Warning on the unreliability of the evidence
58 Defence counsel sought a warning under s 165 of the Evidence Act on two bases: firstly, that Rose was a friend of the deceased and, therefore, might be biased and, secondly, that the contents of the conversation, so far as it was evidence that the deceased was being hassled by kooris, was hearsay.
59 There was no reason for the Judge to have given a warning to the jury on the basis that the witness might have been biased. Firstly, it was never suggested to Rose that his account of the conversation, or any part of his evidence, was motivated by bias or some other purpose other than simply to give an account of what had happened between him and the deceased. Secondly, I fail to understand how friendship with the deceased would itself indicate that the witness was biased against the accused or in any other way suggest that his evidence might be unreliable. Thirdly, even if his friendship with the deceased was capable of giving rise to the possibility of unreliability, that would not bring the evidence within the scope of the section. Bias or a motive to lie is a matter affecting the honesty of a witness and is a matter well within a juror's understanding and appreciation as part of the general experience of life. It is not a matter about which the court has some special knowledge or understanding that it needs to impart to the jury: R v Fowler [2003] NSWCCA 321 at [184] to [188] applied in R v El-Azzi [2004] NSWCCA 455.
60 The evidence was hearsay evidence insofar as it could be used by the jury as evidence of the truth of what the deceased said to Rose and, therefore, fell within s 165(1)(a) of the Evidence Act. Defence counsel did not indicate, when asked to do so by the Judge, what it was that he wanted to be said about the evidence in this regard or how the fact that it was hearsay made it unreliable in the circumstances of this case. Counsel simply repeated that the evidence was hearsay and was biased. It seems clear from the interchange between the Judge and counsel that his Honour thought that there was nothing that indicated that the statement was unreliable in the particular circumstances of the case. In those circumstances it was open to the Judge to find, as he did, that there was a good reason not to give a warning under s 165(3) even though he did not give elaborate reasons for this decision.
61 Counsel appearing for the appellant in this Court similarly only relied upon the fact that the evidence was hearsay and that Rose was biased as supporting the ground of appeal without indicating in particular what it was that made the evidence unreliable or what the Judge should have said to the jury about the evidence in that regard.
62 In my opinion, there was no error in the way the Judge ultimately approached the evidence of Rose and there was no need for him to give any warning under s 165 in respect of that evidence.
Direction on motive
63 A motive or lack of motive to kill the deceased was merely a circumstance to be taken into account with any other relevant circumstance. There is no requirement that a trial judge mention every circumstance in favour of the Crown or to the benefit of the accused when reviewing the respective cases. Of course there may be a case where a failure to refer to a circumstance in favour of an accused may be so significant that the result would be that the summing up lacks balance and a miscarriage of justice has occurred.
64 Clearly the presence of a motive for a person to commit a particular crime against a particular person can be relevant to a determination of whether that person committed the crime under scrutiny: Plomp v The Queen (1963) 110 CLR 234. So the fact that a person does not apparently have a motive to commit a particular crime against a particular person might be evidence that he did not commit that crime: De Gruchy v The Queen (2002) 211 CLR 85 at [28].
65 However, in De Gruchy, there was a distinction drawn between a case where there was positive proof of the absence of motive and a case where there is simply no evidence of motive, which was the situation in the present case. The joint judgment of Gaudron, McHugh and Hayne JJ states (footnotes not reproduced):
[29] Although absence of motive is relevant, the appellant's argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive.