. 184 The trial judge's reasons for admitting this evidence were brief. In the first judgment he had already referred to the authorities mentioned by Sperling J. In the second judgment, specifically related to the conviction evidence, he said: "In my view the matter is of substantial probative value which is not outweighed by the danger of unfair prejudice to the accused." 185 This was an application of the tests prescribed by ss135(a) and 137, and was a finding specifically made in response to submissions put to him by counsel. It was not, in terms, a finding made under s103(1), and, as it did not recognise the different, and more limited, meaning of "probative value" as it appears in that subsection, it cannot be construed as a finding that, for the limited purposes of s103(1), the evidence had substantial probative value. 186 No ground of appeal here raised, however, contends that his Honour erred in this respect. Indeed, in counsel's written submission in relation to this ground (but referring globally to all four matters to which the ground relates) it was argued: "42. It is submitted that his Honour erred in finding that these matters had 'significant (sic) probative value' ... This finding indicates the impact on the accused's credit that the trial judge formed. In the circumstances it inappropriately painted the accused as a 'bent copper' from 1985. The argument took some time ... The accused was cross-examined ... and its impact in the context of credibility was significant. Cross-examination of an accused person on prior criminality is an exceptional course which was not justified by the circumstances of the appellant's case."

I have difficulty reconciling the first sentence of this submission with the balance of the paragraph. The essence of the complaint appears to be that the evidence did indeed have substantial probative value. 187 The appellant's submissions on appeal focussed, as they did at trial, upon the prejudicial effect of the evidence relative to its probative value. 188 In relation to the conviction evidence, only one substantial question was put to the appellant in cross-examination. It is reproduced in the judgment of Sperling J and identified the 1994 conviction of the appellant as having been in respect of a charge of corruptly taking a sum of money ($4,500) for helping named persons to recover stolen property and not using due diligence to cause those who stole the property to be brought to trial. 189 I have come to the view that evidence of a conviction for corruption as a police officer (that is, a conviction for serious dishonesty) had substantial probative value in relation to the appellant's credibility and/or reliability, and specifically so in relation to the jury's assessment of the evidence he gave in the trial. 190 Thus, although the trial judge did not specifically address the correct question under s103(1), no error in this respect is disclosed in the outcome. 191 The next question is whether cross-examination of Crown witnesses on behalf of the appellant had opened the gateway to s104(2) provided by s104(4)(b). Again, no issue is raised in this respect in the written submissions. On this question I agree with Sperling J. The gate was thrown wide open. That this is so will appear more graphically when regard is had to the nature of the cross-examination of Crown witnesses which appears below. 192 The final question is whether, having regard to s192, s135(a) and s137, it was open to his Honour to grant the leave that he did. That is essentially a question of fairness, the answer to which is arrived at by balancing unfair prejudice against probative value. It is also essentially a question of the exercise of discretion, or of a balancing process, subject to the interference of this Court only on the principles stated in the well-known passage in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. One relevant consideration in the equation is the conduct of the cross-examination of the prosecution witnesses. The matters on which the Crown witnesses had been cross-examined were set out in the first judgment of Armitage DCJ of 6 December: "1. Questions put to Robert Proctor in an effort to establish that he was a 'career fraudster' and other questions put to him in relation to conviction for carnal knowledge.

Questions put to Georgina Phillips, in response to which she conceded that she had forged documents for the purpose of obtaining a carer's pension for her deceased mother.

Questions put to Trent Brown in relation to convictions he has for offences including break, enter and steal, escaping from lawful custody, assault, stealing and receiving.

The tendering in evidence by the accused of the criminal records of Richard Simpson, Robert Proctor, Trent Brown and Georgina Phillips.

Questions put to Georgina Phillips concerning a shoplifting offence.

Questions put to Mario Marsh, a former detective, to prove that he was removed from the police force earlier this year because he had lost the confidence of the Commissioner." 193 In R v Lumsden [2003] NSWCCA 83 the CCA divided over whether evidence of a prior conviction of a defence witness had substantial probative value. Smart AJ held that it did not; Hulme J, with whom Mason P agreed, held that it did. 194 The critical Crown witness was Simpson. He was the witness subjected to the lengthiest and most sustained attack in cross-examination. Cross-examination on issues of credit alone extended over at least 194 pages of transcript. It covered a diverse range of topics, from allegations of rape of the appellant's eighteen month old stepdaughter, sexual molestation of the appellant's son, and the use of firearms, to making false representations to a real estate agency in connection with an application for the lease of residential premises. Besides those matters, Simpson was cross-examined about: - his honesty generally; - specific instances of lying to various courts and tribunals; - bribery of police officers; - indemnity against prosecution for a variety of offences; - instances of perverting or attempting to pervert or conspiring to pervert the course of justice; - conspiracy to commit tax offences; - tax evasion; - assaults on various women with whom the appellant had had a relationship; - the sentencing discount as a result of the appellant's cooperation with authorities; - engaging in drug business with "bikies' gangs"; - the extent of the appellant's past drug manufacturing; - the appellant's criminal record; - the appellant's participation in a witness protection programme; - alleged bigamy; - a custody application in relation to the appellant's son (with suggested perjury); - procuring Proctor to make a false affidavit; - drug use; - threats to a former de facto; - domestic violence; - association with an armed robber; - avoiding service of court process; - apprehended violence orders in relation to one of the appellant's wives and children; - deceiving officers of the Probation and Parole Service with respect to marital status, accommodation, employment; - supplying drugs to young people at rock concerts. 195 The cross-examination of Proctor commenced with a suggestion that he was a "career fraudster" and proceeded to his criminal history (which was extensive). 196 It would be altogether too time consuming to attempt to refer to all of the matters raised in cross-examination of other Crown witnesses. It is obvious from the outline given above, and that given by Armitage DCJ, that the areas of cross-examination ranged from the serious to the relatively trivial. 197 The question is whether the conduct of the cross-examination of the prosecution witnesses, alone or in conjunction with other circumstances, warranted a grant of leave under s104(2). 198 In this context reference should also be made to s112 of the Evidence Act which is in the following terms: "A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave." 199 The "Part" is Part 3.8 of the Evidence Act, concerned with character. A question arises as to the meaning of "matters arising out of evidence of a kind referred to in this Part"; in Stanoevski v The Queen [2001] HCA 4; 202 CLR 115, the High Court declined to attempt to "harmonise" Part 3.8 with Part 3.7 (concerned with credibility, in which s104 appears). S110, also in Part 3.8, is concerned with evidence adduced on behalf of a defendant intended to establish good character, either generally or in a particular respect. One construction, probably the most obvious construction, of s112 is that it only prohibits cross-examination of a defendant about matters arising out of evidence called on his or her behalf to establish good character. Thus the discretion to grant leave to cross-examine a defendant about character does not exist and is not triggered, unless and until a defendant gives or adduces evidence of good character, either generally or in a particular respect. The alternative construction is that "evidence of a kind referred to in this Part" is character evidence, in which case leave could be given (subject to s192 considerations and ss135 and 137) whether or not the defendant has raised good character. If the latter is the correct construction, then s112 prohibits cross-examination on character whether or not the defendant has raised character, subject to leave being granted. If the former is the correct construction, then there is nothing (other than s102) that expressly prohibits cross-examination of an accused person in relation to previous criminal history. However, even on this construction, s112 is relevant, in my view, to show that the common law resistance to allowing evidence of prior criminal history is still relevant in guiding the exercise of the s104(2) discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1: Kevin William Phillips v The Queen [1985] HCA 79; 159 CLR 45. 200 After considerable hesitation I have come to the view that it was open to his Honour to exercise his discretion (in which I include performing the relevant balancing exercises) in the manner in which he did. In my opinion, the exercise involved a fine balancing of competing considerations. The evidence of the prior conviction was, in my opinion, likely to have been highly prejudicial to the appellant. (That prejudice was somewhat diminished by reason of the very different nature of the corruption offence from the offences with which the appellant was charged. It could not, therefore, have led the jury mistakenly to treat it as tendency evidence.) The evidence was also highly probative in relation to his credibility. In the ordinary course, it would seem to me that the danger of unfair prejudice created by evidence of a serious criminal conviction would substantially outweigh its probative value. However, that assessment has to be made in the light of the fairness considerations. I emphasise that it would not be every case where an attack is made upon the credibility of the Crown witnesses that would warrant the exercise of the 104(2) discretion to grant leave to cross-examine in relation to such a serious matter. Caution would have to be exercised in assessing overall fairness, and in the balancing exercises. Legal representatives of persons charged with serious criminal offences must have substantial flexibility in their approach to cross-examining prosecution witnesses, without fear that attacks on those witnesses, if made within proper limits, will expose their clients to the potential disclosure of their criminal histories, or alternatively, operate as a disincentive to their exercising the option to give evidence. 201 In this case a different judicial mind may have reached a different result. But this Court will not substitute its own discretion for that of the trial judge unless error in the exercise has been shown. Having regard to the nature of the attack, made particularly upon Simpson, but also upon each of the other indemnified witnesses, it seems to me that it was open to his Honour to come to the view that he did. 202 For these reasons I agree that ground 5 should be rejected.

ground 8 203 As pleaded, ground 8 attacked the directions given in relation to the credibility of Simpson and a failure to put the defence case. In the written submissions filed on 21 June 2004 this ground was said to be not pressed and incorporated into ground 7.

ground 10: "unreasonable verdicts" 204 Before proceeding to a consideration of the matters raised in support of this ground, it is as well to repeat, yet again, the much quoted passage from M v The Queen [1994] HCA 63; 181 CLR 487 at [493]: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard those witnesses. On the contrary, the court must give full regard to those considerations." (internal references omitted) 205 The attack upon the sustainability of the two verdicts of guilty was based upon the asserted unreliability as a witness of Simpson. Considerable weight was placed upon his acquittal on count 1, it being suggested that this should be read as a rejection by the jury of his credibility; it then being argued that that rejection should have translated to his reliability in his evidence on the two other counts. 206 The argument was put that Simpson's evidence as to the Dooralong premises was uncorroborated but that this was not properly drawn to the attention of the jury. There was other evidence that the appellant had been present at the Dooralong house, including evidence that the appellant, with Simpson, was setting up the manufacturing process; but this evidence was given by witnesses who themselves had been involved and were therefore accomplices. It could not, therefore, it was argued, properly amount to corroboration. Indeed, a great deal was made of the question of corroboration. 207 Armitage DCJ gave these directions: "I warn you specifically that the evidence of the person himself or herself involved in a criminal enterprise cannot be relied upon by the Crown to strengthen the evidence of another person himself or herself involved in that same enterprise. By way of one example only, the fact that Richard Simpson has given evidence that the accused was at the premises at Dee Why cannot be used to strengthen Georgina Phillip's evidence that the accused was at Dee Why. ... I warn you that, where the evidence of a person or persons involved in the same crime or crimes as that alleged against the accused is relied upon by the Crown, it is dangerous to convict in the absence of strengthening evidence which confirms or tends to confirm the involvement of the accused. As I have said, the Crown submits that such evidence is before you in relation to the Sylvania Waters matter." 208 In my opinion, the reference to the absence of corroboration, and the inability of accomplices to corroborate one another, is apt to mislead. By s164 of the Evidence Act common law rules that required corroboration in respect of certain offences (excepting perjury or similar or related offences) are abolished. The common law rule that an accomplice could not corroborate the evidence of another accomplice was directed to those cases in which corroboration was required. If, in relation to a charge in respect of which corroboration was required, the only evidence available to support the evidence of one participant in the crime was that of another participant, then, as a matter of law, the evidence would not sustain the charge. Notwithstanding the provisions of s164(3), this Court has held that: " ... the power and duty to [give an accomplice warning] in appropriate circumstances survives: see also s165(5): [ R v Chen & Ors [2002] NSWCCA 174; 130 A Crim R 300 at [57]]." 209 In a case in which a principal Crown witness was an accomplice the Court held: "It became, therefore, incumbent upon the learned presiding judge to give the jury clear direction to the effect that it would be dangerous to convict the appellant, and his other co-accused, upon the uncorroborated evidence of that accomplice." 210 In this case Armitage DCJ gave precisely the kind of direction that Chen mandates is still required. 211 It was not strictly necessary that Simpson's evidence be corroborated. The evidence of the indemnified accomplices was evidence that supported his evidence in some respects. Their evidence was, of course, suspect, but this was adequately drawn to the jury's attention, and there was no reason why the jury could not, if it saw fit, act upon that evidence. I do not accept that Simpson's evidence in respect of the Dooralong count was uncorroborated, or that, even if it were, that is anything more than one consideration in relation to the sufficiency of the evidence in the Crown case. The direction given was unduly favourable to the appellant. There was no reason why the evidence of the indemnified witnesses should not have been used to support Simpson's evidence, provided proper warnings were given (as was done) about the reliability of the witnesses. 212 The next point made in relation to the unreasonable verdict ground concerned the asserted "total unreliability" of Simpson. A number of factors were pointed to as affecting his reliability. These were put in this way: " ... He was an admitted serial perjurer, bigamist, lifetime criminal, and career illegal chemist with a tendency to lie." 213 Also relied upon was an issue which had arisen concerning allegations that had been made against him many years in the past concerning sexual abuse of a stepdaughter. 214 Reliance was placed upon the decision of this Court in R v Ralph and George (1988) 37 A Crim R 202. There the Court allowed an appeal against conviction and entered verdicts of acquittal in a case in which essentially the entire Crown case was given through a witness who was an accomplice, a convicted criminal, involved in the importation and trafficking of narcotics, an admitted liar and one who was capable of clever deception. The majority of the Court said: "The conclusion which we have reached is that, because the quality of the evidence of Smith must necessarily be unacceptable unless corroborated in material respects (which it was not), it was not open to the jury to be satisfied beyond reasonable doubt as to the guilt of either of the accused." 215 This is not a proposition of law, but a reason given by the Court as then constituted for finding a conviction, in the language then used, to be unsafe and unsatisfactory. 216 It cannot be used as a statement of general application. In the present case there were obvious questions relating to the credibility of Simpson and other witnesses. But these were all adequately dealt with and the jury was fully entitled, after giving due consideration to the evidence, to rely on the totality of the evidence to convict. 217 Another matter argued on behalf of the appellant was what was said to be "an inherent inconsistency and hence unreasonableness" in the verdict on count 2 in the light of the acquittal on count 1. The acquittal on count 1 was attributed to the jury's apparent rejection of Simpson's evidence. (It was conceded that count 3 was in a different position, presumably because the appellant was arrested at the location and the surveillance and telephone intercept evidence.) 218 I do not see any such "inherent inconsistency". The first count alleged participation in the manufacture of a prohibited drug; the second and third counts alleged conspiracy to manufacture a prohibited drug. The first count thus depended on the Crown establishing beyond reasonable doubt that the drug was in fact manufactured. The second and third counts did not. Conspiracy was complete when the agreement was made and established when the agreement was proved beyond reasonable doubt. 219 As will be apparent from the reasons given in relation to ground 3, there was a real issue about whether, at Dooralong or Sylvania Waters, the drug methylamphetamine had been manufactured out of the materials available. That, in my opinion, does not affect the proof of a conspiracy, even though the conspiracy was doomed to failure, but a question about the adequacy of the materials to produce methylamphetamine certainly affected proof of the elements of the first count. 220 Only the evidence of Simpson established that methylamphetamine was produced at Dee Why. That in itself is sufficient to explain the different verdict on count 1. 221 Applying the test in M, I am satisfied that it was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty. 222 I would reject this ground of appeal. 223 I agree with the orders proposed by Santow JA.

224 SPERLING J: I have had the advantage of reading in draft the judgments of Santow JA and Simpson J. 225 I agree with Santow JA that grounds 3(A) and 3(B) should be rejected and with Simpson J that grounds 1(A), 1(B), 1(C), 2(A), 2(B), 2(C) and 10 should be rejected. I also agree with Santow JA in relation to sentence. 226 For the purpose of dealing with grounds 5, 7 and 9, I gratefully adopt the introductory observations of Santow JA and the resume of the evidence provided by Simpson J.

Ground 5: His Honour erred in allowing the accused to be cross-examined by the Crown Prosecutor as to:

(a) A police departmental charge of disobedience relating to a failure to make an occurrence pad entry.

(b) A police departmental charge of disobedience or a direction authorising a trip to Bali.

(c) Alleged threats made by the accused to Richard Simpson and Katie Ingall.

(d) A criminal conviction under section 186 Crimes Act. 227 In two judgments given on 6 December 2002, Armitage DCJ ruled, over objection by counsel for the appellant, that the Crown Prosecutor should have leave to cross-examine the appellant in relation to the matters referred to in ground 5 in the event that the appellant gave evidence. 228 The relevant provisions of the Evidence Act 1995 are, so far as is material, as follows. 102 The credibility rule Evidence that is relevant only to a witness's credibility is not admissible. 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value. (2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred. 104 Further protections: cross-examination of accused (1) This section applies only in a criminal proceeding and so applies in addition to section 103.

(2) A defendant must not be cross-examined about a matter that is relevant only because it is relevant to the defendant's credibility, unless the court gives leave.

(4) Leave must not be given for cross-examination by the prosecutor about any matter that is relevant only because it is relevant to the defendant's credibility unless: (a) evidence has been adduced by the defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character, or (b) evidence adduced by the defendant has been admitted that tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and that is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) (b) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted, or (b) the investigation of the offence for which the defendant is being prosecuted. (6) …. 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party… (b) … (c) … 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing. 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding … 229 As at 6 December 2002, when his Honour made the relevant ruling, Crown witnesses had been extensively cross-examined. Many of those witnesses had received an indemnity against prosecution for extensive and serious criminal conduct, much of which was unrelated to the events in relation to which the appellant was being prosecuted. The cross-examination emphasised and, in some cases, brought out the criminal histories of these witnesses. It was important evidence tending to establish that the relevant witnesses had a motive to give evidence which would support the Crown's case against the appellant. 230 In the first judgment of 6 December 2002, his Honour listed the instances of cross-examination of Crown witnesses relied on by the Crown Prosecutor in support of the application for leave to cross-examine the appellant. His Honour said: In support of his application pursuant to s104(4)(b), the Crown Prosecutor relies upon cross-examination of various Crown witnesses eliciting evidence which, he submits, does not fall within s104(5). The cross-examination upon which he specifically relies is as follows: (1) Questions put to Robert Proctor in an effort to establish that he was a "career fraudster", and other questions put to him in relation to a conviction for carnal knowledge. (2) Question put to Georgina Phillips, in response to which she conceded that she had forged documents for the purpose of obtaining a carer's pension for her deceased mother. (3) Questions put to Trent Brown in relation to convictions he has for offences including break, enter and steal, escaping from lawful custody, assault, stealing, and receiving. (4) The tendering in evidence by the accused of the criminal records of Richard Simpson, Robert Proctor, Trent Brown and Georgina Phillips. (5) Questions put to Georgina Phillips concerning a shoplifting offence. (6) Questions put to Mario Marsh, a former detective, to prove that he was removed from the Police Force earlier this year because he had lost the confidence of the Commissioner. 231 In one other respect, it is necessary to record some of what had transpired in the trial prior to the ruling. 232 The Crown says there was an issue at the trial as to whether the police were "out to get" the appellant. In his opening statement to the jury which immediately followed the Crown's opening address, counsel for the appellant is recorded as saying: Why are the police so intent on prosecuting Mr El Azzi. You might think that he they want to silence him. As a Crown opened to you it was said that he was a cop. Knows too much, must be silenced. The police eat their own.

Counsel for the appellant was mistaken. Nothing of the kind had been said by the Crown Prosecutor in his opening address. Some such comment had been made in the opening address at a previously aborted trial. 233 The issue was in fact introduced by counsel for the appellant in the opening statement to which I have referred. It was then pursued by counsel in the cross-examination of Detective Willingham. The witness was asked by counsel whether he had a wish to silence the appellant by investigating and charging him. 234 I return to the judgments of 6 December 2002. The first judgment related to the two misconduct matters and the alleged threats. The second related to the criminal conviction. 235 In the first judgment, his Honour recorded submissions by counsel for the appellant (1) that the evidence sought to be led in cross-examination was not of substantial probative value as required by s103 of the Act, (2) that leave should not be given because it would be unfair if the relevant Crown witnesses could not be cross-examined for the purpose of revealing a motive to lie and (3) that, if the Crown was entitled to leave, the evidence should be rejected pursuant to s137 or s135. 236 As to the second of these submissions, the witnesses had, of course, already been cross-examined. The gist of the submission was that it would be unfair, in the circumstances of the case, to subject the appellant to the penalty of cross-examination as to credit on the ground that his counsel had undertaken a proper cross-examination of Crown witnesses as to credit. 237 His Honour was alert to the question of unfair prejudice arising from the evidence being allowed. He quoted the following passage from the decision of the High Court in Phillips (1985) 159 CLR 45, at 57-58. It is right to stress the exceptional character of a case in which the credibility of an accused person is open to be attacked by reference to his bad character or previous convictions and it is undoubtedly right that the discretion of a trial judge to permit such an attack be sparingly and cautiously exercised. Although the purpose for which such evidence is admitted is confined to questions touching the credibility of an accused person and is not to be accepted by the jury as persuasive of his guilt of the offence charged and notwithstanding that the trial judge will direct the jury clearly as to the use to which the evidence may be put and the use to which it may not be put (cf. Reg. v Beech (1978) 20 SASR 410, at pp 420-423) there will always be a keen appreciation that the admission of the evidence may in the absence of countervailing considerations operate unfairly to his prejudice. The operation of the statute as construed in Curwood and confirmed in Dawson (1961) 106 CLR 1 will determine when the statutory discretion arises. When that occurs, the sole criterion governing its exercise is what fairness requires in the circumstances of the particular case. 238 His Honour went on to say: I am satisfied that the leave sought should be granted. The attack on all the important Crown witnesses was substantial and sustained, and it strayed into areas remote from the matters in issue. I am satisfied that evidence adduced by the accused has been admitted that tends to prove that witnesses called by the prosecutor have a tendency to be untruthful, and that is relevant solely or mainly to the credibility of those witnesses. I accept the Crown Prosecutor's submission that in view of the defence contention that, in effect, the police were out to get the accused, it is appropriate that there be evidence before the jury of some incidents in the accused's career. As to the threats allegedly made by Mr Simpson and Miss Ingall, evidence of those matters is already before the jury. In my view, it is appropriate that the accused, if he gives evidence, be questioned by the Crown Prosecutor about those matters. In coming to the view that leave should be granted in relation to certain areas of the proposed cross-examination, I have considered s192 of the Act. I do not consider that the proposed cross-examination would be likely to add unduly to the length of the hearing. It does not appear to me that the granting of leave is unfair to the accused. The evidence proposed is in my view important. I am fully cognizant of the nature of the proceedings, and I take that into account. 239 I do not read the first of the paragraphs quoted above as being critical of trial counsel for the appellant. In particular, I do not read the passage as a finding by his Honour that Crown witnesses had been cross-examined more extensively than was reasonably necessary or otherwise improperly. I read the reference to cross-examination straying into areas remote from the matters in issue as going to the inapplicability of subsection (5) of s104 and not as a finding of over-zealous cross-examination. 240 His Honour's reasons for decision in the second judgment of 6 December 2002 (which related to the criminal conviction) were as follows: Mr Waterstreet submits I should not allow the cross-examination. It is his submission that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. I reject that submission. In my view the matter is of substantial probative value which is not outweighed by the danger of unfair prejudice to the accused. If the offence in question had in any way been drug related, the situation may well have been different. In my view I am not required to reject the proposed cross-examination pursuant to s317. In my view I should not reject it in the exercise of my discretion pursuant to s135. In reaching the view I have about the matter I take into account the matters referred to in s192 of the Evidence Act. In particular, the extent to which, if I give leave, the cross-examination will be likely to add unduly to, or shorten, the length of the hearing; as to 192(2)(b), in my view there is no unfairness to the accused involved in the decision that I have made. Sub-paragraph 2(c), in my view the evidence is important. Again, I have regard to the nature of these proceedings. I take all those matters into account. 241 In the judgment, as recorded, there is a full-stop after "sub-paragraph 2(c)" in the passage quoted above. I have substituted a comma to convey the sense of the passage. 242 I will return to consider his Honour's reasons for decision. It is first necessary to record how the trial then proceeded. 243 The appellant elected to give evidence. In his evidence in chief, the appellant said he had been a police officer. Relevantly, cross-examination by the Crown Prosecutor was as follows. Q. And when you said you were once a police officer, you didn't mean to convey that you had ceased to be a police officer? A. Pretty much so. There was no hope of me returning to the service. Q. And that was because you had been convicted for a certain offence, correct? A. Not at that time. Not at that time. Q. Sorry? A. Not at that time. Q. You had been charged with a certain offence-- A. Yes. Yes. Q. -- of which you were subsequently convicted? A. Yes. Q. You were charged that on 7 April 1994 at Darlinghurst in the State of New South Wales you, William El-Azzi, did corruptly take a sum of money, to wit $4,500, upon account of helping Phillip Kenneth Cullen, Peter Farris and Matthew Klein to recover a quantity of sound and lighting equipment, which was stolen from the said Phillip Kenneth Cullen, Peter Farris and Matthew Klein, the said William El-Azzi not having used all diligence to cause the person or persons who stole the property, namely a quantity of sound and lighting equipment, to be brought to trial for the offence? A. Yes. Q. That was the charge? A. Yes. Q. You were convicted? A. Yes. Q. And you were ordered to serve a term of community service? A. Yes. Q. And while you were a police officer you were also subject to a couple of departmental charges which were sustained against you? A. Yes. Q. One being in December 1996, that departmental charge was disobedience and failing to make a -- A. The incorrect year there. It was 86. His Honour: Apparently you may a mistake in the year. Crown Prosecutor: What was the year? A. 86 Q. Sorry. That was a hearing before whom? A. Before the Police Tribunal. Q. There was another departmental charge, wasn't there, of disobeying a direction not to go on a holiday to Bali? A. Yes. Q. What year was that? A. 1987. The allegation was in 87. The hearing was 89. Q. And when did you finally leave the police force? A. I resigned on 18 October 1996. Q. You have heard evidence in this court firstly from Richard Simpson through his cross-examination alleging that you made certain threats against him? A. I have heard this evidence, yes. Q. And that's what happened isn't it? A. No it isn't. Q. You deny it? A. I deny it emphatically. Q. You have heard evidence from Katie Ingall in this court that when she was living in Granville with Mr Simpson you and Helen Simpson had come to the house and attempted to remove the fly screens? A. What, sorry? Remove the fly screens? Q. Yes? A. No. Q. No? A. No. Q. Do you deny that? A. Yes absolutely and I'm rejecting it, yes. Q. Then you rang Miss Ingall and told her that you had rung her ex-husband and made certain threats there in that telephone call, didn't you? A. No that's not true. Q. So you never threatened Richard Simpson with any physical harm? A. Never him or Katie Ingall. Never threatened any of them. 244 The appellant was, so far as is relevant, re-examined as follows. Waterstreet: Do you remember a question if not more about a trip that you took to Bali in 1986? A. I think it was 87, April 87. Q. You recall that there was a question that you were charged departmentally, that is within your employer's services, is that correct? A. That's correct. Q. With going to Bali without permission? A. That's correct. Q. Had you in fact sought permission first of all from the appropriate medical authority in the police service, the police medical officer? A. I did. Q. Is this a photocopy - what is this document (shown)? A. This is a report from the police medical officer Stewart G Anderson, Dr Stewart G Anderson addressed to the assistant commissioner of personnel dated 24 April 1987. Q. Is it a support for your application to go to Bali? A. It is. Q. Is this a document-- were you seeing a Dr O Thomas Stanley at the time? A. Yes. Q. And did he make a recommendation that you have a vacation for two weeks? A. Yes, away from my environment. Q. Did you take that advice? A. Yes, I did, and I sought the consent of the police medical officer who was entrusted with our welfare and well being. Waterstreet: I tender that. Crown Prosecutor: I object to the tender. The question is whether he breached an instruction, an order. EXHIBIT #AA REPORT BY THE POLICE MEDICAL OFFICER ADMITTED Waterstreet: Were you in fact on sick report at the time you went to Bali? A. I was. Q. The second matter was a charge of not putting an occurrence pad entry in an occurrence pad when directed to do so by someone? A. Yes. Q. What year was that, do you recall? A. The incident occurred on, form recollection, 6 or 7 May 1995. Q. Was that in respect of putting an occurrence pad entry in relation to a subpoena that had been served upon you? A. Yes, sir, I was subpoenaed to go to court and take some documents with me. Q. Did you in fact write a report about that? A. Yes. Q. On or about the same day? A. Yes. Q. The next matter was that you were convicted of a s186 matter the gravamen of which was put to you, do you recall that? A. Yes, I do. Q. That line of questioning, what were, in short, the circumstances? A. I was helping recover some goods that were stolen. We though we had a lead to retrieve those goods back and in the process of doing so 41 police turned up and arrested me. Q. Were you going to be paid if you were successful? A. If at the end of the day if I got results I'd have got 500. Q. Was it alleged or not that you had anything to do with them being stolen? A. No, it had nothing to do with that at all. Q. Did you if fact you present the stolen goods to the police? A. Once we discovered they were stolen we went down and reported them to the police station. Waterstreet: Q. Would you have appealed that conviction - Crown Prosecutor: I object you Honour. His Honour: I'll listen to the question. Waterstreet: Would you have appealed that decision had you any funds? A. Of course I would have - Crown Prosecutor: I object. 245 At the conclusion of the cross-examination of the appellant, his Honour gave the following instruction to the jury: Members of the jury, I think it is appropriate that I give you a very brief direction about the use you are entitled to make of certain evidence put before you before the lunch adjournment. As you heard, the accused was cross-examined by the Crown Prosecutor about a conviction he has for a certain offence committed by him in 1994 to which he was sentenced for a period of community service. He was also questioned about two departmental charges, one in 1986, one in 1987; the first offence of alleged disobedience relating to his failure to make a note in an occurrence pad, the second relating to a holiday in Bali that he took without permission. It is very important that you understand that that cross-examination was directed to the accused's credibility only. I emphasise that the evidence is not to be accepted by you as in any way persuasive of the accused's guilt of any one of the three charges that you are now considering, or as evidence the accused was likely to commit these particular offences. The evidence is there solely for the purpose of permitting you to assess the accused's credibility if you think it is in fact relevant to his credibility. That is all I need say about it at this stage. 246 In his closing address to the jury, counsel for the appellant, pursuing the theme that the police were out to "get" the appellant, said of some of the surveillance police officers: These are the men of the Drug Enforcement Agency. They are ruthless verbally, cops intent on promoting the Crown case at all costs, even to fabrication.

He also said: The crusade to stamp out Mr El-Azzi has reached gothic and absurd proportions, you might think. It is, you might think, unfair to hand out undertaking after undertaking. It's the purchase price of testimony by the biggest manufacturer in two decades, to a heavy criminal who established someone in the face without a care in the world, to fraudsters to drug sellers, to Social Security fraudsters, to conmen and conwomen in return for what? For perjury, you might think, self interest definitely. 247 In the course of his summing up to the jury, his Honour referred to the cross-examination of the appellant on matters going to his credit. His Honour said: Now the other matter in respect of which I am required to give you a direction is a matter that I referred to during the course of the evidence, but it is important that I repeat it. And that is a direction as to the use that you are entitled to make of certain evidence put before you relating to cross-examination of the accused. As you recall the accused was cross-examined by the Crown Prosecutor about a conviction that he has for a certain offence [mistyped "defence"] committed by him in 1994 for which he was sentenced to a period of community service. He was also questioned about two departmental charges, one in 1986, one in 1987. The first an offence of alleged disobedience relating to his failure to make a note in an occurrence pad. The second in relation to a holiday in Bali that he took without permission. It is very important that you understand that that cross-examination was directed at the accused's credibility only. I emphasises that the evidence is not to be accepted by you as in any way persuasive of the accused's guilt of any one of the three charges that you are now considering, or as evidence the accused was likely to commit these particular offences. The evidence is there solely for the purpose of permitting you to assess the accused's credibility, if you think it is in fact relevant to his credibility.. 248 I can disregard the cross-examination in relation to threats allegedly made by the appellant. The cross-examination went no further than putting to the appellant matters which had been given in evidence by Crown witnesses. Nothing was established in the cross-examination in that regard which advanced the Crown case. The cross-examination cannot have caused or contributed to a miscarriage of justice. 249 I return now to consider his Honour's reasons for decision of 6 December 2002. 250 His Honour held, in effect, that the evidence intended, at that time, to be adduced in cross-examination satisfied the requirements of s103 and s104(4). On the appeal, counsel for the appellant submitted that it did not. 251 As for s103, a distinction needs to be made between the two misconduct matters, on the one hand, and the criminal conviction, on the other. The criminal offence was one involving serious dishonesty. It went to the appellant's credit. As such, the evidence had substantive probative value. It satisfied s103. 252 His Honour appears to have allowed the misconduct matters to be brought out in cross-examination on a different basis. As quoted earlier, he said: I accept the Crown Prosecutor's submission that in view of the defence contention that, in effect, the police were out to get the accused, it is appropriate that there be evidence before the jury of some incidents in the accused's career. 253 This approach was unsustainable. The evidence of misconduct did not go to answer the allegation that the police were "out to get" the appellant. The evidence did not detract from the appellant's case (such as it was) on that issue. Involving no element of dishonesty, it did not go to the appellant's credit. It was of no other probative value. 254 The evidence of prior misconduct did not satisfy the requirement of s103 and adducing that evidence ought not to have been allowed. 255 The criminal conviction is in a different class. As I have said, that evidence satisfied s103 as evidence going to the appellant's credit. Counsel for the appellant on the appeal submitted, however, that the precondition for leave in s104(4) in relation to the criminal conviction was not satisfied. 256 I reject that submission. His Honour was correct in holding that s104(4) was satisfied in view of the cross-examination of Crown witnesses as to credit to which I have referred. 257 The only serious questions arising on appeal in relation to this evidence are, then, whether leave should have been granted to bring out the appellant's prior conviction in cross-examination and whether the evidence should have been excluded pursuant to s135 and / or s137. 258 Did his Honour err in the exercise of his discretion in those respects? 259 The leading case is the decision of the High Court in Phillips (1985) 159 CLR 45. The appellant was charged with rape. He was tried in Queensland. At the trial, questions were asked which, it was held, impugned the character of the complainant. During the cross-examination of the appellant, the prosecutor applied for permission under s 15(2) of the Evidence Act 1977 (Qld) to ask the appellant about a number of previous convictions for offences involving dishonesty. Permission was granted. Previous convictions were brought out. The appellant was convicted. The Queensland Court of Criminal Appeal dismissed the appeal. That decision was upheld by the High Court. 260 So far as is relevant, the provisions of the Queensland statute were, in relevant respects, substantially the same as s 104. 261 On the hearing of the appeal in the High Court, counsel for the appellant advanced the proposition that the discretion under the statute to allow cross-examination of an accused as to credit should be exercised adversely to the accused only in exceptional circumstances. The High Court rejected that proposition, holding that the discretion was unfettered. 262 In so holding, however, the Court emphasised the importance of the consideration that allowing such cross-examination was an exception to the general rule that evidence of an accused person's criminal history should not be adduced in a criminal trial. 263 In Brown [1960] VR 382, a decision of the Full Court of the Supreme Court of Victoria, Smith J had said that, in the exercise of the statutory discretion, it was necessary for the trial judge to take into account considerations which included that the legislation was not intended to make the introduction of a prisoner's previous convictions other than exceptional. In the joint judgment of the majority in Phillips (at 53) it was said that, notwithstanding that the discretion was unfettered, the considerations mentioned by Smith J provided a valuable guide which was likely to be relevant in most cases. 264 Their Honours also referred to a decision of the High Court in Matusevich 91977) 137 CLR 633. They said (at 54) that Brown and Matusevich rightly emphasised that, although the nature or conduct of the defence attracted the discretion, the primary exclusionary rule remained of importance in determining the manner of its exercise. 265 Victorian decisions which supported the general proposition advanced by counsel for the appellant on the appeal to the High Court were criticised as imposing a fetter on the exercise of the Court's discretion (at 56). 266 Their Honours went on the say (at 57 - 58): It is right to stress the exceptional character of a case in which the credibility of an accused person is open to be attacked by reference to his bad character or previous convictions and it is undoubtedly right that the discretion of a trial judge to permit such an attack be sparingly and cautiously exercised. Although the purpose for which such evidence is admitted is confined to questions touching the credibility of an accused person and is not to be accepted by the jury as persuasive of his guilt of the offence charged and notwithstanding that the trial judge will direct the jury clearly as to the use to which the evidence may be put and the use to which it may not be put, there will always be a keen appreciation that the admission of the evidence may in the absence of countervailing considerations operate unfairly to his prejudice. The operation of the statute as construed in Curwood and confirmed in Dawson will determine when the statutory discretion arises. When that occurs, the sole criterion governing its exercise is what fairness requires in the circumstances of the particular case. (citations omitted.)

This passage, as we have mentioned, was quoted by Armitage DCJ in the course of his first judgment on 6 December 2002. 267 It was said by Gibbs J in Gramanatz [1962] QWN No 41 that, if the accused makes quite gratuitous imputations, accusations that are not necessarily involved in the proper conduct of the defence, the court will be more ready to exercise its discretion in favour of allowing cross-examination as to previous convictions or bad character than it would in a case where the accused, in making imputations against prosecution witnesses, is not doing anything more than presenting his defence in a proper way. 268 In the present case, there was no finding of impropriety in the way Crown witnesses were cross-examined and there is nothing in his Honour's judgments to suggest that he was actuated by any such consideration. But nor was this a case where evidence of the previous conviction was especially prejudicial, as evidence of previous convictions goes; in particular, the offence charged was quite different from the earlier offence. 269 Relevantly, there was no special feature of the case which ought to have tipped the balance one way rather than the other. The trial judge appreciated that the essential question was one of fairness, that the prospect of prejudice to the accused was a critical consideration and that the exceptional circumstance which permitted an accused's criminal history to be admitted into evidence was itself a relevant consideration. 270 In exercising his discretion pursuant to s104(2), his Honour was bound to take into account the considerations mentioned in s192. His Honour did not mention, in that connection, two of the matters he was required to take into account pursuant to the section, namely, prospective unfairness and the nature of the proceedings. However, it is apparent that his Honour was alert to those considerations. 271 The question for this court is not how it would have exercised the discretion to grant leave but whether the trial judge erred in the exercise of the discretion. I am not satisfied that he did err. 272 Although stated as a separate question, the considerations which arose in relation to s135 and s137 were not materially different from those which applied in relation to the grant of leave pursuant to s104(2). Again, minds may differ as to the appropriate course, but I am satisfied that his Honour did not err in declining to exclude the evidence of the prior conviction pursuant to either of those sections in the exercise of his discretion. 273 In summary, of the four matters as to which cross-examination was allowed, cross-examination in relation to the two instances of misconduct in the police service should not have been allowed, cross-examination on the alleged threats was innocuous and allowing cross-examination in relation to the prior criminal conviction did not involve an error in the exercise of the judge's discretion. 274 In view of the error in granting leave to cross-examine in relation to the two instances of misconduct, the appeal against conviction should be allowed subject to the application of the proviso to s6 of the Criminal Appeal Act 1912. 275 I am satisfied that there was no miscarriage of justice as a result of the error in allowing evidence of the two instances of misconduct to be brought out in cross-examination. These were not matters involving dishonesty. They involved no serious moral culpability. The trial judge instructed the jury immediately after the evidence was led and again in the summing-up that these and the other matters brought out in cross-examination were relevant only if the jury thought they were relevant to the appellant's credibility. The two matters were not relevant to the appellant's credibility, and so obviously not that I do not believe the jury would have accorded them any significance in that regard. Nor do I think there was any serious risk that the jury might have seen these episodes of misconduct as being of significance in any other impermissible way. In the broad view of the case, they were far too unimportant to be seen as significant in any way. 276 I would, for these reasons, apply the proviso to s6. 277 In the result, the appeal should not be allowed on this ground of appeal.

Ground 6: His Honour erred in allowing the Crown to argue, and instructing the jury that they could find that the statement of the accused, that it was his first time at the premises, was capable of amounting to a lie. 278 This ground was not pressed. Ground 7: The learned judge erred in the manner in which he dealt with questions of the potential unreliability of witnesses, particularly the witness Richard Simpson.

Ground 8: Failure to put the defence case and directions on the credibility of Richard Simpson. 279 As I have mentioned, ground 8 was not pressed otherwise than under ground 7. 280 It is necessary to have regard to s165 of the Evidence Act 1995 in relation to these grounds of appeal. The section provides as follows. 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. … 281 The trial judge commenced his summing up on 17 December 2002. Prior to the summing up, there was discussion with counsel about the directions to be given to the jury. It appears from Tr 2661 that counsel for the appellant had handed up to the trial judge a draft of the directions sought on behalf of the appellant. (By agreement, I have been provided with a copy of that document.) So far as is material, it included the following.

9. In the circumstances, the full direction akin to prison informers (Pollit (1992) 174 CLR 558, Clough (1992) 28 NSWLR 386).

10. In respect of the deceased Arthur Launt, the evidence is further unreliable for substantial reasons including the fact that he is deceased and unable to be cross-examined, he cannot be assessed by the jury and he gave his brief evidence at committal before he was dealt with by the Court. These circumstances are highly irregular and undermine his reliability. 282 Referring to that document, counsel said (Tr 2661): I will be asking your Honour to give directions, strong, if not the strongest possible directions in relation to s165 in relation to each of these accomplices.

His Honour's response was as follows. I will give that direction. However, I should not be using the word "accomplices". There is authority from the Court of Crimina Appeal that that word should not be used… You will have to wait and hear it, Mr Waterstreet. "The other people involved in the same criminal activity", that's what I will be doing, Mr Waterstreet. 283 It appears, therefore, that his Honour indicated, at that stage, that he would, so far as is now material, give the directions which were sought, subject only to a minor qualification which had arisen in discussion with counsel rather than from the document itself. 284 Early in the summing up, his Honour said (17 December 2002, pp8-9) The Crown witnesses, those in particular who speak as to the alleged facts of the matter, have been attacked, quite properly so, by Mr Waterstreet on the basis that they have all been given undertakings not to be prosecuted. They all have an axe to grind, all had reductions in sentences, haven't been charged with certain matters, and so on. Broadly speaking, at this stage, that is what is involved there. As I indicated, in a short time I will give you much more detailed directions in relation to the evidence of those persons. 285 Before adjourning for the day, there was a break in the summing up during which the following exchange took place between counsel for the appellant and the trial judge (17 December 2002 at p19). WATERSTREET: Your Honour, we have requested a warning under section 165 in relation to co-offenders. HIS HONOUR: You are going to get that warning in great detail, Mr Waterstreet. ...

WATERSTREET: Your Honour, I will wait. 286 On the following day, there was further discussion with counsel before his Honour resumed the summing up. The following is an extract (18 December 2002, p1), WATERSTREET: Your Honour, arising out of what your Honour said yesterday, there's just a couple of brief matters. Your Honour, one is your Honour's statement that witnesses should not be put into categories was followed by your Honour's suggestion that the Crown would say that the witnesses with an undertaking would be reliable, and I use "would be reliable" as my words, but your Honour's words- HIS HONOUR: Mr Waterstreet, you know as well as I do that I'm going to give them a very full direction in relation to that. 287 A warning relating to Crown witnesses who had received an indemnity came in the summing up on that day (18 December 2002, p20 - 27). Members of the jury, at this stage it's necessary that I give you a warning in relation to the fact that evidence was given in the Crown case by many witnesses criminally concerned in the very same crimes with which the accused is charged. This is a very important direction. You have heard evidence from many witnesses, all called by the Crown, who were themselves deeply involved in the criminal activities, the subject of the three charges in the present indictment. Many of those witnesses have extensive criminal records, the substance of which you have had pointed out to you in detail and many of them have admitted freely not only to lying about very many matters, including their own involvement in criminal enterprises, but they have admitted to lying on oath in court. Some of them admit to a great deal of criminal activity in relation to drug manufacture prior to the events with which we are here concerned, for which they have never been charged and for which they never will be charged. All of them have been granted immunity from prosecution if they tell the truth in these proceedings. I warn you as a matter of law that the evidence of those witnesses may be unreliable. The general reasons for concluding that such evidence may be unreliable include, first, such witnesses may try to exculpate themselves or minimise their part by fabricating or exaggerating the role of the accused. Second, such witnesses may fabricate evidence out of motives of revenge or antipathy towards the accused. I warn you that particular concerns arise if the witness has received an immunity against prosecution. These considerations, combined with the fact that the witness will often be peculiarly equipped by reason of inside knowledge of the crime or crimes, to provide a convincing account implicating the accused, thereby necessitates considerable caution on your part. Further, you must bear in mind that the reliability of evidence given by a witness in this category is affected if he or she has been given a discount on sentence as a result of an undertaking to give evidence against the accused and, if there is a failure to fulfil that undertaking, the sentence might be increased, and you've heard reference made to that. You've heard some of the witnesses in any event agree that they were given discounts and that they understand that if they don't fulfil their part of the bargain, it may well be that the Crown would appeal and that their sentences might be increased. That would obviously be an incentive for the witness to give a version of the facts that he or she considers would meet the prosecuting authority's approval. Now I remind you of the position of each witness to whom this present warning applies. Mr Simpson was charged with certain offences. His evidence is that he was given a 20 percent discount for assisting the police. He has been granted an immunity from prosecution for any other offences previously committed by him. He has a criminal record and he agrees he has committed very many offences that do not appear on that record. He admits that he has lied on many occasions. Kim Knight was convicted of an offence relating to Dooralong and served two years in gaol. He agreed that in 1999 he was approached by police who made him an offer he could not refuse. He said he has given evidence against various people including Mr El-Azzi. He said he was told by police that if he co-operated his girlfriend would not be charged with an offence relating to Dee Why and the police would help him in court. He said he was in fact fined $5,000 for his part in the Dee Why enterprise. He has been given an immunity from prosecution by the Attorney General. Georgina Phillips. You will recall, she is still in a relationship with Kim Knight. She was given an undertaking by the Attorney General on 23 August 2000. She has made statements relating to Dooralong and Dee Why. She agreed the police told her that if she helped them she would not be prosecuted, and she agreed that in fact she has not been prosecuted. Trent Brown was given an undertaking by the Attorney General that he would not be prosecuted for any offence if he gave truthful evidence against ten named persons, including Mr El-Azzi. It is fair to say that Trent Brown has an appalling criminal record, including firearm offences. He admitted his unknown criminal record consisted of about 30 drug manufacturing offences involving thousands of kilograms of prohibited drugs for which he has not been charged and does not expect to be charged. Kathleen Simpson, formerly Ingall. Her position is that on 23 August 2000 she was given an undertaking by the Attorney General. She agrees she was involved in Dee Why and Sylvania Waters and she also agrees that she has not been charged with any offence. She conceded she has been involved in other criminal activity, including the leasing of a drug house. Robert Proctor's position is that on 23 August 2000 he was given an undertaking by the Attorney General. He conceded he was involved with Richard Simpson for about 11 years in manufacturing prohibited drugs at various premises. He said he was the one who bought the chemicals and he said he assisted Mr Simpson. He has a criminal record for offences such as larceny, embezzlement and false pretences. He agreed that when he was approached by the Crime Commission in March 1999 he was in a precarious position, being on bail for eight counts of embezzlement. He agreed that, after having a cigarette with Detective Seery, he was transformed from a defendant into a witness. Members of the jury, those are the witnesses primarily relied upon by the Crown, apart of course from the police witnesses, and that is the position that each witness is in in regard to the granting of immunity. I should say that Mr Launt falls into the same category. He was given immunity. His evidence may be unreliable and it's necessary really that I emphasise this; this is important, very important in respect to Mr Launt. It's a matter emphasised by Mr Waterstreet in the course of his address, quite properly. The defence of course was at a significant disadvantage in so far as Mr Launt's evidence is concerned because he was not here to be cross-examined. Not only was he not here to be cross-examined, but you have had absolutely no opportunity at all of assessing his credibility … … Now coming back to the warning that I was giving you a few moments ago in relation to the dangers associated with evidence given by persons themselves involved in the offence or offences with which the accused is charged. I indicate of course that that warning applies to the evidence of each of the witnesses that I have named. ... It is of course open to you to look elsewhere in the evidence to see if there is something that strengthens the evidence of the seven witnesses to whom I have just referred by confirming or tending to confirm the involvement of Mr El-Azzi in the events as related by them. …. … I warn you specifically that the evidence of a person himself or herself involved in a criminal enterprise cannot be relied upon by the Crown to strengthen the evidence of another person himself or herself involved in that same enterprise. By way of one example only, the fact that Richard Simpson has given evidence that the accused was at the premises at Dee Why cannot be used to strengthen Georgina Phillips' evidence that the accused was at Dee Why. That rule is based in large part on the common interest of such people, in minimising their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. I warn you that, where the evidence of a person or persons involved in the same crime or crimes as that alleged against the accused is relied upon by the Crown, it is dangerous to convict in the absence of strengthening evidence which confirms or tends to confirm the involvement of the accused. As I have said, the Crown submits that such evidence is before you in relation to the Sylvania Waters matter. Having said all that, bearing in mind the warning I have given, you are entitled to find the accused guilty of any one or more of the three charges if you are satisfied beyond reasonable doubt that you should accept the evidence and that the accused is guilty of the charge or charges. This too is important, members of the jury. There is one further matter in relation to the evidence given by the six Crown witnesses who have each been granted immunity from prosecution. A moment ago of course I referred to seven. That was including Mr Launt. Mr Launt of course is no longer with us so I am back now to the evidence of the six Crown witnesses. As to each of them, there is evidence before you as to his or her character, reputation and conduct, in particular criminal conduct in which they have engaged and lies they have told, sometimes lies on oath. I direct you that you are entitled to use that evidence, if you see fit to do so, as proving that each of those persons does in fact have a tendency to lie. 288 This direction included a global warning in relation to the named Crown witnesses concerning the following factors: being an accomplice, immunity against prosecution and discount on sentence. In relation to each witness one or more of those factors was instanced. 289 Of the three factors mentioned by his Honour only one of them, namely, that the witnesses were accomplices, corresponding with a category specified in s165(1). The other two factors (immunity against prosecution and discount on sentence) were factors which his Honour impliedly regarded as "evidence of a kind that may be unreliable" within the meaning of s165(1). 290 The summing up continued throughout 18 December 2002. Before the Court adjourned, there was a further discussion with counsel, relevantly as follows (18 December 2002, p138 - 140). WATERSTREET: Your Honour I'll just get that page reference or some reference to that effect. Your Honour in giving the warning gave the warning as a block about the six witnesses. Your Honour in our submission they perhaps should have been named.

HIS HONOUR: I did name them. I went through every one of the six witnesses and said what their positions were, at length which I thought was perhaps not quite necessary but I wanted to do everything that I thought I should do. I think the Crown would have been pulling their hair out.

HIS HONOUR: I explained the position of every one of them. You must have gone to sleep at that point.

WATERSTREET: With respect we all thought - it's a funny thing we should sell relaxation tapes, it doesn't matter how interesting the trial is there's something about that. Your Honour did not use the words and I'm conscious of some authority but I say your Honour did not use the words corroboration, that is your Honour shied away from that principle--

WATERSTREET: I've got the old case your Honour and--

HIS HONOUR: It seems clear, I mean I stuck to the corroboration thing for quite a while after the act came in but it became clearer and clearer with the authorities that it's simply not acceptable. I found that I was the odd man out so I thought I'd better fall into line and it probably is better to fall into line. Made abundantly plain it seems to me that it's just not appropriate to use that terminology any more.

WATERSTREET: Bearing in mind 164 which says no corroboration is required. Your Honour has not said anything about bias and motive of Richard Simpson and Katie Ingall but your Honour may say it in summing up my submissions in relation to the unreliability.

WATERSTREET: Bias and motive to lie, your Honour it applies with the others but your Honour in particular in relation to the domestic activities of those two.

WATERSTREET: Simpson and Ingall. In other words, all what your Honour said yes because they're all criminally involved, but furthermore looking at 165 for other heads of aggravation--

HIS HONOUR: I didn't bring my book down but what's the head that you're referring to, s 165 what?

WATERSTREET: Yes your Honour, 165 the one you've done is obviously the one on criminally involved. That's (d) your Honour. And your Honour's got a discretion in other matters I was looking at - they're tantamount to a prison informer but your Honour's already dealt with that. Your Honour under the heading evidence of a kind that may be unreliable in Odgers, and your Honour they're the words at the beginning, five of a kind. A kind is like torts, the categories of torts are never closed. The categories of evidence of a kind that may be unreliable. What I've teased out is the bias and motive to lie above and beyond accomplice type of criminal.

HIS HONOUR: Could you just read to me exactly what (d) says?

WATERSTREET: (d) says "evidence given in a criminal proceeding by a witness being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding"--

WATERSTREET: Your Honour the one I'm relying on is your Honour the head - subs (1) leading into (a) (b) (c) and (c) that says "this section applies to evidence of a kind that may be unreliable including the following kinds of evidence". And your Honour what Odgers and some cases says the categories (a) to (g) are not closed. I'm saying that in the domestic situation.

HIS HONOUR: So you say it's a category not specifically referred to in s 165.

HIS HONOUR: I didn't have the section before me I though there must have been something there.

WATERSTREET: No your Honour. It is a section teased out by Odgers at p 520 of the practice and he does itemise other kinds of evidence that aren't (a) to (g) etcetera. 291 This was not a complaint about the way the trial judge had dealt with possible unreliability of the named Crown witnesses on the grounds that they were accomplices and / or had been granted immunity from prosecution and / or had received a discount on their sentences. The complaint was that the judge had failed to direct the jury that the evidence of Mr Simpson and Ms Ingall might be unreliable because they had a motive to give biased evidence against the appellant for quite different reasons to do with the domestic history of these people. Counsel for the appellant was arguing that this brought the evidence of Mr Simpson and Ms Ingall within the ambit of s165 as being "evidence of a kind that may be unreliable" - notwithstanding that it was not in a category specified in s165(1) - and that a warning as to possible unreliability was accordingly required in that regard. 292 The summing up continued on 19 December 2002. His Honour said, in the course of his summing up on that day (19 December 2002, p43): (Ms Phillips) said she has had no contact with Richard Simpson or Helen Simpson or the accused since her arrest. Well it is a question for you whether you accept the evidence of course of any of these witnesses, but you know there is a very strong suggestion made by Mr Waterstreet that these witnesses all got together, collaborated, colluded and arranged their stories and so on; so that is the importance, at least, of the evidence; whether you accept it or not of course is entirely a matter for you. 293 The summing up concluded on 20 December 2002. There was further dialogue with the bench before the proceedings were adjourned on 19 December 2002, when they resumed on 20 December 2002 and towards the conclusion of the summing up on that day. However, there was no further complaint or request for a further or other direction in relation to s165. 294 The appellant's written argument in support of ground 7(a) - Revised submissions, 20 June 2004 - may be paraphrased as follows.

(a) Failing to instruct the jury in the manner required by s165 (2). [There is a reference to the passage in the summing up on 18 December 2002, p20 and following, which I have quoted above.]

(b) Failing to inform the jury of matters affecting the unreliability as to each identification witness. He failed to put any of the cross-examination of Duckworth and Marsh where significant matters of credibility were sustained. He only dealt with Keirs. [There is a reference to the passage in the summing up on 18 December 2002, 28 - 35.]

(c) Failing to specify each matter of unreliability in respect of each witness pursuant to s165(2)(b). Mr Simpson and Mr Proctor, it is said, both admitted lying on oath but his Honour said only "sometimes lies on oath". [There is a reference to the part of the summing up on 18 December 2002, p27, which I have quoted where his Honour mentioned aspects of the evidence of each named Crown witness.]

(d) Failing to inform the jury that some Crown witnesses may have contaminated each other's statements and evidence, and that the direction concerning collusion was insufficient without reference to the evidence. [There is a reference to the part of the summing up on 19 December 2002, p43, which I have quoted, where his Honour referred to Ms Phillips denying contact with other witnesses.]

(e) Failing to inform the jury that each of the named Crown witnesses may have been under pressure to adhere to their statements rather than tell the truth, having undertaken to give evidence in accordance with their statements in exchange for indemnities or promises not to proceed with outstanding charges; each witness having an incentive to assist the authorities and to adhere to their statements. [These matters were said not to have been addressed at all in the summing up.]

(f) Failing to inform the jury that certain Crown witnesses, including Mr Simpson and Ms Ingall, had a motive to lie and to give biased evidence against the appellant, arising from the domestic history involving such witnesses and the appellant. [There is a reference to the transcript of discussion with the bench on 18 December 2002, pp 139 - 140 which I have quoted.]

(g) Failing to instruct the jury that the evidence of Ms Sullivan and Ms Johnson, if accepted, was relevant to Mr Simpson's credit, as having lied on oath and / or having a motive to lie and to inculpate the appellant. [There is a reference to the summing up on 19 December, p128. On p 127 and 128 his Honour referred to the evidence of Ms Johnson.]

(h) Failing to put the defence case adequately in relation to Mr Simpson's unreliability, motive to lie, bias and tendency to lie under oath, notwithstanding counsel's request for directions in that regard. [There is a reference to the discussion on 18 December 2002, p139. I have quoted and commented on that passage.]

295 I deal first with paragraphs (a), (c) and (e) above. These paragraphs - paragraph (c) inferentially - assert non-compliance with s165(2). They relate to possible unreliability based on involvement as an accomplice, the grant of immunity and reduction in sentence. Assuming s165 applies to all those classes of evidence, the directions and warnings of the trial judge given on 18 December, 20 - 27, quoted above, have only to be read to be seen to be an adequate - I would say a more than adequate - compliance with s165(2). 296 Paragraphs (b), (d), (f), (g) and (h) above relate to other aspects of the evidence of Crown witnesses. Paragraph (b) relates to identification evidence. Paragraph (d) relates to contamination of evidence. Paragraphs (f) and (g) relate to motive to lie or to give biased evidence. Paragraph (h) relates to those matters concerning Mr Simpson in particular, but with specific reference to counsel's request for further directions on 18 December 2002 which was confined to Mr Simpson's asserted motive to lie or to give biased evidence arising from the domestic history in which he was involved. 297 I will deal first with paragraph (b) above. 298 Several police officers gave evidence of observing the appellant at and near the respective premises and, in one instance at least, involved actively in the operations. The complaint is that the summing up in relation to identification evidence was deficient. 299 Section 165 applies explicitly to identification evidence: see s165(1)(b). The trial judge gave the conventional instructions and warnings concerning the danger that identification evidence may be unreliable (summing up 18 December 2002, p28 - 36). This direction included the necessary warnings and information required by s165(2). The present complaint is that his Honour failed to mention factual issues in relation to the evidence of observations of the appellant given by the police officers. 300 As his Honour made clear to the jury, the main challenge to this body of evidence was that it was fabricated by police officers who were "out to get" the appellant. There were, then, subsidiary issues of fact such as the appellant's alibi evidence which included the timing of telephone calls to his home and driving records related to a rented car. 301 It is true that such factual issues were not all mentioned by his Honour in the summing up. But they were canvassed fully in address and there is no necessity for a trial judge to mention every subsidiary factual issue in the case. 302 I come then to paragraphs (d), (f), (g) and (h) above. Does s165 apply to evidence of the kind mentioned in those paragraphs, being evidence which may be contaminated by the evidence of other witnesses and the evidence of persons with a motive to lie or to give biased evidence? 303 The ambit of s165 has been the subject of debate in the authorities, running through Mayberry [2000] NSWCCA 531, TJF [2001] NSWCCA 127, Stewart [2001] NSWCCA 260 and Chan [2002] NSWCCA 217. It has never been held, however, that evidence of the kind now under consideration is within the ambit of s165. 304 In Stewart, Hulme J held that the evidence of persons who had received a reduction in sentence in return for giving evidence in the proceedings came within the ambit of s165. Howie J held that it did not. Spigelman CJ found it unnecessary to decide that question because the evidence of the witness was caught by the accomplice category specifically mentioned in s165(1)(d) and the only question was then whether s165(2) had been complied with. The case is useful, however, concerning the ambit of s165. 305 Spigelman CJ held at [16] that the phrase "evidence of a kind that may be unreliable" had to be read down but he found it unnecessary to be more definitive for the purpose of the case. 306 Hulme J and Howie J supported the approach proposed by Sperling J in TJF at [75 - 81] that s165 applies to evidence which could not be expected to fall within the general experience and understanding of a jury and in respect of which the courts have special knowledge. 307 Howie J said, at [98 - 99]: Where a matter which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not "of a kind that may be unreliable" and the section does not apply. Consistently with the common law, the Commission's proposals, and the decision in Baartman , matters of a general nature that might affect the reliability of any kind of evidence adduced in a trial do not of themselves bring the evidence within the scope of the section.

In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone "evidence of a kind that may be unreliable". 308 Hulme J agreed with that part of Howie J's judgment. He added at [38]: The ease with which the language used in s165 can be applied to circumstances which, if "of a kind" has the significance Howie J and I would afford to it, Parliament cannot have intended to be within that language means that some test of what is and what is not evidence to which the section applies is necessary. For the reasons given by Howie J, whether the evidence is such as could not be expected to fall within the general experience and understanding of a jury and in respect of which the courts have special knowledge is an, if not the, appropriate test. The fact that some of the specific examples included in s165(1) of evidence of a kind that may be unreliable, e.g. that which may be affected by age or mental ill health, are of evidence which a jury could be expected to regard as suspect in accordance with their general knowledge, does not invalidate this conclusion. 309 As I have mentioned, Spigelman CJ found that s165(2) applied because s165(1)(d) was satisfied. When it came to whether the summing up was adequate, his Honour held, at [22], that it was necessary for the trial judge to inform the jury that the witness could lose the benefit of a reduction in sentence if he failed to give evidence as expected because "(t)hat is not a matter which would necessarily be known to the jury." That is the same concept as underlies the opinion of Hulme J and Howie J concerning the meaning of "evidence of a kind that may be unreliable" in s165(1) to which I have referred. 310 A similar view of s165 was adopted in Chan. The question there was whether evidence of a witness's "bad character" or of a motive to give evidence which would ingratiate the witness with a prosecuting authority was caught by s165. 311 Hodgson JA (with whom Levine J and Smart AJ agreed) held that s165 was not attracted by those features of the evidence. He said, at [37 - 38]: First, the evidence of persons of significant "bad character". It is to be noted that s.165 does not specifically refer to evidence by a person with prior convictions or evidence by a person of bad character as being evidence of a kind which may be unreliable. This I think is to some extent because those categories could cover a very broad and variable range of cases, including many cases where a warning would be quite inappropriate. If it was attempted to narrow the range by use of some such word as "serious" in relation convictions, or "substantial" in relation to bad character, this would introduce a very subjective element into the identification of the "kind". Furthermore, I do not think this is evidence of a kind where the courts have any particular experience not equally available to the community generally. The other category suggested by the appellant is the category of persons with a personal interest to give evidence in a particular way, in particular, persons with a motive to ingratiate themselves with prosecution authorities such as the National Crime Authority. Again, no such category is expressly referred to, and again such a category would cover an enormous range of persons, in relation to many of whom a s.165 direction would be quite inappropriate and potentially misleading. Where, as in this case, the person in question is under close supervision of the relevant authorities, that person has a very strong motive not to be caught out in telling anything other than the truth, because that would be a devastating blow to his value to the NCA and to his chances of favourable treatment. The case is quite unlike that of an accomplice who has undertaken to give evidence against alleged co-offenders, who not only has a motive to exculpate himself or herself and inculpate others, and the knowledge required for effective invention, but also in some cases a liability to be re-sentenced if the evidence is not up to proof.

312 There is nothing about a motive to lie or to give biased evidence which a jury needs to be told in order to appreciate relevance to the credibility of the witness. The same can be said of contamination of a witness's evidence. These are not instances of evidence of a kind that may be unreliable within the meaning of s165. 313 To similar effect, I cite the following passage from the judgment of the court (Tobias JA, James and Howie JJ) in Fowler [2003] NSWCCA 321 at [188]: Where the issue raised concerns the honesty of the witness's evidence, a warning will not normally be required unless the witness falls within a category mentioned in s 165(1). As a general rule, the court has no particular advantage over a lay jury in determining whether a witness is telling the truth. General matters used by a tribunal of fact to assess a witness's credibility, such as demeanour, consistency, recent invention, and the presence of a motive to lie are readily appreciated by members of a jury as part of their normal life experiences. In such a case, if anything needs to be said by the trial judge about the evidence, it would normally be sufficient for the judge to comment on the evidence by reminding the jury of criticisms of it made by counsel during addresses. 314 It follows that evidence of the kind mentioned in paragraphs (c), (d), (f), (g) and (h) above is not evidence of a kind which may be unreliable within the meaning of s165. The section has no application to those aspects of the evidence in the present case. 315 In any event, the only point taken by counsel at the trial concerning a deficiency in the summing up in these respects related to the judge's asserted failure to direct the jury that the evidence of Mr Simpson and Ms Ingall might be unreliable because they had a motive to give biased evidence against the appellant arising from the domestic history in which they were involved. In his summing up, his Honour covered the allegation of bias on the part of Mr Simpson and Ms Ingall. It was a prominent feature of the proceedings and of counsel's address. Although his Honour's treatment of that aspect of the evidence did not include an explicit warning that Mr Simpson's and Ms Ingall's evidence might be unreliable on this account, there can have been no serious possibility of a miscarriage of justice for lack of such a warning in these circumstances. That is because there was nothing the jury needed to be told in order to appreciate the appellant's argument in relation to this aspect of the evidence. 316 It is then necessary to recognise that the appellant's complaint in paragraphs (d), (f), (g) and (h) is not limited to a failure to comply with s165. I have dealt with paragraph (e) in the context of s165, but the complaint in that paragraph is not limited to s165. Are there other grounds for complaint in relation to paragraphs (c), (d), (e), (f), (g) and (h)? 317 As to (c), evidence that witnesses have admitted lying on oath does not need to be specially mentioned by the trial judge. A jury requires no assistance to perceive the relevance of such an admission as to credit. 318 As to paragraph (d), the question of collusion between witnesses was the subject of cross-examination and address. It was sufficient for the trial judge to have drawn attention to the issue as he did in the passage of the summing up on 19 December 2002, p43, which I have quoted. 319 As to paragraph (e), the trial judge, in the passages of the summing up I have quoted, sufficiently brought to the jury's attention the issue as to whether witnesses may have agreed to give an untruthful or biased account of events implicating the appellant in order to secure immunity or a reduction in sentence, and the issue as to whether such witnesses may have been induced to give evidence in accordance with their statements because of the risk of the reductions in sentence being reviewed. 320 As to paragraph (f), it was sufficient for the trial judge to bring to the attention of the jury, as he did, the question of whether Crown witnesses, and in particular Mr Simpson and Ms Ingall, had a motive to give biased evidence. His Honour reviewed the evidence in that regard. This was an aspect of the case thoroughly debated in address. The jury needed no further assistance to appreciate the appellant's case in this regard. 321 As the paragraph (g), the evidence of Ms Sullivan was that Mr Simpson had sexually abused her when she was a child. Ms Johnson's evidence was corroborative of that. Counsel addressed extensively on the implications of that evidence and on the implications of Mr Simpson's denial that he had abused Ms Sullivan. His Honour summarised the evidence of Ms Sullivan, Ms Johnson and Mr Simpson on this matter very fully. He summarised counsel's address on that evidence very fully. No complaint was made by counsel at the trial that the summing up was inadequate to convey to the jury the way in which that evidence should or could be used. A trial judge is not bound to mention every way in which every piece of evidence might bear on the issues in the trial. The summing up was not deficient. The criticism now made is unsustainable. Nor would I grant leave to argue this complaint pursuant to Rule 4. 322 The complaint in paragraph (h) concerning Mr Simpson's credibility is also unsustainable. Again, the evidence and counsel's address on this matter were summarised very fully. The only complaint at the trial was that an instruction was required pursuant to s165. For the reasons I have given, no such instruction was required by s165 in relation to unreliability, motive to lie, bias or tendency to lie under oath (as is now claimed) otherwise than by reason of criminal involvement in the events (an instruction which his Honour gave). Once the limited requirements of s165 are recognised in relation to this witness, there is no valid ground for complaint. And, again, I would not grant leave pursuant to Rule 4 to argue this complaint except in relation to the s165 point, which I have dealt with and reject. 323 I conclude that there are no grounds for complaint in relation to these aspects of the evidence.

324 The battle lines were clearly drawn on the issues in questions. I am not satisfied that the trial judge erred in failing to say more than he did about these matters. I am also satisfied that there can have been no miscarriage of justice arising from any deficiency in the summing up in this respect. 325 For these reasons, ground 7 is not made out.

Ground 9: His Honour erred in refusing the jury's request for the transcripts of the closing addresses and summing up 326 The trial commenced before the jury on 8 October 2002. The Crown prosecutor opened the case to the jury on that day. Following the evidence, the Crown prosecutor addressed the jury for part of one day on 16 December 2002. Counsel for the appellant commenced his address to the jury on that day and completed his address on 17 December 2002. The trial judge commenced his summing up on that day and, with some time occupied in discussion with counsel, completed the summing up on 20 December 2002. The jury retired at 10:24 am on that day and returned their verdict at 3:42 pm on that day. 327 Part way through the summing up, at a stage when his Honour was summarising the evidence and before his Honour came to the way in which the case was put to the jury by the Crown Prosecution and by counsel for the appellant in final address, a note was received from the jury in the following terms: We would like the transcripts of summation from the Crown, Defence, Judge when available.

That was a reference to the addresses by the Crown Prosecutor and counsel for the appellant, and to his Honour's summing up. 328 Neither the Crown Prosecutor nor counsel for the appellant raised any objection to this course. However, his Honour was of the opinion that he was precluded from acceding to the jury's request. The jury was recalled and his Honour made the following statement, so far as is material. There are certain rules in relation to what I'm entitled to give you in printed form and I don't think that I'm entitled to give you what your asking for. We're checking that; it's possible that perhaps some of what you're asking for may be able to be given to you. I rather doubt it but we're checking on that right now but I would like to say this. So far as my summing up is concerned, if you have any specific query about any particular part of it there's no problem in asking me to repeat what I've said and I'm quite happy to do that. The other thing is this. So far as the addresses of both barristers is concerned I at least will be endeavouring to summarise what they put. Now that may not be of much assistance to you. They were very lengthy addresses. Nothing wrong with that, it's been a very lengthy case so you'd expect very lengthy addresses. Obviously I can't spend a lot of time on that and it will be a true summary, what I put to you is what I think is important. Now really what I think is important doesn't matter. It's what you think is important that matters, but I would think it would be perfectly proper when you go out, if you're interested or concerned about some particular matter that was put in the course of either address, to ask a question about it. The plain fact is, for once I in fact do have a transcript of both barrister's addresses. That's not usual. Usually the addresses of counsel are not transcribed. They're not recorded, but I had them recorded and I've had them transcribed because I thought it might assist me, but, as I say, I think there's a problem. I don't think I'm entitled to actually hand them over to you, but certainly if you have any query as to any submission that was put to you, if you ask a question about it, it can be looked up and you can be told exactly what was said. So that I think is probably about the best I can do, but we'll leave it and it may well be that we can do a little bit better, but to be quite honest I doubt it.

His Honour then resumed the summing up. 329 His Honour continued to summarise the evidence. He then summarised the addresses to the jury by the Crown Prosecutor and counsel for the appellant. At the conclusion of his summing up, his Honour said to the jury: If you want any information about the directions I have given you about what counsel have told you or about the case at all, you have only to get in touch with the court officer and give him your requests in writing. He will bring it to me, I will discuss the matter with counsel and between us I hope we will be able to answer any queries that you may have. 330 Following his Honour's response to the request from the jury on 19 December 2002, nothing further was heard from the jury in relation to that matter. 331 The appellant's complaint on appeal relates to the failure of the trial judge to provide the jury with copies of the addresses by the Crown Prosecutor and counsel for the appellant (particularly the latter). As appears from what his Honour said, these were, in this case, available to be provided. 332 It was common ground on the hearing of the appeal that his Honour erred in holding that he had no power to provide the jury with those transcripts: Taousanis [1999] NSWSC 107, Bartle [2003] NSWCCA 329. It was also common ground that the only question which arose in relation to this ground of appeal was whether there was a miscarriage of justice in consequence. 333 The appeal in Bartle followed a trial which occupied nearly eight months, which was plagued by continual interruptions and which involved seven accused with seven separate cases falling for consideration. The Crown Prosecutor's address occupied 13 sitting days. There were several defence closing addresses. A request for transcripts of some of the addresses was made by the jury after completion of the summing up and some time after they had retired to deliberate. 334 The following passage appears in the judgment of Smart AJ, in which Mason P and Barr J concurred in their joint judgment: [687] The address of Fox' counsel was detailed and quite complex in part. It was not the sort of material which was easy to retain. A mastery of the detail was of some importance. As mentioned the address of Fox' counsel concluded on 21 August 2001 and the jury sought the transcript of the address on 11 September 2001. In the meantime they had heard addresses from counsel for other accused, a lengthy summing-up and spent a week considering the cases of six other accused A compelling case existed for making the transcript of the address available to the jury when they had requested it. They were in the best position to know what they needed. Acknowledging and applying the restraint which this Court exercises when considering intervening in a discretionary judgment, nevertheless the judge erred in holding that he had no power to make a copy of the transcript of the address of Fox' counsel available to the jury and in not making it available. 335 There are obvious distinctions between the relevant facts of Bartle and the present case. It is submitted on behalf of the appellant that the present case was also complex, involving a multiplicity of issues and witnesses, but there is no real comparison. 336 Counsel for the appellant says there was a special need for the jury to have the transcript of addresses in the present case because the trial judge took the course of summarising the evidence of the witnesses in the order in which it was given and did not relate the evidence to the three charges respectively in an organised way. That was done to some extent in the address by counsel for the appellant. 337 I think there is little weight in this point. The charges related to distinct and separate locations and, to a substantial extent, involved different people. I do not think the jury would have had any difficulty in relating the evidence to the particular charges with confidence. 338 It is true that there were a substantial number of witnesses and a substantial number of factual issues for the jury to resolve. However, at the end of the day, the primary question was whether there was a reasonable possibility that the appellant's denial of involvement might be true as against the body of evidence adduced by the Crown, such as it was, with all its faults. This fundamental issue turned on impression as much as detail. 339 The critical consideration to my mind - and the one which resolves this ground of appeal to my satisfaction - is that the jury was told that transcripts of the addresses existed and that, if they wished to be reminded of any part of those addresses, they needed only to ask. They did not do so and, more particularly, did not do so after they had the benefit of his Honour's summary of the balance of the evidence and of the addresses of the Crown Prosecutor and counsel for the appellant. 340 It is submitted on behalf of the appellant that there were a number of deficiencies in the trial judge's summary of the addresses, particularly that of counsel for the appellant. The asserted deficiencies relate to factual issues traversed by counsel for the appellant during his address. In the broad view, these were not significant matters. 341 The trial finished with return of verdicts on 20 December 2002. There had been a good deal of pressure to finish the trial by that date. Two of the jurors had booked to fly out of Sydney on 20 and 21 December respectively. Other pressures had also built up to finish the trial quickly. 342 There is no ground of appeal arising from those circumstances. I do not suggest that there should or could be. The situation is relied upon as the context in which the transcript of addresses was sought and refused. The point is then, as best I understand it, that, in circumstances where the jury were under pressure to reach a decision quickly, they might have come to a different conclusion with the assistance of the transcript of addresses. 343 I do not see that the pressure to finish the trial quickly is a relevant consideration. It does not detract from the fact that, if the jury had felt the need to be reminded of any part of counsel's address after the trial judge had completed his summary of the evidence and had summarised the addresses, they would have asked for the relevant part of the addresses to be read. It would have taken no longer to do that in court than for one of the jurors to read the relevant passage or passages to the others from a copy of the transcript provided to them. Time was not a material factor. It did not bear on this aspect of the appeal. 344 This is not a case, such as Bartle, where, because of the complexity of the trial, a request for passages to be read would have been no substitute for an opportunity to peruse a copy of the addresses. 345 I conclude that there was no miscarriage of justice in consequence of the failure of the trial judge to provide the jury with the transcript of counsel for the appellant's address. The proviso should be applied. The appeal should not be allowed on this ground.

Result 346 The appeal against conviction should be dismissed.

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