Detective Bandouvakis was the informant in the charges against the appellant.
25 An available inference from the passage extracted above is that the investigation to which reference was made was the investigation which resulted in the present charges.
26 Reynolds was sentenced by Judge Nield on 30 September 1993. Although his Honour's remarks on sentence have, apparently, never been transcribed and the tapes have been destroyed, the Crown Prosecutor's note taken at the time of sentence records that the Judge ordered that the Bandouvakis' letter be placed in a sealed envelope and that, but for the contents of the letter, Reynolds would have been sentenced to a term of full-time custody. Plainly, therefore, Reynolds received, with the support of the prosecution authorities, a very significant benefit resulting from the information he gave Detective Bandouvakis.
27 By grounds 1 and 2 of the appeal the appellant asserts that, as a result of the ignorance in his legal representatives of the existence of the Bandouvakis letter and the benefit received by Reynolds, an important matter relating to Reynolds' credibility was not put before the jury. Although one ground, as framed, attributes blame to the "prosecuting authorities" for failure to bring the existence of the letter to the appellant or his lawyers, this can be disposed of quickly. In an affidavit sworn for the purpose of the appeal the Crown Prosecutor at the trial disclaimed any knowledge of the letter and said that if he had known of it he would have told the appellant's counsel about it. Detective Bandouvakis clearly knew of the letter, and he was the informant on the record in the appellant's trial; but it must be remembered that the letter was written and used in 1993, and the appellant's trial was in 1998. No reason for the long delay was disclosed in the material before this Court but fairness precludes any conclusion that the non-disclosure of the letter at the appellant's trial occurred by reason of some mala fides on the part of anybody to do with the prosecution. The most likely reason for its non-disclosure, on the material now available, is that the passage of time rendered its significance less obvious. I would not attribute any actual impropriety to anybody involved in the prosecution of the appellant.
28 That conclusion does not, however, have the necessary consequence that no miscarriage of justice occurred. A miscarriage of justice can occur accidentally, or without any fault on the part of any individual. Having considered all of the material, I am of the view that the appellant has demonstrated that such a miscarriage occurred. The existence of the letter, and the advantage derived by Reynolds as a result were important relevant matters affecting Reynolds' credibility which should have been known to the appellant's counsel at trial. Had they been known to counsel, they could, and would, have been put before the jury, and may have affected the jury's acceptance of Reynold's evidence.
29 For the purpose of the argument the Court was provided with extracts of guidelines issued by the Director of Public Prosecutions concerning aspects of prosecution policy. These guidelines have been made public by publication in Criminal Law (NSW) (Watson, Blackmore, Hosking) and contain the following:
"11. …
Prosecutors are under a continuing obligation to make full disclosure to the accused of all facts and circumstances and the identity of all witnesses reasonably to be regarded as relevant to any issue likely to arise at trial. Tactical considerations are not to be taken into account when making that assessment. …
16. The Office [of the DPP] maintains an index of informers. An informer is a person (not being a victim or a primary witness) who has given assistance to police or investigators as a consequence of knowledge that has come into his or her possession through direct personal contact with the alleged offender. …
With the assistance of the Office index the accused should be informed in advance of the trial of:
(a) the informer's criminal record;
(b) whether or not the Police Service or Corrective Services have any information which might assist in evaluating the informer's credibility, particularly as to:
(i) motivation,
(ii) …
(iii) …
(iv) …
(v) the extent to which public officers have given evidence or written reports on behalf of the informer (eg to courts, Parole Board);
(c) whether any monetary or other benefit has been claimed, offered or provided;
(d) …
(e) …
(f) whether any discount on sentence has been given for assistance in the matter; and
(b) …
…"
30 It will be observed that an informer is defined as a person who has given assistance to police or investigators, but that the definition excludes a victim or a primary witness. Since Reynolds was a primary witness it may well be thought that he was not, strictly speaking, an informer for the purpose of the guideline. This is, in any event, of little significance, because the guidelines do not give any enforceable right to any person. They are, however, relevant in the consideration of whether, in accordance with prosecution policy, the Bandouvakis letter ought, in the ordinary course, to have been disclosed to the defence. Prima facie, as a matter of prosecution policy, as well as of fairness, the letter should have been disclosed. It contained information which might have assisted in evaluating Reynolds' credibility and, except for the fine distinction between "informers" and "witnesses", would have fitted neatly into the guideline. Even leaving aside guideline 16, guideline 11 is relevant, and would ordinarily require disclosure of a letter as significant as that here in question.
31 Moreover, pursuant to s 14 of the Director of Public Prosecutions Act 1986, separate guidelines have been issued to police in relation to disclosure by police to the Office of the DPP of information and material additional to briefs of evidence provided. These guidelines require police to notify the DPP of the existence of, and where requested, to disclose all documentation, material and other information, including that concerning any proposed witness, which might be of relevance to either the prosecution or the defence.
32 Of course, guidelines cannot be treated as prescriptive in the same sense as a statute might prescribe procedures, non compliance with which might have specific legal consequences. The DPP guidelines are precisely what they are called - guidelines. They are designed to ensure the fair conduct of criminal prosecutions. They do not create any enforceable right in any individual. But they do provide a useful touchstone, both of what fairness requires, and of what an accused person might expect by way of disclosure from those involved in the prosecution. The guidelines which I have extracted show, in my opinion, what ordinary notions of fairness would in any event suggest: that, had those involved in the prosecution of the appellant been conscious of the existence of the letter, and of the benefit Reynolds received, and had they complied with the obligations suggested in the guidelines, the Bandouvakis letter would have been disclosed to the appellant, and his legal advisers would have been in a position to make use of it in cross-examination of Reynolds.
33 Counsel for the appellant referred also to the rules of the NSW Bar Association concerning the duties of prosecutors who hold practising certificates issued by the Bar Association. A Crown Prosecutor who is a barrister is bound to observe those rules, the sanction for non-compliance potentially being disciplinary action under the Legal Profession Act 1987 : s 57D(4). The rules include the following:
"62. A prosecutor must assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
…
66. A prosecutor must disclose to the opponent as soon as practicable all material available to the prosecutor or of which the prosecutor becomes aware which constitutes evidence relevant to the guilt or innocence of the accused, unless such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person."
34 These rules, like the guidelines, do not confer on any accused person any directly enforceable right. They, too, are relevant to a proper evaluation of the fairness of the trial as it took place, and to what the appellant was entitled to expect from the prosecution by way of disclosure.
35 The fundamental question which emerges from all the guidelines and rules, and, independently, from ordinary notions of fairness, is whether the undisclosed document could be said to have had sufficient relevance to a material issue in the proceedings. The material issue was Reynolds' credibility. As I have said his evidence was important, if not critical, to the prosecution case, given the issues as they emerged. The fact that he gave to the police information about the very matters with which the appellant was charged, resulting in a reduction in his own sentence, was highly relevant to his credibility. Having given the information in 1993, he was obliged at the risk of himself being re-sentenced; to maintain his position when the appellant was tried: Criminal Appeal Act 1912, s 5DA. I am of the view that the unavailability to the defence of the evidence might have caused the appellant to lose a fair chance of acquittal: R v Mraz (No.1) 1955 93 CLR 493.
36 The Crown, however, argued that the letter amounted to new evidence (drawing a distinction between fresh evidence and new evidence) and that, in the exercise of reasonable diligence on the part of the appellant's legal representatives at and prior to trial, it would have been disclosed, and that, accordingly, he is not now entitled to rely upon it. The appellant was represented by the same experienced counsel at committal (which was contested) and at trial. During the course of cross-examination of Reynolds at committal the appellant's counsel elicited Reynolds' own prior convictions, including the convictions for offences of a nature similar to those with which the appellant was charged. He also elicited the fact that Reynolds had given evidence for the prosecution on other occasions. The Crown argument was that the answers given by him to those questions should have alerted defence counsel to the possibility, or probability, that Reynolds had received support from police in return for his assistance and that, therefore counsel should have made, or should have caused to be made, the necessary enquiries as a result of which the letters would in all likelihood have been divulged. I do not accept this reasoning. First, the questions and answers in the committal do not bear the character the Crown now wishes to give them. When a question was put to Reynolds that might be interpreted (with a good degree of generosity) as asking on how many occasions he had been a police witness in relation to motor vehicles he answered:
"I've been a police witness on other occasions, I've had basically in a similar situation someone else had done something and I was just a …"
37 He was then asked on how many occasions he had been a witness and how many cases he had been involved in and his answer was:
"Well, I was involved in one in Goulburn when I first started, I was in my own case where I was convicted and this one."
38 I do not agree that these answers should have signalled to the appellant's counsel that enquiries ought be made as to any benefit Reynolds received for the information he gave in relation to the investigation into the offences with which the appellant was charged. The offences were non specific, tending to suggest (so far as they can be said to have any precision) that Reynolds had given evidence in relation to other matters. The benefit he received on sentence was expressly in recognition of the information (and evidence) that he gave in relation to the charges against the appellant. It may be that the appellant's legal representatives could have issued a subpoena for production of the District Court file, in order to ascertain whether Reynolds had received any benefit on sentencing; but some limits ought to be applied to the assessment of what speculative steps should have keen taken. The answers extracted do not reasonably suggest a line of inquiry and I do not believe that the failure to pursue any possible advantage given to Reynolds in any way reflects on the appellant's then lawyers, or ought now to preclude reliance on the present ground.
39 A second part of the reasoning which I do not accept is that appropriate enquiries would or might have drawn out the existence of the letter. It is not at all clear what enquiries the appellant's legal representatives might have made based on the answers extracted. Since there was insufficient in the answers to suggest that he had received a benefit in relation to the present charges , there was no reason for the appellant's lawyers to have sought access to the material relevant to his sentencing. In any case, the primary obligation lay on the prosecution to disclose the letter, not upon the appellant's lawyers to engage in a complicated detective exercise. The concession that the failure to disclose the letter might have resulted from an understandable oversight on the part of those involved in the prosecution in no way diminishes the impact of the oversight on the appellant's conviction.
40 During the course of argument the Court was referred to authorities establishing that the fresh evidence rules have more limited operation in relation to criminal trials than in civil. I do not find it necessary to do more than acknowledge that these matters were drawn to our attention.
41 I am satisfied that the appellant has established a miscarriage of justice on this ground.
42 Counsel sought, and was granted, leave to add an alternative ground of appeal: that the failure of the appellant's former legal representatives to make the relevant enquiries falls within the principles stated in R v Birks (1990) 19 NSWLR 677, and itself caused a miscarriage of justice. Having regard to the conclusions I have reached above, it is unnecessary for me to pay any further attention to this ground.
43 That makes it strictly unnecessary to consider a further alternative ground, which concerned the failure of the trial Judge to give a direction under s 165 of the Evidence Act 1995 , but since I understand that other members of the Bench may not share my views on the first issue, I should deal with it briefly.
44 At trial, counsel sought a direction in relation to Reynolds' evidence. He generally related the application to s 165. S 165 applies to evidence of a kind that may be unreliable, specific examples of which are given. In a jury trial, where evidence falls into the category of evidence that may be unreliable, and the trial Judge is requested by a party to do so, the Judge is required to warn the jury that the evidence may be unreliable; to inform the jury of matters that may cause it to be unreliable, and to warn the jury of the need for caution in determining whether to accept the evidence; and the weight to be given to it if accepted.
45 One of the specific examples of evidence of a kind that may be unreliable is identified as:
"(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."
46 As I have noted above, the tenor of the cross-examination addressed to Reynolds was to suggest that the conversion of the vehicles had taken place while they were in his custody and before he passed them on to the appellant. It was common ground that, although the groundwork for such a conclusion was painstakingly laid, by, inter alia, establishing that Reynolds had the tools and facilities that would have enabled him to undertake the conversion, it was never directly put to him that he had in fact done so.
47 Where a direction is sought in reliance upon s 165(1)(d), it is necessary for the trial Judge to determine whether there was evidence capable of raising a reasonable supposition that the witness concerned was criminally concerned in the events giving rise to the charge. If so, the Judge is obliged to give the direction (unless, in the circumstances of the case, there were good reasons not to do so: see sub s (3)): R v Taranto ; R v Freeman [1999] NSW CCA 396, unreported, per Spigelman CJ, Dunford and Hidden JJ.
48 Unfortunately, that is not what occurred in this case. The Judge was asked for a s 165 direction; but the application did not rely on any of the specific examples of unreliable evidence mentioned in the section. Instead, the application relied upon Reynolds' statement that he had a poor memory; and that he had tried to expunge the relevant period of his life from his mind; and that in 1998 he was giving evidence of events that had occurred in 1992. The Judge held, quite correctly in my view, that neither of these circumstances was sufficient to bring Reynolds' evidence within the description "of a kind that may be unreliable", so as to bring s 165 into play. It was, as the Judge said, in no different category than the evidence given by any of the other witnesses, all of whom were recounting events of the distant past. He held that it was part of the jury's function to assess, and to evaluate, the reliability of the evidence of all of the witnesses, including Reynolds. In the context of the application that was made to him, this was an entirely correct conclusion. What is now put is that the Judge failed to apply his mind to the assessment whether Reynolds was a witness who might reasonably have been supposed to have been criminally concerned in the events giving rise to the charges. This he was never asked to do.
49 One question that arises is whether the appellant requires leave, pursuant to Rule 4 of the Criminal Appeal Rules , to argue this ground. Rule 4 provides as follows:
"No direction, omission to direct, or decision as to the admission or rejection of evidence given by the judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."
50 An application for a direction in general terms under s 165, on the basis of a witness's poor memory and the lapse of time since the events in question, is insufficient when the ground now raised is that a direction ought to have been given because of the suggestion that Reynolds might reasonably be supposed to have been criminally involved in the enterprise. Leave is required to argue the ground. It is not affected by the discovery of the Bandouvakis letter. The issue of Reynolds' involvement was an issue at trial. Many cases have established the obligation of counsel to assist the trial Judge, and to ensure that the trial process is not infected by avoidable error. Particularly in the light of the failure of counsel to put expressly to Reynolds the accusation that he was criminally concerned in the thefts or conversation of the vehicles, there was no reason why the Judge should, in the absence of a request by counsel, have turned his mind to paragraph (d) of s 165(1). Had he been invited to do so, it may well have been that he would have reached the necessary factual conclusion which would have given rise to the need to give the direction. Had he done that, undoubtedly he would have given the direction. This is a case in which, in my opinion, leave under Rule 4 should not be granted.
51 In the light of my conclusion in relation to grounds 1 and 2, I propose that the appeal be allowed, the convictions quashed, and a new trial ordered.
**********