His Honour erred in failing to adequately and/or properly direct the jury in regard to the lies admitted by Ms Russell in evidence;
278 Section 165(1) applies to evidence of a kind that may be unreliable, including identification evidence, and evidence given in criminal proceedings by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. It is not confined to the specific matters identified in ss (1) - see R v Clark [2001] NSWCCA 494 and see also R v Rose [2002] NSWCCA 455. Sub-section (2) provides that if there is a jury and a party so requests, unless there are good reasons for not doing so, a trial judge is to:
"(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it."
279 Requests were made that his Honour give warnings to the jury in respect of the reliability of Ms Russell generally, and on the topic of identification.
280 In his summing up, Ireland AJ gave a warning in more or less conventional terms concerning identification evidence. It complied with paragraphs (a) and (c) of s 165(1), and no complaint is made about it so far as those paragraphs are concerned. His Honour said that there were a number of matters relevant to the reliability of the identification, to which he proposed to draw attention, and he instructed the jury that they were obliged to consider them. He then dealt with matters concerning the accused, other than Mr Parry, before observing:
" Renee Russell gave evidence of not having known the accused Parry prior to seeing him at Paul Webb's place on 2 October 1998 when he said, "Hello" to her, and when she heard him referred to as "Blood", prior to him entering the car with the other three men whom she did know.
She was angry at that time at the car being taken by the four occupants, and she had been discharged from hospital earlier that day and had used marijuana that day. Her lack of familiarity with Parry is a factor also in her identification of him in the "line-up" identification on 11 October 1999. In cross-examination she agreed with the proposition put to her by counsel that she did not see his face - however, you may think that is inconsistent with her evidence given in her statement made in September 1999 (p886 line 5) that on that occasion he smiled at her when he said, "Hello". That of course is a matter for you.
Subject to the further directions which I shall give you concerning the evidence of Renee Russell, those are some of the matters which you are bound to consider when deciding whether you accept the identification evidence in this case.
I give you this further direction however, that you are to consider the whole of the evidence in the case in this regard."
281 Shortly thereafter His Honour continued:
"The evidence of Renee Russell warrants a further warning. You will have observed the manner in which she gave her evidence, and the stress which she appeared to be under when answering questions asked of her, particularly by the Crown Prosecutor. Once again, the need for a warning arises from the experience of the Courts that certain circumstances may cause the evidence of a witness to be unreliable.
Several relevant circumstances apply in the case of Ms Russell. She gave evidence of having been discharged from John Hunter Hospital on 2 October 1998, having, I believe, discharged herself. She said that she was on prescription medication in the nature of pain killing drugs administered in hospital, and had used cannabis, which was her custom, that day. Ill health is recognised as a factor which may bear on the unreliability of a witness' evidence.
When Ms Russell made her false alibi statement at Charlestown Police Station on 4 October 1998, she was involved, in one sense, as an accomplice of Darren Wall, there being no issue in this trial that on that occasion Mr Wall made a false statement concerning the car being stolen, and about going to Gloucester on the Friday rather than the Saturday. Involvement by a witness in criminal activity which is associated with the alleged criminal activity in question may also play a part in making a witness' evidence unreliable.
In making her volunteered statement to Chief Inspector Wrice on 16 September 1999, having contacted him by telephone, in which she gave a version of events associated with the Gloucester trip which is supported now by the evidence of many witnesses, Ms Russell was, you may think, bent on revenge for Mr Wall's infidelity, and whilst this does not mean that she was not telling the truth on that occasion, it establishes at least that on the prior occasion she had been prepared to make a false statement.
Finally, you will perhaps have recognised that the Crown Prosecutor who called Ms Russell in the Crown case against the accused, other than her de facto husband Darren Wall, was permitted to ask her questions in a leading form, that is to say, in a form in which the question suggests the answer and permits of a response "yes" or "no".
In certain circumstances, the law permits this course to be followed as was the situation with Ms Russell and her evidence.
A consequence of that course being followed, and of the matters which I have referred to, is that a warning in the strongest terms must be given to you that you must scrutinise with great care her evidence before placing reliance on it, and where her evidence relates to an element of an alleged crime, or the question of guilt itself, that you would not rely on it unless supported by other evidence from another source.
This warning may be given in every case in which the circumstances to which I have referred are present. The warning is not intended to reflect any view I may have formed concerning the evidence of Ms Russell because what you make of her evidence, how much you find to be fact and how much fiction, is a matter for you as members of the jury and for you alone to determine.
My function in this regard is no more than to warn you that her evidence may be unreliable and as to why that may be so.
Having approached the evidence of Ms Russell in that way, and exercising the constraints I have directed you upon, you may then, if you wish, rely on so much of her evidence as you consider to be reliable."
282 Later, while dealing seriatim with the case, and with the arguments advanced on behalf of each of the appellants, his Honour's remarks included the following observations: (intervening paragraphs not relevant to the present point have been omitted):-
" (a) Mr Cruickshank (Counsel for Mr Powick)… drew your attention to Renee Russell's evidence of seeing a shotgun that was 90 cm long, whereas the weapon located was about 50 cm long, and that in this regard Ms Russell was lying and that she was a self confessed liar.
(b) Mr Austin (Counsel for Mr Yates) raised in front of you, members of the jury, the conundrum of how do you know the person who says "I am a liar" is telling the truth or simply telling another lie. This was, of course, in relation to the evidence of Renee Russell. I will not ask you to solve that problem, members of the jury, it seems that Mr Austin with respect to Renee Russell's evidence suggests you would be minded to reject it. Mr Austin took you through the parts of his cross examination of Ms Russell which he relied upon in support of his contention in this regard.
(c) There is one further aspect. I gave you a warning about the evidence of Ms Russell, as to the care that you should scrutinize that evidence with..
Mr Warwick (Counsel for Mr Parry) related to you the events that occurred as recounted in the evidence of Renee Russell. Members of the jury, you know them so well I will not take you through them again. There is no doubt that Ms Russell declared herself to be a liar, and that she agreed with the propositions put to her by way of leading questions in cross examination by Counsel for each of the accused.
Mr Warwick reviewed with you comprehensively almost all of the evidence given by Ms Russell and submitted to you, not surprisingly, that in the relatively short period of time Ms Russell had in the poor light prevailing at about 6.30 pm on 2 October 1998, and with her statement that she was supposed to wear glasses and had been on pain killing prescription drugs, and when you are upset, that you may indeed make a mistake as to identification. He submitted to you further that to make an identification in a line up some twelve months later, as was done by Ms Russell, might also be subject to error. Mr Warwick referred you to the evidence of Ms Russell in which she said that she picked out Mr Parry - that is in the line up - because to her mind he was the only one who looked like a bikie, and that she saw a tattoo on his neck. She had not said this before 11 October 1999, although her evidence was, members of the jury you might recall, that seeing Mr Parry sparked her recollection in that regard. However, Mr Warwick reminds you of Ms Russell's evidence that she thought it would look better putting a tattoo in. You will of course, members of the jury, have made up your own minds about the evidence regarding the line up and the video that you have now seen on two occasions and may if you wish see again. So members of the jury, whilst suggesting to you that Renee Russell is a witness of no credibility, Mr Warwick, in common with other defence counsel in the case, from time to time seeks to rely upon what she said in support of the defence case. There is nothing wrong with that of course, but it remains the situation that it is your assessment of her evidence which is of ultimate importance.
(d) Mr Fitzgerald (Counsel for Mr Hyland) referred you to the evidence of Renee Russell emphasising to you those aspects of her evidence that she submits would persuade you of her untruthfulness and her unreliability. You were referred to the mixing of truth with lies as being a device used to assist in remembering the lie, a proposition with which Ms Russell agreed.
Mr Fitzgerald submitted to you that you would not accept Ms Russell…"
283 It is complained on behalf of the appellant Parry that the directions concerning Ms Russell's identification of him did not comply with the requirements of s165(2)(b), which are largely reflective of the common law requirements identified by the High Court in Domican v The Queen (1991-1992) 173 CLR 555 at 561-562 to the effect that:-
"The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case.' A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to Counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."
284 Reference may also be made to R v Clarke (1997) 97 A Crim R 414 at 427, R v Eldridge [2002] NSWCCA 205 and R v Coe [2002] NSWCCA 385 at para 67.
285 When asked in what respect his Honour should have gone into more detail, counsel for Mr Parry said that his Honour should have gone in detail through the history of Ms Russell's evidence, pointing out
" her reluctance, her responses, particularly to the Crown which were quite, at times, spiteful, the concessions that she made in cross-examination and also in chief, the fact that she was declared hostile and, more to the point - and this was picked up by one of the counsel at the trial and it was picked up quite succinctly, the way in which, when she was cross-examined by the Crown, the evidence was elicited."
286 It was submitted that his Honour should have "gone chapter and verse through all of her evidence and outlined all inconsistencies or retreats through her cross-examination", and that as she was so discredited, the value of her evidence had to be evaluated for the jury by the judge.
287 No such direction was sought from his Honour either when the original requests for warnings were made, or by way of a request for redirection. Leave under Rule 4 of the Criminal Appeal Rules to rely on this argument should be refused unless the error identified constituted a substantial miscarriage of justice of the kind explained in Festa v The Queen [2001] 185 ALR 394 and see also R v Coe [2002] NSWCCA 385. The omission to seek a direction, as suggested in the immediately preceding paragraph, is hardly surprising. It would have been quite inappropriate. Having regard to its nature, her attitude in the trial, and the defence attacks upon her, the need for care in relation to Ms Russell's evidence stood out like a beacon. It featured large in the closing addresses of both the Crown Prosecutor and defence counsel, and it received no insignificant attention in his Honour's summing up.
288 Counsels' addresses, which were transcribed, went for two days and the summing up for another day and a half. The significance of a matter can be lost not only by its omission from a summing up but also by over emphasis of it to the point where the jury loses interest. The issue of Ms Russell's credibility and reliability, and the evidence bearing on these topics, were sufficiently before the jury without his Honour embarking on the additional exercise suggested. That trial counsel perceived this to be the case at the time of the summing up is not unimportant.
289 His Honour gave the jury warnings, inter alia, to use "special caution" before accepting the evidence of identification, "in the strongest terms [that the jury] must scrutinise with great care [Ms Russell's evidence]", and "that you would not rely on it unless supported by other evidence from another source". Some of these warnings were repeated. Counsel submitted that his Honour should have, but did not, warn the jury that it would be dangerous to convict on the basis of Ms Russell's evidence. However s165(4) provides that no particular form of words is required. There can be no doubt that the jury was fully alive to the issues arising in consequence of Ms Russell's suspect credibility, and his Honour did not err in failing to use the expression suggested.
290 Not merely by reference to the arguments of counsel but with the authority of his office, his Honour identified many matters going to the reliability of the identification, and to the reliability of the witness. It is true that some of the matters which bore on the former, e.g. health and drugs were mentioned after his Honour had moved from the topic of the reliability of the identification to the reliability of the witness generally, but the juxtaposition of the two topics was such that we do not regard this as a matter of significance.
291 There were, however, some other matters bearing on the reliability of Ms Russell's identification of Mr Parry to which his Honour could possibly have referred. There was her evidence of having eyesight problems. There was her evidence of it being partially dark at the time of her observation, and her agreement that, in her statement of 16 September, she had indicated that her observation of the man "Blood" had lasted for only about 30 seconds. There was also the fact that the tattoo seen on Mr Parry's neck during the 11 October 1999 identification parade had not previously been mentioned by Ms Russell. Additionally there was the 12 months gap between the events of 2 October 1998 and the 11 October 1999 identification parade.
292 These were all mentioned when his Honour recounted Mr Warwick's arguments but, given the context, it is impossible to regard this as a compliance with s 165(2)(b) of the Evidence Act, or with the law as laid down by the High Court. However, counsel did not seek any further direction in respect of these omissions. Leave is required under Rule 4 to pursue this submission.
293 To a considerable extent the submission concerning these omissions involves an exercise in nit picking, a circumstance supported by the fact that none of the large number of experienced trial counsel involved saw any deficiency in the directions given.
294 In this regard the present case bears some similarity to Coe where Dunford J, with whom Giles JA and Greg James J agreed, said at para 87:
" it is important to bear in mind that, although the judge must stamp his authority on the directions, the judge is not required to lend his or her judicial authority to every argument reasonably open to defence counsel on the evidence: R v Cook (CCA - unreported - 24 August 1998 at 13) citing R v Domican at 178-9; see also Eldridge at [56]."
295 It remains important for trial counsel to assist a trial Judge in framing suitable directions, and not to leave challenges unspoken until the time arrives for an appeal. Where a particular body of evidence has been hotly disputed then it should be expected that counsel will pay particular attention to the summing up: R v Roberts [2001] NSWCCA 163. Where they remain silent, there is good reason to assume that they assessed the summing up, in the context of the trial, as being sufficient.
296 We would respectfully adopt the approach enunciated by Howie J in R v Moussa [2001] NSWCCA 427, and adopted in R v Richards [2002] NSWCCA 38, concerning the principles applicable to Rule 4: see also R v Nguyen [2002] NSWCCA 342.
297 For the reasons identified, and consistently with those principles, we refuse leave to argue this aspect of the appeal. However, in case we are in error in relation to Rule 4, we also consider it proper to examine whether any deficiency in the directions was such as to warrant a new trial.
298 Where there is a failure to direct a jury in accordance with the law, it would follow that the appeal should be allowed, unless the Court is satisfied that "no substantial miscarriage of justice has actually occurred" by reason of the error: s 6(1) Criminal Appeal Act 1912.
299 As Heydon JA, with whom Dunford and Buddin JJ agreed, said in Ian Van Le (at para 94):
" According to authorities conveniently collected in Glennon v R (1994) 119 ALR 706 at 710-712, the proviso cannot be applied in two circumstances. One is where the error is so fundamental that it caused the trial to miscarry so far as hardly to be a trial at all… The other is if the conviction is not 'inevitable' in the sense that the appellant can be said to have lost a chance of acquittal."
300 The proper application of the proviso and of the decision in Mraz v The Queen (1955) 93 CLR 493 was considered in Festa v The Queen (2001) 185 ALR 394, where McHugh J pointed out (at para 119) that the use of the word "substantial" in the section "performs the function of denying the proposition that, of necessity, the existence of any of the enumerated sections in the sub-section amounts to an injustice."
301 His Honour continued:
" As his Honour [Barwick CJ] also pointed out in that case [Driscoll v The Queen], undermining the significance of the word 'substantial' runs the risk of focussing on the error at the expense of assessing the effect, if any, of the error on the jury's verdict."
302 McHugh J noted earlier (at para 118) that:
" The test which has been adopted, in relation to whether or not a substantial miscarriage of justice has occurred in a trial is that stated in Wilde v The Queen, namely:
' … where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted'… Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.'"
303 In relation to this question, his Honour said:
"121. The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts in the case. The prevalence of dissenting views in cases dealing with the application of the proviso illustrates the largely subjective nature of the enquiry, resting as it does on factors such as the error alleged, the relative strength of the prosecution and defence cases and the court's characterisation of the hypothetical jury 'acting reasonably' and properly directed. As Brennan, Dawson and Toohey JJ stated in Wilde:
' In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.'
122. But one important development has occurred since this Court decided Mraz, Storey, Driscoll and Wilde. Courts of criminal appeal are now required to examine and analyse the evidence in criminal trials to a much greater extent than previously. This Court has interpreted the 'miscarriage of justice' ground of appeal as entitling a court of criminal appeal to examine the whole of the evidence and form its own opinion as to whether there is a reasonable doubt as to the accused's guilt. Even 30 years ago, such an approach would not have been contemplated. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said:
'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.'
Although the term 'miscarriage of justice' appears both as a ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different. In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted. But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues. In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury. Speaking generally, the court's view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court's view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility. Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction."
304 Kirby J noted (at para 198) that the provision in the code applicable to the case on appeal, which was:
" .. common to criminal appeal statutes throughout Australia, seeks at once to uphold the high standards of legal accuracy expected in trials of offenders for criminal offences whilst at the same time recognising that mistakes of varying degrees of significance are difficult or impossible to eliminate completely in any system of criminal justice."
305 He continued:
" A criminal trial which involves a wrong decision of a question of law and which results in a conviction of the accused, in one sense, itself involves a miscarriage of justice without more. However, the postulate of provisions such as that invoked by the prosecution in this appeal is that a discretion is retained by the appellate court to dismiss an appeal, notwithstanding demonstration of such a wrong decision, if the appellate court considers that no substantial miscarriage has actually occurred. The emphasis upon 'substantial' and 'actually' requires the court that has detected a wrong decision on a question of law, to consider whether the circumstances of the particular case, viewed as a whole, require the outcome ordinarily required by the provision or permit, in effect, excusing the 'wrong decision' because of an affirmative conclusion that the error has not resulted in a substantial miscarriage of justice and that the prisoner has not lost a chance of acquittal that was fairly open on the evidence."
306 Hayne J made the following observations in relation to the proviso:
" First, the common form provision, taken as a whole, is to be understood as rejecting demonstration of mere formal error, as distinct from substantial error, as the criterion for setting aside the judgment of the court of trial. The rejection of that approach … finds important reflection in the proviso, where the addition of the epithet 'substantial' to qualify 'miscarriage of justice' and the use of the word 'actually' in the expression 'actually has occurred' may be thought to emphasise to the court of appeal that the inquiry must be directed to the substantial merits of the case, not merely matters of form.
Secondly, the proviso to the common form provision can be seen as accepting that a basic premise of the common law is that an accused person is entitled to a trial according to law. For that reason, alone, any departure at trial from what the law requires is a miscarriage of justice. But the proviso recognises that not every departure, at trial, from the proper application of the law warrants setting aside a conviction.
Thirdly, both the framing and the subsequent application of the common form criminal appeal provisions, including the proviso, have had to take account of two other considerations: that the jury is the tribunal of fact in a criminal trial and that the prosecution must prove its case beyond reasonable doubt. In recent years, some prominence has been given to cases where a court of criminal appeal, having examined for itself the evidence given at trial, has formed its own opinion as to whether there was a reasonable doubt about the accused's guilt. But those have been no more than particular applications of the common form provision requiring the court to allow the appeal 'if it is of the opinion that the verdict of the jury… cannot be supported having regard to the evidence'.