1 THE COURT : The appellants Brendan Fernando and his cousin Vester Allan Fernando were jointly indicted on charges of the murder and aggravated sexual assault of Sandra Hoare. Both appellants pleaded not guilty but after a lengthy trial the jury found them guilty of murder. In the case of Brendan Fernando he was found guilty on the second count as charged. In the case of Vester Fernando the trial judge directed a verdict of not guilty on the aggravated sexual assault charge but the jury found him guilty of assault with intent to have sexual intercourse without consent in circumstances of aggravation.
2 Each appellant was sentenced for the crime of murder to penal servitude for the term of his natural life. In each case the second offence attracted a penalty of ten years penal servitude.
3 Each appellant has appealed against his conviction and also seeks leave to appeal against the sentences imposed.
4 It was the Crown case that the appellants abducted the deceased, a young nurse then on duty at the Walgett District Hospital, and that following her abduction she was sexually assaulted and then murdered. It was claimed these events took place very early on the morning of 9 December 1994. The deceased's body was found in a paddock some 400 metres away from the hospital. The evidence was that the deceased had sustained a number of cuts to the jaw but there were two very severe wounds to the neck. One of these wounds was more than half way around the neck but was mainly to the left side and to the back of it. The wound passed through a number of muscles, the jugular vein and the left vertebral artery. That wound alone would have cause death, but there was a second severe wound across the front of the neck and that passed through the larynx and into the voice box.
5 There was evidence from the deceased's fiance that he saw the deceased dress for work before he drove her to the hospital and that she dressed in a bra, panties, a white shirt, slacks, sockettes and shoes. Her hair was pulled back with a tie at the back. When the body was discovered the deceased was found to be naked except for a pair of slacks, shoes and sockettes. There was some material around her neck. The zippered fly of the slacks was undone and the slacks were secured by a single button. The deceased's underclothing was never found.
6 The nature of the case presented by the Crown against each of the appellants and the responses of the appellants may be summarised as follows:
As against Vester Fernando
7 This was based upon circumstantial evidence. For some time prior to the date of the murder this appellant had been staying at the Orana Haven. Evidence was called from three other occupants that they had seen him in possession of machetes there. There was also evidence that he was seen in possession of at least one machete in Walgett on the night of 8 December 1994. There were many witnesses who saw the appellant that night:
(i) Wendy Fernando, the appellant's sister said that the appellant arrived at her home in Walgett at about 6.00 pm, bringing with him his overnight bag. He was subsequently driven to a hotel and the appellant's sister last saw him at that hotel about 10.00 pm. She next saw him at her home the following morning.
(ii) Sharada Morgan gave evidence of seeing both appellants in a street in Walgett early on the morning of 9 December 1994. She said that she was with her brother Lindsay and another person at the time. She saw a police vehicle approaching in the street and she said she saw Brendan Fernando throw a knife into the bush when the police car passed by. She said that Brendan retrieved the knife afterwards and gave it to the appellant Vester who put it down his shorts. She said that she later saw both appellants and Michael Jackson walking in the direction of the hospital.
(iii) Lindsay Morgan said that he saw the appellants in the street at 1.00 am or 2.00 am on 9 December. He said that the appellant Vester was holding a machete in his right hand and that the appellant Brendan was walking beside him. He said he heard the appellant Vester ask Brendan to go back to the hospital and steal a car and he also heard both appellants ask Michael Jackson to go with them and he saw them walking towards the hospital.
(iv) Robert Walford placed his meeting in the street with the appellants as having occurred at about midnight. He was involved in an altercation with Vester that he said lasted for up to thirty minutes. He said that during it, Vester grabbed him by the shirt with his left hand and he said that he saw that this appellant had a machete with him.
(v) Michael Jackson, whose evidence is the subject of a number of grounds of appeal, was cross-examined by the Crown on a statement he had made to the police on 11 December 1994. In that statement he said that he saw the appellants in the street and that Vester invited him to join them to steal a car. In the statement he said that Vester said "Don't worry about anyone grabbing you Mick, I've got a machete here." He said that Vester pulled up his shirt and showed him a blade of what looked like a machete and added "If anyone grabs you, I'll kill them." He said that he told the police in that statement that Vester said he was going to his sister's place to get a screwdriver to break into the car. Jackson parted company with the appellants after that conversation.
8 Two machetes were found in a dam not far from the place where the body of the deceased was discovered and the medical evidence was that either machete could have inflicted the wounds found on the victim's body.
9 Then evidence was introduced in the Crown case that a car owned by Mrs Wells, was broken into in the hospital grounds just outside the ward where the deceased was on duty that night and items were taken from it that were later linked to this appellant. A screwdriver was found near the machetes which evidence indicated could have caused the damage to Mrs Wells' car.
10 Adam Jackson was a male nurse at the hospital and he was living in a relationship with Mrs Wells. He said that he drove her vehicle to the hospital, parking it outside the ward where the deceased was on duty at about 10.45 pm on 8 December. The following morning at about 2.45 am he went over to the ward to visit the deceased but could not find her. He did however come upon a patient with a head wound and he noticed blood in the building. He also discovered that the car had been damaged. There was a broken window and there was damage to the lock and to the ignition. He noticed that tapes were missing from the glove box as well as sunglasses, a photograph of Mrs Wells' children and other items.
11 Mrs Wells later identified items recovered by the police as being her property taken from her car. The property so identified had been recovered by police in various areas. When police executed a search warrant at the premises where the appellant claimed to have spent the night of 9 December they found an open clear plastic audio cassette cover with a portion of an audio cassette insert bearing the words "Bon Jovi Bed of Roses" printed on it. A further part of the Bon Jovi cassette cover was found at the base of a tree near the levee bank and it matched what was missing from what police recovered from the house. Subsequently the police found a bag in the boot of a car in which Vester Fernando travelled to Dubbo shortly after the death of the deceased. That bag, which was identified as being this appellant's bag, contained a number of items taken from Mrs Wells' car, including a torn photograph of her children and paper on which her former husband's name, address and phone number were recorded. Mrs Wells also identified as taken from her car some children's sunglasses found in an area to which the police investigations had taken them, and through which the footprints hereunder described proceeded.
12 There was footprint evidence relied upon by the Crown. There was evidence that it rained heavily about 2.30 am on 9 December and the soil in the Walgett area was heavy, tending to be sticky when wet and to adhere to footwear. Muddy shoe prints were found in the hospital building from which the deceased had, on the Crown case, been abducted. There were footprints found in the vicinity of the car. There were further shoe impressions in the soil across the front of the hospital building and near a set of steps at the end of the relevant ward, so the Crown case was that whoever broke into the vehicle proceeded into the hospital building.
13 Footprints were then observed that led away from the hospital. There were three sets that led to a place where, on the Crown, the deceased was attacked. At that point there was an area of disturbed ground in a timbered area near a rugby oval. In that disturbed ground there was a black coloured hair elastic and a pair of scissors with the name "Sandra" on them, a lens cleaning cloth and a small metal button identical in appearance to those on the blouse of the deceased later identified. The three sets of footprints led away then from that area to where the body was found. From that point there were two sets of footprints that continued on approximately one metre apart. The tracks led to the levee bank where part of the cassette cover and a screwdriver were found. There was a single set of tracks that crossed the levee bank and looped back, then two sets of tracks moved on to the street, where they disappeared.
14 There was evidence that the size of an impression taken was similar in length to the size of the shoes which the appellant claimed he was wearing. The cast was taken from a barred shoe impression near the rugby oval, and that impression was similar to impressions seen both inside and outside the hospital building in which the deceased had been working. There was an issue as to whether this appellant was wearing black shoes as he claimed because Lindsay Morgan said that when he encountered the appellant he was wearing brown riding boots, and Robert Walford said he was wearing what he described as a pair of hob nail shoes like work boots.
15 This appellant gave evidence. He denied going anywhere near the hospital. He denied possessing any machetes. He admitted the encounter with Robert Walford but said that what he was holding at that time was a small iron bar that he found. His evidence was that after the encounter with Walford he met Michael Jackson and that Jackson, Brendan and himself went to his sister's place to have a smoke and there the appellant said he remained.
As against Brendan Fernando
16 The Crown relied in part upon the same circumstantial evidence as that relied upon against his cousin. Additionally however, the Crown relied upon admissions made by this appellant in the course of:
(i) an interview, details of which were recorded in a police notebook entry signed by the appellant;
(ii) at an electronically recorded interview; and
(iii) in a "runaround" which was recorded on video and also on tape.
17 This appellant did not give evidence at the trial. A psychologist was called however and expressed the opinion that the appellant had an intellectual disability. It was urged that this and the appellant's consumption of alcohol would have affected his capacity to enter into an understanding or arrangement with the co-appellant such as had been advanced by the Crown. It was further submitted that if there was an agreement with Vester Fernando it only related to stealing a car. What the appellant told the police was true and he was not a party to any common enterprise that extended to the killing of the deceased.
18 The admissions made by Brendan Fernando and the circumstances in which they were made are the subject of the first of the grounds of appeal advanced by the appellant Brendan Fernando, to a consideration of which we now turn. Because the detail of these admissions and the evidence that emerged on the runaround are at the core of the appellant Vester Fernando's submission that he should have been granted a separate trial, it is convenient to deal with Brendan Fernando's appeal first.
APPEAL OF BRENDAN FERNANDO
Ground 1: The learned trial judge erred in allowing into evidence the admissions made by police to the appellant
19 Before the evidence in point was admitted against the appellant there was an extensive voir dire hearing at the conclusion of which his Honour stated reasons for admitting the relevant evidence to go before the jury. It will, of course, be necessary to consider his Honour's reasons when addressing this ground but at the outset it is desirable to look at the sequence of events in the course of which the admissions were elicited.
20 Early on 10 December 1994, some time shortly after midnight, Det. Sgt Pollock and other police officers attended 79 Dewhurst Street, Walgett where the appellant was staying with his sister and her de facto husband, Colin Morris. The appellant was awakened and asked to go the police station to be questioned. Whilst the evidence of Colin Morris was that Sgt Pollock informed the appellant at his house that the police officer wanted to question him about an assault charge, Sgt Pollock's account was that he said he wanted to question him about the killing of the nurse at the hospital.
21 The admissions were made at various stages in the course of events beginning at 12.50 am. It is necessary to set out the relevant evidence in close detail:
(i) The police notebook admissions: in the first instance Det. Sgt Pollock asked the appellant a number of questions to which the appellant responded. These questions and answers were recorded in the police officer's notebook in the course of an interview that began at about 12.50 am and continued until about 1.10 am.
(ii) Sgt Pollock then advised the appellant that there would be an electronic interview but the appellant indicated he was not prepared to be interviewed in that way. Sgt Pollock then said he was compelled to ask some questions on the electronic machine. However before the ERISP began, Sgt Pollock asked the appellant: "Where is the machete now?" The appellant responded: "Vester threw it over the levee bank." Sgt Pollock asked:
"Q. Are you prepared to show us where you threw it?
A. Yeah.
Q. Are you prepared to go with us to show us what happened with the woman and we will have a video made of what you show us?
A. I don't want to go too close to where it happened.
Q. Are you prepared to go with us to that area?
A. Yeah, but not too close."
(iii) Then the ERISP interview took place from 1.45 am to 1.58 am. In the course of this interview the appellant was asked these questions and gave these answers:
"Q.10 Do you agree to be electronically interviewed?
A. No.
Q.11 Is that no?
A. No, I don't want do it.
Q.12 Just for the purpose of this interview would you repeat your full name, date of birth and your address?
A. Brendan Fernando. Seventh of the tenth, seventy nine.
Q.13 And your address?
A. Seventy four Arthur Street Walgett.
Q.14 Seventy four Arthur Street Walgett was it.
A. -------------------
Q.15 Right. Are you prepared to be interviewed by way of a typed record of interview. (Pause) Do you understand that question?
A. Yeah I do, but ____________
Q.16 Sorry.
A. I don't think I can handle an interview at the moment.
Q.17 You don't think you could handle an interview at the moment. Do you agree that while I was talking to you earlier I wrote the questions and answers in my notebook.
A. Yeah.
Q.18 Are you prepared to read this notebook and um tell me whether the questions and answers entered there are correct?
A. Yes.
Q.19 Or do you want, I may have to help you read them. Are you prepared for me to do that?
A. Can't understand that writing.
Q.20 You can't?
A. I can't understand that writing.
Q.21 Are you quite happy for me to read those questions and answers to you?
A. Yes.
Q.22 Well what I've got written there is your, twelve twenty five a.m. at the house where you were, then your name. You gave an address of seven Hammond Street Goodooga. Right and your girlfriends name. Then my introduction to you and as I told you I am inquiring into the death of Sandra Hoare and I gave you a caution that you didn't have to answer any questions unless you wanted to as anything you did say may later be used in evidence. Did you understand that?
A. Yes.
Q.23 And you said, 'Yeah'. I said I told you, sorry, 'I have been told that you were in town with Vester Fernando early yesterday morning. Do you want to say anything about that?'
A. Yes.
Q.24 And you said, 'No I only got here this morning. I said, 'Is Vesta your brother.' You said, 'No my cousin.' I said, 'I've been told you were seen with a machete near Fings house.' You said, 'No.' I said, Did you go to the hospital yesterday morning about 3am.' You said, 'No I didn't get here until 7am. 7 o'clock I should say.' I said, 'Is Vesta in Walgett at the moment.' You said, 'No he's in Brewarrina at a drying out centre.' I said, 'I have been told you are, sorry, I've been told that you have been identified by four people in Walgett after midnight yesterday what do you say about that.' You said, 'I only went there to get the car.' I said, 'What happened then.' You said, 'I looked in through a window and said there's a sheila there.' I said, 'What happened then.' 'Vesta grabbed her and I said what are you fucking doing man.' I said, 'Did you assault the old man.' You said, 'No, he told me to hold onto the girl and he hit the old man.' I said, 'What happened then.' And you said, 'He took her and started going scrub.' I said, 'Did you have sex with the girl.' You said, 'No I already had sex. Vesta had sex, had it with her.' I said, 'Were you there when he had sex with her.' You said, 'Yeah. I said, 'What happened to her underpants.' You said, 'He took them.' I said, 'What happened to her bra.' You said, 'He took them too. He put them in his pocket.' I said, 'Who hit the woman with the machete.' You said, 'He did I had my back turned walking away.' I said, 'Did you see him hit her.' You said, 'No I heard her screaming but.' I said, 'Did you try and stop him.' You said, 'He was the man in control he had the blade.' I said, 'Where did he get the machete.' You said, 'Near the church under a building.' I said, 'Where did he carry it. You said up his sleeve. He had scissors taped, tapped to his shoulder too.' This shoulder and you pointed to your left shoulder. Is that correct?
A. Mmmm.
Q.25 I said, 'W[h]ere you carrying a screw driver.' You said, 'No.' I said, 'How did you smash the car window?' You said, 'Vesta did that with a machete. With the machete I should say.' I said, 'W[h]ere you drinking yesterday' You said, "I was pretty full I'd been drinking all day.' I said, 'You seem to be able to recall everything though.' You said, 'How could you forget it. It was bad.' I said, 'Was Vesta drinking.' You said, 'No he didn't look it.' Is that all correct?
A. Yes.
Q.26 Are you prepared to sign that?
A. Yes.
Q.27 To say its correct?
A. Yes."
He was then asked whether he wanted to be interviewed any further about what he said and his response was "I can't handle the pressure". The conversation that had earlier taken place, immediately before the electronically recorded interview began, seemingly prompted the following exchange as recorded:
"Q.30 …Do you agree that I asked you earlier if you were prepared to show us where you threw, where Vester threw the machete?
A. Mmm.
Q.31 Are you still prepared to do that?
A. Mm.
Q.32 And are you prepared to show us where you went um when you went to break into the car early yesterday morning at that hospital.
A. You want me to take you back up there.
Q.33 Yeah.
A. No. ____________
Q.34 Hey?
A. No.
Q.35 Then you could show us where you went at the hospital and where you went with the girl. Not prepared to do that.
A. No I couldn't do that.
Q.36 Okay, well are you prepared to show where Vesta threw the machete.
A. Yeah."
(iv) Immediately following the suspension of that interview, Sgt Pollock asked the appellant, in words not recorded: "Listen, why don't you show us where you went up at the car, eh?" He agreed in cross-examination that he said that to the appellant in an endeavour "to have him change his mind" concerning his refusal, expressed in the electronically recorded interview, in his responses to questions 32-35.
(v) The runaround between 2.20 am and 2.53 am: In the course of the runaround that followed the suspension of the ERISP the appellant took part in a conversation which was recorded on a tape recorder and the events were also recorded on video. The record concerning that runaround begins:
"Q.1 Now Brendan. Do you agree I just spoke to you a little while ago that um we are going to now go and you are going to show me where Vester threw the machete?
A. Yes.
Q.2 Yes. Do you agree that I asked you whether you agreed with having our conversation during this trip recorded on a tape recorder?
A. Yeah.
Q.3 And do you agree with having it done that way?
A. Yes.
Q.4 And do you understand that on our trip along this way um I will have to ask you some questions?
A. Yes.
Q.5 Now I want you to understand that you don't have to answer any of those questions or say anything unless you wish but whatever you do say will be recorded and later given in evidence. Do you understand that?
A. Yes."
During the runaround, and having shown the police where the machete had been thrown and "buried by Vester" , the appellant gave the following answers to the following questions:
"Q.70 Will you just to me again where Vester took the girls pants off. Underpants?
A.. Under a tree near No. 2 oval.
Q.71 And had he assaulted her in any way at that point?
A. No he didn't. No.
Q.72 Did she walk with him to the tree at No. 2 oval?
A. Yeah. Cause she had no other choice.
Q.73 Why didn't she have any other choice?
A. He had the blade pressed to her throat and, and he had her by the head and his hand over his mouth, over her mouth.
Q.74 So was he dragging her at all?
A. No she co-operated and that and we could lead her.
Q.75 Which way do we go now?
A. Keep going.
Q.76 And where did he take her bra off?
A. At the same place where he took her pants off.
Q.77 And then after he took the bra and pants off, what did he do then?
A. He told her to lay down. She laid down.
Q.78 Yeah. What happened then?
A. He told me to hold both her legs.
Q.79 Did you hold them?
A. I had no other choice so I grabbed them.
……
Q.85 Okay. Now um. You held her legs. Did he had sexual intercourse with her?
A. Yeah.
Q.86 And how long did he do that for?
A. --------
Q.87 How long did he do that for?
A. Ah. Five, ten, fifteen minutes.
Q.88 And where did you have the knife when he was doing that?
A. He had it up against her throat still.
………
Q.93 What part of the hospital did you go into. Where was the car?
A. Right on the other side.
Q.94 On the other side. Are you prepared to walk up this way with me? Walk up this way here.
A. No.
Q.95 On the other side of the hospital was it?
A. Yeah.
Q.96 And thats on actually the Walgett side?
A. Yeah in the car park there.
Q.97 And what room did you go into to get the nurse?
A. In the, whats that ward (MOTOR STOPS) the maternity ward I think it is. It used to be the maternity ward.
Q.98 Can you see that room from here?
A. No you can't.
Q.99 Right. Well just indicate to me over there where you, where the car was?
A. Right over the other side.
Q.100 Right, and which way did you take the girl out?
A. He took her out the back door.
Q.101 And where were you?
A. I had to follow him. I was in front of him.
Q.102 You were in front of him?
A. Yeah.
Q.103 Yeah. And what, she went er, around which way of the hospital did you go?
A. And started walking around on the grass.
Q.104 Right.
A. And took her back inside then.
Q.105 He took back inside?
A. Yeah.
Q.106 Why was that?
A. Eh.
Q.107 Why was that?
A. I don't know. They can come back out this way and go back that way.
Q.108 Right.
A. Over towards No. 2 Oval.
Q.109 And where abouts. Where abouts. Where's No. 2 oval?
A. On the other side of the old Walgett Road.
Q.110 On the other side of the old Walgett Road?
A. Yeah.
Q.111 Are you prepared to take us down there.
A. No.
Q.112 Eh just to indicate some things to me?
A. No.
Q.113 Well in which direction was the tree that er the girl was under when he had sex with her?
A. Well, straight across there from where I'm standing now.
Q.114 Straight across. Alright. And when um. After he had sex with her, what happened then?
A. We went for a walk and towards the airport. That over there. Straight across there.
Q.115 And did he have sex with her again?
A. No. He just started walking around.
Q.116 Where was she?
A. Ah
Q.117 Yes go on sorry?
A. She was still in the ground. He still had the blade to her throat.
Q.118 Had the what to her throat?
A. The blade.
Q.119 The blade?
A. Yeah.
Q.120 Mm?
A. And was walking around talking to himself,
Q.121 What was he saying?
A. He was saying, 'what am I going to do, what am I going to do'. And he was asking me, ----worth a shit-----I can't tell you what to do.
Q.122 Mm?
A. You got us into it cunt, you get us out of it.
Q.123 And then what happened?
A. And then he started walking again and then he spotted the Police and he told us to jump down and we all jumped down there and then he was there talking for a while, waiting for you fellas to go. When the Police left, ah, they went up that way for a walk, went up that way for a drive and we got up again and I just kept walking and I got about from here to the phone booth away and I heard her scream then.
Q.124 How many times did she scream?
A. Once.
Q.125 Did you hear any other noise?
A. No. Just Vester saying.
Q.126 Sorry?
A. Just Vester saying, 'You gutless cunt. Come back here and help me.'
Q.127 And when did you see Vester again?
A. Ah.
Q.128 When did you see Vester again?
A. Oh. When we got up over here at the rest area. The rest area back there now.
Q.129 So you walked down to the rest area?
A. Yeah I met him up there.
Q.130 And when you last saw the girl, what was she wearing?
A. She was wearing blue, blue jeans on. Womans jeans and that was it.
Q.131 When Vester. Sorry blue jeans?
A. Yeah them womans jeans, what nurses wear.
Q.132 And ah. She had those on when you last saw her?
A. Yeah.
Q.133 What did she put them. Did you put them back on after Vester had intercourse with her?
A. Yeah. We put em back on her.
Q.134 Alright. And um. Ah. When you, when you saw Vester, where did he have the machete?
A. When.
Q.135 When you saw him over here at the rest area?
A. He had em both down his shorts, down the side of his track suit.
Q.136 What do you mean both?
A. He had, he had the, the ah I can't…
Q.137 The scissors?
A. The scissors on his shoulder, pulled it out, put it down the side and put the machete down there too.
Q.138 Did they have, did the scissors have blood on them?
A. No. Not the scissors. No.
Q.139 Did the machete have blood on them. On it?
A. I don't know. I couldn't see. It was right over there in the dark.
Q.140 How do you know the scissors didn't have blood on them?
A. Eh.
Q.141 How do you know the scissors didn't have blood on them?
A. Well when he ripped it off he just ripped it off like that there.
Q.142 What over here at the rest area?
A. Yeah. ---them too with the machete.
Q.143 Right. Um what, what, at what point did um, did Vester take her underpants off?
A. At the point where he was going to have sex with her.
Q.144 At the tree?
A. At the tree.
Q.145 Alright?
A. Mm.
Q.146 Did you see the old man that was in the hospital at all?
A. I heard him---
Q.147 What was he saying?
A. He was singing out for the nurse.
Q.148 Mm. Do you remember what he was saying?
A. He was just saying, 'Nurse, Nurse where are ya' and Vester grabbed her and took her back to the old fella and Vester was standing around the corner and he had the blade behind the nurse.
Q.149 Mm.
A. And she was talking to the old fella.
Q.150 Yeah.
A. And he was saying he wanted to go toilet and she was saying yeah, she was saying what Vester was tellin her to say, then when he went to the toilet ----- The man walked up the ---- What doin. He said, 'Hold her just here' So I grabbed her the way he was holding her.
Q.151 Did you have the knife in your hand then?
A. No he had it. He must have knocked him in the head with it. He must have knocked him in the head with it. I just heard this toonk, toonk, toonk, and then a crash on the ground.
Q.152 Right?
A. And then we come back then. Got the girl off me and went back outside again and started to talking around, goin on stupid, talking to himself. He was spinning me out bad so thats when we cut across there.
Q.153 Yep. Alright. Okay now your sure you won't indicate from this road, from this road, where you went if we drive down a little bit further?
A. ---------
Q.154 Will you indicate the No. 2 oval to me if we drive?
A. I'll point it to you. But -
Q.155 Well if we walk down there now will you indicate it to me?
A. No not walkin.
Q.156 Righto drive, okay. Will you hop back into the back of the car then?
A. --------
WALKING NOISE AND NOISE OF DOORS CLOSING
Q.157 Now just indicate to Detective Adams which way you want him to drive?
A. Straight down.
Q.158 Did you discuss um, with Vester what you were going to do before you got to the hospital?
A. Yeah we were just comin up to get a car.
Q.159 What were you going to do with the car?
A. We were, he wanted me to take him up to Mungindi.
Q.160 Right?
A. Stop here.
Q.161 Stop here. Okay, if you just hop out of the car for me and just indicate to me where you went on No. 2 oval?
A. -------
Q.162 Alright, well just indicate to me what direction?
A. We went from that car over there, straight across.
Q.163 Sorry. Just say that again?
A. Went from that car, went straight across the back of the, where the car sittin, come down that isle there, that, whatever that is, that stair thing anyway and went from there, went straight across that --- to No. 2 oval, the goal post that standin up---
Q.164 And all, and ah did Vester have the knife to the womans throat during all that time?
A. All that time.
Q.165 And er, what did he, what did he say to her about the knife?
A. He said, said 'You scream bitch you goin to get it. I'll cut your throat you cunt. Simple as that you slut."
(vi) The ERISP resumed at 2.53 am after the appellant had been taken back to the police station and it was suspended again at 2.58 am. In this period the appellant expressed his willingness to show police the clothing he had been wearing when he went to the Walgett hospital.
(vii) The ERISP resumed briefly between 3.02 and 3.04 am during which time the appellant acknowledged to Sgt Holland that he had answered the earlier questions of his own free will and that he had no complaints as to the manner in which he had been treated.
(viii) The appellant was formally charged at about 3.20 or 3.25 am.
(ix) At about 5.50 am the appellant accompanied two police officers to Dewhurst Street to point out the house in which Vester Fernando was staying.
(x) After 7.00 am the appellant accompanied Sgt Pollack to the No. 2 oval where he was asked whether that was the area where the deceased had been sexually assaulted. He said that it was.
22 It was submitted by Mr Buddin that the trial judge was in error in allowing the evidence of admissions to go before the jury. A number of reasons for this submission were advanced. They were of course more fully expressed, but in essence the argument for the exclusion of the admissions was as follows:
(i) that as the ERISP records (in the response to questions 10 and 11), the appellant made it clear he did not want to be electronically interviewed;
(ii) the assertion of compulsion advanced by Sgt Pollock to justify that interview was incorrect and in any event the interview continued past the point to which Sgt Pollock understood he was compelled to proceed, which was to identify on the recording the appellant's name and his unwillingness to be further interviewed;
(iii) the appellant's participation in the runaround was against his will in so far as it extended beyond showing where the machete had been thrown;
(iv) the appellant was not formally charged until approximately 3.20 am although Sgt Pollock had made up his mind to charge him at about 1.00 am once he had admitted in the notebook interview that he went with Vester to steal the car;
(v) other factors calling for the exclusion of the evidence were advanced:
(a) the period of interrogation;
(b) the appellant's vulnerability by reason of his age, his background and social status, his eduction and intelligence, his distress and his intellectual disability;
(c) Sgt Pollock's failure to comply with the Police Commissioner's instructions:
(i) failing to inform the appellant whether he was under arrest or not before accompanying him to the police station;
(ii) failing to inform him at about 1.00 am that he was under arrest and for what reason;
(iii) persisting with the interrogation after the appellant had conveyed his unwillingness to be further questioned;
(d) the failure to inform the appellant that he could contact a lawyer, a relative, a friend or a member of an Aboriginal organisation.
23 The issue of admissibility that arose for the trial judge involved consideration of ss 84 and 85 of the Evidence Act as well as the discretionary provisions of ss 90 and 138 of the Act. (The appellant relied upon the lastmentioned provision at the trial for the exclusion of the admissions made on the "runaround" after the police had been taken to where the machete had been thrown. Hence the objection covered those passages extracted above from the tape recording and the video that related to it.)
24 Section 84 imposed on the Crown a positive burden of satisfying the court that the admissions were not influenced by:
"(a) violent, oppressive, inhuman or degrading conduct…, or
(b) a threat of conduct of that kind."
25 There was no evidence to suggest that any violence or threat of violence was proffered in this case but the trial judge was obliged to satisfy himself that the admissions were not influenced by oppressive conduct. It is plain from his Honour's lengthy reasons for judgment following the voir dire proceedings that he was so satisfied in this case; indeed his Honour expressly found that this was so. His Honour also addressed the discretionary considerations that arose under ss 90 and 138 before deciding to admit the evidence.
26 His Honour made a number of significant findings of fact on the evidence introduced on the voir dire:
(i) the appellant voluntarily accompanied Sgt Pollock to the police station after being informed that the police officer was making inquiries into the death of the nurse at the hospital the previous morning;
(ii) based on prior experience with the police the appellant understood the meaning of police cautions such as he was given on 10 December before the "notebook" interview, at the ERISP interview and later on the runaround;
(iii) the appellant was aware of his right to remain silent;
(iv) whilst Sgt Pollock should have informed the appellant as soon as he formed the requisite state of mind, the appellant appreciated from prior dealings and experience that he was under arrest once he told the police officer he went to the hospital "to get the car" ;
(v) that Sgt Pollock believed that the appellant appreciated he was under arrest as from 1.00 am and that there was no deliberate breach of the law or recklessness in the police officer's conduct in the sense explained in Foster v The Queen 67 ALJR 550 at 565;
(vi) that Sgt Pollock did believe he was compelled by police instructions to undertake an electronic interview even in a case where the person to be interviewed was unwilling to participate;
(vii) that the appellant signed what was written in the notebook voluntarily;
(viii) that Sgt Pollock regarded the essential purpose of the runaround to be undertaken as being to locate the machete, although he had in mind he would converse with the appellant and that the conversation would be recorded;
(ix) that the appellant knew what was said on the runaround was being recorded and that the appellant had agreed to this occurring;
(x) that the appellant was not taken on the runaround to places he objected to but taken some distance away from them;
(xi) that the appellant agreed to accompany police to the No. 2 oval on the visit that occurred later that morning and that he received an appropriate caution concerning that visit;
(xii) that the various admissions that were made were reliable and probative;
(xiii) that the appellant was treated with consideration and respect by the police officers concerned;
(xiv) that Dr Trindall, Constable Mayes and Constable Gilmour had observed no intellectual impairment in their dealings with the appellant and that the appellant's admissions were not rendered unreliable by any such disability.
27 The above findings of fact were in our opinion open to his Honour and Mr Buddin's submission to the contrary, in relation to such findings as he did challenge, is rejected. These findings all represented relevant considerations in his Honour's task in determining whether the evidence should be admitted.
28 The Court does not accept the submission that his Honour applied the wrong test in considering the requirements of s 84. On the contrary, a reading of his judgment discloses that he addressed those matters relevant to the issue upon which the submissions focussed: namely whether the admissions were influenced by "oppressive conduct" .
29 In addressing ss 90 and 138 Mr Buddin referred to R v Swaffield (1997-98) 192 CLR 159 and drew attention in particular to the passage in the joint judgment of Toohey, Gaudron and Gummow JJ at 202 which is relevant to the discretionary exercise:
"However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court..."
30 A court addressing issues such as arise in the present case must be vigilant to ensure that evidence is not permitted to be introduced at an unacceptable price.
31 The findings that his Honour made and which we have recorded warrant consideration in relation to the issues arising under each of the statutory provisions, ss 84, 90 and 138.
32 It is always a matter of degree as to whether police questioning has gone too far, recognising the duty of the investigating police officer on the one hand and the right of the suspect on the other hand.
33 In the judgment of this Court in R v Plevac (1995) 84 A Crim R 570 it was said (at 580):
"Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions: Ireland (1970) 126 CLR 321 at 331-332; although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible."
34 Then in R v Clarke (1997) 97 A Crim R 414 Hunt CJ at CL, with whose judgment the other members of the court agreed, said at 419:
"It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent (Smith [1964] VR 95 at 97; Lavery (No. 2) (1979) 20 SASR 430 at 470; O'Neill (1988) 48 SASR 51 at 56). It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence (cf Wilson at 324)."
35 In this case the admissions recorded at the electronic interview had already been made in the notebook interview. That earlier interview took place before s 424A of the Crimes Act required tape recording of an interview at which an admission was made before evidence of the admission could be introduced. Moreover the appellant had before the electronic interview already agreed to take the police to where the machete had been disposed of, and to accompany police to the scene provided he did not go "too close" to where it happened.
36 The manner in which the police officers behaved towards and communicated with the appellant warranted the closest scrutiny in considering this ground. This Court was invited to and has had the benefit of seeing and listening to the electronic interview. It has also seen the video of the "runaround" and heard the accompanying record of what the appellant had to say during the course of that activity. We have already remarked that his Honour accepted that the appellant was treated with consideration and respect and that there was no oppressive behaviour. To the extent that his Honour's findings were based on the visual and audio material that this Court has seen and heard, we would see no reason to disagree with those findings. We observed no indications of aggression or vigorous questioning or any other indicators of overbearance in the conduct of the police involved.
37 In our opinion the trial judge was correct in the decision he reached in relation to s 84.
38 His Honour found that the admissions were reliable and this finding, plainly open to the judge, bore upon the issue of fairness under s 90. The reliability of the evidence and its importance in the case for the Crown were very relevant considerations in weighing the public interest in allowing the jury to consider such evidence. Having reflected upon all the submissions made by Mr Buddin, we do not consider that error has been demonstrated in the exercise of the discretion of the trial judge under either s 90 or s 138.
39 In our opinion the evidence was properly allowed at the trial and this ground of appeal fails.
Ground 2: The trial judge erred in allowing evidence to be given by David Doolan, Bruce Scott and Derek Pitt in the Crown case against Brendan Fernando.
40 Each of these three witnesses gave evidence of having observed the appellant's co-accused, Vester Fernando, with a machete on occasions before 9 December 1994.
41 At an early stage of the trial, before the Crown Prosecutor made his opening address, counsel for Vester Fernando informed the trial judge that he would object to evidence of this kind being given, on the grounds that it was merely evidence of a propensity on the part of Vester Fernando to carry large knives. Counsel for Brendan Fernando stated that he would object to evidence of this kind, on the grounds that it was irrelevant to the trial of his client. The trial judge, however, made a ruling that the Crown Prosecutor should be permitted to refer to the evidence in question in his opening address. When Mr Doolan, the first of the three witnesses to be called, was giving evidence in the Crown case, both defence counsel repeated their objections to evidence of the kind in question being given. The trial judge held that such evidence would be admissible as against both of the accused.
42 On the hearing of the appeal it was submitted on behalf of Brendan Fernando that evidence that his co-accused had been seen with a machete, on occasions when Brendan Fernando was not present, was not admissible against Brendan Fernando.
43 We do not consider that this submission should be upheld. The Crown case against each appellant included that he had been a party to a joint enterprise with the other appellant, in which Vester Fernando had used a particular kind of weapon, a machete. Evidence that in the recent past before the night of 8 and 9 December 1994, Vester Fernando had been observed in possession of a machete was relevant, not only in the trial of Vester Fernando but also in the trial of Brendan Fernando, as showing that on the night of 8 and 9 December 1994 Vester Fernando had available to him a machete. Such evidence was admissible for this purpose against Brendan Fernando, regardless of whether Brendan Fernando had been present on the occasions when Vester Fernando was observed having a machete in his possession. As Brendan Fernando had not been present on these occasions, such evidence did not show that Brendan Fernando had been aware, on or prior to the night of 8 and 9 December 1994, that Vester Fernando had a machete. Nevertheless, the evidence was relevant to prove the matter which we have indicated.
44 We consider that this ground of appeal should be rejected.
Ground 3: The trial judge erred in granting leave to the Crown to cross-examine its own witness, Michael Jackson, pursuant to s 38 of the Evidence Act.
45 We note that this ground of appeal is the same as the first part of ground of appeal 5 (d) in Vester Fernando's appeal, that:-
"The trial judge erred in his conduct of the trial in:-
(d) allowing the Crown Prosecutor to cross-examine the witness Michael Jackson in chief..."
46 The argument put in support of this ground of appeal in the written submissions by counsel for Brendan Fernando was that the Crown had been on notice that Michael Jackson, if called, would not give evidence in accordance with the statement he had given to the police and that it was impermissible for the Crown to call a witness who it knows would, if called, give evidence which would be inconsistent with a prior statement made by the witness, for the purpose of enabling the Crown to obtain leave under s 38 of the Evidence Act to cross-examine the witness, to cross-examine the witness on the witness's prior inconsistent statement and then to rely on the evidence of the prior inconsistent statement as evidence of the truth of the facts asserted in the prior inconsistent statement.
47 This argument was not pressed in oral argument at the hearing of the appeal. It was conceded that a key step in the argument, that the Crown was on notice, before Michael Jackson was called, that he would not give evidence in accordance with his statement, depended on the drawing of an inference to that effect from two parts of the trial transcript, a part where the Crown Prosecutor is recorded as saying, " I notify my learned friends that I would be seeking leave to take a particular course " and the part where the court reporter summarised something said by the Crown Prosecutor as " (Crown Prosecutor indicated that he had given notice of the situation as soon as he had been informed by his instructing solicitor that there may be a problem )".
48 As to the first part of the transcript the argument for the appellant depended on reading the word which actually appears in the transcript as " notify " as being an error for " notified ", so that the transcript would read " I notified my learned friends that I would be seeking leave to take a particular course ".
49 It was conceded by counsel for Brendan Fernando at the hearing of the appeal that these "cryptic" parts of the transcript did not form a safe foundation for the drawing of the desired inference of the Crown being on notice before it called Michael Jackson and the argument that the Crown had called Michael Jackson for an impermissible purpose was not pressed.
50 It is noteworthy that the trial judge in a judgment of 4 June 1997 concerning Michael Jackson's evidence said that the evidence given by Michael Jackson in his evidence-in-chief (before leave was given to the Crown to cross-examine) that he had smoked marijuana, left the appellants and gone home, " came quite clearly as a surprise to the Crown".
51 It was still submitted on the appeal that the trial judge had erred in granting leave to the Crown to cross-examine Michael Jackson but no ground for impugning his Honour's decision was really advanced. There was a clear basis for granting leave to cross-examine, in that Michael Jackson had made a prior statement which was inconsistent with the evidence he had given. When the application was made at the trial, counsel for Brendan Fernando said that he had nothing to say in opposition to the Crown Prosecutor's application and the only submission which counsel for Vester Fernando is recorded as making was that the trial judge was obliged to take into account whether the Crown Prosecutor had given notice at the earliest opportunity of his intention to seek leave (s 38 (6) (a)) and it was put that the earliest opportunity had been "about 5, 6 minutes ago". The trial judge said that in reaching his decision to grant leave he had taken s 38 (6) into account and it was clearly open to the trial judge to consider that the Crown Prosecutor's application had been made at the earliest reasonable opportunity.
52 Reference was made in submissions to the decision of the High Court in Lee v The Queen 72 ALJR 1484. In Lee leave had been given to the Crown Prosecutor to cross-examine the Crown witness Calin pursuant to s 38 of the Evidence Act . However, the only question which the High Court addressed on the appeal to that court was the extent of the operation of s 60 of the Evidence Act . As regards s 38, Lee is in any event distinguishable from the present case on its facts, because in Lee the witness Calin had told police before Lee 's trial that he was not willing to give evidence in accordance with the statement he had given to police, because he had heard that he was being called a "dog".
53 We would dismiss this ground of appeal.
Ground 4 : The trial judge erred in admitting into evidence that material from the witness Michael Jackson which appears at the trial transcript pages 496-500.
54 The evidence given by Michael Jackson at pp 496-500 of the trial transcript was the evidence given by him during cross-examination by the Crown. It is desirable to set out his cross-examination in full:
"CROWN PROSECUTOR: Q. Michael, you have a copy of your statement with you? A. Yes.
Q. Might I take you to par 5. You mentioned in that paragraph that you ran into a number of people near the tyre service. See that? A. Yes.
Q. You started talking to Lindsay Morgan? A. Yes.
Q. While you were doing that you saw Vester and Brendan Fernando walk out of the laneway opposite the tyre service? A. Yes
Q. You said that in evidence, did you not? A. Yes.
Q. You said at par 6 'Vester and Brendan walked straight past me at first.' See that? A. Yes.
Q. 'Down Fox Street in the direction of the hospital.' Do you see that? A. Yes.
Q. You also said 'They then called out to me.' Do you see that? A. Yes.
Q. And 'Vester said, 'Hey Mich, do you want to come and steal a car with us.'? Do you see that? A. Yes.
Q. Then you said 'They were not very far away when they called us out. Just at the far end of the tyre service.' A. Yes.
Q. Then you said 'I reckon that Lindsay would have heard them call out this to me. A. Yes.
Q. Then you said 'I then left Lindsay and started walking towards Vester and Brendan who had stopped and were waiting for me at the end of the tyre service.' A. Yes.
Q. Then you said in par 7 'At the beginning when I got to where they were standing I said 'No, I do not want to go.' You said that? A. No.
Q. Did you say in the statement, 'No I don't want to go.' A. Yes.
Q. Then you said 'Then Vester said 'Don't worry about anyone grabbing you Mick. I've got a machete here'? A. Yes.
Q. Then you said 'He then pulled up his shirt which I think was a white T-shirt and showed me a blade of what looked like a machete which was sticking upwards out of his pants.' A. Yes.
Q. Then you said 'The machete was actually tucked inside his track pants that he was wearing and was covered over the top by the shirt.' A. Yes.
Q. Then you said 'I can't remember anything else about the track pants because I didn't pay attention to them.' A. Yes.
Q. Then you said 'The blade was silver and black in colour and was about this long.' A. Yes.
Q. You indicated about 20 to 30 centimetres? A. Yes.
Q. Then you said 'The blade was straight but it curved around towards the end.' A. Yes.
Q. Then you said 'I didn't see the handle of the machete.' A. Yes.
Q. Then in par 8 you said 'Vester then went on to say 'If anyone grabs you I'll kill them.' A. Yes.
Q. Then you said 'I didn't say anything in reply but Brendan said, 'We will go up to the top end. There should be some good cars up there.' A. Yes.
Q. And the top end was where the hospital was, was it not, and the airport, is that right.? A. Yes.
CROWN PROSECUTOR: Q. Vester said, 'When we steal the car, we're going to go up to Queensland. We'll be right, Mick, I've got people up there'? A. Yes.
Q. Then you said, 'We then started walking off along Fox Street towards the top end of the town which is where the hospital and the airport is'? A. Yes.
Q. Then you said, 'Vester then said, we are going home to get a jumper first, do you want one'? A. Yes.
Q. Then you said, 'I said, no, I will be right'? A. Yes.
Q. Then you said, 'We then turned left into Sutherland Street and kept walking down to Peel Street where we turned right and walked down to the corner of Peel and Dewhurst Street'? A. Yes.
Q. Then you said, 'Vester walked into his sister, Wendy Fernando's house on the corner'? A. Yes.
Q. Then you said, 'I know Vester stays there because I have been to the house before and seen him staying there'? A. Yes
Q. Then you said, 'While we were walking along, Vester and Brendan were talking, but I wasn't listening to what they were saying'? A. Yes.
Q. Paragraph nine: Then you said, 'When Vester walked into the house I kept walking down to Dewhurst to Cynthia Hickey's house which is only two houses down from Wendy Fernando's'? A. Yes.
Q. Then you said, 'I just wanted to get away from Vester and Brendan because I didn't want to get involved with them in stealing the car'? A. Yes.
Q. Then you said, 'I just jumped the back fence of Cynthia's place and walked the back way home to Dundas Street', is that correct? A. Yes.
Q. Then you said, 'The back way, I mean back across Dewhurst through some paddocks, a church on the corner of Sutherland Street, then through some flats before walking up Arthur Street? A. Yes.
Q. Then you said, 'I arrived at about 1 am so it would have been about twelve midnight when I last saw Vester and Brendan'? A. Yes.
Q. Then you said, 'I last saw Brendan walking back down Dewhurst towards Fox Street while Vester went inside his sister's house'? A. Yes.
Q. Par 10: You said, 'While we were walking towards Wendy's house in Dewhurst Street, I also remember Vester saying something about getting a screwdriver from his sister's to break into the car'? A. Yes.
Q. You said, 'He actually said to me, 'do you want the screwdriver?' A. Yes.
Q. Then you said, 'I said, 'no', because I did not want to go with them to steal the car'? A. Yes.
Q. Par 11: You said, 'I don't remember anything that Brendan was wearing that night, I only remember the white T-shirt and track pants that Vester was wearing'? A. Yes.
Q. Then you said, 'I wasn't really paying much attention to how they were dressed'? A. Yes.
Q. Par 12: You said, 'I thought that Vester and Brendan -
OBJECTION BY MR WENDLER.
WENDLER: This has never been an area which he went into in examination in-chief. He has never given the witness an opportunity to give evidence about this.
HIS HONOUR: I withdraw that question.
CROWN PROSECUTOR: Q. You said, Michael, that you had seen Vester Brendan coming out of the laneway opposite the tyre service? A. Yes.
Q. You said you spoke with them? A. Yes.
Q. And did you notice anything about them, about their sobriety? A. Yes.
Q. What did you notice? A. They were a bit drunk, they were staggering a bit.
Q. What about when they were talking to you, could you understand what they were saying? A. Yes."
55 This ground of appeal in Brendan Fernando's appeal comprehended within it a more limited ground of appeal in Vester Fernando's appeal (Ground 5(e)):-
"The trial judge erred in his conduct of the trial in-:
(e) admitting into evidence the representation that Jackson heard the appellant (Vester Fernando) say, 'If anyone grabs you, I'll kill them ' ".
56 The trial judge directed the jury that the evidence of what Michael Jackson had said in his statement to the police which was elicited in this cross-examination by the Crown Prosecutor, was not merely evidence of prior inconsistent statements by Michael Jackson which could be used by the jury in assessing the credibility of Michael Jackson's evidence but could be used as evidence of the truth of the facts asserted in the statement.
57 The principal submission made by counsel for Brendan Fernando in support of this ground was sought to be based on the decision of the High Court in Lee v The Queen . In Lee , the Crown was permitted to adduce evidence that the Crown witness Calin had made a statement to the police in which he had said that he had had a chance meeting with Lee and that Lee had said, inter alia, "Leave me alone, cause I'm running, because I fired two shots... I did a job and the other guy was with me bailed out" . It will be observed that what Lee said to Calin was a report by Lee of past events of which Calin had no knowledge. The High Court held that this evidence of what Calin had said he had been told by Lee was evidence only that Lee had said those things to Calin and that that was all that Calin had intended to assert in the statement he had made to the police, and was not evidence that Lee had in fact fired two shots or had done a job or that the person with him had bailed out, matters which Calin had no way of knowing and which he had not intended to assert as being facts. The High Court went on to say at paragraph 41:-
"Evidence of Mr Calin's prior statements of what the appellant had said should not have been admitted as evidence of the truth of the confession allegedly made by him to Mr Calin. Because those prior statements of what the appellant had said went only to Mr Calin's credit, the trial judge could either have rejected those parts of the statements or, if that course was not followed, would have had to give clear directions to the jury about the very limited use to which they could be put. In the circumstances of this case, the former course was to be preferred".
58 It was submitted that the High Court's reasoning in Lee was applicable to the present case, that the evidence by Michael Jackson of what Vester Fernando had said in the presence of Brendan Fernando went only to Michael Jackson's credit and that the preferable course would have been for the trial judge to have rejected this evidence.
59 We do not consider that this submission should be accepted. In the first place much of the evidence given at pp 496-500 of the trial transcript was not evidence of anything said by Vester Fernando but evidence of what Michael Jackson did or observed.
60 In the second place, the evidence of what Vester Fernando said, with the exception of the evidence that Vester Fernando said, "I have got a machete here", was not sought to be relied on by the Crown as evidence of the truth of facts asserted by Vester Fernando in what he said but was sought to be relied on by the Crown simply as evidence of what Vester Fernando had said, of which Michael Jackson did have direct knowledge. From the evidence of what Vester Fernando said, the jury would be asked to infer that Vester Fernando and Brendan Fernando were about to embark on a criminal venture together and that Vester Fernando had a state of mind such that he would be prepared, in certain contingencies, to use a machete he had, to the extent of killing someone with the machete. The evidence was relevant, otherwise than as merely going to the credit of Michael Jackson. So far as the assertion by Vester Fernando that he had a machete is concerned, this was strongly confirmed by Michael Jackson's evidence in his statement that he had seen Vester Fernando carrying what looked to Michael Jackson like a machete and that he could describe the colour, length and curvature of what he had seen.
61 It was submitted, at least by counsel for Vester Fernando, that the evidence by Michael Jackson that Vester Fernando had said, "If anyone grabs you, I'll kill them" should have been excluded by the trial judge in the exercise of his discretion under s 137 of the Evidence Act . However, in our opinion, the trial judge did not err in considering that this evidence of what Vester Fernando had said with respect to the machete he was carrying, shortly before the crimes charged were allegedly committed, was highly probative as indicating Vester Fernando's then state of mind and should not have been excluded as a matter of discretion.
62 We would reject this ground of appeal.
Ground 5: The trial judge erred in not limiting the use that could be made of the evidence of Michael Jackson.
63 The evidence of Michael Jackson referred to in this ground of appeal was, again, the evidence given by Michael Jackson in cross-examination by the Crown, which the trial judge told the jury could be used by them as evidence of the truth of the facts asserted in the statement made by Michael Jackson to the police.
64 This ground of appeal comprehended within it ground of appeal 5 (f) in Vester Fernando's appeal that: -
"The trial judge erred in his conduct of the trial
(f) in failing to direct the jury how they might use the representation (that Jackson heard the appellant (Vester Fernando) say, 'If anybody grabs you I'll kill them'), if they were satisfied to the requisite standard that it was made".
65 After the Crown case had been closed at the trial, counsel for Brendan Fernando made a number of applications, including an application that the use to which the evidence of Michael Jackson's previous representations could be put should be limited, that is limited to being used in the assessment of Michael Jackson's credibility as a witness. The trial judge rejected this application, because he considered the evidence of what Michael Jackson had said to the police to be highly probative and likely to be more reliable than the version Michael Jackson had given in court.
66 As in the case of the previous ground of appeal, counsel for Brendan Fernando relied on the decision of the High Court in Lee v The Queen . It was submitted that the reasoning of the High Court in Lee was applicable to the present case and if what the High Court had described as the preferable course of rejecting the evidence of the previous representations was not adopted, then at least the trial judge should have limited the use to which the evidence of Michael Jackson's previous representations could be put. For the reasons we have already given in rejecting the fourth ground of appeal, we consider that the reasoning of the High Court in Lee is not applicable to the present case and hence the submission presently being considered should also be rejected. In our opinion, no error has been shown in his Honour's decision to reject the application made at the trial that the use to which Michael Jackson's evidence could be put should be limited. The trial judge was entitled to hold that the evidence could be regarded as reliable and probative of a state of mind on the part of Vester Fernando shortly before the offences charged were allegedly committed, which had been exhibited in the presence of Brendan Fernando.
67 We would reject this ground of appeal.
Ground 6 : The trial judge erred in permitting the Crown to re-examine Michael Jackson with respect to matters which had emerged in cross-examination of him at the committal hearing.
68 This ground of appeal is substantially the same as part of ground of appeal 5(d) in Vester Fernando's appeal, which was:-
"The trial judge erred in the conduct of the trial in:-
(d) allowing the Crown Prosecutor to cross-examine the witness Michael Jackson... in re-examination".
69 The part of the re-examination of Michael Jackson upon which this ground of appeal was based is the part relating to the questions asked by the Crown and the answers given by Michael Jackson about evidence Michael Jackson had given in the committal proceedings when cross-examined by Vester Fernando's legal representative, including that Michael Jackson had said at the committal proceedings that he had not been worried or concerned about going to the police station.
70 It was submitted that the questions asked by the Crown Prosecutor were leading questions and really amounted to further cross-examination; that the evidence of what Michael Jackson had said at the committal proceedings was of dubious value, because, it was submitted, something was sought by the Crown to be read into the questions as well as the answers and it was not known what instructions Mr Coe had been given; it was not known what the context at the committal proceedings was, in which the evidence had been given; and that caution should be exercised in permitting evidence to be adduced at a trial of what had been said by a witness at a committal proceeding, because of the different purposes of the two kinds of proceedings; and that the evidence in re-examination did not in fact meet the issue which had arisen in cross-examination (whether at the police station Michael Jackson had been afraid of being charged with an offence, because the evidence in re-examination related to "going" to the police station). It was submitted that there was "a temporal and strategic difference" between going to a police station and being at a police station. It was submitted that defence counsel at the trial should have been given an opportunity of further cross-examining Michael Jackson.
71 We do not consider that any of these submissions should be upheld. The questions asked in re-examination were not objected to by either defence counsel at the trial. There was no issue about what Michael Jackson had said in his evidence in the committal proceedings and it was appropriate, and did not cause any prejudice, for the evidence of what he had said to be elicited by leading questions. What the Crown relied on were the answers given by Michael Jackson that he had not been worried or concerned about going to the police station, and not the questions asked by Mr Coe or what instructions Mr Coe might have received. If the context in which the evidence had been given in the committal proceedings had been of any importance, then either defence counsel at the trial could have applied to ask further questions of Michael Jackson but neither counsel made any such application. We do not see how the different purpose of committal proceedings prevented evidence of what Michael Jackson had said in the committal proceedings from having probative value at the trial. Evidence that Michael Jackson had not been concerned about going to the police station was, in our opinion, at least relevant to determining what his state of mind had been at the police station. Moreover, the evidence given in re-examination did directly meet part of Michael Jackson's evidence given in cross-examination, that when he was asked by a police officer to go to the police station, he had thought that he was under arrest.
72 We would reject this ground of appeal.
Ground 7 : The learned trial judge erred in declining to give the jury a warning pursuant to s165 of the Evidence Act as to the potential unreliability of the evidence of Michael Jackson.
73 This ground of appeal is comprehended within ground of appeal 6(c) in the appeal of Vester Fernando: the learned trial judge erred in his summing up to the jury in: (c) his directions to the jury concerning the witness Michael Jackson and his evidence.
74 Michael Jackson was called as a witness by the Crown. Initially in his evidence in chief he gave some evidence about what had happened on the night of 8 December 1994, which was in accordance with the statement he had made to the police on 11 December 1994. He then gave evidence that, after meeting the two appellants, he had smoked marijuana with them and had then gone home. This evidence was not included in his statement and was inconsistent with what he had said in his statement.
75 The Crown Prosecutor successfully applied for leave, pursuant to s 38 of the Evidence Act , to cross-examine Michael Jackson, on the basis that he had made a prior inconsistent statement. The Crown Prosecutor then cross-examined Michael Jackson on the statement he had made to the police on 11 December 1994 and elicited from Michael Jackson that he had in fact said to the police what was recorded in his statement. The Crown Prosecutor did not ask Michael Jackson whether what he had said in his statement was true.
76 Michael Jackson was then cross-examined by counsel for Brendan Fernando and in this cross-examination denied that a number of things alleged in his statement had actually happened, including a number of things which in his statement he had alleged had been said to him by Vester Fernando. In further cross-examination by counsel for each appellant Michael Jackson said that when making the statement to the police he had "made up", that is invented, a number of things, because he was afraid of being charged by the police with having been a "cockatoo" for the two appellants.
77 In re-examination by the Crown Prosecutor, Michael Jackson accepted that, when cross-examined by Vester Fernando's legal representative at the committal proceedings, he had agreed with a suggestion put to him that he had not been worried about going to the police station on the occasion on which he had made the statement.
78 At the trial the only application that the trial judge give the jury a warning pursuant to s 165 of the Evidence Act in relation to any part of the evidence of Michael Jackson, was made by counsel for Brendan Fernando. No such application was made by counsel for Vester Fernando. The application by counsel for Brendan Fernando was made during a break early in the summing up, after the trial judge had given the jury general directions about the assessment of witnesses, in the course of which his Honour had referred at some length to the evidence of Michael Jackson.
79 During argument on the application counsel for Brendan Fernando expressly limited the application to an application that a warning by given, only in relation to the parts of Michael Jackson's evidence in which he gave evidence that in his statement made to the police he had said that Vester Fernando had said to him on the night of 8 December 1994:- "Don't worry about anyone grabbing you Mick, I've got a machete here… if anyone grabs you, I'll kill them". In the rest of this part of our judgment we will refer to this evidence as "the subject evidence".
80 The grounds of the application made by counsel for Brendan Fernando were that the evidence of what Michael Jackson had said in his statement to the police was hearsay, that the evidence accordingly fell within para (a) of s 165(1) and there were matters which might cause the evidence to be unreliable, including that Michael Jackson in his sworn evidence in court at the trial had given an inconsistent account and, while accepting that he had said what was recorded in the statement, had testified that much of what he had said in his statement, including what Vester Fernando had allegedly said, had been "made up" by him.
81 It is convenient at this stage to set out the provisions of s 165 of the Evidence Act , so far as they are relevant. The section provides:-
"(1) This section applies to evidence of a kind which 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,
…
(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,
…
(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.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury"
82 The application made by counsel for Brendan Fernando for a warning pursuant to s 165 was refused by the trial judge. In his judgment the trial judge said that he accepted the submissions which had been made by the Crown Prosecutor on the hearing of the application. These submissions by the Crown Prosecutor included a submission that the subject evidence was not hearsay but "direct evidence under s 60", that is the evidence did not fall within para (a) of s 165(1), and a submission that Michael Jackson was not an "accomplice", that is his evidence did not fall within para (d) of s 165(1). These submissions made by the Crown Prosecutor furnished the primary ground for his Honour's conclusion that he should refuse the application. However, his Honour added, as an alternative ground for his conclusion, that in his opinion there were good reasons for not giving the direction requested. In saying this, his Honour was clearly adverting to sub-s (3) of s 165.
83 On the hearing of this appeal senior counsel who appeared for the Crown expressly conceded (transcript of the appeal proceedings pp 116 and 117) that the subject evidence was "clearly hearsay" and that his Honour had been wrong in deciding that the subject evidence did not fall within s 165(1).
84 In holding that the subject evidence was not hearsay, his Honour accepted a submission put to him by the Crown Prosecutor that the subject evidence had become "direct evidence under s 60". This submission made by the Crown Prosecutor and accepted by the trial judge was clearly incorrect. What Michael Jackson said to the police on 11 December 1994 was a "previous representation"(or representations) made by him within the definition of that expression in Pt 1 of the dictionary at the end of the Evidence Act , that is "a representation made otherwise than in the course of giving evidence in a proceeding in which evidence of the representation is sought to be adduced". As such, evidence of it became prima facie subject to the hearsay rule of exclusion under s 59 of the Evidence Act , that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. At the trial the Crown Prosecutor obtained leave to cross-examine Michael Jackson and the Crown Prosecutor cross-examined Michael Jackson, and Michael Jackson gave evidence, about what he had said in his statement to the police on 11 December 1994. The evidence of what Michael Jackson had said to the police was admitted, as being a previous statement by Michael Jackson inconsistent with his evidence, which could be used in assessing the credibility of his evidence. In these circumstances, by virtue of s 60 of the Evidence Act the hearsay rule of exclusion did not apply to the evidence of the previous representations made by Michael Jackson to the police, the evidence of the previous representations having been admitted because it was relevant for a purpose other than proof of the facts intended to be asserted by the representations. However, the fact that, by virtue of s 60, the hearsay rule of exclusion did not apply to evidence of the previous representations made by Michael Jackson did not mean that, for the purposes of s 165, the hearsay evidence ceased to be "hearsay" and became "direct" evidence. The evidence continued to be hearsay evidence, even though by way of an exception to the hearsay rule of exclusion, that rule did not apply to it.
85 Another way of reaching the same conclusion, which is based more closely on the actual words used in s 165(1)(a), is to say that the subject evidence was " evidence in relation to which Pt 3.2… applies". Section 60, on which the Crown Prosecutor and the trial judge relied, is itself included in Pt 3.2 of the Act and hence the subject evidence was clearly "evidence in relation to which Pt 3.2 applies".
86 The argument put by the Crown Prosecutor and accepted by his Honour, if valid, would have the paradoxical result, that where evidence of a previous representation is admitted for a non-hearsay purpose but by virtue of s 60 is exempted from the hearsay rule of exclusion and thus becomes capable of being used as evidence of facts intended to be asserted in the representation, no warning about its possible unreliability is required by s 165, whereas it is precisely in these circumstances that the evidence, insofar as it is used for a hearsay purpose, may be unreliable.
87 The subject evidence was hearsay, as being evidence of previous out of court representations made by Michael Jackson, irrespective of whether, if Michael Jackson had given evidence in court of the same matters, that evidence should have been regarded as hearsay.
88 It was submitted on behalf of the appellants that, if Michael Jackson had given evidence in court that Vester Fernando had said "don't worry about anyone grabbing you Mick, I've got a machete here" and that Vester Fernando had said "if anyone grabs you I'll kill them", that evidence would have been hearsay, as being evidence of previous out of court representations made by Vester Fernando. It was accordingly submitted that the subject evidence was hearsay upon hearsay, that is evidence of previous representations by Michael Jackson of previous representations made by Vester Fernando. Reliance was placed by counsel for the appellants on the decision of the High Court in Lee v The Queen .
89 We would accept that evidence of Vester Fernando saying "I've got a machete here" would have been hearsay. The Crown would be seeking to rely on this representation by Vester Fernando for the purpose of proving the truth of the fact Vester Fernando intended to assert, that is that he had a machete. However, in the circumstances, evidence of this previous representation by Vester Fernando was fairly insignificant, because in his statement Michael Jackson said that he had himself observed the blade of what looked like a machete and had seen it well enough to be able to describe the length, colour and curvature of the blade.
90 We would not accept that evidence of the other things said by Vester Fernando, if given by Michael Jackson in the witness box, would have been hearsay. Such evidence would not have been tendered for the purpose of proving the truth of any facts intended to be asserted by Vester Fernando. It would have been tendered simply for the purpose of proving that Vester Fernando had said those things. All that Michael Jackson intended to assert by these representations in his statement was that Vester Fernando had said these things. From the evidence of Vester Fernando saying these things shortly before the time when the offences charged were allegedly committed, the jury would be asked to draw inferences about Vester Fernando's contemporaneous state of mind and in particular that he was willing to use the machete to kill someone.
91 The decision of the High Court in Lee can be clearly distinguished. In that case evidence that the witness Calin had made previous representations that the appellant Lee had said to Calin "I'm running because I fired two shots… I did a job and the other guy was with me bailed out", was sought to be relied on by the Crown, not simply as evidence that the appellant had said these things to Calin, but as evidence that Lee had in fact fired two shots and had done a job and that his companion had bailed out, facts which the High Court said Calin had no way of knowing and did not intend to assert by his representations that Lee had said these things to him.
92 It was also submitted by counsel for the appellants that the subject evidence, as well as being "evidence in relation to which Pt 3.2 (hearsay evidence)… applies", was also "evidence in relation to which… Pt 3.4 (admissions) applies ".
93 The definition of "admission" in Pt 1 of the dictionary at the end of the Act is very broad. "Admission" means a previous representation made by a person who is or becomes a party to a proceeding, which is adverse to the person's interest in the outcome of the proceeding. The width of the definition of "admission" has been noted in a number of decisions of this Court. See for example R v Horton (unreported Court of Criminal Appeal 2 November 1998 and R v Esposito (unreported Court of Criminal Appeal 20 November 1998).
94 In the present appeal senior counsel for the Crown accepted that "arguably" the subject evidence consisted of "admissions". Certainly, the representation "I've got a machete here" was an admission. In our opinion, all of the subject evidence fell within the wide definition of "admission" in the Act and hence, on this ground also, the subject evidence came within para (a) of s 165(1).
95 It was also submitted by counsel for the appellants that the trial judge had erred in holding that the subject evidence did not fall within para (d) of s 165(1), as being "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 ".
96 It was conceded by counsel for the appellants that in his statement to the police Michael Jackson had said that, although invited to join the two appellants in stealing a car, he had not wanted to join in the venture of stealing a car and had taken the opportunity, when Vester Fernando went to his sister's house to get a jumper, to go to his cousin's house, jump over the back fence and walk away. However, reliance was placed on Michael Jackson's evidence that at the police station on 11 December 1994 he had been afraid of being charged by the police with having been a cockatoo for the appellants.
97 In further support of the submission that the subject evidence fell within para (d) of s 165(1), counsel for the appellants relied on evidence by the witness Lindsay Morgan that he had overheard some of the conversation between the appellants and Michael Jackson and that in that conversation Michael Jackson had said "yes" when asked "to go and get a car" and had walked with the two appellants towards the hospital.
98 Finally, counsel for the appellants sought to rely on what Michael Jackson had allegedly said to Muriel Dennis, Janette Dennis, and Tanya Murphy on the night of 10 December 1994, that on the night of 8 December he had walked to the hospital with the two appellants. However, in his evidence Michael Jackson denied having said what it was put to him he had said to these three persons. The decision by the Crown not to call these three persons as witnesses is the subject of another ground of appeal. However, so far as the present ground of appeal is concerned, there was simply no evidence of Michael Jackson saying to any of these persons what it was put to him in cross-examination he had said.
99 In our opinion, on the evidence given, the trial judge did not err in finding that, even if Michael Jackson had initially become a party to a joint venture to steal a car, he had withdrawn from that venture and that he was not "a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding" against the appellants.
100 We have held that the subject evidence was evidence in relation to which Pt 3.2 of the Evidence Act applied and also evidence in relation to which Pt 3.4 of the Evidence Act applied and hence the subject evidence was "evidence of a kind that may be unreliable" within s 165(1). Accordingly, if, as happened, there was a request by a party, the trial judge was bound to give a warning in accordance with sub-s(2) of s 165, unless there were "good reasons for not doing so". It has been held by this Court that "in most cases at least" a trial judge who considers, pursuant to sub-s (3) of s 165, that there are good reasons for not giving a warning, should state what he considers those good reasons to be. R v Beattie (1996) 40 NSWLR 155 at 160.
101 In the present case, the trial judge held, as an alternative ground for refusing the application by counsel for Brendan Fernando, that there were good reasons for not giving a warning. However, his Honour did not in his judgment refusing the application say what those good reasons were.
102 It was submitted by counsel for the appellants that the trial judge had failed to state what his reasons were for not giving a warning, that there were not in fact good reasons for not giving a warning and that, on the contrary, there were good reasons for giving a warning, being the reasons given by counsel for Brendan Fernando in making the application at the trial. These reasons were, or at least included, that Michael Jackson's statement made to the police had not been sworn to, that in his sworn evidence Michael Jackson had not verified his statement, that, on the contrary, in his sworn evidence Michael Jackson had given a different, inconsistent account and had said that what he had said to the police was not true and that what he had said to the police had been "made up", that is consisted of lies, and gave a reason why he had lied to the police, namely that he had been afraid of being charged as some kind of accessory. It was further submitted that even if the subject evidence did not fall within para (d) of s 165(1), nevertheless, there was evidence that Michael Jackson was a person who had to some extent been involved with the two appellants shortly before the crimes charged were allegedly committed and at the time he made the statement had been afraid of being charged by the police with some offence because of that involvement and that this furnished an additional reason why a warning should have been given.
103 It was submitted on behalf of Vester Fernando, and we would accept, that it was unnecessary for Vester Fernando to have made a separate application of his own for a warning under s 165, after his co-accused had made an application which had been refused and that Vester Fernando, as well as Brendan Fernando, could seek to rely on the omission by the trial judge to give a warning.
104 Counsel for both appellants submitted, and we would accept, that if the trial judge did err in not giving a warning, it would not be possible to apply the proviso to s 6 of the Criminal Appeal Act , having regard to the significance of Michael Jackson's evidence and the importance attached to it at the trial by both the Crown and the trial judge.
105 It was submitted on behalf of the Crown that the trial judge had not erred in holding that there were good reasons for not giving a warning and that the trial judge had disclosed what those reasons were.
106 It is true that in the judgment given in refusing the application the trial judge did not state what the reasons were, which he considered to be good reasons. However, the decision of this Court in Beattie was not intended to lay down an inflexible rule that a trial judge should state the reasons which he considers to be good reasons in a judgment refusing the application for a warning. The policy underlying what was said in Beattie is that, if a judge refuses an application for a warning in reliance on sub-s(3) of s 165, the reasons on which the judge relies as being good reasons should be disclosed. In the present case, the reasons which the trial judge considered to be good reasons for not giving a warning can readily be ascertained from parts of the summing up and parts of the judgment his Honour gave on 4 June 1997, in which he refused applications that the evidence of what Michael Jackson had said in his statement be excluded or that the use to which that evidence could be put should be limited. In our opinion, it is legitimate to refer to this judgment for the purpose of discovering what were the reasons which his Honour considered to be good reasons within sub-s(3) of s 165, even though the judgment was a judgment given in determining applications of a different kind.
107 The reasons which his Honour considered to be good reasons, which appear at various parts of the summing up and in the judgment of 4 June 1997, were that the subject evidence was evidence of assertions made by Michael Jackson in a signed statement made to the police, only two days after the events in question, which had been made in the presence of his mother, that in his evidence Michael Jackson had admitted that he had made the assertions recorded in the statement to the police and, as to the reason he had put forward for allegedly lying to the police, Michael Jackson had in his evidence in the committal proceedings said that he had not been worried or concerned about going to the police station.
108 In our opinion, these reasons in combination were sufficient to amount to good reasons for not warning the jury that the subject evidence might be unreliable, notwithstanding Michael Jackson's repudiation of the truth of the subject evidence in his sworn evidence. In the summing up the trial judge put the defence case concerning Michael Jackson's evidence, including the submissions made by counsel, in a way which has not been the subject of criticism on the hearing of this appeal.
109 We would dismiss ground of appeal 7 in Brendan Fernando's appeal.
Ground 8: The trial judge erred in not directing the jury that the evidence of Michael Jackson upon which it relied had to be proved beyond reasonable doubt.
110 The evidence of Michael Jackson referred to in this ground of appeal was, as with a number of the previous grounds of appeal, the evidence he gave in cross-examination by the Crown about what he had said in his statement to the police.
111 It was submitted by counsel for the appellant that this evidence was critical, because, if accepted, it would fix Brendan Fernando with knowledge of Vester Fernando's possession of the machete shortly before the offences were allegedly committed and with knowledge of the circumstances in which Vester Fernando might use the machete. It was submitted that "that material" formed "an indispensable intermediate step in a reasoning process towards an inference of guilt" and accordingly had to be established beyond reasonable doubt ( Shepherd v The Queen (1990) 170 CLR 573 at 585 per Dawson J).
112 We do not consider that this ground of appeal should be upheld. We note that no application for any such direction was made by counsel for the appellant at the trial. Dawson J's remarks in Shepherd , in the course of which he referred to "indispensable intermediate steps" or " indispensable links" in a process of reasoning towards inferring guilt, were made in the context of a consideration of cases where the Crown relies, at least to a substantial extent, on circumstantial evidence. In the present case, there was much evidence of admissions by Brendan Fernando, including admissions that on the night of 8 and 9 December 1994 he had seen Vester Fernando get the machete and carry it up the sleeve of his clothing and that he had seen Vester Fernando smash the window of the car with the machete before any enterprise to abduct the victim was formed. There was also evidence by another witness, Lindsay Morgan, that on the night of 8 and 9 December 1994 he had seen Vester Fernando openly holding the machete, while Brendan Fernando was next to Vester Fernando. In these circumstances, we do not consider that acceptance of those parts of Michael Jackson's evidence, which, if accepted, would have shown that Brendan Fernando knew that Vester Fernando had a machete and might use it, was an "indispensable intermediate step " in a finding by the jury that Brendan Fernando was guilty.
113 We would reject this ground of appeal.
Ground 9 : A miscarriage of justice was occasioned by reason of the failure of the Crown to call as witnesses in its case Tanya Murphy, Muriel Dennis and Janette Dennis.
114 It would appear that in his opening address the Crown Prosecutor said that these three persons would be called as witnesses in the Crown case. However, during the Crown case the Crown Prosecutor decided not to call any of them and none of them were called. That they were not to be called was announced during the re-examination of Det Pollock. Counsel for Brendan Fernando complained about the Crown Prosecutor's decision not to call the three women, saying that "the defence wanted those three witnesses called". None of the three women were called in the defence case. The Crown Prosecutor explained his decision not to call the three women during a discussion between the trial judge and counsel in a break in the summing up. The Crown Prosecutor said:-
"The Crown… decided not to call those girls because the evidence of what Jackson said in his statement was admitted and those girls were only to be called if there was some difficulty in getting into evidence the statement that Jackson had made".
115 In the summing up the trial judge gave a Jones v Dunkell direction against the Crown, because the Crown had not called these persons as witnesses.
116 We have already earlier in this judgment referred to the cross-examination of Michael Jackson by counsel for Brendan Fernando, in which counsel put to Michael Jackson what he had allegedly said to these women on the night of 10 December 1994.
117 It was submitted on behalf of the appellant that, if these persons had been called, they would have given evidence that Michael Jackson had said to them what had been put to Michael Jackson in cross-examination. It was submitted that such evidence by these persons could have been significant in the following ways:-
(i) What Michael Jackson had said to these women on the night of 10 December 1994 differed from what he had said in either his statement to the police or in his evidence and evidence that he had given yet a third version of events would have further weakened Michael Jackson's credibility as a witness.
(ii) Such evidence would have confirmed Michael Jackson's evidence that he was afraid of being charged by the police.
iii) Such evidence would have tended to show that Michael Jackson came within para (d) of s 165(1) of the Evidence Act and hence was a witness whose evidence should have been made the subject of a warning.
118 In our opinion, the non-calling of these three women did not lead to a miscarriage of justice. The version given by Michael Jackson in his statement to the police and the version allegedly given by him to these women varied only in respect of where Michael Jackson said he had left the two accused. In both of the versions he said the two accused had decided to steal a car. If these women had been called and had given evidence in accordance with what was put to Michael Jackson in cross-examination, such evidence would not have uniformly assisted the accused. Such evidence would have shown that one day after the events happened, Michael Jackson had said that the two accused had walked together with him as far as the hospital. However, any such evidence showing only that Michael Jackson had walked up to the gate of the hospital with the two accused would have stopped short of showing that Michael Jackson was "a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding" within para (d) of s165(1).
119 We reject this ground of appeal.
Ground 10: The trial judge erred in permitting the Crown to lead from Detective Pearson evidence relating to the co-appellant's shoes in the case against the appellant.
120 Det Pearson gave evidence that on 10 December 1994 he had observed a shoe impression near the oval and had formed the opinion that the impression was similar to shoe impressions he had observed both inside and outside the ward at the hospital. Det Pearson gave further evidence that on 11 December 1994 he had made a plaster cast of the shoe impression he had observed near the oval. This plaster cast was admitted into evidence. None of the evidence we have so far summarised was objected to.
121 Subsequently, the admissibility of further evidence proposed to be given by Det Pearson was argued. The proposed evidence was to the effect that Det Pearson had compared the plaster cast with shoes which Vester Fernando's sister had produced and which she said Vester Fernando had been wearing and that Det Pearson had formed the opinion that they were similar in length. The proposed evidence was objected to by both defence counsel. The trial judge decided to admit the evidence against both of the accused and not to limit the use to which the jury could put the evidence.
122 Det Pearson then gave evidence that he had not seen any matching shoe patterns but that "physically measuring" the plaster cast and the shoes produced by Vester Fernando's sister "I found that they bore similarity in their length".
123 It was argued on the appeal that the evidence was not admissible even against Vester Fernando. However, although the evidence was of limited probative value, only amounting to an opinion by Det Pearson that the plaster cast and the shoes were merely "similar" and in one respect only, that of size, the evidence was admissible against Vester Fernando as being capable of tending to link him with the crime scene. The limitations of the evidence would have been readily apparent to the jury.
124 We are also of the opinion that the evidence was admissible against Brendan Fernando. The Crown case against Brendan Fernando was that Brendan Fernando had participated in a joint criminal venture with Vester Fernando. Evidence tending to show that Vester Fernando had been at the crime scene tended to prove part of the Crown case against Brendan Fernando and also tended to corroborate the accuracy of the admissions Brendan Fernando had made to the police.
125 This ground of appeal should be rejected.
Ground 11 : The trial Judge erred in allowing the Crown to call a case in reply.
126 In order to deal with this ground of appeal it is necessary to refer to a number of matters which occurred at the trial.
127 At an early stage in the trial the voir dire hearing was held for the purpose of determining the admissibility of evidence of the admissions made by the appellant to the police. The trial judge's decision to admit this evidence was the subject of the appellant's first ground of appeal.
128 In the Crown case in chief in the voir dire hearing Constable Mayers, a police officer who had often had conversations with the appellant while he was stationed at Walgett, and Garry Trindall, an Aborignal Liason Officer at Walgett, gave evidence.
129 In the defence case in the voir dire hearing Professor Susan Hayes, a clinical psychologist and the head of the Department of Behavioural Science in the Faculty of Medicine at the University of Sydney, gave evidence. During her oral evidence a report dated 2 May 1997 of a clinical psychological assessment by her of the appellant was admitted as an exhibit in the voir dire hearing.
130 In her report and in her oral evidence Professor Hayes said that she had seen Brendan Fernando on two occasions, on 26 March 1997 and 2 May 1997, that she had administered a number of psychological tests to him and the results of the tests showed that the appellant was mildly to moderately intellectually disabled and had brain damage. In her opinion, the level of intellectual disability demonstrated by the results of the tests meant that Brendan Fernando would have been "more vulnerable" to police questioning, more likely to yield to any pressure exerted by the police when interviewing him and "more susceptible" to any leading questions asked by the police. Professor Hayes also expressed the opinion that persons not familiar with psychometric testing would not be able to recognise the appellant's intellectual disability. The test results obtained by Professor Hayes and the opinions expressed by her were relevant to issues in the voir dire hearing.
131 In the voir dire hearing the Crown called in reply Dr Skinner, a consultant psychiatrist, who gave evidence inter alia that in her opinion a person having such a severe level of intellectual disability and indeed brain damage as Professor Hayes had found the appellant to have, would manifest neurological signs, which it would usually be possible for other persons "to pick up".
132 As previously stated in this judgement, the trial judge held that he should admit the evidence of the admissions made by the appellant to the police.
133 It is now necessary to turn to some of the events which occurred in the trial itself, as distinct from the voir dire hearing. After the defence case of the co-accused had been closed, counsel for Brendan Fernando said that he would be calling Professor Hayes, who would be the only witness in Brendan Fernando's defence case, and that the Crown already had Professor Hayes' "most recent report", that is the report of 2 May 1997. This was the first indication by counsel for the appellant at the trial that he would be calling Professor Hayes as a witness in the appellant's defence case.
134 In her evidence in the appellant's defence case Professor Hayes repeated evidence that she had earlier given in the voir dire hearing that she had seen the appellant, that she had administered psychological tests to him and that the results of the tests showed that he was mildly to moderately intellectually disabled. She then gave some evidence about whether persons with an intellectual disability of the level of the appellant's would manifest outward signs of that disability. Professor Hayes expressed the opinion that because of the appellant's intellectual disability he would be "slow on the uptake" and that the disability would affect his ability "to work out what was going to happen". These opinions were relevant to whether the appellant had been mentally capable of entering into, and had in fact entered into, the criminal ventures with Vester Fernando alleged by the Crown.
135 After Professor Hayes had finished giving evidence, the appellant's defence case was closed. The Crown then, without any objection by counsel for Brendan Fernando at the trial, presented a Crown case in reply to Professor Hayes' evidence.
136 The first witness in the Crown case in reply was Dr Skinner. Dr Skinner had been in court while Professor Hayes gave her evidence. Dr Skinner gave evidence that in her opinion there was a discrepancy between the level of intellectual disability which Professor Hayes said she had found and the level of intellectual functioning Brendan Fernando had demonstrated during the taped interviews. In cross-examination Dr Skinner acknowledged that she, unlike Professor Hayes, had not had the advantage of seeing Brendan Fernando professionally.
137 After Dr Skinner's cross-examination had been concluded, the Crown Prosecutor applied to the trial judge for a direction that Brendan Fernando submit to an examination by Dr Skinner. The Crown Prosecutor said that he had not known that Professor Hayes would be called as a witness in the trial (as distinct from the voir dire hearing), until counsel for Brendan Fernando had so indicated, after the close of Vester Fernando's defence case. The trial judge queried his power to give any such direction and declined to give it. The trial Judge observed, and the Crown Prosecutor conceded, that the Crown would have known, notwithstanding the trial judge's decision in the voir dire hearing to admit the evidence of the appellant's admissions, that evidence might be called in the trial on behalf of Brendan Fernando with the object of throwing doubt on the reliability of the evidence of admissions.
138 The Crown then called as further witnesses in its case in reply Constable Mayers and Gary Trindall. It will be necessary in dealing with the next ground of appeal (ground 12) to refer to the evidence of these witnesses in some detail. For the purposes of the present ground of appeal, it is sufficient to note that each of the witnesses gave evidence of his dealings with Brendan Fernando and each as a lay person not having any special qualification in assessing intelligence, stated his opinion of Brendan Fernando's level of intelligence.
139 It was submitted on behalf of the appellant that the Crown should not have been permitted to call a Crown case in reply. Reference was made to the statement of the principles governing the adducing of evidence in reply by the Crown in Shaw v The Queen , (1952) 85 CLR 365 which was approved in the majority judgement in Killick v The Queen (1981) 147 CLR, 565 at 568 - 9. In Shaw v The Queen Dixon CJ, McTiernan, Webb and Kitto JJ said at 379-80:-
"Clearly the principle is that the Prosecution must present its case completely before the prisoner's answer is made. There are issues the proof of which do not lie upon the Prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the Prosecution may not split its case on any issue...it seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the case must be very special or exceptional to warrant departure from the principle that the Prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence...further...the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved".
140 It was submitted, in reliance on what was said in Shaw , that it was exceptional for the Crown to be permitted to call evidence in reply, that the Crown ought reasonably to have foreseen that the appellant's intellectual capacity would be a continuing issue in the trial and that the Crown had obtained the further advantages of Dr Skinner hearing Professor Hayes give her evidence before she gave her own and of the evidence given in the Crown case in reply being the last evidence that the jury heard.
141 As already stated, no objection was made at the trial to the Crown calling evidence in reply to Professor Hayes' evidence.
142 There was an important difference between the relevance of Professor Hayes' evidence in the voir dire hearing and the relevance of her evidence at the trial. In a voir dire hearing Professor Hayes' evidence related to the admissibility of the evidence of the admissions made by Brendan Fernando to the police. The question of the admissibility of this evidence was, of course, conclusively determined by the trial judge in the voir dire hearing. However, as the trial judge remarked when the Crown Prosecutor made his application after the conclusion of Dr Skinner's cross-examination in the Crown case in reply, it would have been open to the defence to call evidence at the trial with the object of throwing doubt on the reliability of the evidence of admissions which had been admitted.
143 No such evidence (that is evidence of the possible effect of Brendan Fernando's intellectual capacity upon the reliability of his answers when interviewed by the police) was led from Professor Hayes, when she gave evidence at the trial. That no such evidence was led would seem to have reflected a deliberate tactical decision made by counsel for Brendan Fernando at the trial, not to dispute the accuracy of the admissions made by Brendan Fernando to the police and to submit to the jury that the account which Brendan Fernando had given to the police was fully accurate. Although this account did contain many admissions by Brendan Fernando, it also included an assertion by him that before Ms Hoare was killed he had separated from Vester Fernando and had walked away, that is, that before Ms Hoare was killed Brendan Fernando had withdrawn from any joint criminal venture with Vester Fernando, so that he would not be criminally responsible for anything subsequently done by Vester Fernando.
144 The evidence given by Professor Hayes at the trial was directed to a quite different issue, which was stated by the trial judge in the summing up as being whether, because of his alleged intellectual disability, Brendan Fernando had been incapable of entering, and had not entered, into joint criminal ventures with Vester Fernando of the kinds alleged by the Crown.
145 In our opinion, the Crown could not reasonably have foreseen the "occasion" for calling the evidence which was called in reply, that evidence would be led in the defence case that Brendan Fernando's intellectual disability was such that he might not be capable of entering, and might not have entered, into the simple joint criminal enterprises alleged by the Crown of stealing a vehicle, abducting and sexually assaulting a woman and killing her. We are, accordingly, of the opinion that the trial judge did not err in allowing the Crown to call a case in reply to the evidence given by Professor Hayes, which was directed to a quite different issue from that which had arisen in the voir dire hearing. As we have already said, the calling by the Crown of a case in reply was not opposed by counsel for the appellant at the trial. It is true that the Crown gained certain incidental advantages but these did not, in our opinion, amount to a miscarriage of justice.
146 We would reject this ground of appeal.
Ground 12 : The trial judge erred in allowing the Crown to call evidence from Constable Mayers and Gary Trindall as to their opinion of the appellant's intelligence.
147 We have already noted, in considering ground 11, that Constable Mayers and Gary Trindall gave evidence in the Crown case in reply.
148 Constable Mayers gave evidence that while he had been stationed at Walgett he had come to know Brendan Fernando, that he had spoken to Brendan Fernando regularly and that he had had no difficulty in conversing with Brendan Fernando. When asked for an assessment of Brendan Fernando's intelligence, Constable Mayers said, "I think Brendan Fernando's very intelligent and especially within the population of Walgett he would be right up there so far as being one of the most intelligent people there".
149 Constable Mayers said in his evidence that in October 1994 he had spoken to Brendan Fernando about a particular matter, in the presence of Gary Trindall, and on that occasion Brendan Fernando had given some long answers to questions Constable Mayers asked. Constable Mayers had had no difficulty in understanding what Brendan Fernando had said and Brendan Fernando had not appeared to have any difficulty in understanding what Constable Mayers said. Brendan Fernando had denied that he was involved in the matter Constable Mayers was investigating and charges which had been brought against Brendan Fernando were subsequently dropped. In cross-examination Constable Mayers agreed that he had had no training in testing other persons' intelligence.
150 Mr Trindall gave evidence that he was an aboriginal community liaison officer in Walgett, that he knew 95 percent of the aboriginal population at Walgett, that he had first met Brendan Fernando 16 or 17 years previously, that he had had hundreds of conversations with Brendan Fernando and that he had had no difficulty in understanding Brendan Fernando or in being understood by Brendan Fernando. Mr Trindall considered that, with respect to intelligence, "he (Brendan Fernando) is average of anybody in Walgett".
151 No objection was made at the trial by the appellant's counsel to any part of the evidence of Constable Mayers or Mr Trindall which I have summarised.
152 In his summing up, the trial judge said that a person's intelligence was not a matter solely for expert evidence. His Honour referred to the evidence of Constable Mayers and Mr Trindall. His Honour said that Mr Trindall had formed his views about Brendan Fernando's intelligence, on the basis of his own commonsense and experience.
153 It was submitted on behalf of the appellant that the evidence by Constable Mayers and Mr Trindall about the appellant's intelligence was inadmissible under s 76 of the Evidence Act and was not rendered admissible by s 78 of the Evidence Act , that a lay person was not competent to express an opinion about someone else's intelligence and, alternatively, even if a lay person could express some kind of opinion about someone else's intelligence, a lay person would not be competent to express an opinion about that other person's comparative intelligence, that is that person's intelligence in comparison with other persons living in the same town. It was also submitted that the evidence of the investigation in October 1994 should not have been admitted, because it tended to suggest that Brendan Fernando might have committed some other offence.
154 We are of the opinion that the evidence given by Constable Mayers and Mr Trindall, which, as we have remarked, was not objected to, was admissible. It seems to us that a lay person, that is a person who does not have any special training in the assessing of intelligence and who has not administered any psychological tests to the subject person, may nevertheless, if he has had a large number of dealings with that person and if he states the basis for his opinion (as happened in the present case), express opinions in general, qualitative terms about the level of intelligence of that other person. We are also of the opinion that a lay person who has had dealings with many of the inhabitants of a small town can express an opinion about a person's comparative level of intelligence among the inhabitants of the town. Lay persons are permitted to express opinions on quite a large variety of matters, for example, identity of persons, speed, weather, handwriting and the age of a person.
155 Moreover, while Professor Hayes generally adopted the position in her evidence that lay persons would not notice the intellectual disability of the appellant which she said was disclosed by the psychological test results, nevertheless in part of her evidence she acknowledged that a casual acquaintance of a person such as Brendan Fernando might notice signs of his intellectual disability. Accordingly, evidence by "casual acquaintances", such as Constable Mayers and Mr Trindall, acquired some further significance by reason of Professor Hayes' evidence.
156 The evidence about the October 1994 incident did not cause the appellant any prejudice. It was clearly brought out in evidence that the appellant denied having been involved in any criminal activity and that the charges which had been brought against him had been dropped.
157 The remarks made by the trial judge in the summing up that a person's intelligence was not a matter solely for expert evidence and that Mr Trindall's opinion of the appellant's intelligence had been formed on the basis of his own commonsense and experience did not, in our opinion, reveal any error.
158 We would refuse leave under rule 4 to rely on this ground.
Ground 13: The trial judge erred in relation to the directions he gave to the jury concerning joint criminal enterprise and common purpose.
159 This ground of appeal is expressed in wide terms and the written submissions on behalf of the appellant were discursive. However, the ground of appeal became refined in the course of the appellant's counsel's oral submissions and the ground was ultimately described by counsel for the appellant more than once in his oral submissions as depending on "a narrow point".
160 In the summing up the trial judge gave the jury directions that each of the accused could be found guilty of each offence on the basis that he had been a party to a joint criminal enterprise. The directions given by the trial judge were generally in accordance with the model directions set out in the judgment of Hunt CJ at CL in this Court's decision in R v Tangye (1997) 92 A Crim R 545 and no complaint was levelled at these directions.
161 The directions given by the trial judge in the summing up which were challenged were the directions relating to common purpose and in particular the following direction:-
"If, however, you are satisfied beyond a reasonable doubt that it was the accused, Vester Fernando, who inflicted the wound upon the deceased with the intention of killing her, but you are not satisfied beyond a reasonable doubt that the accused, Brendan Fernando, was present intentionally assisting...him to kill the deceased but that you are satisfied beyond a reasonable doubt that he and the other accused had agreed to steal the car, abduct the girl or sexually assault her, and you are satisfied beyond a reasonable doubt that it was in the accused's, Brendan Fernando's, contemplation, that in carrying out such crimes or any of them the accused Vester Fernando might kill the deceased, then the accused Brendan Fernando may be found guilty upon that basis".
162 The Crown Prosecutor's opening address was not recorded and what the Crown Prosecutor said about the basis upon which the accused might be found liable has to be inferred from a note which the trial judge said he had made of part of the opening address. This note was to the effect that the Crown case against both accused was that , "The two accused (were) there to kill her", that is that the two accused both being present acted in concert to kill the victim.
163 The alternative basis on which Brendan Fernando might be liable under the doctrine of common purpose was first put forward by the Crown Prosecutor in discussion between the Bench and counsel after all the evidence in the trial had been given. Counsel for the appellant at the trial opposed the adding of the additional basis on which the appellant could be found liable but acknowledged "to be frank it didn't come as any great surprise".
164 On the hearing of the appeal counsel for the appellant did not submit that the alternative basis of liability under the doctrine of common purpose should not have been put to the jury. The submission which was pressed was that under the directions given by His Honour the jury could have found Brendan Fernando guilty of the murder of Ms Hoare, on the basis that in carrying out any of the foundational crimes mentioned, that is stealing the car, abducting the victim or sexually assaulting the victim, Brendan Fernando contemplated that Vester Fernando might kill the victim, whereas it was not open to the jury to find that Brendan Fernando contemplated that in carrying out the crime of stealing the car Vester Fernando might kill the victim. There was no link between the stealing of the car, with which Ms Hoare had no connection at all, and the killing of Ms Hoare. It was accepted by counsel for the appellant that the other offences of abducting Ms Hoare or sexually assaulting Ms Hoare were properly included in the directions.
165 The inclusion of the offence of stealing the car in the directions given by the trial judge about common purpose may have occurred, because when the Crown Prosecutor first put forward the alternative basis of liability he identified the foundational crime as having been the joint enterprise to steal a car.
166 We would mention in passing that the attitude adopted by the Crown Prosecutor, after the Crown case had been closed and he was pressed to state how the Crown put its case against the accused, that "in addressing (that is in final address) I would say what the Crown case was" and "I would like to hear what the accused have to say" is not correct and was not warranted by anything said by this Court in Tangye .
167 In its written submissions the Crown sought to defend in their entirety the directions given by the trial judge about common purpose. However, in oral submissions the Crown conceded that the offence of stealing the car should not have been included in the directions as a possible foundational offence. It was submitted that this was an appropriate case for the application of rule 4 or of the proviso to s 6 of the Criminal Appeal Act .
168 We consider that this is an appropriate case for the application of r 4. No complaint was made about the directions at the trial. It would have been quite obvious to the jury that they could not be satisfied beyond reasonable doubt that Brendan Fernando contemplated that in carrying out the crime of stealing the car Vester Fernando might kill Ms Hoare. The jury were properly directed that they could find Brendan Fernando guilty of the murder of Ms Hoare, on the basis that they were satisfied beyond reasonable doubt that Brendan Fernando contemplated that in the carrying out of the crimes of abducting or sexually assaulting Ms Hoare Vester Fernando might kill Ms Hoare.
169 We consider that leave to argue this ground of appeal should be refused under r 4.
Ground 14: The trial judge erred in the directions which he gave the jury pursuant to section 20 of the Evidence Act concerning the appellant's decision not to give evidence.
170 In order properly to consider this ground of appeal it is necessary to refer to a number of things which happened at the trial.
171 At the trial the co-accused Vester Fernando gave evidence but the appellant Brendan Fernando did not. After the Crown case in reply had been closed and the taking of evidence had accordingly been completed, there was discussion between the trial judge and counsel about various matters. In the course of this discussion the Crown Prosecutor referred to the decision of this Court in R v O.G.D (unreported 3 June 1997) in which s 20 of the Evidence Act had been considered. The trial judge said that he was wondering whether he should make any comment on the failure of the appellant to give evidence, there being " enough problems in the case already". Counsel for Vester Fernando pointed out, correctly, that he was "not prevented from commenting". The trial judge then stated that, if counsel for Vester Fernando made some comment on the failure of the appellant to give evidence, that could affect what course the trial judge adopted.
172 The final addresses of counsel were not recorded. However, it can be inferred from remarks made by the trial judge to counsel and from part of the trial judge's summing up that counsel for Vester Fernando told the jury that Vester Fernando had given evidence, that his decision to give evidence was a choice by him which he did not have to make and that he had thereby exposed himself to cross-examination and "critical assessment". Counsel for Vester Fernando explicitly compared his client with Brendan Fernando, who he said had chosen to exercise his right to silence.
173 After counsel had addressed, the trial judge informed counsel that he proposed to comment on Brendan Fernando's failing to give evidence and outlined the nature of the comments he proposed to make. This outline was substantially in accordance with the comment the trial judge later made in the summing up. After the trial judge had given this outline, counsel for the appellant submitted that the proposed comment was inappropriate, insofar as the jury would be told that they could more readily draw inferences adverse to Brendan Fernando in the absence of evidence from him, because in the present case Brendan Fernando had not remained silent. True it was that he had not given evidence at the trial but in his interviews by the police he had given a full account of what he said had happened and this account had been put before the jury. The trial judge decided to give the directions which he had outlined to counsel. The directions his Honour gave included the following:-
"However, a failure to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect it to be in the power of an accused to do so, may make it easier for you to accept or draw inferences from evidence relied upon by the Crown. Inferences available to be drawn from facts proved by the Crown's case can be drawn more safely or more readily where the accused elects not to give evidence on relevant facts which you, the jury, perceive to be within his knowledge. Where the evidence of the Crown witnesses is left undenied or uncontradicted by, for example, an accused's evidence, in circumstances where the accused must have personal knowledge of the relevant facts, doubts about the reliability of the Crown witnesses may be more readily discounted and the evidence of those witnesses more readily accepted. However, members of the jury, I should give you a further warning and direction, that there may be reasons unknown to you why the accused person, Brendan Fernando, even if otherwise in a position to contradict or explain evidence, remained silent".
174 It was submitted by counsel for Brendan Fernando that under the terms of s 20 of the Evidence Act a trial judge is permitted, but is not required, to comment on the failure of an accused person to give evidence. This submission is clearly correct. The relevant part of s 20 is sub-s(2), which provides as follows:
"The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned".
175 However, notwithstanding that s 20 is expressed in permissive and not obligatory language, counsel for the appellant conceded that if counsel for the co-accused had made so much in his closing address as he apparently did of his own client's decision to give evidence and the failure of Brendan Fernando to give evidence, then the trial judge may well have been forced into a position where he was obliged to make some comment.
176 It was, however, submitted that, even if it was appropriate in the circumstances for the trial judge to make some comment, the trial judge should not have included in his comment a part which was described as the "Weissensteiner element" ( Weissensteiner v The Queen (1993) 178 CLR 217 and which was identified as consisting of the first three sentences in the part of the comment which has already been quoted.
177 It was submitted by counsel for the appellant that these sentences should not have been included in the comment, for the same reason as had been advanced by counsel at the trial, that Brendan Fernando had waived his right to remain silent when he was interviewed by the police, he had given his version to the police, he had participated fully in the process of being interrogated by the police, the version he had given was not, or was not generally, an exculpatory version and the version he had given had been put before the jury.
178 As was pointed out by counsel for the Crown on the appeal, Weissensteiner itself was not a case in which the accused had remained silent during the investigation of the alleged offences. As appears from the report of the High Court decision (at p 221 and pp 222-3), Weissensteiner had spoken to police and customs officers and had participated in a series of tape recorded interviews. It is, however, true that the accounts that Weissensteiner gave during the investigation were exculpatory and, on the Crown case, false.
179 In the present case, notwithstanding the amount of detail in the version of events Brendan Fernando had given the police, the drawing of inferences remained important. It is apparent that counsel for Brendan Fernando in his final address invited the jury to draw inferences from other evidence, so as to check the accuracy of the admissions made by Brendan Fernando. Moreover, although the version given by Brendan Fernando to the police contained many damaging admissions, it was exculpatory in an important respect, in that according to Brendan Fernando's version he had left Vester Fernando and the victim and had walked away, before the victim was killed. The jury had to determine whether, contrary to Brendan Fernando's out of court version, they could draw an inference beyond reasonable doubt that Brendan Fernando had not withdrawn from a joint criminal venture with Vester Fernando before the victim was killed. In our opinion, because of the importance of the drawing of inferences at the trial, it was appropriate for the trial judge to include in his comment on the failure of Brendan Fernando to give evidence what has been described as "the Weissensteiner element".
180 It was further submitted by counsel for the appellant, in reliance on parts of the then Chief Justice's judgment in R v O.G.D that the trial judge should have discussed with counsel the reasons for Brendan Fernando's failure to give evidence and should have explored with counsel whether the two charges Brendan Fernando was facing should be distinguished and whether a reason for Brendan Fernando not giving evidence might be that, while he might have an answer to one of the charges, he had no answer to the other charge and going into the witness box would involve him in making admissions on the charge to which he had no answer. It was contended that Brendan Fernando might have had an answer to the murder charge but would not seem to have had any answer to the sexual assault charge.
181 We do not consider that this submission should be accepted. As appears from a part of the summing up which was not the subject of any complaint, the trial was conducted on the basis that the admissions made by Brendan Fernando proved the sexual assault charge against him beyond reasonable doubt. His Honour said, with respect to the police interviews of Brendan Fernando:-
"I do not understand Mr Parker on behalf of Brendan Fernando to dispute what is said in these documents and, indeed, members of the jury, I do not understand Mr Parker to be suggesting in respect of the second count, the one of aggravated sexual assault, that the admissions of Brendan Fernando do not constitute admissions proving that offence beyond reasonable doubt".
182 In these circumstances, it would not have been a reason for Brendan Fernando not giving evidence, that he was afraid that, if he gave evidence, he might have to make admissions which would inculpate him in the sexual assault charge.
183 It was further submitted by counsel for the appellant that a further likely reason for Brendan Fernando not giving evidence was that, if he gave evidence, he would cease being "a silent witness" against Vester Fernando (in the sense that what he had said in his out of court version was incriminatory of Vester Fernando and was before the jury but was not admissible in the trial of Vester Fernando) and would become "an actual witness" against Vester Fernando, in that what he said in evidence in the witness box would be admissible in the trial of Vester Fernando. If Brendan Fernando had given evidence, the Crown Prosecutor would have been able to cross-examine Brendan Fernando for the purpose of proving the Crown case against Vester Fernando. Brendan Fernando would have been obliged to give answers incriminating Vester Fernando and would have been regarded as "a dog", with unpleasant consequences for himself.
184 We note, however, that Brendan Fernando had in the interviews with the police already made extensive allegations against Vester Fernando. If the making of allegations of criminality against Vester Fernando carried the risk of Brendan Fernando being labelled "a dog", then it is likely that this had already happened, even if what Brendan Fernando had said out of court was not legally admissible against Vester Fernando. Furthermore, there is no indication that at the trial counsel appearing for Brendan Fernando suggested to the trial judge or to the jury that the fear of being labelled "a dog" by Vester Fernando was a reason for Brendan Fernando not giving evidence. We would reject the submission presently being considered.
185 It was further put by counsel for the appellant that the trial judge had decided to make a comment under s 20, because of what counsel for the co-accused had told the jury in his closing address. It was submitted that, if Brendan Fernando had been tried alone, it was unlikely that the trial judge would have made any comment. Hence, Brendan Fernando had suffered prejudice through being tried jointly with Vester Fernando. However, counsel did not really press a submission that the trial of Brendan Fernando had miscarried for this reason alone. Counsel did say that it was a matter relied on by the appellant in support of Ground 16 in his appeal.
186 We would reject this submission. For the reasons we have already given, it is likely that the drawing of inferences would have been important at any trial of the appellant, whether he was tried separately or jointly with Vester Fernando, and it would have been appropriate for a trial judge to make a comment pursuant to s 20, including in that comment the Weissensteiner element.
187 We reject this ground of appeal.
Ground 15: The trial judge erred in making an impermissible comment to the jury to the effect that they may feel "that what the Crown has had to put is telling as and against Brendan Fernando but that is a matter for you".
188 The context in which this remark was made by the trial judge in his summing up was as follows. His Honour was reviewing the submissions which had been made by counsel for the appellant and the Crown Prosecutor. His Honour referred to a submission made by counsel for the appellant that by the time Ms Hoare was killed the appellant had walked away from her and Vester Fernando. His Honour then referred to a submission made by the Crown Prosecutor that, apart from other evidence, immediately south of where the body of the victim was found there were two parallel, side by side tracks, as if two persons had walked away from the body together. The Crown submitted that the jury should find that these tracks had been made by the two accused. The trial judge then made the comment complained of.
189 It was accepted by counsel for the appellant that a trial judge may within limits make comments on the facts. However, it was submitted that this had been a comment by the trial judge on an important matter and, indeed, it was submitted, the ultimate issue the jury had to decide on the charge of murder against Brendan Fernando. It was contended that the comment was not really a comment on the evidence but a comment about the strength of one party (the Crown's) submissions. The likely effect of this comment made by the trial judge would have been aggravated by other comments made by the trial judge in the summing up in which he conveyed to the jury his personal views about some other parts of the evidence, for example whether Michael Jackson's evidence in his evidence in chief or his version in his statement given to the police should be preferred and whether evidence by lay witnesses of their opinions of Brendan Fernando's intellectual capacity was to be preferred to the evidence of the highly qualified Professor Hayes who had conducted recognised psychometric tests on Brendan Fernando. It was pointed out that no such endorsement had been given by the trial judge to any of the submissions made on behalf of Brendan Fernando.
190 We do not consider that this ground of appeal should be upheld. As was accepted by counsel for the appellant, a trial judge is not prohibited from commenting on the facts and may within limits comment on the facts. In B v The Queen (1992) 175 CLR 599 Brennan J in a passage which was referred to by this Court in R v Nguyen (unreported 20 May 1996) said:-
"A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence'".
191 Applying these principles, we do not consider that what his Honour said went beyond the bounds of permissible comment by a trial judge. There is no distinction in our view, between comment on primary facts and comment on any inference which one party seeks to have drawn. Early in the summing up the trial judge gave the usual direction that the determination of the facts was for the jury alone and if any views which the trial judge expressed on the facts did not coincide with their own, the judge's views were to be put to one side. In the very comment which is challenged the judge added "that that is a matter for you". In our opinion, the comment made by the trial judge fell short of overawing the jury. In the summing up the trial judge adequately put the defence and the matters relied upon in support of the defence.
Ground 16: Even if the Court was not persuaded to intervene in respect of any of the grounds referred to above, it is submitted that the conviction should nevertheless be quashed on the basis that it is unsafe and unsatisfactory in the sense referred to by this Court in R v Clough (1992) 28 NSWLR 396 by reason of the accumulation of matters catalogued in the earlier grounds.
192 The use of the expression "unsafe and unsatisfactory" has been deprecated in very recent decisions of the High Court. However, the intent of this ground is clear. It is contended that there was a miscarriage of justice at the trial of Brendan Fernando by reason of the combination of the matters complained of in the earlier grounds of appeal. We have rejected all the earlier grounds of appeal considered individually and having regard to what we have said in dealing with those earlier grounds, we do not consider that the present ground has been made out.
193 In our opinion Brendan Fernando's appeal against conviction should be dismissed.
APPEAL OF VESTER ALLAN FERNANDO
Grounds 1 & 2: The trial miscarried and the verdict of the jury was unsafe and unsatisfactory.
194 We shall deal with these grounds at the conclusion of our reasons dealing with Vester Fernando's appeal.
Grounds 3 & 4: There ought to have been separate trials.
195 As we have noted above one of the grounds of appeal most strenuously urged on behalf of the appellant Vester Fernando, is that both his Honour Temby AJ and Abadee J should have acceded to applications that Vester Fernando be tried separately. The application before Temby AJ had been made on 23 April 1997 that is approximately a fortnight before the commencement of the subject trial. During the course of the trial this application was unsuccessfully renewed to Abadee J a number of times. The basis of each application was identical.
196 The nub of the submission made in this regard related to the admissions made by Brendan Fernando in the interview originally recorded in Det Pearson's notebook, the contents of which were put to Brendan Fernando during the course of the electronically recorded interview and the electronic recording made of Brendan Fernando's statements and actions during what is colloquially known as a "runaround". The submission was that what was recorded so directly implicated Vester Fernando as to be unfairly prejudicial to him as to prevent him having a fair trial.
197 On behalf of the appellant, Brendan Fernando, while this ground was not specifically raised in his grounds of appeal as filed, Mr Buddin SC as part of the omnibus ground raised that the verdict was unsafe and unsatisfactory also contended that a separate trial should have been ordered in relation to his client. In support of this contention Mr Buddin submitted that because of the attitude taken by fellow prisoners to those who inform on co-offenders that Brendan Fernando was inhibited from giving evidence in the trial because that evidence would have implicated Vester Fernando.
198 We turn then to the applicable law relating to this aspect of the appeal.
199 A convenient staring point is the decision in R v Assim (1966) 2 QB 249. There, Sachs LJ delivering the judgment of the Court of Criminal Appeal said:
"As a general rule, it is of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related whether in time or other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases."
200 This passage in the judgment of Sachs LJ was quoted with approval by the Court of Criminal Appeal in R v Annakin & Ors , 23 November 1988 where the court observed at p 13:
"In the ultimate each case must be dealt with according to the evidence and by reference to the considerations relevant to whether prejudice would be caused so as to prevent the accused being given a fair trial."
201 The court there pointed out that in De Jesus v The Queen (1986) 68 ALR 1 the High Court had reaffirmed the need for the trial judge to examine the matter from the point of view of the prejudice to be caused to the accused, whether he or she would have a fair trial or not.
202 In R v Grondkowski (1946) 1 KB 369 the Court of Criminal Appeal at 373 cited with approval the following paragraph from R v Gibbons & Proctor (1918) 13 Cr App R p 134:
"It is not enough to say that counsel could have defended them more easily if they had been tried separately … there may have been many things made clear to the jury which would not have been made clear if the prosecution had been embarrassed by having to deal with the two cases separately. The whole story was before the jury of what went on in the house where the two appellants lived together."
203 Grondkowski was a case involving cut-throat defences. As we apprehend the passage cited and other passages from the judgment it was considered that cases of that kind are better heard together. The reason for that is the opportunity given to the jury to observe each of the accused and to consider the whole of the relevant facts rather than what may be a misleading portion of them. In Grondkowski it was also said:
"Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise that it is obviously right and proper that they should be jointly indicted and jointly tried and in some cases it would be as much in the interests of the accused as of the prosecution that they should be."
204 Grondkowski has been consistently followed by courts in this State including R v Kerekes (1973) WN; R v Flaherty & Ors (1968) 3 NSWLR and R v Merrett 19 A Crim R 363. As was pointed out in the joint judgment of Slattery CJ at CL and Carruthers J in the last mentioned case citing from Grondkowski , it is necessary for the judge to consider the interests of justice as well as the interests of the prisoners. The interests of justice do not mean only the interests of prisoners. There is an additional interest in conserving costs and avoiding inconvenience to witnesses properly to be taken into account: see R v Oliver 57 ALR 543 at 547. Further, there is the undesirable risk the separate trials will lead to verdicts which are inconsistent on the facts. R v Lake 64 Cr App R 172.
205 To these references we would add the observations of Herron J (as he then was) in R v Beavan 69 WN 141. In that case his Honour pointed out (at pp142-143) "it is in accordance with the ordinary rule that where two are engaged on a common enterprise, it is proper that they should be tried together." His Honour next pointed to the common situation in an alleged joint crime involving common parties that one or more of those charged will endeavour to exculpate himself or herself at the expense of the co-accused, a situation he described as a matter of "human experience presenting as it does a human problem for a jury to deal with as a matter of commonsense." His Honour concluded:
"If separate trials were had, very often only one half of the picture could be presented to the jury. In order to do complete justice, juries are entitled to see and hear all those who are alleged to have acted in common purpose, and it is neither a rule of law nor of practice that where an essential part of one accused's defence amounts to an attack on a co-accused there must be separate trials. Cases have occurred and will no doubt continue to occur, in which one accused says that he or she was persuaded by the superior intellect of the other accused to take some part in the enterprise, or that he or she was intimidated by the relationship or threats of that other. It is essential to the proper appreciation of such cases that the jury should see and hear all parties. It is true that statements not on oath can be prejudicial to the one referred to in them, but as they are not statements on oath the jury can be warned by the trial judge to reject those references to the co-accused, and there is no reason to think that a commonsense jury will refuse to follow such advice."
206 It should be noted that the remarks of Herron J, of course, refer to the evidentiary situation which was then pertaining whereby accused persons were entitled to make unsworn statements from the dock, an evidentiary feature which is no longer part of criminal procedure in New South Wales.
207 In R v Dellapatrona & Duffield (1993) 31 NSWLR 123 this Court said at 133C:
"There remains a balance to be struck between the public interest in the efficient despatch of criminal trials and any prejudice which may be caused to the accused. It is desirable to have all those charged in relation to a particular crime tried at the same time unless positive injustice would thereby be caused… ."
208 The court further said in Dellapatrona and Duffield at 134C:
"It should, however, be emphasised that separate trials will not be granted merely because there is evidence admissible against one accused but inadmissible against another accused to whom it is prejudicial. The decision of the Supreme Court of Canada proceeded upon the clear basis that separate trials should only be granted in such a case where the evidence admissible against the second accused (to whom the prejudice is caused) is substantially weaker than that admissible against the first."
209 Dealing with a ground asserting an error in the trial judge's discretion to refuse an application for separate trials, the court stated at 137A:
"Although such an exercise of discretion may be reviewed on appeal (within well-known limits), this Court does have the benefit of the hindsight gained by knowing what has in fact transpired at the trial, and it is also able to judge - by reference to the whole of the evidence and to the verdict - whether the risk of impermissible prejudice by reason of the joint trial was worse than that contemplated at the time and whether it had in fact amounted to positive injustice to the appellant. In that sense, the task of this Court is not the usual one of reviewing the exercise of a trial judge's discretion .."
210 In R v Baartman , unreported, Court of Criminal Appeal, 6 October 1994, this Court approved the summary of principles involved in matters such as this by Hunt J in R v Midis , unreported, NSWSC 27 March 1991. There, his Honour had made the following statement of principle:
"Briefly, the relevant principles are that:
1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and
2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and
3. Where there is real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."
211 Finally, reference should be made to what fell from the High Court in Webb and Hay v The Queen [1993-94] 181 CLR 41 where Toohey J at 88-89 (with whom Mason CJ and McHugh J agreed) dealt with the relevant principle as follows:
"King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other'. What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in Regina v Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prime facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused."
212 Accordingly, in determining whether a separate trial should be granted the court must carry out a balancing process between the community interest described by Herron J in Beavan and Toohey J in Webb and Hay and the question of undue prejudice to an accused as described in the authorities to which we have referred.
213 It should be noted that throughout the trial Abadee J was at pains to instruct the jury as to the restrictions as to the use the jury could make of evidence called against one accused. The transcript of evidence is studded with such directions. An example of the care taken by his Honour in this regard made be found when photographs of Brendan Fernando's hands taken at the Walgett police station were tendered in evidence. There his Honour said:
"Members of the jury, once again this is evidence only in the case as and against Brendan. This material touches upon the Crown case brought against Brendan but not against Vester, so please consider it in that way and that way only."
214 Furthermore, in the course of the summing up his Honour again took care to similarly direct the jury when dealing with the Crown case against Brendan Fernando.
215 This Court is of the view that his Honour in so doing fully complied with the strictures adverted by the authorities to which we have referred.
216 However, the question remains as to whether or not even despite his Honour's careful directions the risk remained that Vester Fernando was so unduly prejudiced by the reception of evidence against Brendan Fernando that he was denied a fair trial.
217 It was submitted on Vester Fernando's behalf that the effect of the jury viewing the video recording of Brendan Fernando's words and actions implicating Vester Fernando was such as to make it impossible for any direction to obviate the risk of undue prejudice.
218 In particular it was submitted what was recorded as occurring during the "runaround" was of such a nature as to make it impossible for the impression given of Vester Fernando's part in the events so described to be removed in the jury's mind by any direction.
219 It should be noted that the court has viewed the subject video recordings.
220 The tenor of Brendan Fernando's statements to the police was that while he was present during most of the events which occurred he was subject to the control of Vester Fernando who was armed with a machete. Indeed, he stated to the police at the time when the victim was killed he was not present, having left the company of Vester Fernando and the victim shortly before the lethal event must have occurred. Thus while his statements may not be considered as being a complete "cut throat" defence they are certainly exculpatory to a degree of his own participation and thoroughly implicate Vester Fernando.
221 He, of course, did not give evidence in the trial thus his statements were not capable of being tested by either the Crown Prosecutor or Vester Fernando's counsel.
222 However, his recorded admissions do, in the court's view, fall within the type of evidence adverted to in the authorities and particularly by Toohey J in Webb and Hay which support the contention that there ought to have been a joint trial.
223 Accordingly, we are of the view that neither Temby AJ nor Abadee J fell into error in rejecting the applications made before them. However, a question remains as to whether or not the manner in which these admissions were presented to the jury did in fact create a situation whereby Vester Fernando was unfairly prejudiced thus preventing him receiving a fair trial.
224 It is the court's opinion that his Honour's directions, both during the course of the trial and in his summing up, as to the use the jury could make of the evidence tendered against Brendan Fernando, including the video tape material, were such as to obviate any risk of undue prejudice.
225 Juries must be taken to have obeyed clear directions given by trial judges as to the manner in which they should deal with evidence adduced in trials.
226 In these circumstances we are of the view that his Honour's directions were such as to obviate the risk of undue prejudice and accordingly we dismiss these grounds of appeal.
Ground 5
227 There are a number of sub-paragraphs of this ground, all of which complain of error by the trial judge in his conduct of the trial. We deal with these in turn:
(a) Allowing the Crown Prosecutor to read the statement of the witness Bruce Lee Scott in re-examination
228 This witness was one of those staying at Orana Haven who claimed to have seen the appellant in possession of a machete whilst residing there. In short, the witness said that he saw the appellant showing another resident at Orana Haven a black-handled machete. The witness described the machete he then saw as looking like a machete introduced into evidence before the jury. He said that he told a policeman about the machete and the policeman prepared a statement which he read to the witness who could not read. Mr Scott said he signed the statement after it had been read to him.
229 In cross-examination at the trial, having been reminded of his evidence that the statement he gave to the police had been read to him, he was then asked this question and gave this answer:
"Q. But you had no way of knowing what was read out to you was accurate or not because you yourself can't read?
A. Yes"
230 The Crown Prosecutor was granted leave in re-examination to take the witness through the statement given to the police to ascertain whether what he had told the police officer was contained in the document, which he agreed he had signed as being true and correct.
231 The questions asked in cross-examination suggested the possibility that what the police officer read to the witness before he signed the statement was not in the statement at all. In our opinion the Crown is correct in submitting that this cross-examination made it appropriate for the Crown Prosecutor to re-examine in the manner in which he did.
232 This ground fails.
(b) Failing to sufficiently distinguish for the jury the evidence admissible against the appellant from that admissible against his co-accused
233 In considering Grounds 3 and 4 for this appellant we have already remarked upon the care with which and the number of occasions upon which the trial judge instructed the jury both during the trial and when summing up in relation to the restrictions upon the use the jury could make of evidence called against one accused when considering the case against the other accused.
234 The appellant complains in particular that the trial judge failed to adequately instruct the jury as to the use it could make of the evidence adduced against Brendan Fernando on the "runaround".
235 When the runaround evidence was introduced through Det. Sgt. Pearson, and after part of the video tape had been played, the transcript records the following request by counsel appearing for the appellant at the trial (T 745):
"WENDLER: Would your Honour remind the jury that what they have just seen is not evidence in the case concerning Vester Fernando."
236 This request prompted his Honour to give this direction:
"Members of the jury, you may or may not recall on day one, it seems to be so long ago, but I did indicate to you in my opening remarks that you were trying two cases or two people at the same time. I also indicated to you during those opening remarks that there might be evidence admissible against one person alone but not against the other person.
It seems to me appropriate at this point in time to not only remind you of what I said the other day but to remind you that the film that you have just seen is evidence produced by the Crown only as and against Mr Brendan Fernando. Mr Wendler rose to his feet at an appropriate time, and appropriately so, to draw attention to the fact that the film evidence that you have just seen is not evidence as and against his client and he is quite correct.
Now it is appropriate for me to say to you right here and now that the film that you have just seen is not to be used by you in any way, shape or form as evidence as and against Vester Fernando. It is only evidence to be used by you against Brendan Fernando. So please do not take into account what you have seen as evidence as and against Vester Fernando. Mr Wendler, do you want me to add anything further to that?
WENDLER: No your Honour, other than there will be other occasions later in the day."
237 Shortly after that direction the Crown Prosecutor introduced a number of photographs taken on the runaround and Mr Wendler requested that his Honour give the jury a further warning that the photos were only available in the case against Brendan Fernando. In response to that request, his Honour gave this further direction (T748):
"Members of the jury, once again this is evidence only in the case as and against Brendan. This material touches upon the Crown case brought against Brendan but not against Vester, so please consider it in that way and that way only."
238 When interviewed by Det. Sgt. Pollock the appellant Brendan Fernando said: "Vester threw it [the machete] over the levee bank." Further conversation, to which we refer elsewhere, followed as between the police officer and Brendan Fernando but before the evidence of this conversation was introduced, and again at the request of Mr Wendler, the trial judge gave the jury this warning:
"Members of the jury, you may recall the other day some evidence was admissible only against the accused Brendan and some evidence was only admissible as and against Vester. The conversation between the detective and Brendan Fernando, members of the jury, is to be regarded as being evidence only in the case as and against Brendan Fernando and not in the case as and against Vester."
239 We consider that the directions given by the trial judge in the above passages were adequate to alert the jury as to the use they could make of the conversations and conduct of the accused Brendan Fernando, and that generally the directions from time to time in the trial, of which those set out above are instances, were adequate to remind the jury what evidence was admissible against each of the co-accused.
240 This ground fails.
(c) Allowing the Crown Prosecutor to cross-examine the witness Sharada Ann Morgan
241 In our earlier outline of the case against this appellant we referred shortly to the evidence which this witness gave.
242 Towards the end of her cross-examination counsel appearing for Vester Fernando directed some questions to the witness about her evidence at the hearing in the Local Court (T 431):
"Q. Remember you said or it was suggested to you that you said at the hearing at Dubbo, the preliminary hearing at Dubbo, that it was Vester you saw with this knife and not Brendan. Do you remember those questions a minute ago?
A. Yeah.
Q. Do you remember at the preliminary hearing suggesting that the thing you saw was shaped like a knife. Do you remember answering like that, page 49.40, 15 August 1995. Do you remember giving an answer like that?
A. Can you say that again?
Q. Do you remember when you gave some evidence at Dubbo. You went along to the court at Dubbo and some people asked you some questions there. Do you remember that?
A. Yeah.
Q. You were asked some questions about what you had seen and about this knife. Do you remember those questions?
A. Yeah.
Q. Do you remember saying there 'It was shaped like a knife, that's all I know'. Do you remember giving an answer like that?
A. No.
Q. You do not remember that at all?
A. I said it was shaped - I said - when he said to me 'How do you know it was a knife', I said 'Anyone knows a knife when they see one'. That's what I said.
Q. You also said 'It was shaped like a knife. That's all I know'?
A. Yes.
Q. Do you mean there that what you saw was something that was shaped like a knife?
OBJECTION (CROWN). ALLOWED.
Q. (Last question read)
A. Yeah.
Q. Well, do you agree you answered in that way at the hearing at Dubbo?
A. Yeah.
Q. I am sorry, what was that?
A. Yeah.
Q. Are you really saying that what you saw was not a knife but something that was shaped like a knife?
A. It was.
Q. You then assumed, it must have been a knife because it was shaped like that, is that right?"
243 In re-examination the Crown Prosecutor took the witness back to her evidence in the Local Court:
"Q. Is this what was said at the lower court. This question was put to you:
'Q. Is that the time that you say you saw Vester throw?
A. Yes.
Q. A knife into the bushes?
A. Yes.
Q. Could it have been something else?
A. It was shaped like a knife, that's all I know.
Q. It was shaped like a knife?
A. Yes.
Q. So it may have been something that was shaped like a knife?
A. How can you get something shaped like a knife.
Q. I don't know. You answer the question.
A. Uh, no.
Q. So you are saying that what you saw'
and you answered 'Was a knife'. Is that right?
A. Yeah."
244 The re-examination was conducted without any objection being taken by Mr Wendler of counsel for the appellant so that r 4 applies. The effect of the re-examination was to elicit precisely what had been said about the object that the witness had observed when the witness had earlier given evidence before the magistrate.
245 It is clear that experienced counsel at the trial perceived no possible injustice to the appellant in the witness being allowed to answer what was asked in re-examination and neither does this Court. Leave to rely upon this ground of appeal is refused.
(d) Allowing the Crown Prosecutor to cross-examine the witness Michael Jackson in chief and again in re-examination.
(e) Admitting into evidence the representation that Jackson heard the appellant say 'If anybody grabs you, I'll kill them'.
(f) In failing to direct the jury how they might use the representation referred to in (e) above if they were satisfied to the requisite standard that it was made.
(o) Rejecting the submission of counsel for the appellant to the effect that the evidence of the witness Michael Jackson in the circumstances had no probative value.
246 We have found it convenient to address the many issues that have arisen concerning the evidence of Michael Jackson when considering Grounds 3, 4, 5, 6, 7 and 8 of the appeal of Brendan Fernando. For the reasons there expressed each of these grounds concerning Michael Jackson's evidence is rejected.
(g) Admitting into evidence, over objection, certain photographs
247 Objection was taken to the tender of a number of photographs showing the deceased's body, and where it was found in a paddock. Counsel for both accused sought to have the photographs excluded from evidence under s 137 of the Evidence Act . That the photographs had probative value was conceded, but it was contended that such probative value was outweighed by the danger of unfair prejudice to the accused.
248 The trial judge gave detailed reasons for rejecting the submission that the probative value of the photographs was outweighed by the danger of unfair prejudice and for deciding to admit the material into evidence (AB 835-847). His Honour then gave the jury an appropriate direction as to how they should view the photographic evidence (AB 822).
249 As Mr Ramage conceded in the course of his oral submissions, an application to exclude probative evidence of the kind here introduced on the ground addressed in s 137 presents a difficult problem for a presiding judge. In this instance, in our opinion, his Honour's reasons disclose no error in the approach that he took to his task and the photographs were properly admitted into evidence. This ground fails.
(h) Admitting the evidence of Stephen Ronald Pearson of a similarity in length between the plaster cast of a footprint and shoes worn by the appellant
250 This ground is similar to ground 10 of the grounds of appeal of Brendan Fernando which we have already addressed, but the submissions presented for each appellant were not identical. Det. Snr Constable Pearson gave evidence concerning his attendance at and examination of the crime scene. He observed shoe impressions in the vicinity of the damaged vehicle belonging to Mrs Wells. He gave evidence that later he attended the No. 2 rugby oval and made a plaster cast of a barred shoe impression
"which bore similarities to shoe impressions seen and photographed inside the Peg Cross Ward of the Walgett Hospital and also on the ground outside that ward" (AB 879)
251 That plaster cast was tendered and admitted into evidence without objection. Later counsel objected to the proposed tender of evidence that the size of the prints was the same size as the appellant's shoes, which shoes the Crown intended to identify through the appellant's sister. It was no part of the Crown case that the shoes of the appellant matched any print found in or about the hospital.
252 It was submitted that the trial judge erred in the exercise of his discretion and that he failed to address the requirements of s 137 of the Evidence Act in deciding to admit the evidence.
253 The evidence that Det. Constable Pearson gave was that the length of the impression recovered using the plaster cast was similar to the length of the appellant's shoes but he was unable to match the shoe pattern with any footprint pattern observed at and about the crime scene.
254 That evidence having been given, it was further submitted that the trial judge should have withdrawn the plaster cast evidence from the jury's consideration with an appropriate direction.
255 We are not attracted by those submissions. The transcript records that his Honour considered both ss 135 and 137 before deciding to admit the evidence, and in our opinion the exercise of discretion did not miscarry. That the appellant, Vester's, shoe size was similar to the footprint size was relevant and probative just as a dissimilarity would have been relevant and capable of eroding the circumstantial case against the appellant.
256 A further discrete point was taken on the appeal that his Honour misdirected the jury as to the evidence that had been introduced when in the course of his summing up he referred to evidence that there were "identical footprints in the ward, outside near the car and leading to No. 2 oval." The evidence did not go that far, as the Crown acknowledged. There was evidence of similarities in the footprints, but not of identity.
257 As to this misdirection on the facts, r 4 requires consideration because there was no application to the trial judge to correct what he had told the jury. It is to be observed that there was an adjournment very shortly after that factual misdirection had been given but no application was made by counsel to correct the inaccuracy. We do not consider that there was a risk of the error giving rise to any possible miscarriage of justice and it is apparent from his silence that counsel for the appellant at the trial did not regard the error as significant in the context in which it occurred. In the circumstances we refuse leave to complain of this misdirection of fact.
(i) Failing to direct the jury at the close of the prosecution case to bring in a verdict of acquittal on behalf of the appellant on the first count in the indictment
258 The first count charged the appellant with murder.
259 At the close of the Crown case Mr Wendler did make a submission that there was no case to answer, but after the trial judge indicated how he proposed to direct the jury as to the evidence of Michael Jackson, counsel withdrew that application.
260 This ground was not vigorously pursued on appeal and Mr Ramage acknowledged that he wavered about addressing it. In our judgment there was clearly a case for the jury's consideration at the end of the case for the prosecution. Apart from the evidence of Michael Jackson, with which we have dealt elsewhere in this judgment, there was a case against the appellant, based upon the circumstantial evidence we outlined earlier, which was by no means a weak one.
261 This ground fails.
(j) Failing to direct the jury at the close of the prosecution case to bring in a verdict of acquittal on behalf of this appellant on the second count in the indictment.
(k) Holding that there was sufficient circumstantial evidence on which a jury could find a verdict of assault with intent.
(l) Holding that an alternative charge of assault with intent to have sexual intercourse in circumstances of aggravation was available against the appellant and in so directing the jury.
(m) In not requiring the prosecution to amend the indictment in respect of the second count in the indictment.
262 These four grounds are closely interwoven and it is convenient to address them together.
263 The second count of the indictment as presented charged the appellants with the act of sexual intercourse as an ingredient in the offence charged under s 61J of the Crimes Act . There was evidence by way of admission against Brendan Fernando as to what he saw this appellant do, but that evidence was not admissible against this appellant Vester Fernando.
264 Dr Mulvey was called in the case for the prosecution and gave evidence of having examined the body of the deceased as it lay in the paddock where it had been discovered. He observed the opening of the vagina to be enlarged, but Dr Duflou, who conducted the post mortem examination, described the enlarged opening as being a normal post mortem finding. This witness found no abnormality to the vagina. There was no evidence of the presence of semen in or on the body. Hence there was no evidence at the end of the Crown case upon which the jury could convict Vester Fernando of the offence charged.
265 It is submitted that in these circumstances the trial judge should have directed an acquittal of this appellant in relation to the second count. The Crown in written submissions, not earnestly pursued in oral argument, suggested it was appropriate to have such a directed acquittal delayed in case Brendan Fernando proceeded to give evidence at the trial consistent with his earlier admissions, in which event there would then have been evidence to support the second count against his co-accused. We reject that submission. The Crown was not entitled to keep the count alive merely in the hope that subsequent evidence at the trial would provide the missing link.
266 Absent evidence in the case for the prosecution upon which the jury could find sexual intercourse took place, this appellant was entitled to a directed acquittal of the offence charged in the second count at the close of the prosecution case.
267 What was the consequence of the failure of the trial judge to direct such an acquittal? The answer to this question involves consideration of s 427 of the Crimes Act , the evidence that was available in the Crown case and the issue of prejudice to the appellant.
268 Contrary to the ground expressed in (k), we consider that the evidence adduced in the case for the prosecution afforded ample evidence to support a charge against this appellant of assault with intent to have sexual intercourse in circumstances of aggravation.
269 We will not repeat the outline of the Crown case recorded at the commencement of this judgment, which assumes relevance for present purposes. We emphasise in particular that there was evidence that the body of the deceased when found was naked from the waist up, save for the material around her neck and that the underwear it was proved she had been wearing was missing. The fly of her slacks was undone, save for one of the four buttons. In the timbered area at the southern side of the No. 2 rugby oval, some distance from where the body was found, there was a disturbed area of ground approximately two metres long and half a metre wide. At one end of that disturbed area there were two distinct impressions 300 mm apart. At the other end of the depression there was a single larger impression within which the deceased's hair elastic was found. At the edge of that depression was a pair of scissors with the name "Sandra" attached to a handle. There was also discovered there a lens cleaning cloth. A button was found in the disturbed area identical in size to the buttons in the piece of blouse found tied around the neck of the deceased. The cotton thread attached to that button was identical to the cotton on the blouse. Then there was the evidence of footprints leading to and from that disturbed area.
270 Ground (k) is not sustained and it follows from this that the evidence that had been adduced in the case for the prosecution sufficed to prove an alternative offence for the purposes of s 427 of the Crimes Act , namely that of assault with intent to commit aggravated sexual assault. Ground (l) raises the question as to whether the judge was wrong to allow such an alternative offence to be considered by the jury when it was being raised by the Crown for the first time immediately after the close of its case.
271 The trial judge gave detailed reasons (appearing at AB 1229-1243) before deciding that this alternative offence ought go to the jury. We find no error in his Honour's reasons.
272 It is desirable generally where there are alternative verdicts to which a jury may come that this be raised in the opening address of the Crown: see R v Cameron (1983) 2 NSWLR 66 and R v Pureau (1990) 19 NSWLR 372. However there is no rigid rule that this must occur in every case. In Pureau Hunt J, with whose judgment the other members of the court agreed, said at 376:
"The issue of alternative verdicts should be opened to the jury by the Crown. If the alternative verdict is not referred to [then], it must be raised before closing addresses when the judge can rule whether the delay in raising it so late in the piece would be likely to cause injustice to the accused."
273 What is important is that consideration of the alternative offence is not introduced in circumstances which would cause injustice to the accused: Pureau (supra) and R v Quinn (1991) 55 A Crim R 435. His Honour was plainly alert to this critical consideration as his reasons disclose. His Honour considered the question of prejudice and concluded, in our view correctly, that the appellant was not prejudiced by the introduction of the alternative charge at a time immediately after the conclusion of the case for the Crown. We would add, as the discussion recorded in the transcript at the conclusion of his Honour's reasons discloses, that counsel for this appellant was invited to seek to have witnesses recalled if he so wished to put any additional matters to them concerning the alternative offence under s 427.
274 In our opinion grounds (k) and (l) both fail. We have earlier expressed the opinion that the appellant would have been entitled to an acquittal at the end of the Crown case on the second count as framed but equally it would have been appropriate for the indictment to have been amended to charge the offence of assault with intent to commit aggravated sexual assault.
275 Whilst neither of those two steps were taken, the trial judge gave to the jury the following instruction before the trial proceeded any further (AB 1280):
"As you may recall, there are two cases that are being tried or heard together against the two accused, that is, taking place at the same time. You also recall that I directed you that you have to consider each case against each accused separately. I remind you at this point of time of a warning, a direction, that I have given from time to time, that what was allegedly said out of court by the accused Brendan Fernando by way of admissions to the police or by way of pointing things out or making observations to the police is only admissible in the case as and against him and not in the case as and against Vester Fernando. In other words, what he said by way of admissions is admissible in evidence as and against him, but not as evidence in the case against Vester and cannot be used by you as such.
I have given that direction something along those lines before, but it is appropriate for me to repeat it. It is appropriate for me to move onto something else and tell you that the Crown case not only has closed, but that in respect of the second count, the Crown has conceded that at the close of its case as and against Vester Fernando that there is no evidence of sexual penetration by the accused Vester Fernando or any other person and that sexual penetration is an essential ingredient in the second count, but that the Crown will seek to satisfy you that the accused Vester Fernando is guilty of an assault with intent to have sexual intercourse with Sandra Hoare without her consent, knowing she did not consent, in circumstances of aggravation, that he, Vester Fernando, was in the company of Brendan Fernando. It will be necessary to, in due course when I sum up, to give you some further direction."
276 Subsequently at the commencement of his summing up his Honour directed the jury it must acquit this appellant of aggravated sexual assault in the context of giving the following direction (AB 1532):
"It is appropriate if I direct you now that in respect of the second count in the indictment against Vester Fernando, that is, of aggravated sexual assault, you must find the accused not guilty. But if you are satisfied beyond reasonable doubt that on 9 December 1994 at Walgett in the State of New South Wales Vester Fernando did assault Sandra Hoare without consent of Sandra Hoare, knowing that she was not consenting thereto, and in circumstances of aggravation, namely, being in the company of Brendan Fernando, then you may find the accused Vester Fernando guilty of such an offence of assault with intent to commit the offence of aggravated sexual assault. It will be necessary for you to determine whether or not the Crown has proved beyond reasonable doubt the charge to which I have just referred."
277 On a later return to this topic concerning the assault with intent, he gave the jury the following directions (AB 1626):
"In respect of the charge against Vester, and that is the one that I have spoken about of which you are entitled to consider, that of assault with intent to have sexual intercourse without consent and in the circumstances of aggravation, if you are satisfied beyond reasonable doubt that the Crown has proved its case, you may then find him guilty of that offence. I have already dealt with the elements in it. That charge is like the charge of murder against Vester. Based on circumstantial evidence the Crown must prove that there was an assault, that is an unlawful act which intentionally caused Sandra Hoare and to apprehend immediate unlawful violence upon her. An assault can be committed without even a touching of another person, but an assault can include touching of a person or that person with hostile intent in order to sustain the charge. In this charge as and against the accused Vester, the Crown would have to prove that not only was there such an assault or act on the part of Vester which it says there was or took place at this southern end of the Number 2 oval, but accompanying that action by Vester was an intention to have sexual intercourse with Sandra Hoare. Sexual intercourse meaning, in law, in this case, penetration of the female vagina by his penis to any extent without her consent knowing that she was not consenting and would not be consenting to any sexual intercourse taking place and that at that time he was in the company of Brendan Fernando who was not merely present, but intentionally participating at some level in the offence by at least encouraging or assisting him in that assault. They are the elements in respect of that charge which remains to be considered by you in relation to Vester that of assault with intent to have sexual intercourse without consent and in circumstances of aggravation."
278 We are not persuaded by the submissions of Mr Ramage that in the events that occurred the appellant was prejudiced either by the failure to direct an acquittal on the second count as framed at the end of the Crown case or by the failure of expression of a formal amendment to the indictment at that time. Once the jury was directed in the manner in which it was before the appellant's case began, the Crown could not have sought a conviction on the count as framed in the indictment nor did it do so. The trial proceeded just as it would have done in the event that the indictment had been appropriately amended at the close of the prosecution case.
279 We are satisfied that no substantial miscarriage of justice actually occurred and that in respect of the related grounds (j) and (m) the proviso to s 6(1) of the Criminal Appeal Act applies.
(n) In rejecting the application of the appellant for the discharge of the jury
280 Mr Wendler of counsel sought the discharge of the jury after and as a consequence of the decision of the trial judge to allow the jury to consider the alternative offence of assault with intent to commit aggravated sexual assault. His Honour's reasons for refusing that application (AB 1364-1368) in our opinion disclose no error.
281 The submission that the alternative offence warranted a separate trial for this appellant is in our opinion not substantiated. It seems to us that his Honour made clear in the directions he gave to the jury the distinctions between the Crown case against each appellant, and that appropriate directions were given to the jury considering the elements the Crown had to establish against this appellant in order to prove the offence of assault with intent to commit aggravated sexual assault.
282 The submission that the substitution of the assault offence required the discharge of the jury is rejected.
(p) Permitting the legal representative of the co-accused to cross-examine the appellant
283 This appellant gave evidence, the thrust of which we outlined earlier. At the conclusion of his evidence in chief, argument ensued as to the entitlement of counsel for the co-accused to cross-examine him. His Honour ruled that counsel for the co-accused was so entitled, but that should he seek to ask a question relevant only to credit leave would be required. The appellant was then cross-examined and a series of questions were put to him, unproductively, consistent with the account of events Brendan Fernando had given to the police. It is submitted that this cross-examination should not have been allowed.
284 The argument advanced hinged primarily upon s 104 of the Evidence Act which under sub-s (1) applies only to criminal proceedings. For present purposes we set out sub-ss (2) and (6):
"(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.
………….
(3) Leave is not to be given for cross-examination by another defendant unless:
(a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to examine; and
(b) that evidence has been admitted."
285 It was submitted that sub-s (6) restricted the grant of leave in the absence of evidence from the appellant which was adverse to the co-accused.
286 We consider that the evidence that Vester Fernando gave was adverse to the evidence of the co-accused, being inconsistent with the version which that co-accused had given to the police, in which he presented himself as a lesser player in what had occurred and in which he sought to attribute primary responsibility for the criminal activity to the co-accused.
287 Be that as it may, s 104(6) is to be considered in the setting of a section which is concerned with restriction of cross-examination of an accused person directed to the issue of credibility.
288 His Honour ruled, in our view correctly, that leave would be required if the co-accused wanted to cross-examine this appellant about an issue of credibility. However the occasion for seeking leave to cross-examine on credibility did not arise.
289 The position at common law was that where two accused were jointly tried one accused could cross-examine the other, even if that other accused had not given evidence tending to incriminate his co-accused. In Murdoch v Taylor [1965] AC 574 at 585 Lord Morris of Borthy-y-Gest stated the position thus:
"It may be noted that if A and B are jointly charged with the same offence and if A chooses to give evidence which is purely in defence of himself and is not evidence against B he may be asked questions in cross-examination by B notwithstanding that such questions would tend to criminate him (A) as to the offence charged. In similar circumstances B would be likewise placed."
(See also R v Hilton [1971] 1 QB 421 where the above dicta of Lord Morris were applied in the Court of Appeal. See also Cross on Evidence , 4th Australian ed. at 13,105.)
290 Consistent with the statement of principle in Murdoch v Taylor the co-accused was entitled to cross-examine the appellant in the manner in which he did.
291 Accordingly this ground of appeal fails.
(q) Refusing to direct the jury pursuant to s 165 of the Evidence Act
292 This ground is concerned with certain evidence given by the witness Mr Pitt in respect of two machetes and evidence given by Miss Wells and Mr Jackson in respect of an orange bag.
293 Mr Pitt was at Orana in December 1994 and he said that at that time the appellant showed him three knives. Mr Pitt was shown the two machetes police had recovered in the vicinity of the levee bank and he described them as being "similar to the ones I have seen" . He was then asked whether either of them was the first knife he had been shown and he identified one of the objects which he said was almost the same colour as it had been in 1994. The third knife he had been shown he said was smaller than the second of the knives produced to him at the trial.
294 Adam Jackson gave evidence that after Miss Wells' car had been broken into he found that there were tapes missing from it as well as an orange bag. When he was shown the orange bag recovered by the police he identified it as "an orange bag" and explained that he had been responsible for buying some oranges which had been in the bag in the car. He did not purport to identify the bag shown by the police as being the very same bag that went missing from the car.
295 Then Miss Wells, when shown the same orange bag and asked whether she recognised it, described it as an empty orange bag and agreed that it looked like the bag that had been in her car.
296 Before the summing up began, counsel for the appellant raised with the judge the question of giving the jury a warning appropriate to identification evidence in relation to the evidence the above witnesses gave when they were shown the various objects. Discussion ensued in which his Honour invited counsel to define the sort of direction to be sought. The transcript records (AB 1494) counsel indicated he would specify the nature of the directions sought:
"Sometime before your Honour comes to sum up, we would fashion something before then."
297 The transcript further records (AB 1495) his Honour's response:
"I take on board what you said. As presently advised I don't propose to give any ruling at this stage . I want to hear how the arguments are put, what is submitted to the jury, then we can come back to it again." (Emphasis added)
298 There the matter was left and addresses followed. His Honour then summed up to the jury and he referred to the evidence of Mr Pitt at p 116 of the summing up:
"Mr Derek Pitt gave evidence of seeing Vester Fernando with two machetes and a knife at Orana Haven at Brewarrina on 7 December 1994. He was then lying on a bed in his room and Vester, he claimed, walked in and he saw Vester carrying a knife in the right hand down the side of his right leg. He then described seeing what was then MFI 5 as being the first knife he saw. Then he saw Vester walking out and then coming back in again and showing two more knives including what was then described as being MFI 6. He was cross-examined and he said that he was not mistaken about seeing machetes or the two knives. He said that he could only say what he saw. You may recall, members of the jury, that he did a drawing, which has gone before you, of the three knives which he saw and you will have the opportunity of determining for yourself whether or not the Crown is correct in saying that there is a similarity in the drawing between the knives that he saw and the two machetes which are in evidence. That is a matter for you, members of the jury. Again, Mr Vester Fernando in his evidence at this trial denied what Mr Derek Pitt had to say and said that it was not true. Indeed, he said he never had any knives or machetes at all at Orana Haven."
299 Counsel sought no further direction concerning the above passage of the summing up when afforded the opportunity of doing so at the next adjournment.
300 Later in the summing up, having reviewed the evidence of Det. Pearson's discovery of the cardboard insert of a Bon Jovi cassette tape at the levee bank, and portion of an audio tape cover listing the full Bon Jovi tracks, his Honour went on to review the evidence of Miss Wells and refer to the evidence of Mr Jackson in this passage (AB 1757-1759):
"Members of the jury, Miss Wells gave evidence, in relation to this the matter, of tapes as did, in fact, Mr Jackson. I don't propose to take you extensively to what both of them said. They have given extensive evidence, in relation to the property that was removed from the vehicle that Mr Jackson had parked just outside the Peg Cross Ward. She said that after 8 December 1994 she saw some of the property, which she said had been taken from her car, at the police station, She said that some cassettes were ours, that one pair of glasses that had been found, the pair you may recall from the Alex Trevallion Park, she said was his. She said that was her property and she saw an orange bag which she believed was hers or looked like an orange bag that she had . She remembered the names of a number of cassette tapes that she owned and she was shown these at the police station -such included 'Meat Loaf', 'Bed of Roses' and some others. She said that on the Rocky Burnett cassette there was a photograph of her two boys, on the front of the actual cassette cover, and that photograph was slipped in between the cover and the cover of the artist and had her ex-husband's name, address, phone number. You may recall, members of the jury, the evidence about that. He was a gentleman who lived at Young. He was the ex-husband. She was shown a number of tapes and recognised them as being ones that were in her car on the evening in question. She said that the Rocky Burnett cassette was not there - I think that is what she said, but I remain to be corrected about that. She gave some evidence about the name on a cover. She said that the Bon Jovi cassette had been in the car, it had a cardboard slip and it was not in a plastic container. She said she recognised the cover of the Bon Jovi tape but could not say one hundred per cent accurately that it was the same cover or not.
Then there was some evidence given, members of the jury, about three pieces of the Bon Jovi Bed of Roses cassette cover tape insert. She described the Bon Jovi tape as being ripped, that the plastic had a ripped top because it had been used, the plastic bit taken off. She gave some evidence in relation to the Rocky Burnett tape and the age of it, together with the age of the plastic cover. That was the one which had the husband's name and address. She said that when she went to the police station on 12 January 1995 she saw the Rocky Burnett tape, the actual cassette, she saw something there. 'I think it was the Rocky Burnett tape'.
She said that the Pixie photograph sitting in the Rocky Burnett tape in the cover was a significant photo because it was 'Dad's tape'. You may recall those words or you may not, members of the jury. She gave some evidence about an empty orange bag being in the car, a pair of sunglasses being seen identical to one of the pairs in the car." (Emphasis added)
301 Counsel sought no further direction in respect to the above passages in the summing up.
302 We observe that "identification evidence" for the purposes of s 165(1)(b), as indicated by the dictionary to the statute, concerns assertions that are directed to identifying a person as opposed to an inanimate object such as a machete or an orange bag. Nevertheless the categories of potentially unreliable evidence specified in s 165(1) are not exhaustive, and the section is made applicable "to evidence of a kind that may be unreliable". Hence it could apply to evidence linking inanimate objects to the appellant. Thus, for instance, where identification evidence of a vehicle was the central link in connecting an accused with a crime, a suitable warning was required: see R v Clout (1995) 41 NSWLR 312.
303 However, it is clear that counsel was content with the manner in which his Honour had dealt with the evidence in point in his summing up because, ultimately, no request was made by counsel for a direction under this section. We do not regard the evidence here under consideration as requiring a direction under s 165 and we have therefore concluded that this ground of appeal has not been established.
Ground 6
304 There are a number of sub-paragraphs of this ground, all of which complain of error by the judge in the summing up, and we shall deal with these grounds in turn.
(a) Directing the jury "but if you are satisfied beyond reasonable doubt that on 9 December 1994 at Walgett in the State of New South Wales Vester Fernando did assault Sandra Hoare without consent of Sandra Hoare, knowing that she was not consenting thereto, and in circumstances of aggravation, namely being in the company of Brendan Fernando, then you may find the accused Vester Fernando guilty of such an offence of assault with intent to commit the offence of aggravated sexual assault."
305 Earlier, when considering Ground 5 (j), (k), (l) and (m), we set out in paragraph 276 the direction the trial judge gave to the jury at p 2 of the summing up. That direction was plainly incomplete. After the words "without the consent of Sandra Hoare" , on the seventh line of the passage we earlier extracted, there should have been added "with intent to have sexual intercourse with her" .
306 It is clear that counsel for the appellant did not pick up the mistake because the trial judge was not asked to correct what he had said. However, as he foreshadowed at the end of the above passage, his Honour returned to give the jury directions as to the elements of this charge and we set out at para 277 above those further directions.
307 The later directions adequately alerted the jury to the elements to be proved, and in the circumstances we are satisfied that no miscarriage of justice has occurred by reason of the obvious slip on p 2 of the summing up.
308 In our opinion this ground of appeal fails.
(b) Failing to sufficiently distinguish between the evidence admissible against the co-accused and the appellant
309 When considering Ground 5(b), we referred to various directions given to the jury during the course of the trial, emphasising the need to distinguish what evidence was available against the respective accused. We expressed our opinion then as to the sufficiency of the directions related to that issue.
310 The directions subsequently given in the summing up are to be viewed against the earlier instruction that the jury had been given.
311 We do not propose to refer to all the directions in point but at p 3 of the summing up the judge clearly directed the jury concerning the need to consider the case against each accused separately, and he reminded the jury that evidence as to what one appellant told the police was not evidence against the other:
"You will recall from time to time directions that I have given to you that certain out of court statements or admissions to the police or indications given to the police by one accused are not evidence against the other, and cannot be used as evidence against the other, nor taken into account by you in determining the case against the other. Thus, some evidence, in respect of warnings which have already been given, and I repeat those warnings, is admissible only against one accused and not against the other.
What you have to do is to consider each charge and the position of each accused separately, basing your verdict against each accused on the basis of evidence admitted against him in relation to each charge brought against such an accused. Indeed, you will remember the occasions when I have given directions to you in respect of the admissibility of evidence against one accused. Let me illustrate. What Brendan Fernando told the police on the evening of 9 December 1994 and indeed, during the morning of 10 December 1994, which is recorded in the police notebooks, what he said during the course of the electronic recorded interview, what he said or told the police during what has been called by everyone the police 'runaround' on 10 December 1994, or even during the later car trip of 10 December 1994, is material that you can consider only in the particular case against him. You may recall that that evidence has been briefly described by Mr Parker as being admissions or confessional material. That material, as I have said, is only admissible as and against Brendan Fernando. You must not treat it as evidence against Vester Fernando or take it into account against him or have regard to it in the case as and against Vester. What Brendan said to the police, the confessional material, his admissions, what he pointed out to them, is evidence against him alone.
Likewise, what Vester said to the police out of court cannot be used against Brendan as evidence against him or taken into account in the case as and against Brendan.
What Vester told Det. Kenneth Desmond at 19 Collins Street Dubbo on 10 December 1994, what he told Det. Desmond at Dubbo Police Station in the presence of Det. McFarlane, is, for example, not admissible in evidence as and against Brendan Fernando."
312 His Honour again reminded the jury that what the co-accused told the police was not evidence against the appellant (at p 197 of the summing up):
"…it is appropriate if I say that much of what I have already said, in relation to the evidence, is admissible, of course, against both Vester and Brendan Fernando, remembering, however, that what Brendan Fernando told the police by way of admissions or confessions or indicated to the police is, of course, not admissible as and against Vester."
313 In our opinion the jury was adequately alerted by the instruction given by the trial judge as to the evidence that was admissible against the appellant and it follows that this ground of appeal fails.
(c) The directions to the jury concerning Michael Jackson and his evidence.
314 This ground coincides with Ground 7 of the grounds advanced on behalf of the appellant Brendan Fernando which we considered earlier at paras 73-109. For the reasons earlier stated this ground of appeal also fails.
(d) Directing the jury "There is no dispute in the instant case that the wounds or injuries inflicted to the neck were in fact inflicted. However, that leaves open the question as to who and which of the accused inflicted them."
315 It is desirable to consider the above direction in its context. The trial judge had given the jury instruction as to the consequences if they found that the accused had been participants in a joint criminal enterprise. He then went on to instruct the jury as to how they should proceed if they were not satisfied beyond reasonable doubt that the accused had agreed to kill the deceased, and we record what the judge said (at pp 77-78 of the summing up):
"Members of the jury, coming now to the counts and what has to be proved, it is appropriate that I should give you these directions. In respect of the count of murder as and against Vester and Brendan Fernando, if you are not satisfied - I use the word 'not' satisfied - beyond reasonable doubt that the two accused had agreed to kill the deceased, then an accused may be found guilty of murder if you are satisfied beyond reasonable doubt that he was the person who inflicted the wounds upon the deceased with the intention of killing her.
Now, in that situation what would have to be established as and against the particular accused is the following. An accused may be found guilty of murder if you are satisfied beyond reasonable doubt that he was the person who inflicted the wounds upon the deceased on 9 December 1994 at Walgett which caused her death and that the act was an unlawful act and was done with an intention to kill the deceased Sandra Hoare.
There is in this case, as I understand it, no dispute, and it is not contended that the relevant act of inflicting cut wounds to the neck would not be an unlawful act. There is no dispute in the instant case that the wounds or injuries inflicted to the neck were in fact inflicted. However, that leaves open, as I have said, under the not or negative approach that I have mentioned before the question as to who and which of the accused inflicted them .
As I also said, in order to find an accused guilty in the way that I have mentioned, that if you were not satisfied beyond reasonable doubt that the two accused had agreed to kill the deceased, then the accused may be guilty of murder if you are satisfied beyond reasonable doubt that he was the person who inflicted the wounds upon the deceased with the intention of killing her, you would need to be satisfied that at the time of the infliction of the wounds such person had a specific intention to kill."
316 The appellant submits that the judge was wrong to pose a possible question "as to who and which of the accused" inflicted the fatal injuries, because this assumed that one or other of the accused did so.
317 Whilst the passage in which the words complained of could have been more happily expressed, we do not consider that there was any risk of a miscarriage of justice as a consequence. No complaint was made by counsel for the appellant at the trial, so r 4 applies. The appellant's case was that he was not present at or in the vicinity of the hospital at the time the wounds were inflicted, and the jury were subsequently reminded in comprehensive directions (at p 262 and following of the summing up) as to the nature of the appellant's case.
318 There is in our opinion no substance in this ground and we refuse leave to the appellant to rely upon it.
(e) Directing the jury in respect of the appellant "But you may well conclude in the case as and against Vester Fernando - and this is a matter for you members of the jury - that she was in fact sexually assaulted at the tree location… The Crown relies upon the fact that three sets of footprints led east from the area where she was sexually assaulted and then south to the body."
319 The above passages extracted from the summing up are to be found in a section of the summing up which was reviewing the competing submissions.
320 The jury had earlier been instructed that there was no evidence that this appellant had sexually penetrated the deceased. The jury had also been instructed that it must acquit this appellant of aggravated sexual assault. The jury had further been instructed in the course of comprehensive directions as to the elements the Crown was required to prove before the jury could convict of assault with intent to have sexual intercourse without consent and in circumstances of aggravation. Those various directions we set out earlier when considering Ground 5 (j), (k), (l) and (m).
321 In our opinion there was no risk of the jury being led astray by the references to "sexual assault" in the context of the passages here complained of. This is yet another ground to which r 4 applies because no complaint was made by counsel at the trial concerning the direction that was given. In our opinion leave to rely upon this ground should be refused.
(f) Failing to adequately direct the jury as to the circumstantial evidence admissible against the appellant that could be used to bring in an alternative verdict
322 We have already referred to the directions which the judge gave as to the elements that the Crown had to prove in order to establish the alternative verdict on the second count. His Honour did review the circumstantial evidence that was available to the Crown as against this appellant. Counsel did not ask for any more precise summary of the available evidence to be given to the jury and we accept the submission made by the Crown that this was presumably because counsel appearing for the appellant did not regard it as necessary.
323 This is yet another ground to which r 4 applies, and in the circumstances having regard to the comprehensive nature of the summing up we do not consider that leave should be granted to rely upon this ground.
(g) Failing to properly direct or assist the jury as to the effect of the sworn denials by the appellant in answer to questions put on behalf of the co-accused.
324 In considering Ground 5(p) we referred to the scheme of the cross-examination of the appellant by counsel for the co-accused. It is submitted that the jury should have been directed that the only probative effect of such questioning was to reinforce the appellant's assertion that he was innocent.
325 No such direction was sought at the trial and once again r 4 applies.
326 In the course of the trial the jury was given a direction as to the significance of questions being put to a witness. Whilst the appellant was being cross-examined by the Crown, the following questions were asked (AB 1358):
"Q. Didn't you ask Jason [a reference to a witness Jason Green who had been called earlier] to bury the bra and pants of Sandra Hoare whilst you were …
A. No.
Q. Whilst you were on the way between Walgett and Dubbo?
OBJECTION. (WENDLER). MATERIAL NOT PREVIOUSLY PUT. PRESSED."
327 The transcript records that argument followed and the question was rejected. On the following morning when the court next assembled the judge gave the jury the following direction (AB 1372):
"Members of the jury, questions are not evidence. I consider, however, it is appropriate that I should direct you to completely disregard the Crown Prosecutor's suggestion to the accused, Vester Fernando, yesterday afternoon that the accused suggested to Jason Green to bury the bra and pants of Sandra Hoare, the deceased, whilst on the way between Walgett and Dubbo…"
328 Early in the course of his summing up the trial judge instructed the jury as to the absence of probative value of questions. At pp 10-11 of the summing up, his Honour said:
"Next, the contents of any question asked by counsel, unless agreed to or assented to or adopted by a witness, is not evidence, or to put it another way, questions are not evidence - answers to questions are. You should put out of your mind propositions of fact contained in any questions that have been asked in the trial and which have not been accepted by witnesses to those questions that were put. Suggestions and assumptions put in questions, unless adopted by the witness or otherwise proved, are not evidence."
329 In our opinion the above direction was an appropriate and sufficient direction to give and there is no substance in this ground. Leave to rely upon it is refused.
(h) Failing to direct the jury that there was independent evidence corroborating the sworn evidence of the appellant that the shoes he was wearing were the black shoes whose sole pattern did not match the footprints found.
330 The police took possession of the black shoes which the appellant claimed he had been wearing on the night of the death of the deceased. In his evidence at the trial, the appellant said that the shoes introduced into evidence were the shoes he had been wearing at the relevant time. He adhered to that evidence in cross-examination. The appellant relied upon evidence in the prosecution case that those shoes did not match the pattern of any prints seen at the crime scene.
331 Det. Snr Const McFarlane gave evidence (AB 1028) that the shoes in evidence were the shoes which the appellant was wearing when seen by the police in Dubbo on 10 December 1994.
332 The appellant's sister, Wendy Fernando, gave evidence that when she last saw the appellant on the night in question he was wearing black leather shoes and she identified the shoes in court as being those he had been wearing.
333 It was submitted, having regard to the above evidence, that the direction, the absence of which is here complained of, was warranted. However, it is not suggested that the judge was asked to give any such direction and in our opinion since no such application was made during the summing up, leave to rely upon this ground now should be refused. The judge did review the case for this appellant extensively in the summing up and he did remind the jury of the submission made by his counsel that the shoe print that was identified by Det.Sgt Pearson did not match the black shoes that the appellant claimed he had been wearing. Very shortly after the jury was reminded of that submission there was an interruption in proceedings and in the absence of the jury counsel was asked whether any further direction was required. The response was in the negative. It is safe to assume that experienced counsel who was appearing for the appellant was content with the summing up in this regard, no doubt mindful of the way in which he had addressed this issue in his address to the jury.
(i) Failing to sum up in a balanced way the evidence in respect to the appellant's alleged possession of the machetes.
334 Messrs Doolan, Scott and Pitt had given evidence linking the appellant to possession of machetes at Orana Haven and there was the evidence of those who saw the appellant in Walgett on the night prior to the killing and who made observations of possession either of a machete or a large knife. Those witnesses were Lindsay Morgan and his sister Sharada Morgan, Robert Walford, Cynthia Hickey and Michael Jackson.
335 The complaint is made that there was an imbalance in the way in which the summing up on this issue was structured.
336 The topic was dealt with in the summing up at pp 115-116 where the jury was reminded of what the witnesses claimed to have seen at Orana Haven. The judge returned to the matter between pp 124-129 when he reminded the jury of the thrust of the evidence of Robert Walford, Sharada Morgan, Lindsay Morgan and Michael Jackson. Again between pp 134-137 the jury was reminded of aspects of the questioning of Michael Jackson as to his sighting of the machete which he said was tucked into the appellant's tracksuit pants.
337 We note that after the judge had dealt with the evidence on this point at pp 134-137 counsel for the appellant did seek some further directions from the judge to remind the jury of concessions extracted from Mr Doolan and Mr Scott in cross-examination which may have impacted upon the weight of the evidence they gave about the appellant's possession of a machete.
338 When the judge returned to the topic at pp 217-220 he reminded the jury of the appellant's denial that he had a machete at Orana Haven or in Walgett and the judge also reminded the jury that counsel had cross-examined Messrs Doolan, Scott and Pitt suggesting they may have been mistaken as to what they had seen at Orana. The judge reminded the jury that there were "some live issues for you to determine in relation to the matter of machetes and they are factual issues for you to determine".
339 The evidence on the topic of machetes was very extensive. Certainly the judge did not remind the jury of the detail of cross-examination of any of the witnesses upon whom the Crown relied on this subject but it would not have been practicable for him to have done so. We do not consider that the summing up on this issue can fairly be described as lacking in balance. In our opinion this ground fails.
Grounds 1 & 2: The trial miscarried and the verdict of the jury was unsafe and unsatisfactory.
340 The same considerations apply in relation to both these grounds as applied in relation to ground sixteen of Brendan Fernando's appeal. As was the case with Brendan Fernando's appeal we have rejected all the earlier grounds of appeal considered in Vester Fernando's case when we have considered them individually. As is the case with Brendan Fernando's appeal, having regard to what we have said in dealing with the individual grounds, we do not consider that either of grounds 1 and 2 have been made out. In our opinion Vester Fernando's appeal against conviction should be dismissed.
Sentences:
341 Both appellants have also sought leave to appeal against the sentences of penal servitude for life imposed by the trial judge. Section 19A(2) of the Crimes Act provides that "a person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life."
342 The Sentencing Act 1989 under Pt 2 of that Act which relates to the setting of minimum and additional terms does not apply to the sentencing of a person "to imprisonment for life or for any other indeterminate period" (Sentencing Act , s 13(c)).
343 The imposition of the maximum penalty for any offence is in law, a sentencing option reserved for cases which can be characterised as falling within the worst category of cases for which that penalty is prescribed. See Ibbs v The Queen (1987) 163 CLR 447 at 441-452; R v Holder & Johnstone (1983) 3 NSWLR 245. In this regard the High Court in Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 478 observed:
"That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness."
344 This Court in R v Camilleri , unreported, Court of Criminal Appeal, 8 February 1990 observed that in applying this principle a judge must initially consider "the gravity of the offence viewed objectively." In R v Twala , unreported, Court of Criminal Appeal, 4 November 1994 Badgery-Parker J in delivering the leading judgment of the court said:
"….in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)."
345 An excellent illustration of the application of the principle espoused by Badgery-Parker J is Twala's case itself. There, the learned trial judge had found that the murder in question fell within the category of the worst type of case and imposed a sentence of penal servitude for life. At his trial the appellant had raised a defence of diminished responsibility which had been rejected by the jury. However, as Badgery-Parker J pointed out in his judgment despite the rejection by the jury of the defence of diminished responsibility, the killing itself was clearly influenced by the mental disturbance of the accused resulting from the break down of his relationship with his wife (who was the victim) upon whom he had become very heavily, even obsessively dependent. In other words the accused's mental condition was a fact which mitigated the seriousness of the crime and was not a subjective fact. Accordingly, the Court of Criminal Appeal held that the trial judge had fallen into error in not taking into account that fact when determining that the case fell within the category of the worst type of case.
346 The first step in determining whether a case falls within that category is for the trial judge to inquire whether the gravity of the offence viewed objectively places the crime in objective terms as a murder of the gravest culpability. See R v Garforth , unreported, Court of Criminal Appeal, 23 May 1994.
347 In this case, his Honour in coming to the conclusion that in relation to both appellants the case fell within the category of the worst type of case took into account a number of matters which he found to be matters of aggravation.
348 There was one matter which his Honour so took into account which applied only to the appellant Vester Fernando and that was that at the time of the commission of this offence he was on parole. That consideration did not apply to Brendan Fernando. It was not suggested on Vester Fernando's behalf that his Honour erred in taking into account the breach of parole as an aggravating feature.
349 The other aggravating features which his Honour found were as follows:
(i) There was the element of premeditation and planning prior to the actual killing.
(ii) The offence was committed in company.
(iii) It was a forced abduction of the victim prior to her killing involving the use of a machete followed by an assault carried out upon her.
(iv) She experienced extended concentrated suffering over a period of one hour or so from the time of her abduction to the time of her death of acute degradation and humiliation. In this regard his Honour found that the injuries to her jaw and face caused by the use of the machete were a form of physical torture. He also found that mental torture, terror and great fear must have been present, the mental torture gaining in severity after she was assaulted at the oval.
(v) This was a case involving two strong men killing a young defenceless and vulnerable woman who had done them no harm and committed with callous indifference to human life.
(vi) That the deceased was taken by force from a place where she would have expected to be secure and safe when working.
350 Finally, his Honour stated that the murder was probably committed to help ensure that the deceased could not identify the appellants who had been involved in the events and offences which occurred preceding her death.
351 Having taken all these factors into account his Honour concluded that the case fell within the category of the worst type of case in relation to both appellants.
352 On behalf of both appellants it was argued that his Honour erred in applying the principle stated in Badgery-Parker J's judgment in Twala by not considering the subjective features which had been raised on behalf of the appellants when determining whether or not the case could be categorised as being one of the worst type.
353 On a plain reading of the statement of principle adumbrated by Badgery-Parker J which we have set out above, this criticism is misconceived. The only mitigating factor which appears from the evidence which goes to the question of whether the case should be so categorised is evidence given by Professor Susan Hayes as to Brendan Fernando's intellectual capacity. Professor Hayes in evidence deposed that she had carried out psychosymetric tests on Brendan Fernando from the results of which tests she had concluded that he had a mild intellectual disability. His Honour rejected Professor Hayes' evidence on the basis that there was both lay and medical evidence which was inconsistent with her view.
354 A Dr Skinner, consultant psychiatrist had given evidence that Brendan Fernando did not suffer from brain damage and that his responses to questioning by the police either during the course of his record of interview or during the so called "runaround" demonstrated to her that he was operating at a much higher level of intellectual capacity then was revealed by Professor Hayes' testing. She also deposed that she would be more guided by the way a person functioned than results obtained on testing. His Honour preferred her evidence to that of Professor Hayes.
355 He also accepted lay evidence from Constable Mayers who had described Brendan Fernando as being a very intelligent person and the evidence of an Aboriginal Liaison Officer, a Mr Trindall who had deposed that his observation of Brendan Fernando was that his intelligence was as average as any other person in Walgett. Mr Trindall deposed to knowing 95% of the aboriginal population in Walgett.
356 His Honour in our view was entitled to accept Dr Skinner's view (reinforced as it was by lay evidence) as against the view of Professor Hayes. Accordingly in our view he fell into no error in rejecting Professor Hayes' evidence.
357 His Honour, in fact made specific reference to Twala in his remarks on sentence. Once he had rejected the evidence of Professor Hayes there were no objective features in relation to either of the appellants which would mitigate the seriousness of the offence and thus it is our view that having properly taken into account the aggravating features to which he referred his conclusion that in both cases the actions of the appellants fell within the category of the worst type of case was not a conclusion made in error.
358 In this context we should refer to two arguments advanced on behalf of the appellants relating to objective circumstances of the crime. On behalf of the appellant Brendan Fernando the argument was advanced that the evidence relating to the finding of foot prints was, as far as his client was concerned, equivocal. That evidence was incompatible with Brendan Fernando's statement to police that at the time when the deceased was killed he was some distance away from that site. In our view the evidence was anything but equivocal and of powerful probative value.
359 On behalf of Vester Fernando, criticism was made of his Honour's use of the word "torture" when dealing with the physical assaults which had been inflicted upon the deceased prior to her being killed. His Honour was plainly referring to the physical pain and mental anguish the deceased had suffered during the period between her abduction and her killing. Whether or not what she had been suffering in correctly described as torture is in our view of no moment whatsoever. It is obvious that she did suffer and his Honour was correct in taking that suffering into account as an aggravating circumstance of the commission of the offence.
360 Having concluded in our view correctly that in the case of both appellants the crime should be categorised as one falling within the category of the worst type of offence, his Honour did in fact take into account subject features relating to both appellants before determining that he should impose a life sentence.
361 He did take into account the age of the appellants, their aboriginality (he made specific reference to R v Fernando , (1992) 76 A Crim R 58), their prospects of rehabilitation and their past criminal records. As we have already mentioned in relation to Brendan Fernando his Honour had rejected the evidence relating to his intelligence give by Professor Hayes.
362 In R v Baker , unreported, Court of Criminal Appeal, 29 September 1995 this Court indicated that the passing of a sentence of life imprisonment may be appropriate even if there are prospects of rehabilitation in the offender.
363 What his Honour did was to carry out an analysis of the subjective material in relation to both appellants to ascertain which sentencing option should be imposed - a life sentence or a determinate one. In the event his Honour's finding was that the crime was so heinous and level of culpability of both appellants so extreme that life imprisonment was the only penalty which would satisfy the community's interest in retribution and punishment.
364 In support of both appellants' submissions that the penalty imposed was excessive we were referred not only to other cases in which life imprisonment has been imposed since the passage of the Sentencing Act but also a number of cases in which murder had been found to be committed in circumstances of aggravation where determinate sentences were passed. While these cases were of assistance to the court in calculating the degree of criminality which existed in the present case, however they did not support a submission that this Court should compare the facts of this matter with those matters in order to determine whether or not this case fell within the category of worst case.
365 This argument cannot be sustained because of what fell from the High Court in Veen to which reference has been made above, ie it is always possible to visualise a worst case. To categorise a case as being in the worst case category it is necessary for the trial judge, as Abadee J did, to point to particular features which are of very great heinousness. As we have said there are no facts which can be pointed to on behalf of either appellant which mitigate the objective seriousness of the crime. In our view his Honour did not fall into error in his finding.
366 Because of the importance of the matter we would grant leave to appeal against sentence in both cases but dismiss both appeals.
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