REGINA v ANDERSON

REGINA v ANDERSON - [2002] NSWCCA 141 - NSWCCA 2002 case summary — Zoe

[33]

The appellant's mother, Margaret Anderson gave evidence for the appellant. On the evening of the offence she remembered that there was a knock at her door about 9.30pm. It was Shane Williams and he asked her where "Mick" was. She knew it was Shane because the appellant had told her to expect him. Mrs Anderson told him that he was either at Gary's or Annette's place an she gave him directions. Mrs Anderson corroborated the fact that she had lent her son $300. 4 This was a very strong Crown case having regard to the inherent improbability that the appellant would have taken off his borrowed clothes, lent them to Shane Williams, then recovered them from Williams after the alleged altercation with him, only to put them back on again before he was intercepted by police in a disoriented and abusive state walking up Red Hill not far from the victim's home. The jury were entitled to exercise extreme scepticism about such an unlikely scenario, all the more so in light of the police evidence casting doubt upon the existence of a Shane Williams of appropriate age living in the Albury area, as the appellant contended. 5 The appellant was nevertheless entitled to a trial according to law. His principal ground of appeal is that a miscarriage of justice arose as a result of certain lines of cross-examination of the appellant in relation to his failure to inform the police about Shane Williams at the time when he was arrested. 6 There is a second ground of appeal that is entirely without substance, although it was not formally abandoned. It relates to directions as to the mental element in the second count in the indictment. 7 The appellant was arrested shortly before midnight on the evening of Friday 12 June 1998, that is a little over an hour after the offences in the victim's home. According to the police officers involved he was very intoxicated, waving his arms about and yelling. He abused and swore at the officers who had to struggle to subdue him with handcuffs. He was taken into custody. He was refused bail and it was not until 16 March 1999, nine months later, that he was first granted conditional bail. 8 The circumstances of his arrest and search were put before the jury, but little evidence was led in chief by the Crown in relation to what happened when he was taken into custody on the night of the offence beyond the fact that a named police officer (Detective Rose) formally arrested him and cautioned him (Tr p61). This was done in obedience to a ruling following a voir dire hearing early in the trial. In the absence of the jury the judge ruled that the Crown should not lead any evidence of the detail of the caution or of the appellant's response to it. (Apparently there was an entry in an officer's notebook to the effect that the appellant's opening response to the caution was "get fucked you cunt, I'm not saying nothing".) The exclusion of this evidence does not appear to have been the subject of any live controversy and it is relevant that the trial judge observed that: … it is a double-edged sword for both the Prosecution and the Defence and he is clearly so drunk or affected by alcohol that his answers are fairly worthless, I think…. (Tr p17).

[37]

13 The following evidence was also elicited from the appellant in chief (Tr pp184-5): Q. You had a conversation with Detective Rose, when you were at Silverwater Jail, do you recall that? A. Yes. Q. What was said? A. I just told Detective Rose I was - you know like pretty smashed and that, that night. Q. I beg your pardon? A. About you know on the alcohol and that. Q. You had a conversation at Silverwater Jail about blood? A. Yeah about blood, yeah. Q. Do you recall that time? A. What the time of day? Q. Do you recall that meeting with Detective Rose. A. Yeah, yeah I remember Detective Rose come and take blood from me. Q. Do you know why he took the blood? A. Yes, in relation to this here, what I've been charged with. Q. What conversation was had with Detective Rose then? A. About a person I'd give the clothes to on the night. Q. What do you mean by that. If you can answer I said, he said, that would be best? A. Well I told Detective Rose that I gave the clothes to the person by the name of Shane Williams. I said I want to make an interview. We stood on the front verandah. He gave me a rollie, a cigarette, a rollie. I was that that because they didn't have the audio stuff there to do it with, that's why they couldn't do it. Q. Do what? A. Take the interview of me. The taped interview and I'm not sure which one said it but they said we should have brought something with us, like that. Should have brought it with us. Q. What about a phone call to Tumut police station? A. Yeah I made a phone call. Q. When did you make a phone call? A. It was on 29 December '98. Q. How do you know that? A. How do I know that because I remember when it was. Q. Did you speak to someone? A. Yes. Q. Who? A. I don't know who - the Detective's name was. Q. What did you say? A. I asked, was Detective Steve Rose there. I was told that he went on leave. He wouldn't be back for a couple of weeks or so. I was asked what it was in relation to. I said that I want to speak to Detective Rose about a person that I had given the clothes to, also about some firearms. That phone call was made in the presence of Mr Albrighton(?).

[46]

29 The appellant submits that the debunking of the appellant's evidence about burning the Crown brief in this particular context had the capacity of reminding the jury about the evidence he had given in the second passage. There a link had been drawn by the appellant and the cross-examiner between the burning of the Crown brief and the occasion when (according to the cross-examiner) the appellant "thought about" the Shane Williams defence. There is some force in this submission, at least to the extent that it adds some weight to the ground of appeal asserting miscarriage. 30 The appellant further submits that the two warnings to which I have referred were insufficient in their context, because they did not really address the sting of the prohibited inference that had been raised before the jury. That is because the directions did not instruct the jury that no adverse inference should be drawn because the appellant failed to refer to Shane Williams or say that Williams had put on the clothes. In my view, the first direction would have conveyed this because of the context in which it was given. But the second direction (given during the summing up) did lack some of its neutralising force for failure to link it to the sting of the Crown's suggested inference, that is the suggestion that the Williams story was an invention because it had not been advanced on the night of the arrest. 31 In the upshot I am persuaded that the trial regrettably miscarried when the totality of the material is taken into account. The (rather fantastic) defence raised by the appellant depended entirely upon the jury's assessment of his credibility - subject, of course, to the proper application of the Crown's burden of proof. The cloud erroneously placed above the appellant's testimonial head by the effective invitation to disbelieve the Shane Williams story because inter alia it was a late invention when it should have been adverted to on the night of the arrest cannot be dispelled by invocation of r4 or the proviso. 32 I propose the following orders:

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