My Reasons for Declining the s.165(1)(d) Application
15Section 165 Evidence Act 1995 does not deal with unreliability of witnesses generally. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts dealing with certain types of evidence, or because there is a danger that the jury may over estimate the probative value of certain evidence: R v Baartman [2000] NSWCCA 298 at [62]; R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 at 308 [38], 321-323 [95]-[101]; GAR v R (No. 2) [2010] NSWCCA 164 at [97].
16Whether the evidence in respect of which a request for a warning is made comes within one of the designated categories, will be a matter for the trial Judge to determine: R v Stewart at 320-321 [95].
17Section 165(1) provides that the section applies to "evidence of a kind that may be unreliable" , including (in s.165(1)(d)) "evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding" .
18The case mounted by counsel for the Accused at trial was that it must have been Mr Plavsic who killed the deceased, and not the Accused. This is not a case where Mr Plavsic was challenged upon the basis that he was an accomplice. The principal issue in the trial was whether the jury was satisfied beyond reasonable doubt that it was the Accused who stabbed the deceased or whether it was a reasonable possibility that it was Mr Plavsic who did so, in which case, the Accused was entitled to be acquitted.
19The matters identified in the draft direction (MFI15) as being capable of implicating Mr Plavsic were, in my view, speculative. Further, no plausible motive had been proposed as to why Mr Plavsic would wish to stab his work colleague. Although, it was open to counsel for the Accused to submit that the jury should have a reasonable doubt as to the guilt of the Accused by contending that there was a reasonable possibility that Mr Plavsic was the assailant, the question for the Court to determine for the purpose of s.165(1)(d) was a different one. The question for the Court was whether the threshold test for a s.165(1)(d) warning had been made out. I was not satisfied that it had been.
20Further, in the context of this trial, it did not seem to me that the evidence of Mr Plavsic was in a class where the jury might be misled in making an assessment of whether to accept it or in evaluating its worth. There was no special knowledge or experience of that kind of evidence which the Court had and which the jury may not possess, so as to require a warning from the Court. The stark issue from the commencement of the trial was the defence argument that it was Mr Plavsic, and not the Accused, who stabbed the deceased. The credibility and reliability of Mr Plavsic were central issues, and the jury did not require an unreliability warning from the Court. The issue was plain for the jury to see from the outset of the trial.
21Counsel for the Accused conducted the trial upon the basis that it was Mr Plavsic who stabbed the deceased and thus he (Mr Plavsic) was, by asserting that the Accused was the killer, attempting to shift blame from himself to the Accused. That this was the primary issue for the jury to consider in the trial was self-evident. It was not a scenario which called for a judicial warning under s.165.
22I accepted the Crown submission that a s.165 warning would be superfluous in this case, and would only introduce unnecessary complication and potential confusion for the jury.
23The proposed written direction (MFI15) sought a direction from the Court to the jury that "you might consider that Mr Plavsic is reasonably supposed to have been criminally concerned in the events giving rise to the proceeding". If that was so, then the Accused was entitled to be acquitted.
24However, even if the present application did fall within s.165(1)(d), the requirement to give a warning under s. 165(2) is not absolute. A trial Judge need not comply with s. 165(2) if there are good reasons for doing so. Where a Judge is required to make a determination that a witness comes within the expression used in s.165(1)(d), but concludes either that the test in the section is not satisfied or that there are good reasons for not giving a warning (s. 165(3)), the Judge should give reasons: Kutschera v R [2010] NSWCCA 150 at [95]ff.
25In this case, even if I had been persuaded that there was a foundation for a warning to be given under s.165(1)(d), I was of the view that there were good reasons for not giving such a warning in this case. The giving of the warning in this case would have added a judicial warning to what was already clear to the jury. There was a real prospect for confusion and imbalance in the summing up, in the context of this trial. Further, the giving of the warning proposed in MFI15 would have elevated a submission based on a tenuous foundation to a formal judicial warning which would have the flavour of the trial Judge repeating and endorsing the defence submissions. In the circumstances of this case, this would have caused imbalance in the summing up and operated against a fair trial for the Crown and the Accused.
26It was for these reasons that I declined to give the s.165(1)(d) warning concerning the evidence of Mr Plavsic.