As I have mentioned, Mr Colquhoun never examined Mr Benjamin and had no discussion with him. His evidence was based simply on written material comprised of transcripts of court hearings and certain medical reports.
107 In my opinion, trial counsel was right in his assessment that it was not worthwhile attempting to submit that Mr Colquhoun's report was admissible under s 97. It did not have significant probative value.
108 In the circumstances, I would not uphold ground 2 of the appeal.
109 Ground 3 of the appeal is in the following terms:
"The trial judge erred in refusing to allow counsel for the appellant to cross-examine Mark Benjamin in relation to his criminal convictions for offences of dishonesty."
110 Mr Benjamin had a fairly detailed criminal history. At the trial, counsel for the appellant sought to cross-examine Mr Benjamin on his prior convictions. By judgment given on 7 March 2003 Sully J refused to allow this cross-examination.
111 The appellant contended that Mr Benjamin's prior convictions were relevant to his credit. The issue so raised engaged s 103 of the Evidence Act which provides:
"(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.
(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the act or events to which the evidence relates were done or occurred."
112 Sully J refused to allow cross-examination on the ground that the requirement of "substantial probative value" in s 103 was not met.
113 In his judgment on the issue Sully J described the offences committed by Mr Benjamin as follows:
"Learned counsel for the accused wishes to cross-examine Mr Benjamin upon a number of recorded convictions in his relevant antecedent record.
Mr Benjamin was arrested, it would seem, on 17 July 1997. He was charged with the offence of breaking and entering a building and committing a felony, namely stealing, a matter as to which he was dealt with by a community service order ordered 24 September 1997. He was charged as well with the offence of having been conveyed in a conveyance taken without the consent of the owner. He was dealt with in that regard by way of a s 558 recognizance ordered, also, on 24 September 1997.
Thereafter, the relevant record shows that throughout 1997, 1998, 1999 and in 2002 Mr Benjamin had a number of convictions for what might be described in broad terms as offences of dishonesty. He does not seem to have been sentenced to imprisonment for any one of them save only for a sentence of periodic detention for four months passed on 25 March 1998 in respect of a shoplifting charge; and a sentence of periodic detention for three months passed on him on 13 May 1998."
114 Sully J, in explaining why he would refuse to allow Mr Benjamin to be cross-examined on his prior convictions, said:
"It seems to me that simply to establish that Mr Benjamin has the particular matters of which I have spoken standing against him on his criminal antecedent record cannot be said to have the capacity to establish 'substantially' that it is likely that what he is giving in evidence on affirmation in this trial is comprehensively untruthful, and such as simply cannot be relied upon in whole or in part in aid of proof of the Crown case of the accused's guilt beyond reasonable doubt."
115 The jury were well aware that Mr Benjamin had criminal convictions for dishonesty. Trial counsel for the appellant said in opening that Benjamin "has multiple [convictions for dishonesty], that he had a raging heroin and cocaine addiction throughout the period from when he met Ms Yeo and then enrolled in Palm Court". He later said, "you have someone who leads a drug fuelled existence, who is a criminal with multiple dishonesty convictions." In his closing address he made similar observations, although, as the jury were told, counsel's addresses are not evidence, what was said must have clearly brought home to the jury the significance of the evidence which did exist as to Mr Benjamin's antecedents.
116 Sully J, in his summing up, reminded the jury of evidence Mr Benjamin had given:
"The second thing you need to bear in mind when you are making a careful assessment of Mr Benjamin are his criminal antecedents. There is, as it happens, not a great deal about them, but there is some evidence. May I remind you of what it is.
He was taken in re-examination to a passage of his evidence, which I am sure you recollect, in which it had been put to him that he had told a medical practitioner that the reason for his readmission to rehabilitation was because he had felt guilty for a crime that he had committed. And that he, in the course of that cross-examination, the notion of using the word 'crime' generally had come up, that is the context.
He was asked would he explain what he meant when he used that expression, and he gave this answer:
'What I meant was that part of the reason I wanted to address my heroin addiction was because I did feel guilty about some of the crimes I had committed to maintain that habit, some of the dishonesty that I had to be involved in'.
And he had been asked earlier in the piece … some additional matters about his antecedents, and all that was really added to the mix on the particular topic was that he had had some involvement with the law in July of 1997, on the 10th and 17th it would seem."
117 I accept that the appellant would have obtained a forensic advantage had the judge allowed Mr Benjamin to be cross-examined on his prior convictions. By reason of his Honour's order, the jury did not know the precise detail of Mr Benjamin's convictions. Nevertheless, the jury knew that Mr Benjamin was a heroin and cocaine addict and had been such since 1996. They knew he had participated in a rehabilitation program at the end of that year but could not resist using drugs while in the program. They knew that in June 1997 he had a severe heroin and cocaine addiction and between April and August 1997 had spent some $30,000 he inherited from his grandmother on these drugs. They knew he had supported his habit by a number of offences involving dishonesty. In these circumstances, I am not persuaded that his Honour erred in holding that the evidence about which the appellant's trial counsel sought to cross-examine Benjamin did not have "substantial probative value" as this phrase is used in s 103. I would dismiss this ground of appeal.
118 Ground 4 is in the following terms:
"The trial judge erred in failing to give adequate directions to the jury as to the possible unfairness to the appellant resulting from deficiencies in the police investigation."
119 The investigating police officer, Detective Williams, denied that Benjamin had ever been a suspect. Nevertheless, on 8 June 1999, he wrote a memorandum stating that Benjamin had not disclosed his full knowledge of the circumstances of the murder and may possibly be involved in assisting to dispose of the body of Dorrian.
120 The appellant's counsel, in closing, said:
"[W]e know that he has a criminal history … We know on 10th and 17th July 1997 that Mr Benjamin was charged for which he was convicted and sentenced, we know what those offences are.
In re-examination, the Crown led from Mr Benjamin, that he, Mr Benjamin anticipated that he had many things that he was ashamed of but they were his dishonesty offences … So we know that Mr Benjamin, on his own admission, is someone who has been convicted of dishonesty offences. He is a man who is having these massive quantities of cocaine."
121 In his address to the jury, counsel for the appellant submitted that the police investigation of Mr Benjamin was incompetent and that he was a suspect. He dealt at length with this aspect. He criticised the fact that the police did not search Mr Benjamin's premises and did not seize any of his clothing. He criticised the fact that Mr Benjamin was not questioned by the police about what he was doing between 5th and 10th June 1997. He said to the jury that the police had "done a half-hearted investigation, because they've already got their suspects, and then after that they've sanitised their evidence whether he ever was a suspect … [T]hey failed in their investigation".
122 Sully J referred to this argument when directing the jury. He said that the argument was as follows:
"The investigating police came fairly rapidly to a point where they felt they had a case against Ms Yeo and Mr Galea. They proceeded accordingly and arrested them and in due course charged them. Thereafter the police clung through thick and thin to their theory that Ms Yeo and Mr Galea are the people properly to be brought to book in connection with the death of Christopher Dorrian; and the police simply turned a blind eye - my paraphrase, but that is what the submission comes to, - turned a blind eye to anything that looked as though it might blow off course the case theory that the police had actually settled … In other words, the police were not interested in pursuing Mr Benjamin because to do that might have upset the symmetry, as the police saw it, of the case they saw themselves as having against the other two."
123 His Honour then commented:
"You would not need me to tell you in any extended way that that is a very serious allegation. That amounts to saying that the police, if they didn't, in the crudest terms, suppress relevant material, at least, and as I said earlier, deliberately turned a blind eye to the potential of any case that might be made against Mr Benjamin.
It suffices if I say this to you, and this is a direction of law: there is no evidence at all to support an allegation of that character. Please be clear about that."
124 The judge then turned to another aspect of trial counsel's remarks concerning the police. He directed the jury:
"Again, my paraphrase; but as I understand the way the matter is put it goes something like this. The whole address of the investigating police, but in particular the case officer, Chief Inspector Williams, to anything that touched Mark Benjamin was marked by professional incompetence at the best. As a result of that professional incompetence (so it is argued), nothing was done to explore in any kind of professional, and professionally competent, way whether Mr Benjamin, upon proper investigation, might be thought to fit somewhere into this particular crime, and if so, where and when and how. As a result of that (so it is argued), he was not finally located and produced before a Court until February of last year …
It follows (so the arguments proceed), that by then something like three or four years had passed, a little more indeed had passed; and leads which might otherwise have been followed up to advantage, proper advantage, by the accused, had in fact been closed off to him because they had gone cold. Some examples have been given. There had been no opportunity, it is suggested, for the accused to have ensured that a proper investigation was done at the time back in 1997 of, for example, the clothing of Mr Benjamin; and that clues like that were followed up in a professional way."