Ground 2: The verdict of guilty constituted a miscarriage of justice in that the jury ought in all the circumstances to have entertained a reasonable doubt.
31 In support of this ground the appellant submitted that there was such a discrepancy between the evidence of Messrs Wheeler, Douglas and Ms Higgins on the one hand and that of Mr Foster on the other, that the jury must have had a reasonable doubt as to the accuracy of Mr Foster's identification of the appellant as the glass thrower.
32 In his evidence, Mr Foster said that he had seen the appellant with a large dark-skinned man engaged in an argument. He observed them from a couple of metres away as they were yelling at each other. He then saw the appellant pick up a schooner glass from the table in front of him and throw it at the person with whom he was having the argument, the glass striking the latter in the face. In cross-examination he said that the argument between the appellant and the other person went on for a couple of minutes prior to the throwing of the glass.
33 This evidence was in stark contrast to that of a number of other witnesses. The victim, Mr Eggins, had said that he had seen his cousin, Mr Archibald, arguing with another man whom he had never seen before. He (Mr Eggins) was standing about one to two metres from them. He went over and pulled his cousin away telling him "don't worry about it, just walk away". Mr Archibald was then pushed onto Mr Eggins who then turned around, looked up and was hit in the face with the schooner glass. He described the glass thrower (although he had only caught a glimpse of him before he was hit) and, in cross-examination, denied that he had been in an argument with him or anyone else prior to being struck. Furthermore, he did not suggest that the glass thrower was the person with whom Mr Archibald had been arguing.
34 Mr Douglas was standing with Mr Eggins. He observed Mr Archibald having a "bit of a discussion" with another man. He saw Mr Eggins walk over to see what was happening and observed another person come across and push Mr Archibald onto Mr Eggins. As Mr Eggins turned around he was hit with the glass. He said the person who threw the glass was as far away from Mr Eggins as the length of the jury box. In cross-examination he agreed that the glass was thrown a distance of approximately five to six metres and over the top of a number of people standing between the person throwing the glass and Mr Eggins. He also denied that the glass thrower was "involved" with Mr Eggins prior to the glass being thrown or that he was the person arguing with Mr Archibald.
35 Tracey Eggins (Mr Eggins' sister) gave similar evidence. She observed Mr Archibald arguing with another man and Mr Eggins going over to him and telling him to settle down and to move away. She then saw Mr Archibald move out of the way and then saw a person (not being the person with whom Mr Archibald had been arguing) pick up a glass and throw it at Mr Eggins (who was about four metres away from the glass thrower), hitting him in the face. In cross-examination she agreed that there were about ten people between the person throwing the glass and Mr Eggins and that the glass went over the top of the people between them.
36 Mr Archibald gave similar evidence. He referred to an argument between himself and another man whom he described. He recollected his cousin, Mr Eggins, coming over and grabbing him on the shoulder. He turned around to walk off with Mr Eggins and was pushed in the back causing him to fall to the floor. He did not see the glass being thrown.
37 Of particular importance is the evidence of Mr Wheeler. Of all the witnesses that were called, he was the only one who, apparently, had not been drinking that evening. He had a "birds-eye view" of the events that unfolded as he was 6'7" tall. At around 1.00 a.m. he observed a group of five to six Aboriginals arguing with a group of eight to ten people whom he described as white Australian. The two groups were within five metres of each other. He then observed one of the white Australian males turn from the disturbance, walk one to two metres to a table, pick up a glass, walk back to the group and then throw it. In cross-examination he said that the distance from the point where the glass was thrown to the person who was hit (Mr Eggins) was three to four metres. He further agreed that the glass "pretty much" went over the top of the people to reach its target.
38 The discrepancies between the evidence of Mr Foster on the one hand, and that of the other witnesses referred to above on the other, is readily apparent. It is clear that the evidence of those witnesses, Mr Eggins, Ms Eggins, Mr Archibald and, in particular, Mr Wheeler was in significant respects inconsistent with that of Mr Foster. On the basis of that evidence it would certainly have been open to the jury to have a reasonable doubt about accepting Mr Foster's evidence as accurate. That doubt could have been enhanced by their acceptance of the exculpatory evidence of Constable Armstrong and Mr Hofman. The question is, ought they to have entertained that doubt?
39 It is now well established that the power of this Court to set aside a verdict on the ground that it is unsafe or unsatisfactory in the context of s 6(1) Criminal Appeal Act 1912 was authoritatively explained by the majority judges of the High Court in M v The Queen (1994) 181 CLR 487 at 492-493. Their Honours said that although the phrase "unsafe or unsatisfactory" does not appear in s 6, it allows a verdict to be set aside where it is unreasonable or not supportable on the evidence.
40 In Jones v The Queen (1997) 191 CLR 439 at 450-451, Gaudron, McHugh and Gummow JJ, on the basis of the majority decision in M, explained the test for determining whether a verdict is unsafe or unsatisfactory in these terms (citations omitted):
"In M , Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'
The majority judges explained the application of the test as follows:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' "
41 It was submitted by the Crown that the issues raised by the differences between the evidence of Mr Foster on the one hand and that of Messrs Eggins, Archibald, Douglas, Wheeler and Ms Eggins on the other were quintessentially matters for the jury to resolve. The legal representative for the appellant at the trial referred to these matters in his final address to the jury and of the necessity, emphasised on a number of occasions by the trial judge in his summing up, that they had to be satisfied beyond reasonable doubt that Mr Foster was an honest and accurate witness. It was thus submitted that the jury's verdict when taken in the context of the repeated directions of the trial judge in his summing up, made it clear that they were satisfied beyond reasonable doubt that Mr Foster was, indeed, an honest and accurate witness.
42 As the majority judges explained in M, it would only be where the evidence of Mr Foster lacked creditability for reasons which were not explained by the manner in which it was given, that a reasonable doubt which this Court might experience would also be one which a jury ought to have experienced. Accordingly, it is only if the evidence to which I have referred contained such discrepancies or otherwise so lacked probative force as to lead this Court to conclude that there was a significant possibility that an innocent person had been convicted, that this Court would be entitled to interfere and set the verdict aside.
43 After giving the matter due consideration, and making full allowance for the advantages enjoyed by the jury in seeing and hearing the witnesses, I have come to the conclusion that the evidence to which I have referred contains discrepancies and displays inadequacies such that, in my opinion, there is a significant possibility that an innocent person has been convicted. I have formed this view independently of, and without reference to, the serious irregularity constituted by the Crown Prosecutor's final address with respect to the evidence of the off-duty police witnesses which may well have influenced the jury on the very issue under discussion.
44 A reading of the cross-examination of these witnesses makes it clear that each adhered to what they said they observed and, in particular, that Mr Eggins was not arguing with the glass thrower immediately prior to the glass being thrown. In other words, there was no prior confrontation between them as suggested by Mr Foster. Nor was anything said by the Crown Prosecutor in his final address to the jury to suggest that there was something in the demeanour of these witnesses which would persuade the jury to accept Mr Foster's version of events over theirs.
45 It follows from the foregoing that the second ground of appeal should be upheld.
Conclusion
46 The effect of upholding the second ground of appeal is that the conviction and sentence must be quashed and a verdict and judgment of acquittal entered. However, even if that ground of appeal had not succeeded, I would not have ordered a new trial as a consequence of upholding the first ground of appeal.
47 Section 8(1) of the Criminal Appeal Act 1912 provides the power to order a new trial. In exercising the discretion to which that section refers it is necessary to have regard to "all the circumstances": DPP (Nauru) v Fowler (1984) 154 CLR 627 at 630. The relevant principle was recently restated by Ipp AJA (as he then was), with whom Wood CJ at CL agreed, in Regina v Pedrana [2001] NSWCCA at 66 where his Honour said [14]:
"Where, on this basis, a Court of Criminal Appeal determines that an appellant is entitled to a new trial, it may then be required to address the discretionary question whether an acquittal should be ordered. This would depend on whether any circumstances exist that might render it unjust to the appellant to make him or her stand trial again (remembering, however, that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused): King v The Queen at 427 and 433; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630. Should the interests of justice require that an appellant not stand trial again, the Court, as a matter of discretion, will enter a verdict of acquittal: Spies v The Queen (2000) 74 ALJR 1263 at 1283."
48 In Walton and Kennedy, one of the features that influenced this Court not to order a new trial was that the first trial had miscarried because of the Crown Prosecutor's conduct at trial. So in this case, it is the conduct of the Crown Prosecutor that has caused the trial to miscarry. That conduct was, as I have observed, directed to negativing any reasonable doubt the jury may otherwise have had in accepting the truth and accuracy of Mr Foster's evidence upon which the Crown's case either succeeded or failed. Given the important discrepancies between the evidence of Mr Foster on the one hand and that of Ms Eggins and Messrs. Eggins, Douglas, Wheeler and Archibald on the other, to which I have referred to above in dealing with the second ground of appeal, the impugned conduct of the Crown Prosecutor took on an even more critical dimension with respect to the issue of the jury's acceptance of the evidence of Mr Foster beyond reasonable doubt.
49 The events in question took place on 9 November 2001 and it is now 12 months since the trial. From a reading of the transcript it would appear that the evidence of the witnesses at the trial, at least to some extent, was affected by the lapse of time between November 2001 and March 2003. Furthermore, apart from Mr Wheeler, all the witnesses at the trial were affected by alcohol to some degree on the night in question. Their memories are unlikely to have improved by the time of any new trial and their recollections of the night in question are of critical importance. In any event it could hardly be said that the Crown's case was of overwhelming strength given the discrepancies in the evidence to which I have referred.
50 Furthermore, it has been a long-standing practice of this Court not to exercise the discretion to order a new trial when the sentence imposed as a result of the quashed conviction has been served: R v Hasenkamp [1998] NSWSC 40. So also, in the absence of special circumstances (and there are none here) where a suspended sentence has been imposed at the first trial.
51 In the present case, the appellant was sentenced to 18 months imprisonment which was suspended upon his entering into a bond to be of good behaviour under s 12 Crimes (Sentencing Procedure) Act, the sentence to date from 27 June 2003. Half of that 18 month period has now expired: cf R v Stavrinos [2003] NSWCCA 339 at [21], [25]. When that fact is taken in conjunction with the other matters to which I have referred, it seems to me that the interests of justice do not require the appellant to stand trial again.
52 Accordingly, when one considers all the relevant facts and circumstances including the personal considerations of the appellant and the overall justice of the case as well as the fair and impartial administration of justice, I would not as a matter of discretion order a new trial but would enter a verdict of acquittal.
53 I would therefore propose that the appeal be upheld, the conviction and sentence quashed and a verdict and judgment of acquittal entered.
54 ADAMS J: I agree with Tobias JA.
55 SMART AJ: I agree with Tobias JA.
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