The Appeal
21 A number of grounds of appeal were filed, but at the hearing senior counsel for the appellant refined them into two complaints about the trial judge's summing-up. The first complaint was that the summing-up as a whole lacked structure and failed to present the opposing cases, with reference to the applicable law, in a coherent and logical fashion. The second complaint was that his Honour's directions about corroboration of Abdul-Hadi were inadequate, in the light of the whole of the evidence. The two complaints are related and it was submitted that, in combination, they demonstrate that the summing-up was unfair and that a new trial is warranted.
22 The summing-up was quite long. The first part of it consisted of directions of law appropriate to the case, to which no exception was taken in this Court. The remainder of it was less conventional. His Honour did not summarise the evidence, although he did refer to salient parts of it when giving some of the directions of law. However, he embarked upon a lengthy summary of the addresses of counsel, apparently relying upon his hand written notes of them. I mean no disrespect to his Honour or to counsel when I say that that summary was somewhat rambling and, at times, repetitive. Indeed, towards the end of the summing-up and in the absence of the jury, senior counsel for the appellant at the trial (who did not appear before us) submitted that his Honour need not deal with his address further as it would be fresh in the jurors' minds. His Honour agreed, and finished his summing-up shortly thereafter.
23 Certainly, the case for the Crown and the appellant could have been put to the jury more clearly and concisely than they were. It might have been preferable for his Honour to have devoted more time to a summary of the evidence and less to the arguments of counsel. Nevertheless, I consider that the summing-up, read as a whole, left the jury in no doubt about the issues of fact which they were called upon to decide. No complaint was made on behalf of the appellant at the trial that his case had not been adequately explained. In addition, his Honour's directions about the burden and standard of proof, and his warnings about the testimony of Abdul-Hadi and other evidence in the Crown case, were emphatic and clearly favourable to the appellant. It cannot be said that the structure of the summing-up was such as to give rise to a miscarriage of justice.
24 His Honour directed the jury that it would be dangerous to convict the appellant on the evidence of Abdul-Hadi, an accomplice ,in the absence of corroboration. He went on to give the conventional direction about the nature of corroborative evidence. Strictly, those directions were unnecessary: see s164 of the Evidence Act 1995. All that was called for was a warning on the basis that the evidence of Abdul-Hadi might be unreliable: s165(1)(d). There is no doubt that his Honour's directions, read as a whole, amounted to an adequate warning.
25 In the course of those directions his Honour did not refer to the fact that Abdul-Hadi had been dealt with leniently because of his undertaking to give evidence against the appellant. However, he did deal with that matter when summarising the addresses of counsel, explaining the relevance to sentence of an offender's willingness to assist the authorities, and the jury could have been in no doubt about its significance. No redirection was sought by counsel at the trial.
26 The gravamen of the second complaint is that, having raised the issue of corroboration, his Honour failed adequately to explain what evidence was or was not available for that purpose. This matter was the subject of argument at the trial. His Honour referred to the telephone call records and the evidence of Special Agent Keller as evidence capable of amounting to corroboration, although he did add that he had not dealt with "all the examples of corroboration" which, he said, had been canvassed by counsel in their comprehensive addresses.
27 Later in the summing-up his Honour set out with greater specificity the evidence of telephone calls which he considered to be potentially corroborative. Clearly, that evidence was. So, of course, was the evidence of Federal Agent Keller that she saw the appellant walking to his home, carrying the backpack and in the company of Abdul-Hadi.
28 Before us, it was submitted that his Honour had failed properly to deal with the weaknesses in Ms Keller's evidence. In particular, there was evidence that she had made a statement to another police officer, inconsistent with her testimony, to the effect she had seen Abdul-Hadi walk from his vehicle to the appellant's home alone. In fact, his Honour referred to that evidence on several occasions and also gave careful directions about the reliability of her identification of the appellant, who was not previously known to her, as the man carrying the backpack. There was other evidence in the case adverse to Ms Keller's credibility, to which his Honour also referred.
29 In addition, it was submitted that his Honour failed to direct the jury that Ms Keller's prior inconsistent statement was evidence that she had in fact seen Abdul-Hadi walk to the house alone, and was not merely material bearing on her credibility: s60 of the Evidence Act. His Honour gave no direction about how that evidence might be used and, not surprisingly, counsel for the appellant at the trial did not ask him to. In the absence of such a direction, the jury would have no doubt treated the statement as evidence of the fact asserted. The artificial distinction between evidence relevant to facts in issue and evidence going only to credibility is maintained by lawyers, but not by the general community. It was partly in recognition of this fact that s60 was enacted.
30 Finally, it was argued that his Honour failed to deal with the substantial attack made upon the credibility of Abdul-Hadi, or to give an adequate direction about the assessment of witnesses generally. In fact, his Honour took the jury at some length through the defence submissions about Abdul-Hadi. Earlier, as I have said, he gave an appropriate warning about that evidence, emphasising the need to guage Abdul-Hadi's honesty. At the beginning of the summing-up he gave the conventional directions about the assessment of the reliability of witnesses, both as to their honesty and their accuracy. Read as a whole, these directions were entirely adequate to convey to the jury the need for critical examination of the evidence of Abdul-Hadi and the reasons for it. Yet again, no redirection was sought.
31 His Honour did not refer to all the evidence capable of amounting to corroboration. As the Crown prosecutor before us pointed out, there are other aspects of the surveillance evidence which would have fallen into that category, together with evidence of what were said to be lies told by the appellant about his whereabouts on the day of his arrest. In the circumstances, this could hardly have prejudiced the appellant and it was not the subject of any application by trial counsel. Generally, I am satisfied that the summing-up was sufficient to identify for the jury the issues of fact to be determined and the principles of law to be applied. No miscarriage of justice has been established.
32 I would propose that the appeal be dismissed.