R v SINANOVIC

DECISION : Appeal upheld; Conviction quashed; Order for a new trial; Sentences subsequently imposed varied as set out in paragraph 144

No. 60564/97 WOOD CJ at CL HULME J GREG JAMES J

Monday, 11 December 2000 Regina v Hakija SINANOVIC JUDGMENT

1 WOOD CJ AT CL: I have read the reasons of and Greg James J, and with the orders proposed by his Honour.

IN THE COURT OF CRIMINAL APPEAL No: 60564/97 WOOD CJ AT CL HULME J GREG JAMES J Monday, 11 December 2000 REGINA -v- Hakija SINANOVIC JUDGMENT 2 HULME J: These reasons relate to the second of 5 appeals brought by the Appellant against convictions in the District Court during the period September 1997 to March 1999. The first appeal, one against a conviction before Karpin DCJ earlier, has been heard by this Court on another occasion. 3 On 24 September 1997, the Appellant was convicted by a jury on a charge:- That he between 1 July 1995 and 30 November 1995 at Sydney in the State of New South Wales having received certain money namely the sum of $27,800 upon terms of requiring him the said Hakija Sinanovic to pay the same by investing in the acquisition for Tina Ruello of an interest in a restaurant known as Stella fraudulently did misappropriate to his own use the said money in violation of the terms upon which he the said Hakija Sinanovic so received the said money.

4 The charge was brought under s178A of the Crimes Act 1900 which, at the relevant time prescribed as the maximum penalty, penal servitude for 7 years, not 5 years as recorded in the "Particulars of Trial" filed by the Crown. On 3 November 1997, Acting Judge Stewart sentenced the Appellant to penal servitude for a minimum term of 2 years 5 months 12 days commencing on 3 November 1997 and an additional term of 10 months 1 day commencing on 16 April 2000. In the determination of that sentence, His Honour took account of 14 days which the Appellant had spent in pre-sentence custody in connection with the charge.

5 On 3 November 1997, the Appellant lodged an appeal against his conviction. There is no appeal against sentence. The grounds of appeal, subsequently advised, are as follows:- 1. The trial judge erred when he refused the application for an adjournment or stay, and, in particular, erred when he had regard to submissions put by an officer of the Legal Aid Commission.

2. The trial judge erred when he admitted exhibit K.

3. The trial miscarried by reason of the introduction of material suggesting bad character of the accused and by reason of comments concerning the accused and his conduct of the trial.

4. The trial judge erred when he: (a) admitted evidence from Detective Hampton. (b) rejected cross examination of Detective Hampton. (c) allowed the Crown to cross examine the accused on the failure to put matters to Detective Hampton.

5. The summing up was unbalanced and did not fairly put the defence case.

6 In supplementary submissions, a sixth ground was added:- 6. The trial judge erred in not allowing an adjournment to allow alibi evidence to be obtained. Ground 1 The trial judge erred when he refused the application for an adjournment or stay, and, in particular, erred when he had regard to submissions put by an officer of the Legal Aid Commission. 7 At the commencement of his trial on 8 September 1997 the Appellant, appearing for himself, applied orally for an adjournment indicating that he was pursuing an application for legal aid. There followed a discussion in which Counsel appearing for the Crown and the Appellant addressed His Honour and in the course of which both made statements from the Bar Table as to the history of the proceedings and other proceedings in which the Appellant was involved in the District Court. A Mr Humphries, who described himself as the manager of the Criminal Law branch of the Legal Aid Commission provided information to Acting Judge Stewart from the Bar table concerning the Appellant's applications to the Commission. There was on the court file a Notice of Motion dated 28 August 1997 in which the Appellant had sought, inter alia, the re-instatement of an indefinite stay of the proceedings until representation could be obtained and his Honour proceeded on the basis of that document.

8 His Honour adopted as indicating the law to be applied various statements of members of the High Court in Deitrich v R (1992) 177 CLR 292. I see no error in that regard. The relevant principles are encapsulated in one further passage from that case which counsel appearing for the Appellant accepted as accurately stating the law. At page 315, Mason CJ and McHugh J expressed the matter thus:- "In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available.

9 On 8 September 1997, Acting Judge Stewart found that the case of the Appellant was exceptional. His Honour said:- "The matter has been before various Judges over a long period. There have been adjournments, mostly because of the accused's unwillingness to proceed for one reason or another. He has been offered legal representation de bono publico and has refused that representation. He has at the heel of the hunt applied yet again for legal aid. He has not in that application given sufficient information, in spite of his experience in these matters, to enable the legal aid authorities to determine whether he is entitled to legal aid. The situation that the accused finds himself in, as I have already said, is largely of his own making and smacks of manoeuvring and an attempt by him to avoid the issue."

10 A chronology of the occasions when the matter had been before the District Court demonstrates the accuracy of the first sentence quoted. The Appellant was arraigned in September 1996. His first application for a stay was fixed for 22 November 1996. After some aspect of the matter was in the list on something over 6 occasions, on 30 January 1997 Judge Ford granted a stay of the proceedings with which this Court is concerned until 17 March 1997. That stay may have been continued until 21 March. On 1 April a trial date of 19 May was fixed or confirmed, the judge anticipating that counsel would by then have been briefed. A mention date of 12 May was fixed against the possibility that that did not occur. 11 Handwritten notes on a chronology which became Exhibit B before Acting Judge Stewart, confirmed by statements of the Crown Prosecutor from the bar table, tend to indicate that on 21 March, the manager of the Law Society's pro-bono scheme had told the court that the Appellant met the guidelines for pro-bono counsel and he was being put on the list for such assistance. For his part the Appellant asserted that this person had merely said that she might provide assistance. Annexed to the Appellant's affidavit referred to below were letters of 8 and 9 May from Ms Dillon-Smith saying that she had been unable to obtain a pro-bono barrister or solicitor. 12 On 12 May it was announced that a Mr Hogan of counsel would be appearing for the Appellant. There are some indications that Mr Hogan's agreement in that regard may have been influenced by steps Judge Ducker, before whom the matter proceeded that day, himself took. On 19 May Mr Hogan appeared and successfully sought an adjournment. The trial was stood over for callover on 22 May when it was fixed for hearing on 8 September. 13 The matter then came before Judge Shillington on 15 August 1997 when Judge Shillington refused a further stay and suggested - the Appellant said "ordered" - that he make a further application for legal aid. According to what the Appellant told Acting Judge Stewart, he made this application on the following Monday. The matter was then again before Judge Shillington on 29 August. On this occasion there was a Notice of Motion and affidavit sworn by the Appellant both of 28 August. Judge Shillington refused to grant a stay but said that the matter could be pursued again before the trial judge. 14 In that affidavit the Appellant asserted that since 19 May Mr Hogan had never appeared for the Appellant and refused to take "proper instructions". The Appellant expanded on this in statements to Acting Judge Stewart, the tenor of which were to suggest that Mr Hogan was at fault in this regard. According to what the Crown Prosecutor said on that day, Mr Hogan was in court on 29 August while Judge Shillington was dealing with the matter but he did not appear. There was no attempt on 8 September by either party to adduce evidence or information from Mr Hogan or for the Crown to challenge the Appellant's statements in this regard. 15 In the affidavit the Appellant referred to his application for legal aid made after 15 August "based on His Honour Judge Shillington's orders even though he was fully aware Legal Aid has flatly refused me twice" and said that he had been and was still endeavouring to obtain legal representation and had future appointments allocated with certain barristers. The affidavit went on to assert 3 matters as the basis for the stay application. Only one, the absence of legal representation, has been pursued in this Court. 16 As I have indicated Mr Humphries provided information to Acting Judge Stewart from the bar table concerning the Appellant's applications to the Commission. He said that previous applications for legal aid relating to other matters had been refused and appeals dismissed. His office had no record of the application the Appellant asserted he had posted on or about 18 August. That lodged in the week before the trial was insufficient in that it did not indicate any means of support. Mr Humphries went on to say that he could not say the Appellant would not be able to show he came within the means test but, on the basis of the information supplied to date Mr Humphries had grave doubts on the matter. 17 The fact of prior legal aid applications and apparently 3 appeals in that regard also appears from the chronology relied on by the Crown before Acting Judge Stewart. That document further reveals that the Appellant had made numerous stay applications in relation to other charges. 18 Against this background, I turn to the challenges made to the trial judge's decision and reasons concerning the adjournment and stay applications. The only error in these matters of which I am persuaded arises in his Honour's finding that the Appellant "has been offered legal representation de bono publico and has refused that representation". It does not seem to me that, on the limited way the matter proceeded, his Honour was entitled to find that the Appellant had refused that representation. Although his Honour may well not have been impressed with the Appellant's account or credibility on the topic, so far as the information before his Honour went, there was no evidence of refusal. 19 However, that is not the end of the matter. It must not be forgotten that, in common with other persons who seek orders from courts, an applicant for an adjournment or stay of proceedings bears the onus of demonstrating that the circumstances are such that an adjournment or stay should be granted. Where such an applicant is not legally represented even for the application itself, a court will be astute to ensure that the applicant is not significantly disadvantaged by that fact. Indeed, the Court itself has a motive to do so. Generally a judge's task is made considerably easier if a person accused of serious crime is legally represented.

20 In pursuit of its obligation of fairness the Crown can be expected to apprise the Court of relevant matters even if adverse to the Crown's interest in resisting such applications. Nevertheless, the onus lies where I have indicated. Particularly is this so on the issue of whether the absence of legal representation is without fault, or perhaps, significant fault on the part of an applicant. He or she will often be in a better position than anyone else in the court room to have knowledge on that topic and be in a position to show that reasonable efforts have been made to obtain legal aid or other representation and why those efforts have not been successful. There is no presumption that the mere failure to obtain legal aid entitles an applicant to an adjournment or stay.

21 In this case it is clear that the evidence or information put before his Honour fell a long way short of persuading him that the Appellant's situation was without fault on his part. It certainly does not persuade me. Even putting aside the evidence of Mr Humphries, there was no evidence of why the earlier legal aid applications and appeals in that regard had been unsuccessful or why or when it was Mr Hogan had appeared uninterested. And if one accepts Mr Humphries' statement to the effect that the Appellant had not disclosed his means of support, when one has regard to his prior applications, one can readily infer that the application lodged in the week before the trial "smacks of manoeuvring". 22 It was submitted that the effect of ss 25 and 26 of the Legal Aid Commission Act was to make illegal Mr Humpries' disclosures to Acting Judge Stewart. I am not persuaded that this is so. For s25(4)(l) envisages the disclosure of that nature with the consent of the Commission. Although there was no express evidence that the Commission had consented to the disclosure, the point was not taken so there was no occasion for anyone to seek formal proof of the fact. Furthermore, given the circumstances of the case, it seems to me by no means improbable that in one form or another, perhaps by general authority in applications for adjournments or stays of proceedings based on the progress of legal aid applications, consent had been given. Thus I am not persuaded that Mr Humphries did anything he should not have done. 23 But even shorn of what Mr Humphries had to say, there was no persuasive material before Acting Judge Stewart to show that the Appellant's absence of representation was without fault on his part. The same result would ensue if the view was adopted that the material relied on in the applications should have been provided somewhat more formally than it was. In the case of the Appellant, I think it would have been preferable if this had been done. However, that was not a point taken in the court below or in the appeal and it would certainly be an additional source of delay in the Courts if the formality of the strict rules of evidence was followed in all interlocutory applications. The ground fails. Ground 2 The trial judge erred when he admitted exhibit K.

24 Exhibit K was a 3 page document largely purporting to record statements or at least a summary of statements made to a Mrs Tarello, a friend of Tina Ruello, by the latter and by the Appellant concerning events the subject of the charge. Insofar as the document recorded statements by the Appellant, it contained a number of significant admissions by him. Two of the pages took the form of a statement by the Appellant which, according to Mrs Tarello, the Appellant said he would sign after seeing a solicitor. According to Mrs Tarello, the events which led to the production of these two pages were firstly dictation by the Appellant to her in Italian, secondly the writing of what he had said by Mrs Tarello in the Italian language, thirdly the translation by Mrs Tarello of what she had written into English and the writing down of that, and fourthly the rewriting by her daughter of what Mrs Tarello had written, using both the original Italian notes and the English translation. In the course of one or other of the last two steps material which Mrs Tarello said was repetitious was omitted.

25 During examination by the Crown Mrs Tarello gave evidence of having conversation with the Appellant which she recorded. A voir dire inquiry was then held during which the Crown indicated it desired to tender that part of the document as contained the purported statements of the Appellant. His Honour rejected the tender although permitting the Crown to adduce oral evidence of the conversation. Another witness was interposed and then the Appellant cross-examined Mrs Tarello. He commenced with questions directed to the circumstances of the conversation, the extent of Mrs Tarello's recording of it and whether she had given him a copy. He went on to suggest both that he was not there on the occasion said to have been recorded, never said the things recorded and that Mrs Tarello had invented the history of the document.

26 In the course of subsequent debate as to whether the Appellant should be allowed to ask some further questions about the document, the Crown Prosecutor observed that to do so would render the document admissible. A little later the Crown submitted that the document had already become admissible. After some further debate his Honour indicated that he was disposed to agree but offered the Appellant the opportunity of persuading him to the contrary. The Appellant did not seek to do so, apparently being content to ask further questions concerning it.

27 His Honour then ruled the document admissible if tendered in re-examination, as it was. Before that occurred, the Appellant continued to cross-examine on it.

28 Given the cross-examination by the Appellant, the document was prima facie, admissible. However it was submitted that his Honour should have rejected the tender under ss135 and 137 of the Evidence Act. It is unnecessary to set out those sections. So far as is presently relevant, the first requires, before a trial judge is entitled to reject evidence otherwise admissible, a conclusion that the evidence might be unfairly prejudicial; the second, that there is a danger of unfair prejudice if the evidence is admitted. It may be conceded that the document in this case was prejudicial. However, given the challenge to the author of the document, I am unable to see that either of the requirements to which I have just referred was made out. Furthermore, the Appellant had been warned that his cross-examination might let into evidence written statements of witnesses if, inter alia, cross examination suggested that a witness had fabricated or reconstructed evidence. That part of the transcript of proceedings where the topic of Mrs Tarello's document was being considered in fact contains reference to "warnings" having been given on several occasions although I have not been able to find any other than the one referred to in the preceding sentence.

29 I can accept that no experienced counsel would have cross-examined Mrs Tarello as the Appellant did. Nevertheless, in the face of the warning given to the Appellant, I see no error in his Honour's admission of the document. I do not need to rely on the fact but in this regard it may be not inappropriate to record that although the Appellant clearly made some unwise decisions in the way he conducted his defence, the learned trial judge described the Appellant as not unintelligent. Ground 3 The trial miscarried by reason of the introduction of material suggesting bad character of the accused and by reason of comments concerning the accused and his conduct of the trial.

30 While the Appellant was cross-examining Mrs Ruello, the following question and answer appear:- Q Would you agree you know Mr Sergio Quartella?

A Yes, when I told Mr Sergio Quartella that man had taken all the money, he said to me, "If you had told me earlier, I would have told you what the man is like.". 31 Later, the Crown Prosecutor drew to the Appellant's attention the possibility that the answer justified the discharge of the jury. The Appellant made application that this occur but his Honour declined to accede to the application.

32 Complaint is also made that the Crown was allowed to lead evidence said to be prejudicial that the Appellant had prevailed on one witness, Mrs Fabri, and her husband to allow him to continue to live in a flat they owned "for pity because of the child, because they would have had no place where to sleep at night". 33 The second aspect of this ground is that at times his Honour made comments which may have left the jury with an adverse impression of the Accused. Included in these were the following:- "ACCUSED: Q. Did you do it in turn? MRS RUELLO: A. Well I can't really say that I was running the restaurant. It only happened once that we ran the restaurant in turn for 3 months each. But why are we wasting time on the restaurant. HIS HONOUR: Just a moment. You may well ask what has this to do with this case. Please, I would be very much obliged, I am really doing my very best to keep this on an even keel. It is very difficult. But you really must get to something that is relevant Mr Sinanovic. I cannot for the life of me see - and I think the jury are getting a bit fed up too - why are you going on about this turn to manage the place? The issues here are as set out in this indictment. That is what this case is about. Let's get on with it.

ACCUSED: The case is about I was alleged in Stella restaurant to purchase for the lady.

HIS HONOUR: Yes ACCUSED: The Crown presented in indictment an allegation of that and I am obliged to ask the questions about the Stella restaurant to prove exactly what has occurred. HIS HONOUR: No, you are not, you are not going on with this any more. Stopped. I won't allow any further questions about that, go on to something else.

ACCUSED: Your Honour, I would like to put some legal argument.

HIS HONOUR. Would you go back to the jury room please, Mr Sinanovic wants to argue the toss."

And later, ACCUSED: Then what did you do? MRS RUELLO: What should I do? That was the end - right, I went in, I went to the city with Piera to check whether there was any money left there. I went to the Commonwealth Bank with Piera - HIS HONOUR: That's enough, we have been through all this, if there is anything further that is even vaguely new. ACCUSED: The police? MRS RUELLO: That's right, now you told me not to go to the police but I went to the police. ACCUSED: Where did you go to the police? MRS RUELLO: A few weeks later when I noticed there was money left, 3 or 4 weeks later. ACCUSED: The police took the statement 3 or 4 weeks later? MRS RUELO: Well I don't know, they were writing. Then I went to report the fact in Balmain, Balmain sent it to some other police station. What is it called? Some police station on Parramatta Road near a corner where I - ACCUSED: … Are you referring to the police of Annandale? MRS RUELLO: Annandale, yes. HIS HONOUR: You went to Balmain a few weeks afterwards, 4 weeks after what. MRS RUELLO: Now I can't remember exactly how many weeks later. HIS HONOUR: Later than what though? MRS RUELLO: Not much later? HIS HONOUR: Later than what? MRS RUELLO: It might have been 1 week, 2. HIS HONOUR: I'm sorry, I give up. MRS RUELLO: Later than what. HIS HONOUR: Later than what? MRS RUELLO: Yes, after I realised that he would not give the money back. HIS HONOUR: Having gone to Balmain they sent you off to Annadale police station is that correct? MRS RUELLO: No, I reported the fact at the Balmain police station, however, when I went to the Annandale police station I was told there that they had nothing, there was nothing there and that I would have to report it again, as if I had not reported it. ACCUSED: Did you make a statement that day? MRS RUELLO: Yes, I think I've got something here. HIS HONOUR: It's after 1 o'clock and I am now going to adjourn the matter. Members of the jury, thank you for your help and patience, we will start again on Monday morning at 10 o'clock… I hope that we will be able to proceed with more expedition than we have so far, time will tell. 34 Still during the Accused's cross examination of Mrs Ruello His Honour remarked that "we have been over and over this… I really do think you have had what is known in the vernacular as a fair go about that." The Accused sought to pursue the matter and His Honour then said:- "This subject matter has been canvassed over and over. I rule that any further questioning would be, to use the correct wording repetitive. We have had repetition enough without exacerbating it. Thank you. So I rule against that." 35 The Accused canvassed that ruling after which the transcript records the following:- "HIS HONOUR: Mr Sinanovic, you have asked questions on that subject almost time without number. You have been around and around and back again. I do not intend to alter the decision I have made. That is that. ACCUSED: I can rephrase. HIS HONOUR: You can rephrase it until hell freezes over. I am not going to change my decision. I can assure you if you keep pressing this, you will get nowhere. All you will do is waste more time. That is that. Please do not ask any more about that. I have made up my mind, and that is that." 36 It appears that there was a summons taken out by the Accused in the Supreme Court, returnable on Tuesday 16 September. On the Monday, there was some discussion of it in the absence of the jury. and later the jury were informed that neither the Accused or the Crown Prosecutor would be present on the following morning. The members of the jury were, however asked to be present at 10 o'clock and told that they would be provided with all of the documents that had previously been tendered. After they had been excused, his Honour expressed the hope that counsel for the Crown and the Accused would be present as soon as possible. 37 On the following day, it would appear that the Crown Prosecutor and the Appellant were much delayed and for a time which probably covered the whole of the morning, no-one informed his Honour as to what was occurring. His Honour called the jury in and in the presence of someone whom I take to be the Crown prosecutor's instructing solicitor, observed:- "Members of the jury, all I can do now is to tell you that the case is not going on today and regret that fact. I have a note here which is addressed to me and the message is:- "What is the estimated duration of this trial at this point in time? Message from the jury." Members of the jury, I don't wonder that you have asked that question. It is beyond a joke. It's never been a joke that you have been kept waiting. All I can say is this. It is nobody's fault; it's not my fault and I don't want to put blame anywhere. I don't know the answer to that question. Would that I could tell you, I can't… Now, I doubt that the Crown case will finish before the end of the week. Then there's the Accused's case and I don't know just what that entails and I don't know whether the Accused does." 38 Later the Accused was cross examining Mrs Fabri on the topic of entries or the absence of entries in her passport. His Honour observed that stamps in the passport indicated the witness had departed Australia on 1 June 1995 and arrived on 15 July 1995. He then asked Mrs Fabri where she was in that period and she said she was in Australia The transcript then records:- HIS HONOUR: No you weren't. You left here on 1 June and you came back on 15 July, you have already told us you were away for about 6 weeks. Where were you? MRS FABRI: I was in Italy. HIS HONOUR: What are you trying to show Mr Sinanovic? ACCUSED: If you do enter another country you are required entry in the passport, even if you are originally from that country. HIS HONOUR: That's rubbish. ACCUSED: I made some enquiries. HIS HONOUR: Tell us about it later in the submissions. Are you trying to tell us that because there's no stamp from the Italian authorities in the book that she was wasn't (sic) there, is that what you are trying to show? ACCUSED: What I am trying to show is that she may have been given another passport." 39 The final passage I shall refer to occurred during the Crown's cross examination of the Accused. The topic was the value in August 1995 in Australian dollars of certain Bolivian currency notes which Mrs Ruello had said the Appellant had given to her. The face value was 100,000 Bolivars or Bolivianos. The Accused said there were 3.8 Bolivars to 1 Australian dollar and, having been given a pen, said that each note would be worth "roughly 22,000". The questioning proceeded:- "CROWN: Each of those is worth how many thousand dollars? ACCUSED: Between $22,000 each in Australian dollars conversion. CROWN: They were worth $22,000 each in August 1995? ACCUSED: Yes, But that's in the market rates. Doesn't mean Australian rates will be in official rates. CROWN: What would you get in Australia? ACCUSED: That's the market rates, means I don't know what you would get in Australia. CROWN: What would you get in Australia? ACCUSED: 22,000 something I said already in market rates. HIS HONOUR: What on earth do you mean by market rates, what market? ACCUSED: Banks are banks Your Honour and then they send to market rates; whatever they get in market rates because it's in basic collection, then market rates - HIS HONOUR: You are talking double Dutch, just get back to English. Forget about that. When, where, what are you talking about market rates, what market? ACCUSED: Market, international market rates. HIS HONOUR: Where do you go to this international market? ACCUSED: In New York." 40 I do not think it necessary to deal specifically with all of the passages to which I have referred. However it is pertinent to point out that the first passage complained of and quoted occurred on the third day of an eleven day trial during the evidence of the first witness. The jury retired, taking into account weekends, 13 days later and it is impossible to believe that they would have taken that answer into account in preference to the evidence bearing on the offence alleged. In any event, the answer shows no more than that Mr Quartella, the quality of whose judgment the jury knew nothing about, for reasons unknown but which rightly or wrongly seemed sufficient to Mr Quartella, saw fault in the Appellant.

41 The words of Mrs Fabri I have quoted were in fact an unresponsive answer from the witness. In that the words suggested the Appellant was impoverished, they may have strengthened the Crown case on motive although they may also have provided a basis for sympathy on the part of some jurors. In any event, I am not persuaded that they would have had any critical bearing on the result of the trial. 42 Most of the other passages display no more than frustration on the part of Stewart DCJ at what he saw as a waste of time and in this regard it may be noted that in this appeal there is no challenge to his Honour's rulings in the passages quoted. A judge has a duty even in the absence of objection to endeavour to ensure that there is some limit on any waste of time in a trial and although one may hope that control in this regard can be exercised without irritation becoming apparent, judges are only human and mere manifestations of irritation do not provide grounds for a successful appeal - Galea v Galea (1990) 19 NSWLR 263 at 283-4, R v Hircock (1970) 1 QB 67 at 71. 43 In that the obvious inspiration of the irritation was generally the Appellant, his Honour's comments were calculated to have the effect of denigrating the points, such as they were, which the Appellant was seeking to make. That being so, one cannot ignore the possibility of the jury gaining the impression that there was no substance in them although one must also recognise that that may well have been an impression which was being derived in any event. 44 Of more concern are his Honour's remarks to the jury when the Crown Prosecutor and the Appellant were not there. It was certainly appropriate in the circumstances for his Honour to inform the jury that the case would not proceed that day but he should not have made remarks even potentially critical in the absence of the Appellant. His observation to the effect that he didn't know whether the Appellant knew what his case was about was clearly inappropriate. 45 It is convenient to defer consideration of what consequences should flow from these matters until I consider Ground 5. Ground 4 The trial judge erred when he: (a) admitted evidence from Detective Hampton. (b) rejected cross examination of Detective Hampton. (c) allowed the Crown to cross examine the accused on the failure to put matters to Detective Hampton.

46 Detective Hampton was called twice in front of the jury. Before he had said anything of significance on the first occasion, an objection was made to the witness being allowed to read his statement. This led to attention being given to the provisions of the Evidence Act and, after a hearing on the voir dire, his Honour declined to admit evidence of what one may infer were admissions by the Appellant. Without argument from the Appellant his Honour indicated that the only evidence the Crown could lead was to the effect that Detective Hampton had gone to see the Appellant, the latter had said that he didn't wish to be interviewed or say anything more and that the Appellant was subsequently charged. After this evidence was given His Honour informed the jury that no inference could be drawn from the Appellant's silence. There was no cross-examination. When recalled, Detective Hampton identified 2 statements from Mrs Ruello, said that Exhibit K was in the same condition in evidence as it was when he first received it from Mrs Ruello and identified Exhibits D, E and F as 5 banknotes he had received from Mrs Ruello on about 23 November 1995. The transcript again records the Appellant as saying "No questions" when the time came for cross-examination. There was no relevant objection to any of the evidence Detective Hampton gave. 47 When he came to give evidence, the Appellant said that the currency, presumably referring to the banknotes in evidence, used to be his until stolen from his house in the middle of January or February 1996. He confirmed this in cross-examination. After some vacillation on the Appellant's part, the cross-examination then proceeded:- "Q Do you now accept that yet on Friday, Detective Hampton told this Court that he had received those very five bank notes from Mrs Ruello on or about 23 November 1995? A Yes. Q And you didn't challenge that, did you? A Because, like I said, I don't recall those questions being asked because it slipped my mind. I might have spoken to my wife, I might pay attention to something else that was not to my mind in that particular time to ask. If you recall, I even got up and stand for nearly more than one minute and I could not ask no question, it means it slipped from my mind."

48 There was further cross-examination on the topic, the thrust of which is encapsulated in the following:- Q You heard her (Mrs Ruello's) evidence, she says she got them from you during the course of discussions about getting the money from Italy and some other money? A Yes she did say that. Q She said she got those notes from you? A She did say that. Q That was true? A That was not true.

49 The evidence led on the first occasion of Detective Hampton's call was inadmissible. So far as is presently material, sections 55 and 56 of the Evidence Act provide:- "55(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 56 (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. 50 Once recognition is given to the principle that no inference could be drawn from the Appellant's silence, the evidence that Detective Hampton had gone to see the Appellant, that the latter had said that he didn't wish to be interviewed or say anything more and that the Appellant was subsequently charged "could not rationally affect the assessment of the probability of the existence of (any) fact in issue in the proceedings". 51 On the other hand, there is no reason to think, and every reason not to think, that the admission of this evidence could have had any impact on the result of the trial. 52 The evidence given by Detective Hampton on the occasion of his recall was clearly admissible. It went to the issue of whether Mrs Ruello had the notes on about 23 November 1995 and thus, particularly in light of the Appellant's evidence to the effect that he had had the notes until they were stolen in January, to the assessment of the probability of her story as to when she had received them. 53 The second proposition advanced in support of this ground is factually wrong. 54 The third is factually correct. However it provides no valid ground of appeal. In fact the Appellant was told at the commencement of the trial that if he wished to contradict a witness or suggest that the witness was not telling the truth, he should put his allegations in the form of questions to the witness. The Appellant said that he understood what his Honour had said. 55 Furthermore, in many cases the criticism that evidence sought to be contradicted has not been challenged during the cross-examination of its author is of little weight. I would incline to that view here, particularly as the Appellant immediately gave an explanation for his omission, viz. that the matter had slipped his mind. In the context of appearing for himself, and a certain lack of organisation in his thought processes apparent on the transcript, that explanation is by no means unlikely although, obviously, this Court can have no idea whether the jury accepted it. The explanation was repeated in the Appellant's address to the jury. 56 The fourth ground fails.

Ground 6 The trial judge erred in not allowing an adjournment to allow alibi evidence to be obtained.

57 It is convenient to deal with this ground before Ground 5 58 Some further history of the proceedings is useful to an appreciation of his Honour's decision the subject of challenge by this ground of appeal. In part my account of that history is taken from statements of the Crown Prosecutor to the trial judge but as those on which I rely were of matters within the knowledge of the Appellant and do not seem to have been the subject of challenge, and the onus of proving error on the part of the trial judge lies on the Appellant, this is an appropriate course. The Appellant was charged in March 1996. He was committed for trial in August 1996, the transcript of the committal proceedings apparently recording that the Appellant was informed of the provisions relating to an alibi defence. In May 1997 the proceedings were adjourned apparently so that the Appellant could check the dates on which various visits were made by him to Mrs Ruello - a process clearly directed to the issue of alibi. When the trial commenced, viz. 8 September, 1997, the Appellant said that he might or did want to rely on an alibi in relation to all dates on which it was alleged he saw the victims. At that time the Crown Prosecutor submitted that the Appellant should not be allowed to rely on an alibi defence because no notice had been served. His Honour said that whether he gave leave would depend on the circumstances. The matter was then left.

59 The Crown case concluded on the afternoon of Friday 19 September 1997. The topic of alibi was raised briefly on that day and then on the following Monday the Appellant indicated that he sought an adjournment to find a number of witnesses who could provide him with an alibi. Some of these people were said to be employees or the owners of a company dissolved in 1996. It is not apparent that the Appellant knew more than their Christian names. Another was a woman apparently in China and there were 2 others the Appellant said he could not find. The Appellant also suggested that the National Bank of Nicaragua might come, apparently in 3 or 4 weeks time. In the end, the Appellant sought an adjournment of 2 or 3 weeks to obtain the evidence he wished to adduce.

60 The trial judge refused this request. He did so after considering the evidence the Appellant wished to obtain in more detail than I have found it necessary to recount. His Honour said that he would be disposed to grant leave to adduce alibi evidence if there were any real prospect of any real evidence being forthcoming but took the view that there was none. On the material before his Honour, that conclusion was the only one open to him. Certainly, it has not been shown that his Honour was in error in what was essentially a discretionary judgment, viz refusing to adjourn the trial. 61 For completeness, I should add that later comments from the Crown prosecutor make it appear that the evidence which the Appellant wished to call was not in fact alibi evidence but rather evidence directed to showing he was not at a particular place on 27 and 28 September 1995 - a time when it is alleged he made a variety of admissions rather than the time the offence was alleged to have occurred. If this be a correct appreciation of the evidence sought, then no notice or leave to call it was required. 62 That point was made during the trial. The Appellant was by then being cross-examined but his Honour said that he would allow the Appellant to add to his evidence in chief that he could not have been with Mrs Tarello on the dates she asserted he had made admissions the subject of Exhibit K. This further evidence was given. However, these matters say nothing about the Appellant's need for an adjournment to seek to have the witnesses available and, as I have indicated, I see no error in his Honour's decision refusing that. This ground also fails.

Ground 5 The summing up was unbalanced and did not fairly put the defence case.

63 Although at an early stage of both the trial and his summing up, the trial judge said he would endeavour not to express any opinion to the jury, his Honour's achievement in this regard fell far short of his desires. The following remarks made during the summing up demonstrate this. 64 When dealing with the evidence of Mrs Ruello, His Honour summarised a deal of what she had said saying, inter alia, that the gravamen of the Crown case was that she trusted the accused, gave him money having been deceived by him, he took it and never gave it back. His Honour referred to particular matters including some specific bank notes, making particular mention of a Greek one and the accused dealing with her bank book and went on:- "Members of the jury, this is entirely a matter for you, did she make all this up? that is what the accused says. He says it did not happen. I wonder and I took a note of it, members of the jury, what the accused is on about in his address to you. He said 'if the Crown really wants to convict me they should go to where the expert is, to the Reserve Bank and I did cash two of these notes in, and I got $22,000 odd each for them and I'd remember if somebody gave me one or more notes.' You might remember, members of the jury, that he could not remember whether he had 7 or 8 of these $22,000 Australian value notes. What is he on about? Why is he at such pains? I do not know. These are matters for you, members of the jury. That is for your assessment, bearing in mind that he does not have to prove anything; but I cannot help wonder why he was at such pains to show that these notes were worth a lot of money. He says he did not give them to her, did not have them. What was he on about? The accused seems to be suggesting that somehow or other when his house was burgled, whenever it was, the notes somehow got to the police. Was he alleging some gigantic conspiracy between Mrs Ruello, Mrs Tarello, Mrs Fabri and Detective Hampton? How did she get them? And you remember, she said, "you tell me". She said to the accused "How did I get the notes? Where did I get them?" She says that he gave them to her. He says he didn't. These are matters of fact for you to decide." 65 Later, "In any event, Mrs Ruello says the accused gave her these notes. She thought they were worth a lot of money. The accused told her that they were worth a lot of money and she thought that they were security for the money she says she gave him. Remember, however, it is for the Crown to prove that beyond reasonable doubt; and remember, that the accused needs to prove nothing. Remember, that he says that he did not give her any notes at all and he does not know how she got them, if she got them, and he does not know how the police got them either. I must say, it is a mystery to me. You may have worked it out members of the jury, your job is to work things out, but not to speculate, not to guess, not to have a crack that it might have been this or it might have been that. You will remember Mrs Tarello and what you make of Mrs Tarello is up to you. Is she a person who has just made all this up? Has she made it up because she is a friend of the alleged victim? Have they had their heads together with Mrs Fabri. Is Mrs Fabri too, telling fibs, is she being untruthful on her oath when she described what happened. But let us get back to Mrs Tarello. She says she knows the accused as 'Limarnay', not as Mr Sinanovic, and you will remember, members of the jury, that she thought that his name was Limarnay, and you will also recall the evidence about this signature of exhibit K. Is she making that up? Did she get this signature from somewhere else and stick it on here for some ulterior purpose?… … The next witness that I wish to refer to is Mr Hampton. He was the officer in charge of this matter. He was shown Exhibit K. He said he had seen it before. It came with Mrs Turello and it came to him in the condition it is now, the signature was stuck to it, and he got it about the time she made her statement, 23 November 1995. I do not know what the accused is suggesting when he said that Mr Hampton had plenty of time to talk to him before then. I do not know really. These are matters for you, members of the jury. I do not know what that is meant to convey. Well, the accused has denied all along that he is guilty of this charge." 66 Some of this criticism of the Appellant or his case was not justified. It is a reasonable inference that the Appellant "was at such pains to show that these notes were worth a lot of money" because, as his Honour recognised somewhat later in his summing-up, Mrs Ruello said that that was one of the things the Appellant had persuaded her of. In light of the evidence given, whether or not the Appellant had deceived her in this respect and whether or not he had the wealth he sought to demonstrate by the notes were matters clearly of significance in the trial. 67 Nor was his Honour's question whether the Appellant was "alleging some gigantic conspiracy between Mrs Ruello, Mrs Tarello, Mrs Fabri and Detective Hampton?" justified by anything the Appellant had said in his address or the terms he had used in his questioning of any of these witnesses. Indeed, as has been said, he asked no questions of Detective Hampton. 68 The paragraph commencing "You will remember Mrs Tarello" reads more like an address from counsel than part of a summing up and was quite inappropriate. 69 Shortly after the last of the passages I have quoted, his Honour said that he had completed his summing up but would ask counsel whether there was any matter of re-direction or otherwise that they sought. The Crown Prosecutor indicated there was and the jury left the court room. The Crown Prosecutor then suggested that His Honour had not in terms summarised the evidence of the Accused, only referring to it in passing. He said he was worried that the jury might have thought that the accused had some onus and requested His Honour to make it clear to the jury that the Crown had the onus of proof and even if they disbelieved the accused they must believe Mrs Turello and Mrs Ruello beyond reasonable doubt (before they could convict). The Appellant sought no re-directions. 70 In fact, although his Honour had not in this connection referred specifically to these two witnesses, in other respects his Honour earlier had fully and in some respects repeatedly directed the jury to the effect that the Crown had the onus of proving the charge beyond reasonable doubt and that there was no onus on the Accused. Be that as it may, His Honour then recalled the jury and gave directions in accordance with - indeed probably more strongly than - those suggested by the Crown. In doing so, His Honour forcefully and adequately summarised the Accused's case. These further directions included:- "Members of the jury, if you are of the view that I have not told you that you may not convict the accused until you are satisfied beyond reasonable doubt of his guilt, I want to leave these words ringing in your ears. You do not have to be satisfied that the accused is innocent before you acquit him. If you are unable to decide where the truth lies, even though you feel that he may be guilty, if you have a reasonable doubt about it, you must find him not guilty… In this case there are three witnesses, namely Mrs Ruello, Mrs Tarello and Mrs Fabri, who are essential to the proof of the crown case, particularly Mrs Ruello, although what emphasis you place on those three witnesses is a matter entirely for you. I should indicate, and do indicate, that you should examine and scrutinise those witnesses' evidence with great care before you decide that a verdict of guilty should be brought in, if at all, and you should only find the accused guilty if you are satisfied beyond reasonable doubt of the truth of the evidence of those witnesses. Now, the fact that I have given that warning does not mean that I have formed any view as to the honesty or reliability of those witnesses. It is a warning that would be given in any case where the Crown case depends on the evidence of such witnesses. If you are of the view that I put to you in any way, either obliquely or directly, the proposition of why should they lie, let me tell you it is not a question of that at all. It is a question of you finding beyond reasonable doubt that the Crown has proven its case, and even if you think that the accused has not been entirely truthful, you cannot convict him unless you are satisfied of the truth and accuracy of those vital witnesses." 71 His Honour then went on to summarise the Appellant's evidence 72 However, the question arises whether in totality, particularly in light of his Honour's remarks during the trial, the opinions he expressed in his summing up, and the omission in the first instance to refer to the Appellant's case to any significant extent - an omission which can only have tended to emphasise the impression that, in his Honour's view, the Appellant's case had no substance - he so preferred the case advanced by the Crown and disparaged that of the Appellant that the trial should be regarded as unfair and either a miscarriage, or substantial miscarriage, of justice within s6 of the Criminal Appeal Act 1912. 73 Relevant in this regard is the extent to which his Honour made it clear to the jury that issues of fact and of guilt were matters for them. I have quoted some of his Honour's remarks in this respect in setting out the passages wherein are contained criticisms of the Appellant's case or his Honour's views and in quoting the instructions to the jury after the Crown's request for re-directions. Other remarks of his Honour in this connection included the following. 74 In introductory remarks at the commencement of the trial his Honour had made clear the jury's role in this regard saying, inter alia:- "Because he's (the Appellant has) pleaded not guilty to this charge it is your responsibility as the jury to decide on the evidence that's presented by the Crown and any other evidence whether he's guilty or not guilty. That's your function, that's your task, that's why you're here. You should clearly understand that you people, you twelve, are the judges of the facts. That means it's up to you to decide what happened and you decide on the evidence that's presented and not on anything else … You can accept in toto what a witness says, you can reject it in toto or you can accept some of what a witness says and reject some of what a witness says. They're matters of fact for you to decide and that's not my function. … Just as you're the judges of the facts, I'm the judge of the law and you'll take the law from me and I'll abide, as I must, by your decision as to the facts. If I touch on the facts and I seem to be putting forward any sort of opinion, and I'll try not to do that, unless your view coincided with mine well you're perfectly entitled, indeed it's your duty, to reject what you think I might be putting to you by way of facts. It's your responsibility, you can't thrust the responsibility onto anyone else. I can't and I won't endeavour to influence you. If you think I am, well ignore what I say if it doesn't accord with what you think …" 75 During the course of his Honour's summing up, he also made many references to issues of fact being for determination by the jury. I have already quoted some. Other instructions, given at separate times, included:-

"Your function or one of them, is to be the judges of the facts… that means it is your task, your duty, your function, to decide on the evidence and nothing else, what happened. You must decide the facts on the evidence that is before you. … That is your job. I cannot intrude into your area, and I do not intend to. That area is for you, and you alone." "I will endeavour not to express any opinion to you. That is not my job. If you think I am expressing an opinion and it accords with your own, then you may adopt it. If you think I am expressing an opinion and what I say is different to the conclusion that you have drawn, it is your duty to reject my view. I will try not to do it, but sometimes it looks as though one is expressing an opinion, but it is your opinion and not mine that you must adopt." "You may, as judges of the facts, members of the jury, reject what some witnesses say in toto. You can accept what some witnesses say in toto. You can reject what some witnesses say in part and accept it in part. … You are bound by the oath each of you to (sic) took to determine all relevant issues of fact according to the evidence that has been presented to you during the course of this trial." "It is for you to give such weight to the opinions of that expert witness as you think they should be given, having regard to his qualifications, the impartiality or otherwise of the witness, to the extent, if any, to which the witnesses' opinion accords with the other facts that you find proved to your satisfaction beyond reasonable doubt." "I reiterate that you must act only on the evidence before you" "You must act on the evidence and the evidence alone. You must not speculate; you must dismiss from your mind any idea of prejudice, either racial or otherwise." 76 In these and the remarks to which I referred earlier His Honour thus, time and again, made it perfectly clear to the jury that, whatever views he might have, decisions as to matters of fact and the Appellant's guilt were decisions for them. 77 It must not be forgotten that a judge is entitled to "comment (and comment strongly) on factual issues". - RPS v R (2000) HCA 3, (2000) 74 ALJR 449 at [42]. In Tsigos v R, (1965-66) 39 ALJR, 76 (note) cited in support of that proposition, the High Court had refused to grant special leave to appeal, holding that in the context of the summing up as a whole, a remark the subject of complaint was not such as might have led the jury to think that they were being told in point of law that they could not acquit the accused. The remark was that "on the evidence before the court it is my duty to tell you that you will be flying in the face of the oath you took namely to return a verdict on the evidence, if you were to return a verdict of acquittal, because on the evidence I can see no escape from the verdict of murder or manslaughter" 78 In R v Clewer (1953) 37 CAR 37 at 40, in a passage quoted with approval by Owen J in R v Martin (1960) 60 SR (NSW) 286 at 288, it was said:- "The more improbable the defence, the more difficult it is for counsel to discharge his duty to his client adequately, and, provided he keeps within the bounds of fair advocacy … it is highly desirable that he should be allowed to do his best in presenting his case, leaving it to the judge to deal with, and maybe to demolish , it in his summing up." 79 In Babbage (1982) 7 A Crim R 243 at 245 where numerous citations to like effect are quoted, it was said:- "… it has been many times said by courts that a trial judge in summing up may comment strongly upon the evidence and in doing so may leave little doubt about his personal views of its weight provided that he makes it clear to the jury that the decision of these and all issues of fact in the case is for them and not for him." 80 In R v Penberthy (unreported, CCA, 26 October 1978), this Court had to consider a comment by the trial judge in the following terms:- "It is, I suppose open to you to say that each one of them (the accused) is not guilty, that is your legal right. How you could do it in this case, consistent with the oath you have taken to find a true verdict, I would not know but that is your business and not mine. You have the right to do it." 81 Acknowledging that the comment was a strong one, Lee and Slattery JJ - at p29 - found no error in circumstances where the Crown case was strong and the trial judge had made it clear to the jury that the decision was one for them. The third member of the Court, Lusher J, referred to the passage that I have quoted, but made no comment about it. - p22 82 In light of these authorities, and others to like effect, it is clear that a judge is entitled to express views calculated, and indeed designed, to influence a jury. How far may a judge go? A guide, although I do not suggest it is exhaustive, is provided in R v Hamilton (1969) Crim LR 486 where it is noted: " Interventions which may lead to the quashing of a conviction are (1) those which invite the jury to disbelieve the defence evidence in such terms that they cannot be cured by telling the jury that the facts are for them; (2) those which make it impossible for counsel to present the defence properly; (3) those which have the effect of preventing the defendant from doing himself justice and telling his story in his own way." 83 To these might be added apparent partiality so as to lead to the conclusion that justice was not, or was not seen to be, done although even in that situation, it must not be forgotten that it is the jury that is the ultimate tribunal. I can think of no other bases having conceivable relevance to this case. 84 The passage from R v Hamilton was referred to with apparent approval in R v Davies (1984) 3 NSWLR 572 where, in relation to the circumstances of that case, this Court expressed its conclusion in the following terms (at 582):- "It was a defence legitimately open to the appellant and he was entitled, accordingly, to have it presented to the jury in an atmosphere of fairness and impartiality. In the light of the clear implication of the questions of the judge, it would have been impossible for this jury to have avoided being quite satisfied that the judge himself held a strongly adverse view of the appellant's conduct and, no matter how earnest may have been the direction in the summing up that it was for the jury to reach its own conclusions, the participation of the judge in the evidentiary stages of the trial was, in the view of this Court, such as to bring about the result that the trial must be regarded as having miscarried. 85 In that case the judge had intervened aggressively time after time during the evidence-in-chief and cross-examination of the accused with questions suggesting dishonesty or otherwise critical of him. 86 Of course, relevant to the significance to be attached to judicial intervention, is the extent of it - R v Davies (at 575) although even extensive intervention has not been regarded at times as sufficient to justify the upholding of an appeal. In R v Martin the judge's cross-examination of an accused and a supporting witness extended to about two fifths of the questions asked after the evidence-in-chief of the accused. In R v Cain (1936) 25 C.A.R. 204 and R v Bateman (1953) 37 C.A.R. 106, two of the earlier cases in this field, "the criticism of the witnesses, which was implicit in the questions asked by the judge," to quote Herron J in R v Martin (at 291) "was severe indeed". Yet, as in R v Martin, the appeals were dismissed, albeit influenced in part by the application of the proviso. 87 Examples, some perhaps exhibiting a greater willingness on the part of the appeal courts to interfere, can be multiplied but I do not find it necessary to attempt a detailed review of them. In this case both at the beginning of the trial and in his summing-up, Stewart ADCJ's remarks must have made it crystal clear to the jury that decisions on matters of fact and guilt were theirs, whatever his own views may have been and I do not regard his own interventions as so strong or frequent as to weaken or overcome the impact of these instructions. 88 Neither were his Honour's interventions during the running of the trial such as to preclude the proper presentation of the defence or ones which, subject to considerations of relevance, had the effect of preventing the Accused from doing himself justice and telling his story in his own way. Nor, although it might be thought that his Honour's remarks made in the absence of the Crown prosecutor and the Accused, and the tenor of the summing up place the case near the borderline, do I regard there as having been such a departure from the appearance or actuality of fairness and impartiality as to lead to the conclusion that there has been a mis-trial. The authorities to which I have referred make it clear that strong judicial comment does not of itself indicate partiality sufficient to justify the setting aside of a verdict. 89 Although his Honour should not, as I have indicated, made the comment he did in the absence of the Appellant and it would have been preferable for a number of the features to which I have referred to have been absent, I am satisfied that the question of the Appellant's guilt was fairly left to the jury in circumstances where the issues for them were also clearly and properly exposed. In my view the matters to which I have referred were not sufficiently serious to lead to a miscarriage of justice. 90 The necessity and justification for the courts to proceed on the assumption that in general jurors are both able and willing to follow directions given to them has been the subject of consideration in numerous cases. The topic and some of those cases were recently reviewed by this Court in R v Glasby [2000] NSWCCA 83 at [112] et seq. where it was pointed out that "the whole process of jury trials proceeds on the assumption that a jury will adhere to directions from the bench" and, as was said in R v Glennon (1992) 173 CLR 592 at 614, "the experience of the courts is that reliance on the integrity and sense of duty of jurors is not misplaced" - at [117-8]. In R v Glasby the Court took the view that the trial judge had not erred in concluding that a jury could put out of its mind evidence of an accused's prior convictions. There is no more, and indeed less, reason to think that a jury, instructed as this one was, might weakly yield to following the judge's obvious views rather than carry out their sworn duty.

Criminal Appeal Act, s6 91 But in any event, even if the view be taken that Exhibit K was inadmissible, the judge's interventions were excessive and his summing-up was unbalanced, I am satisfied that there was no "substantial miscarriage of justice" within the proviso to s6 of the Criminal Appeal Act. It is clear from R v Bateman and R v Martin that the proviso can be applied in cases where there has been substantial judicial intervention. 92 The primary issue in the case was whether, as Mrs Ruello asserted and the Appellant denied, she had given him the money the subject of the charge. If it was not already clear, the instructions which I have quoted, given to the jury following the Crown Prosecutor's request for further directions, made it clear that the jury could convict only if they were satisfied beyond reasonable doubt of the evidence of Mrs Ruello and the 2 women, Mrs Tarello and Mrs Fabri, who supported her. 93 Any weight in Exhibit K depended on the truth of what Mrs Tarello said. In the face of the further directions I have quoted, the jury's verdict means that they were satisfied with the truth of the substance of what the 3 persons mentioned said. Once that view was reached, conviction was inevitable. 94 The appeal should be dismissed.

Other Matters 95 There is one further matter to which I should refer. After the decision was reserved in this and the three other appeals by Mr Sinanovic heard at the same time, the court received further submissions and supporting documentation apparently from Mrs Sinanovic. 96 On 10 February about 28 pages, largely relating to appeal 60023/99 arising from a trial before Maguire DCJ and interlocutory applications or other court appearances from July 1997 onwards, were received. The matters of complaint and allegations of impropriety referred to in those pages and which were suggested to have had an impact on the Appellant's trial cover a wide field. 97 On 17 February something of the order of 65 pages were received directed to a trial which had taken place before Horler ADCJ. That trial is the subject of appeal 60641/97. Again the complaints cover a wide field. A number relate to matters which were, or could have been ventilated at that trial. Among the more extreme were statements that:- "The Crown did not want the Defence to know that Gunner pleaded guilty to the negotiated cheques…" "The Crown produced no factual evidence." "No one from the Defence including the Prisoner had not at any stage was ever able to properly sight and peruse these Westpac Travellers cheques during the whole course of the trial." 98 The first of these flies in the teeth of the fact that the Crown in the presence of the Accused, Mrs Sinanovic and the Accused's Counsel referred to, and handed to His Honour a copy of, the Court of Criminal Appeal judgment in the matter of Gunther - the correct spelling - which record the fact that Mr Gunther pleaded guilty. 99 The second proposition is similarly incorrect as is demonstrated by the evidence to which I have referred when considering the appeal from Horler ADJC. 100 Three of the exhibits admitted into evidence before Horler ADCJ consisted of bundles of travellers cheques. All were admitted without objection and the transcript records that two of them, exhibits E and F were shown or given to the jury at the time of tender. The suggestion that counsel and the Appellant were denied access to the documents strains credulity past its breaking point. 101 On a number of days in May, Mrs Sinanovic forwarded something over seventy further pages to the Court. In large part these consisted of the transcript of proceedings against the Appellant before Davidson DCJ on 6 March 2000. Mrs Sinanovic referred the Court to particular passages in the transcript of an interlocutory application wherein the Appellant gave evidence on the topic of certain foreign currency. In fact after an unsuccessful application by the Crown for an adjournment, the Crown elected to call no evidence and verdicts of not guilty were accordingly directed. The Crown Prosecutor explained that his decision was influenced by what he saw as deficiencies in the Crown case. 102 Mrs Sinanovic has sought to rely on the result of that case as demonstrating that other cases, in particular others involving foreign currency, should have been decided in the Appellant's favour. The lack of logic in that proposition is apparent and it requires no further analysis by this Court. 103 I have read the additional material which Mrs Sinanovic has supplied except that in the case of the proceedings before Davidson DJC I have largely confined my attention to the passages to which she specifically directed the Court. Much of it is confusing, irrelevant and unhelpful. I am satisfied that there is no conceivable basis in any of this material for the Court allowing any of the appeals including this one. No leave was reserved to provide additional grounds of appeal or submissions and, in these circumstances, I do not think it necessary, and greatly time wasting, to say more than I have about it. 104 As I have said, this appeal should be dismissed.

No. 60564 of 1997 CORAM: WOOD, CJ. at CJ. HULME, J. GREG JAMES, J.

105 GREG JAMES, J: In this matter, I have had the benefit of a draft of the judgment of Hulme, J. 106 I gratefully adopt what his Honour has said there, setting out the background to the appellant's conviction and grounds of appeal. Except as appears hereafter, I agree with his Honour's views on the merits of the various grounds of appeal.

Ground 1 107 As far as ground one is concerned, for myself I have considerable concern with the trial judge receiving and acting on the information provided to him by Mr. Humphries in the way in which he did. Also, I consider for the reasons Hulme, J. makes clear, the learned trial judge's finding that the appellant "has been offered legal representation de bono publico and has refused that representation" was in error. 108 However, notwithstanding those matters, I do not consider the trial judge's perception of the situation he faced and his conclusion were attended with any appellable error. I share Hulme, J.'s view that this ground should be rejected.

Ground 2 109 Again, I am grateful to Hulme, J. for setting out the background to the ground. As can be seen from what his Honour said, that Exhibit K, bearing in mind that it purported to record at second or third hand what was said to have been said by the appellant and at second hand concerning what was said by Mrs. Ruello, was a document, the use of which at the trial needed to be considered carefully as it might otherwise be the subject of much confusion. It purported to contain re-written translations of notes and a draft asserted to be originally dictated by the appellant which the Crown contended contained admissions. It was said to be, at least partially, written in the Italian language by Mrs. Tarello; the first portion of it was said to be what Mrs. Ruello had noted; the second portion what the appellant was said to have said. Circumstances might require those portions to be dealt with differently. 110 The appellant in his cross-examination asserted the document was an invention because he had not been present on the occasion it was said to have been recorded. He was only said to have been present at the making of part of the document. Those assertions he made were confused. 111 Both his cross-examination and the cross-examination of him relating to it, too, it would seem, would be likely to be attended with confusion since the questions were apparently asked by the accused in Italian, the witness responded in Italian, with two interpreters interpreting from Italian into English. The accused was not fluent in English and apparently limited in his ability to read in English. 112 The accused's cross-examination dealt with the witness' assertion of having made a note or paper in Italian of the conversation with him and what had happened to that document. There were questions about discussions about the document. The document in question here appears to be thought to be that which became Exhibit K. 113 When the accused asked the witness questions concerning what information she had for "a letter" she wrote, the reply was that she had obtained the information from those notes. His Honour asked a question which established that what was being spoken about at that time was the document "that you wrote after a translation from the notes that you had taken on 27th in Italian into English". There was further questioning concerning the notes and the provision of a copy to Mr. Sinanovic which yielded evidence from the witness that she had made a good copy which she had given to him because he wanted his solicitor to have a look at it. 114 It was put to the witness expressly by the appellant that he was not in her presence on 27 September and that she had never seen him that afternoon or on 28 September and that she had invented the history of this (letter). The following question was asked:- "Q. Can you tell the court that what is written that you say that this one was present in the court before?" (t.388) 115 The question led to his Honour seeking that the accused rephrase the question to get at whatever he may have been driving at. His questions related to whether or not the notes had been presented at court. His Honour, in his questions to the witness and to the accused, made that matter apparent in attempting to dispel the confusion of the accused's questions, although the questions appear to be related not to the content of the document but to whether the witness provided it to a court. There followed a most confusing exchange concerning the accused seeking to show the witness the document and to show it to his Honour without tendering it to the court. The witness was asked how it came about that the document was produced. She agreed that at some point of time she had cut out the accused's signature and stuck it on the letter with glue before she went to the police station with it. At that point, objection was taken and his Honour cautioned the accused that further pursuing this line of cross-examination would not be permitted. In the absence of the jury, the witness raised matters plainly establishing that he wished to put to the witness that she had fabricated the document by gluing his signature to it and that he wished to assert by putting suggestions to the witness that her account of where she got the document was incorrect and that it did not happen in the way in which she says it happened. Since evidence was already before the jury of the making of the document (although not of the content of the document itself), such a course was legitimate. 116 At that point, the Crown Prosecutor asserted that the document would thereby become admissible in evidence and so would Mrs. Tarello's statement and the handwritten statement the daughter wrote out as well in reliance on s.108 of the Evidence Act 1995. This appears to be a submission by the Crown Prosecutor that the challenge made to the witness' account of how the document came into existence would enable a prior consistent statement of the witness as to that matter such as might rebut the suggestion to be admitted in evidence. It is not at all clear, however, to me on reading the transcript as to what precise use such a document might be put and what precise document is being referred to, having regard to the provenance of Exhibit K, which has been set out by Hulme, J. It is not clear to me that any more was being sought than to challenge the assertions as to the provenance of the document, particularly insofar as that provenance might have been relied on to support the assertion of the meeting and the relevant admissions or statements said to be made by the appellant at it. 117 The learned trial judge, in a passage in which he instructs the appellant as to possible ways of dealing with the matter, warned him that should he stray from the line suggested by the Crown Prosecutor, "this document" may well get into evidence. The Crown then contended that all the documents had become relevant and admissible as relevant to the issue of the credibility of the witness. He dignified the accused's explanation of what he was doing and his questions with the description "[it] is now said the form of that document shows she is being untruthful". Whilst he referred to the form of the document, he at no stage referred to its content. Not surprisingly his Honour, at this point, adverted to the problems arising when a trial is being conducted by an unrepresented accused and warned Mr. Sinanovic that if he sought to use the document further then it was likely the whole document would go in, viz., "the lot". 118 The matter was considered overnight and the applicant advised his Honour he had been unable to get legal advice on the question. At that point, his Honour decided that the document was admissible and that the applicant had "gone too far already". The applicant enquired whether, if it was admitted, he might be entitled to cross-examine on it and he was told that in those circumstances he could. 119 On the original attempt for the document to be admitted, his Honour had held a voir dire and he delivered a judgment in which he noted that what had happened apparently was, according to the witness, that the accused had dictated to her certain things she took down in longhand Italian, he having used the Italian language to her. He departed. In his absence she translated her notes into English and gave the English translation to him on the following day. That English translation was later transcribed into a document which became Exhibit AB on the voir dire by Mrs. Turello's daughter, who was not available to give evidence. But that document was, at best, a summary and his Honour adverted obliquely to the Evidence Act 1995 making provision for the admissibility of summaries. His Honour noted that the original notes had been destroyed by the witness and that it was accordingly impossible to compare or contrast what was taken down by Mrs. Turello with the document which was marked Exhibit AB on the voir dire. His Honour also notes that it was conceded by the witness that parts of the original notes and parts of her translation of them into English had been omitted from the final product. His Honour concluded that the document was unsatisfactory in that it could not be said with any degree of certainty that it did accurately reflect what in fact was said and was of the view that the document was not admissible and that there was a danger of unfair prejudice. 120 When his Honour came to consider the application in the trial to admit the document in consequence of the cross-examination, he did not advert to whether the document the accused was using in cross-examination was in fact Exhibit AB. 121 Further, the matters noted by his Honour earlier in his judgment on the voir dire appear to have been disregarded. For my part I am not persuaded that what went into evidence as Exhibit K was made admissible for its content by what had been done with it, and there are real matters which his Honour explored in his judgment on the voir dire but which his Honour does not seem to have related to the later tender which might have affected the exercise of discretion even at that point. 122 I share the view of Hulme, J. that no experienced counsel would have cross-examined as the appellant did. The document was highly prejudicial. I do not consider that it was properly admitted. It should have been excluded. 123 In my view, this ground is made out.

Ground 3 124 As to ground 3, it is only necessary for me to refer to that portion of what Hulme, J. has said in his judgment in which he sets out the trial judge's remarks to the members of the jury in response to their question on the occasion when the accused and the Crown Prosecutor were not present. 125 Those remarks should, however, be considered in the context of the other remarks and events to which his Honour has made reference in his judgment on this ground. 126 When his Honour made the remarks to the jury that he did in the absence of the accused and the Crown Prosecutor, in my view, his Honour created the real possibility that the jury would be prejudiced to the detriment of the accused and, in particular, when it came to considering the accused's case. 127 I share the view of Hulme, J. that his Honour was placed under what was obviously a very heavy burden and that he was seeking to perform the onerous duty to ensure that there was a limit on what he regarded as waste of time in a trial. I sympathise too with his Honour's position. I agree that mere manifestations of irritation should not be regarded as founding a successful appeal. But as Hulme, J. observes, "one cannot ignore the possibility of the jury gaining the impression that there was no substance in (the points such as they were which the appellant was seeking to make) although one must also recognise that that may well have been an impression which was being derived in any event". 128 I too would consider what I have said in this regard when coming to consider ground five.

Ground 5 129 Again, I am indebted to Hulme, J. for setting out the circumstances to which reference need be made in respect of the background to this ground. 130 However, with the greatest respect, I differ from his Honour as to the course we should take in consequence of the matters his Honour has identified. In this regard, I am indebted to his Honour for the references to the authorities he has collected. For my part, I consider what occurred illustrated to the jury a judicial view strongly adverse to the defence and such as to suggest to the jury it did not need serious consideration. 131 I am of this view particularly because of the comments made by the trial judge during the trial including those to which ground three relates, setting the context for the comments which Hulme, J. has set out in the relevant portion of his judgment. 132 I do not consider that the summing up was saved by the general directions to the jury concerning their function and the trial judge's avowed endeavours not to express an opinion to them. Whatever he may have said about his endeavours on that topic, in my view, he plainly did express an opinion and in terms such that I would not be prepared to regard that direction as unlikely to have influenced the jury. In my view, although, as Hulme, J. shows it is open to a judge to make trenchant comment provided the jury would not be overawed by it and diverted from their independent function, here the events of the trial, the lack of representation of the accused and the issues of credibility are such that the comments created an unacceptable risk of prejudice against the accused. 133 This was the case of an unrepresented accused who, whatever be the circumstances, was conducting a trial in which there were some issues of some complexity. The admission into evidence of Exhibit K pointed up his Honour's remarks:- "Did she make all this up? That is what the accused says. He says it did not happen. I wonder, and I took a note of it, members of the jury, what the accused is on about in his address to you." 134 Later, his Honour referred to whether the accused was alleging a gigantic conspiracy between Mrs Ruello, Mrs. Tarello, Mrs. Fabri and Detective Hampton. The content of Exhibit K dealt precisely with the dealings between the witness and the accused. His Honour's comments preceded his directions as to Exhibit K and the signature on it. He said:- "You will also recall the evidence about this signature on Exhibit K. Is she making that up? Did she get this signature from somewhere else and stick it on here for some ulterior purpose?" 135 These questions that were put by his Honour were put in the context of a lengthy passage in the summing up in which his Honour kept drawing to the jury's attention the possibility that the accused's case should be considered on the basis of assertions that persons were fabricating evidence against him individually or in combination. His Honour characterised what had been put by the accused in respect of Mrs. Turello's account as a simple assertion that it was all a figment of her imagination. But he told the jury that they would have the document. They would have used it on that issue. 136 In my view there was a miscarriage of justice and it is a miscarriage to which the proviso to s.6(1) of the Criminal Appeal Act 1912 does not run. 137 On the question of the application for proviso, it is for the Crown to satisfy the court, where there has been an error at trial, that no miscarriage has in fact occurred and to remove the doubt that it may have: Driscoll v. The Queen (1997) 137 CLR 522 per Barwick, CJ. at 526. 138 Even where the court is satisfied that had it not been for a misdirection the jury would still have convicted the appellant, the proviso may run (Wilde v. The Queen (1988) 164 CLR 365) in respect of fundamental errors at trial. 139 I consider that there has been such an error here. The conviction must be set aside. 140 However, the conviction was plainly sufficiently supported by the evidence and there is no matter which would render a new trial inappropriate nor is there such other ground of appeal as might necessitate an acquittal. It is therefore not necessary for me to deal with those other grounds. 141 In those circumstances, in my view, the appeal should be upheld and there should be an order for a new trial. 142 In consequence of the setting aside of the conviction, the sentence must be quashed. That will necessitate the adjustment of the sentences passed on the appellant in consequence of his conviction on the matters the subject of the other appeals, the judgments in which are being delivered with this judgment. 143 Those sentences were consecutive. It is open to this court in these circumstances to vary the date of commencement under s.59 of the Crimes (Sentencing Procedure) Act 1999 so that the sequence of consecutive sentences commences on 3 November 1997, the date on which the sentence imposed by Stewart, ADCJ. commenced. This course is preferable to re-sentencing. 144 Thus the minimum term of 13 months imposed by the sentence passed by Grogan, DCJ. will commence that day and expire on 2 December 1998, and the additional term will commence on 3 December 1998 and expire on 2 February 2000; the minimum terms of the sentences imposed by Horler, ADCJ. will commence on 3 December 1998 and expire on 2 December 2000, the additional terms will commence on 3 December 2000 and expire on 2 December 2001, the direction for release on parole on that date must be set aside in consequence that the sentence imposed by Maguire, DCJ. was for a minimum term of 16 months which will now commence on 3 December 2000 and which will expire on 2 April 2002 and which will have an attendant additional term of 12 months commencing on 3 April 2002 and expiring on 2 April 2003. The appellant is directed to be released on parole on 2 April 2003.

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