Ground 3 - Direction re 'Green alone' or 'Brown alone'
79 The Crown case was essentially based on two pieces of evidence. Green said that he had seen the appellant murder the deceased. Brown, and the tapes, were evidence that the appellant had confessed to the murder. The Crown case was that these pieces of evidence corroborated each other. The defence submitted that they were inconsistent with one another, and also inconsistent with other evidence.
80 In the Summing-Up her Honour said:
… It is open to you, if you are satisfied beyond reasonable doubt that what the accused was saying to Brown was substantially the truth, it would be open to you to convict the accused on that evidence alone. In doing so, you would have to be satisfied beyond reasonable doubt that what he said to Brown in the prison cell was the truth.
However, if you are so satisfied, it would be open to you to find the accused guilty on that evidence alone.
81 A redirection was sought by the defence on the basis that the jury acceptance of Brown's version (and the tapes) alone could only be in the context of a rejection of the account of Green. Her Honour refused to give such a direction.
82 Later in the Summing-Up her Honour returned to the question and said:
… As I said to you, it would be open to you, simply acting on Brown's evidence alone, to find the accused guilty. In order to do so, you would have to be satisfied beyond reasonable doubt that the admissions that he made to Brown were true and correct and you would have to reject the account he gives you now as being untrue and, in fact, as not being reasonably possibly true.
The Crown argues that equally, you could convict the accused on the evidence of Green alone. And that also is correct. If you were satisfied beyond reasonable doubt that what Green said to you about the death of Jones, the accused's involvement in it, is correct, you could convict the accused on the basis of that evidence alone, without reference to Brown's evidence.
83 Later still she said to the jury:
After considering all that has been put to you in relation to Green's evidence, if you are satisfied beyond reasonable doubt that he was telling you the truth about the killing of Jones, you will find the accused guilty of murder. In that event, it would be unnecessary for you to consider the other matters put to you. In other words, as has been said to you, Green's evidence can stand alone. It is open to you to find the accused guilty of murder on Green's evidence alone, but only if, after considering all the matters that have been put to you, you are satisfied beyond reasonable doubt that he was telling the truth - the truth about the accused's involvement in the murder.
If you are not so satisfied on his evidence alone, there is the other evidence to which you may have recourse and precisely the same thing applies to the evidence of the conversations with Brown, and I have already said that to you. If, after considering everything that has been put to you in relation to that, you are satisfied that what the accused said to Brown on the tapes about the murder of Jones was the truth, and you are satisfied beyond reasonable doubt that his account given to you in this Court is not the truth, then you could convict him on that evidence alone. But I should say, you don't have to look at the two pieces of evidence in isolation. You are entitled to use each piece of evidence in considering whether you accept the other.
84 In his written submissions Mr Terracini says that:
It is conceded that the jury was entitled to find the Appellant guilty if the jury was satisfied beyond reasonable doubt, either that Green was telling the truth when he said the Appellant murdered Jones, or that the Appellant's alleged confession was truthful. It is submitted that the directions should have stated that the jury would have to be satisfied on a consideration of all the evidence in the case either that Green was telling the truth, or that the alleged confessional material to Brown was the truth.
85 Close to the end of the Summing-Up her Honour said:
It is true that he does not have to prove anything to you, nevertheless he has given evidence, and it is a matter for you whether you think that his explanation of what he said to Brown is reasonably, or might reasonably be correct. If you think it might reasonably be correct, then of course you put that into the equation in your assessment of all the evidence.
Then, I think I can finish with these short directions.
If you are satisfied beyond reasonable doubt that Green was telling the truth you must convict the accused. When I say that, I am referring to Green's evidence alone.
Secondly, if you are satisfied beyond reasonable doubt that when the accused made the admissions that he made to Brown he was telling the truth, you must convict. In order to reach that conclusion you would have to reach the view that there is no reasonable possibility that his response to, or his explanation for those admissions is true or correct.
Another way of putting it is to say that you may ask yourselves if you are satisfied beyond reasonable doubt that the accused was not in this Court telling the truth about what he said to Brown, and why he said it.
I have put that to you in two separate ways, on the basis of Green's evidence alone or the conversations alone. But you are not confined to considering the matter that way. They may be considered independently. You may be satisfied beyond reasonable doubt either on the evidence of Green alone, or on the evidence of the conversations with Brown alone, having taken into account all that has been put to you.
However, they are not really the ultimate questions for you. The ultimate question is whether you are satisfied beyond reasonable doubt that the accused killed Jones. In considering that question, you may use the evidence of the Brown admissions to help you to decide whether you accept Green beyond reasonable doubt, and you may use Green's evidence to help you decide if you were satisfied beyond reasonable doubt that the accused is not telling the truth about his admissions to Brown. In reaching your verdict you must have regard to the totality of the evidence as I have summed it up to you, and indeed to any evidence that you think is important to which I have not made reference. You should also have regard to the arguments that have been put to you by counsel and to my review of those arguments.
86 In my opinion, a fair reading of the Summing-Up as a whole leads to the conclusion that her Honour urged the jury to consider all of the evidence in the case. She stressed this on several occasions, including immediately before they retired. Her Honour also made it clear that the two key pieces of evidence, Green and Brown, did not have to be looked at in isolation but could each be used in considering whether to accept the other. In my opinion, it cannot be gainsaid that the jury would have clearly understood their task. It was put to them that there were alternative bases on which they could convict but only after considering all of the evidence and her Honour's directions with regard to the evidence. I do not accept that her Honour's directions would have left the jury with the wrong impression. I do not see that they would understand from the directions that they could convict on the evidence of Green in isolation, or on the evidence of the alleged confession to Brown in isolation, without having to consider the other evidence in the case.
87 However, the matter became complicated because after the jury retired to deliberate, they sent a note to her Honour, asking for clarification on two points. First, what evidence had been presented that Jones was murdered at any location other than Botany? Second, if a juror is convinced that the accused murdered Jones at a location other than Botany, is it possible to convict? After discussion with counsel her Honour answered the queries. She reminded the jury of the evidence relevant to the first question.
88 In relation to the second question her Honour said:
The Crown case has always been that Jones was killed by the accused at Botany. If any juror is convinced that the accused murdered Jones at some other location, that juror could not be a party a verdict of guilty and that is as far I think as I can take the answers to your two questions.
89 I do not understand why the Crown made the concession which lead to the direction being given in this form. It was very favourable to the appellant. It may have been how the Crown had run its case but 'Botany' was not an element in the offence. The issue arises however as to how it bears on the 'Brown alone' direction referred to earlier. Part of the Brown evidence, and the tapes, specified murder locations other than Botany, eg. a cellar in a hotel. How did her Honour's answer to the jury's question impact on her earlier directions that the jury could convict on the evidence of 'Brown alone'?
90 The jury ultimately found the appellant to be guilty. Consistent with her Honour's answer to the question discussed above, the jury must have found that the murder of the deceased by the appellant occurred at Botany. The only evidence of this was from Green. It was fundamental to Green's story that the killing occurred at Botany. It follows that the jury must have accepted Green's evidence on the location where the killing occurred. Accordingly, it is plain that the jury did not convict the appellant on the 'Brown alone' material.
91 At the time that her Honour's answer was given to the jury, defence counsel did not suggest that it was necessary to amend the earlier 'Brown alone' direction because the evidence of Brown and the tapes did not include any reference to the killing taking place at Botany. This may be because her Honour's answer to the jury question that a killing at Botany was essential to convict necessarily amended the earlier direction on 'Brown alone'. The Brown evidence did not include a killing at Botany expressly or by implication, only a burial of the body there. The 'Brown alone' direction must have been understood, in light of her Honour's answer to their 'Botany' question, as requiring the jury to be satisfied from other evidence that the murder happened at Botany.
92 At the time the 'Brown alone' direction was given, it was, in my view, correct. However, since the jury clearly did not act on it, but must have convicted the appellant on the basis of Green's evidence of the killing at Botany, I cannot see how any error, if there be one, matters. If there was error in the direction, it is appropriate to apply the proviso to s 6(1) of the Criminal Appeal Act 1912.