Regina v Gilbert Adam

New South Wales Court of Criminal Appeal CITATION : Regina v Gilbert Adam [1999] NSWCCA 197 FILE NUMBER(S) : CCA 60017/99 HEARING DATE(S) : 28 May 1999 JUDGMENT DATE : 23 July 1999

PARTIES : Regina v Gilbert Adam (aka Daewood Odishou) JUDGMENT OF : Spigelman CJ; James J; Bell J

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70218//98 LOWER COURT JUDICIAL OFFICER : Wood CJ at CL

COUNSEL : Appellant: P Byrne SC/CC Waterstreet Respondent: CK Maxwell QC/GE Smith SOLICITORS : Appellant: Murphy's Lawyers Inc Respondent: R Gray CATCHWORDS : CRIMINAL LAW; murder; appeal against conviction; verdict; whether unsafe and unsatisfactory; CRIMINAL LAW & PROCEDURE; application for discharge of jury; inadvertent and potentially prejudicial event ; (material before jury not admitted into evidence); whether direction overcame prejudice; EVIDENCE; hearsay rule; exceptions; evidence of previous representation admitted because relevant for a purpose other than proof of the fact intended to be asserted by the representation; (Evidence Act 1995 (NSW) s60); relevance ; whether 'purpose' to be ascertained subjectively or objectively; EVIDENCE; hearsay; exceptions; criminal proceedings where maker available; (Evidence Act 1995 (NSW) s66); 'fresh in the memory' Crimes Act 1900 ACTS CITED : Criminal Appeal Act 1912 Evidence Act 1995 M v The Queen (1994) 181 CLR 487 Jones v The Queen (1997) 191 CLR 439 Crofts v The Queen (1996) 186 CLR 427 R v Philip Harold Bell (unreported, CCA, 8 October 1998) Blewitt v The Queen (1988) 62 ALJR 503 Hammer v S Hoffnung & Co Limited (1928) 28 SR (NSW) 280 CASES CITED: Regina v Hawes (1994) 35 NSWLR 294 Regina v Thompson (1964) QWN 61 Regina v Hall (1986) 1 Qd R 462 Regina v GAC (NSWCCA 1 April 1997) Lee v Regina (1998) HCA 60; (1998) 157 ALR 394 Graham v The Queen (1998) 72 ALJR 1491 Waterford v The Commonwealth (1986-87) 163 CLR 54 DECISION : See paragraph 143

Friday, 23 July 1999 REGINA v Gilbert ADAM (aka Daewood ODISHOU)

1 THE COURT: This is an appeal by Gilbert Adam against his conviction and sentence following a trial before Wood CJ at CL and a jury which concluded on 24 December 1998. On that date the appellant was found guilty of the murder of David Carty, an off-duty police officer, who was killed on the evening of 18 April 1987 in the car park of the Cambridge Tavern Hotel, Fairfield. 2 The appellant was jointly indicted with his brother, Richard Adam. The appellant was also indicted on a count of assault occasioning actual bodily harm. This count alleged that the appellant had assaulted an off-duty police officer, Michelle Auld. The jury returned a verdict of not guilty by direction in respect of this count. Richard Adam was found not guilty of murder and not guilty of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm but guilty of the statutory alternative of maliciously inflicting grievous bodily harm contrary to s 35 Crimes Act 1900. He, too, brought an appeal to this court against conviction and sentence. Both appeals were listed for hearing together before the same bench of this court. The court heard the appeal of Richard Adam, reserved its decision, and then the appeal of Gilbert Adam. 3 The appellant was arrested on 17 July 1997. He was refused bail and has been in custody since that date. He was sentenced on 19 February 1999 to a total term of 28 years' penal servitude. The minimum term specified was of 21 years to date from 17 July 1997 and to expire on 16 July 2018. An additional term of 7 years to date from 17 July 2018 was specified.

4 At about 7.00pm on 17 April 1999 Constable Brenton Charlton patrolled Spencer Street, Fairfield, in the company of his colleague Senior Constable Chris Tannous. He noted that several groups of people were congregating there and that some members of a local group known as the 'Assyrian Kings' were present. He had a conversation with a man named Thamir Sako. There was evidence that Edward Esho, James George and Amir Yaco were present with Thamir around this time. 5 Constable Simon Clarke was working the evening shift with his colleague Constable David Carty. They patrolled the central business district of Fairfield and, at about 9.00pm, walked down Spencer Street. There they encountered three men of middle eastern appearance, and Carty spoke to one of the men concerning the use of offensive language. Clarke identified the three men as Edward Esho, Sandro Mirad and Raffi Khedlarian. Dennis Oshana was in Spencer Street at this time, and gave evidence indicating that the person to whom Carty spoke was Edward Esho.

6 At about 10.00pm a further patrol of Spencer Street occurred. Constable Charlton spoke to two men concerning the presence in the street of empty beer bottles, which one of the men proceeded to collect and dispose of. Charlton later identified that man as Edward Esho.

7 During the course of the evening, various younger members of the Assyrian community in Fairfield appear to have gathered at a section of the Crescent Hotel known as 'Smarties'. Thaier Sako was at Smarties with his brother Thamir Sako, James George and Amir Yaco. He also saw both Gilbert and Richard Adam during the course of the evening. Dennis Oshana said that he went to Smarties and encountered Thamir Sako and Thaier Sako. 8 The manager of the Crescent Hotel observed some ten to fifteen 'Assyrian' people among the hotel's patrons on that evening and considered that their mood had become somewhat aggressive. The appellant was one of the members of the group. This group was asked to leave following an incident in which some beer bottles were thrown. They left at about 12.30am.

9 From some time around 11.00pm various police officers, as they came off duty, gathered at the Cambridge Tavern Hotel for drinks. Among those present were officers Carty, Clarke, Charlton, Tannous, Spencer and Auld.

10 From sometime shortly after midnight it appears that a number of young Assyrian men gathered at the Cambridge Tavern Hotel. Marilou Capuyan observed a group enter the Karaoke bar around that time. Phillip Ritzmann, barman/security officer, saw a number of young people of Arabic appearance near the front of the hotel looking through the tavern window. He described them as 'karate kicking' and generally 'mucking around'. 11 Tony Bakos gave evidence that he went to the Cambridge Tavern Hotel with Dennis Oshana, Ashur Dahmo, James George, Thamir Sako and others. On entering the Karaoke bar, he saw a group of persons including Thamir Sako, Richard Adam and Gilbert Adam sitting at the bar. He noted that several police officers were present in the public bar area. Dennis Oshana said that he went to the hotel with James George, Thamir Sako, Thaier Sako, Tony Bakos and others. Through the tavern window he noted several police officers. With his companions, he moved into the Karaoke bar.

12 Witnesses gave evidence of what might be described as exchanges between members of the 'Assyrian' group and the off-duty police officers. Trevor Davies observed members of the 'Assyrian' group look at the police officers. One member of the group, wearing a light T-shirt with three red stripes, "raised his middle finger in the air, then put his fists together downwards and pulled them apart. He then ran his right finger across his throat going from right to left". Constable Charlton noted the group of young Assyrian males acting suspiciously, and spoke to the barman about them. Constable Auld gave evidence that several of the group members appeared to be looking through the tavern windows at the police, and said that two or three of them walked into the public bar area (where the off-duty officers were seated) and looked at them. Constable Spencer observed a group of Assyrian men walk to the front windows of the tavern at about 1.00am. He said that Constable Carty told the assembled police officers of the encounter with the young men in Spencer Street at 9.00pm.

13 It seems that there were also certain tensions within the Karaoke bar among members of the group of young men. Bakos gave evidence that there appeared to be some problem between Richard Adam and Dennis Oshana. Oshana indicated that he had argued with Richard Adam. Several witnesses also gave evidence relating to the conduct of Gilbert Adam in the Karaoke bar. Gilbert Adam jumped over the counter in search of a drink, only to be told that the bar was closed. He then jumped back to the other side. Marilou Capuyan, Marcelo Serrado, Ronny Bakos and Tony Bakos all gave an account of this incident. Tony Bakos also gave evidence, however, that as he jumped back over the counter, a knife fell from Gilbert Adam's belt. According to Bakos, Gilbert Adam retrieved the knife and left the bar. Neither Serrado nor Capuyan gave evidence which was corroborative of Bakos' observation of the knife attached to Gilbert Adam's belt. Ronny Bakos saw something fall from Gilbert Adam's pocket. Shortly after this incident, Tony Bakos and Dennis Oshana went outside, and stood somewhere in the vicinity of the tavern door.

14 Inside the Karaoke bar, the general behaviour of the 'Assyrian group' was causing some difficulty. Trevor Davies saw Ritzmann speaking to members of the group. He gave evidence that Ritzmann blocked the doors; that the group dispersed and returned a short time later in increased numbers; and that at that time Ritzmann prevented their entry into the bar area.

15 By about 2.15am, the only off-duty police officers remaining at the hotel were Constables Carty, Auld and Spencer. Both Auld and Spencer gave evidence that upon leaving the tavern there were about ten young men of Arabic appearance standing around the tavern door and in the carpark. Auld saw Spencer walk to his car and drive off. Auld also went to her car, started it and reversed to where Carty's white utility truck was parked. She walked over to Carty's car, and received a video cassette from him. She then returned to her own car.

16 Although there is considerable disparity in the evidence given by the various witnesses as to the identity of the persons involved in the following incidents and the precise sequence of events, the following matters can be stated with some certainty. Constable Carty became involved in an altercation of sorts with (initially) at least one person (and it seems reasonably clear that that person was one of the young people of Assyrian background assembled in the environs of the Cambridge Tavern Hotel). A number of the other men forming part of that group moved over towards Carty's car. The altercation escalated, and during the altercation Carty suffered a knife wound to the chest which ultimately proved fatal. Thaier Sako received a knife wound to the neck at about the time of the altercation between Carty and the other men, and thereafter moved away from the main arena. Several members of the group of young men were observed kicking, and stomping on, the body of Carty. Auld attempted to assist Carty, and in so doing suffered injuries apparently inflicted by a member or members of the group of young men.

17 Constable Auld gave evidence that as she was moving towards her car she saw a man ("the first man") walk past the car door and approach Carty. Carty was still standing beside his white utility truck. The driver-side door was open and the engine was running. Auld saw the first man speak to Carty, and saw Carty reply. During the exchange some eight to ten men of Arabic appearance approached Carty and formed themselves into a semi-circle around him. Auld's evidence was that the exchange between Carty and the first man became somewhat heated. Some of the other men seemed to Auld to become involved in the altercation. She saw the first man step towards Carty and push him. Carty stumbled and pushed the first man back. The other men moved closer towards Carty and the first man. She then observed a look of horror on Carty's face, and saw blood spurting from his chest.

18 Tony Bakos, who, with Dennis Oshana, was at this time standing outside the tavern door, heard sounds of an argument coming from the car park, and gave evidence to the effect that he saw Carty pushing Thaier Sako. Dennis Oshana also heard the argument. His evidence was that some of the young men who approached Carty stayed about five metres away from Carty, while others were within about one metre. Oshana further testified that Edward Esho, Gilbert Adam and James George were among those who were about one metre away from Carty. Thaier Sako was in the vicinity, and kept moving around in an attempt (according to Oshana) to 'have his say'.

19 Michael Batterham gave evidence that, looking out the Tavern window, he saw two men in the car park involved in an altercation. One of the men lunged towards the other, and that other man fell to the ground. He then saw a third man, wearing a red striped T-shirt, approach and stomp (with one leg) on the fallen man. These three men were then joined by roughly another six. His evidence was that the person who lunged at the fallen man (Carty) had long hair which was held in a pony-tail, and which had been shaved at the sides. On cross-examination, Batterham identified this person as Amir Yaco. Davies also observed the fight through the tavern window. He saw one man being punched and kicked by about twenty persons of middle eastern appearance.

20 Thaier Sako gave evidence at trial that after leaving the Karaoke bar he saw a man near a small truck. This man was looking at Sako, and swearing at him. He approached him. The man grabbed him by the neck and pushed him so that he fell over. As he got up Sako noticed that he was bleeding from the neck. His evidence was that there was no one near either himself or his aggressor. Thaier Sako had previously been interviewed by the police, and the information given on that occasion was not consistent with the version supplied in evidence at trial. Sako told the police that on leaving the Karaoke bar he had seen Edward Esho and Gilbert Adam speaking to and pushing a police officer. Sako approached, and was himself pushed back by the police officer. Sako recovered, only to be pushed over once more, this time by Gilbert Adam and Edward Esho. He saw that Gilbert Adam and Edward Esho were punching the police officer, and he thought that Gilbert Adam had something in his hand, although he was unable to give any indication of its nature. The evidence of Thaier Sako is considered in relation to ground 3 below. 21 Bashar Hurmiz, who was called by the Crown at the request of the defence, testified that he saw Edward Esho and Thaier Sako arguing with a police officer. He saw the police officer push Sako and hit him in the neck. Blood began to flow from Sako's neck. Hurmiz further said that after Thaier Sako was struck, he saw Sako pull out a machete from underneath his shirt and throw it on the ground. Hurmiz later saw Tony Bakos pick the machete up.

22 Constable Auld said that upon seeing the blood spurting from Carty's chest, she ran towards the bar area of the Cambridge Tavern Hotel. Ritzmann said that shortly after the off-duty police officers had left the bar he was alerted by another barman that there was a fight taking place in the car park. He moved towards the Casino Bar doors in order to obtain a better view of the altercation, and as he did so Constable Auld ran in. He described her as hysterical and shouting out that 'Dave' had been hurt.

23 Constable Lisa Stowar took a call from Constable Auld at 2.24am and broadcast a computerised incident dispatch message.

24 Trevor Davies said that several minutes after the attack on Carty began he saw several members of the group of young men walking back in the direction of the Cambridge Tavern Hotel carrying a person covered in blood. While this was occurring three or four people were still kicking Carty. Having deposited the other injured person near the doors of the tavern, Davies saw the several young men return to the area where Carty was lying and rejoin the attack. Tony Bakos gave evidence that after Carty pushed Thaier Sako, he saw Sako holding his neck which was bleeding. He walked Thaier Sako to the tavern doors. 25 Riztmann went out into the car park after he saw Constable Auld run into the bar to telephone the police. He observed a male person of Arabic appearance lying on the footpath near the tavern door, surrounded by a number of people. He also saw five to seven people in the vicinity of Carty's utility who were kicking and jumping on someone. He instructed them to cease and approached, at which point the attackers fell back. He observed Carty, and noted that his face and chest were covered with blood. He felt at that point that Carty was dead. He saw that Auld was moving back in the direction of Carty. The group of men started to attack Carty again, and when Auld reached them she attempted to pull some of them away. Ritzmann saw members of the group push and hit her. Ritzmann said that he himself was pushed in the back by one man who said, "Look, it's got nothing to do with you, you're not involved with it … Get back inside, or you'll cop it too". This alarmed Ritzmann and he moved back inside the Tavern. As he did so, he heard some of the men yelling, "Kill him" and similar exhortations. As he was nearing the tavern doors he saw a man of Arabic appearance with dyed blond hair standing near the other injured man. This man with the dyed blond hair moved in the direction of the group attacking Carty. Once inside the bar area, Ritzmann telephoned Fairfield Police seeking more police cars and an ambulance. The man with the dyed hair came into the bar area and demanded that an ambulance be called. On being assured that this had been done, the man said words to the effect of, "My brother is dying".

26 Auld's evidence was that when she returned to the car park after having lodged the emergency call there were about ten men striking and kicking Carty. Some of them also began to punch Carty on the chest among other places, and she ran over to assist him. She attacked the surrounding men, hitting some of them in the chest area. She was struck twice on the left cheek. Shortly thereafter the first of the police vehicles arrived.

27 Trevor Davies gave evidence that once the majority of the group had moved away from Carty, one member returned and jumped up and down on the officer's body with both feet for about 30 seconds. Davies said that this person was the same person who had made the aggressive gestures in the bar earlier in the evening. This person was wearing a T-shirt with three red stripes.

28 The first officers on the scene were Constables Richard Reid and Juan Castellaz-Faico. Reid noted the presence of a number of men near the door of the Cambridge Tavern Hotel, one of whom was lying on the ground and bleeding profusely from the neck. He also saw Carty lying in the shadows of the car park. Carty was alone. There was a quantity of blood on his shirt, a gash to the left side of his nose, and lacerations to his ear. He heard Carty gasping for air and shortly thereafter came to the conclusion that Carty was no longer breathing. He attempted resuscitation, and then yielded to the ambulance officer who commenced cardio pulmonary resuscitation before removing Carty. Castellaz-Faico attended the injured man at the tavern door. Among those present was a man in a white striped shirt whose hands and shirt were covered with blood. This person said to Castellaz-Faico that the "cop" had slashed the injured man with a machete. Some time later this person asked Castellaz-Faico, "What are you going to do? Somebody slashed my brother and I killed him". Castellaz-Faico later identified this man as Thamir Sako.

29 After these events, Tony Bakos and Dennis Oshana walked away from the Cambridge Tavern Hotel and in the direction of Spencer Street. Both of them saw Gilbert Adam and Richard Adam talking to each other. Tony Bakos' evidence suggested that Richard Adam went back in the direction of the tavern/hotel, and that Bakos then spoke to Gilbert Adam about the location of Gilbert Adam's pocket knife. According to Bakos, Gilbert Adam replied, "I don't know what you are talking about", and then walked away. Dennis Oshana said that Tony Bakos stopped to talk with one of the Adam brothers about a knife. Oshana was not able to indicate whether the conversation was with Richard Adam or with Gilbert Adam. Oshana further noticed that the clothes of either Richard Adam or Gilbert Adam were stained with blood (which blood appeared to Oshana to be fresh). Later, Oshana saw the same person in clean clothes near the Kentucky Fried Chicken ("KFC") outlet. In examination in chief, Oshana was unable to indicate which of the Adam brothers was wearing the blood-stained shirt. In cross-examination, however, he indicated that Gilbert Adam was wearing the blood-stained clothes (and, consequentially, that it was Gilbert Adam who appeared some time later in fresh clothes). Tony Bakos' evidence was that about half an hour after the discussion with Gilbert Adam about the pocket knife, Bakos saw Gilbert Adam arrive in fresh clothes with another person. Gilbert Adam told Bakos that he had gone home to change his clothes because they were dirty. 30 Peter Ellis, the Director of Forensic Medicine at Westmead Hospital, performed the post-mortem on the body of David Carty. The most prominent wound was a stab wound at the centre of the chest towards the lower end of the breast bone. He also found a shallow incised wound on the back of the trunk below the shoulder blade and a curved incised wound in the shape of a semi-circle on the top of Carty's head towards the front. There was a deep incised wound on the left side of Carty's nose which virtually severed it, and an incised wound had removed the back of the left ear and cut into the side of the left scalp. Bruising and abrasions were visible on the left cheek, and there were further abrasions to the face, neck, chin, eye and head which, in Dr Ellis' view, were consistent with 'blunt trauma'. He concluded that death resulted from blood loss following the stab wound to the chest.

31 The Notice of Appeal specified five grounds of appeal against conviction. Those were as follows:

(1) The jury's verdict was unsafe and unsatisfactory.

(2) The judge erred in admitting the statement of Detective Sergeant Hans Rupp and the judge failed to discharge the jury following this illegal admission.

(3) The judge erred in admitting Thaier Sako's evidence.

(4) The judge erred in relation to his directions regarding the elements of "acting in concert" regarding the murder and maliciously inflicting grievous bodily harm.

(5) The judge erred in failing to discharge the jury after the evidence of Tony Bakos. 32 Preliminary submissions were filed by trial counsel, Mr Waterstreet. Those submissions were addressed to grounds 1-3. On the hearing of the appeal Mr Byrne SC appeared with Mr Waterstreet. Additional written submissions confined to ground 3 were filed. No submissions were advanced either orally or in writing in support of grounds 4 and 5. Ground 1 - The jury's verdict was unsafe and unsatisfactory

33 This ground of appeal is properly described by reference to the terms of s 6(1) Criminal Appeal Act 1912 as being that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that there has been a miscarriage of justice. The principles to be applied by this court in determining an appeal on this ground are as stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 492-494 and in Jones v The Queen (1997) 191 CLR 439 per Gaudron, McHugh and Gummow JJ at 450-451: "In M , Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe and unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that: 'In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.' The majority judges explained the application of the test as follows: '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. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'." 34 It was the Crown case that the appellant was one of at least three people who first approached the deceased in the car park of the Cambridge Tavern. The three were Thaier Sako, Eddie Esho and the appellant. Esho was harbouring resentment towards Carty from the incident earlier in the night. An argument developed and Thaier Sako was by accident stabbed in the neck by a person other than David Carty. It was the Crown case that the appellant stabbed David Carty in the chest or, alternatively, that the appellant encouraged or assisted whoever did. 35 The evidence upon which the Crown relied in support of its case (as put on either basis) against the appellant was as follows:

(i) The appellant's admission to Mrs Salwa that he hit the policeman with the knife once.

(ii) The account given by Thaier Sako to the police in his ERISP that the appellant had something in his hand and he was punching the policeman with it.

(iii) The evidence of Dennis Oshana who described the appellant together with Thaier Sako and Eddie Esho as present at the commencement of the confrontation.

(iv) The evidence of Tony Bakos that the appellant had delivered a "round house right" from the hip upwards and that the deceased fell to the ground.

(v) Evidence that the appellant had a knife on him some time shortly prior to the killing. The knife was said to be of a size consistent with post mortem findings as to the weapon which had inflicted the fatal wound.

(vi) Evidence of consciousness of guilt comprising: (a) flight - the appellant left the scene shortly after the killing of Constable Carty;

(b) evidence that the appellant changed his clothes shortly after the killing;

(c) evidence that the appellant burned the shirt and pants he had been wearing that evening;

(d) lies - the appellant told the police that he was not present at the time when Constable Carty was attacked; and

(e) threats made to a potential witness, Mrs Salwa. 36 To understand, in part, the challenge made by the appellant it is necessary to bear in mind that neither Gilbert Adam nor his brother Richard were members of the group known as the "Assyrian Kings". There is evidence to suggest that some members of that group were involved in the assault upon David Carty. For this reason the appellant divides the eye witnesses who gave evidence at the trial into two groups: (i) those who could be described as generally reliable in the sense that they had no association with the Assyrian Kings (Davies, Batterham, Ritzmann and Capuyan) and (ii) members of the Assyrian Kings (Tony and Ronny Bakos, Dennis Oshana and Thaier Sako). As to the latter group it was submitted that their evidence was unreliable and likely to have been coloured by a desire to protect fellow members of the Assyrian Kings. 37 The evidence given by Davies and Batterham was in some respects inconsistent with the way the Crown put its case against the appellant. In particular, it was Mr Batterham's evidence that Amir Yaco was the man who lunged towards the deceased (in circumstances suggestive of him as the stabber). The appellant submitted that both Mr Batterham and Mr Davies were mature men who were unknown to any of the participants in the events of the evening. There was no reason for them to colour the version that they gave. 38 As to the witnesses Oshana and Tony and Ronny Bakos it was noted that none had, in the course of initial interviews with police, referred to the appellant by name. Although, in the case of Oshana, the force of this submission is weakened by the fact that in his initial interview with police on 20th April he described a person fitting the general physical description of the appellant as present and involved in the argument between Thaier and Constable Carty.

39 The evidence of Tony Bakos possessed a number of unsatisfactory features. During the course of his cross-examination he withdrew significant portions of his evidence. In particular, he withdrew his evidence as to having seen the appellant deliver a "round house right" to David Carty. He agreed with the proposition put by Mr Waterstreet that he had imagined this portion of his earlier evidence. The Crown conferred with Tony Bakos prior to re-examination and subsequently he withdrew a further portion of the evidence which he had given in chief. 40 Ronny Bakos withdrew the evidence he had given as to seeing a knife fall from the appellant's pocket. He agreed it may have been a comb. 41 The evidence of Dennis Oshana has been analysed in detail in the judgment of this court in the related appeal of Richard Adam. Suffice it to say that the conclusion reached from reading the transcript of his evidence is that its general quality was not high.

42 The evidence of Thaier Sako is dealt with separately in relation to ground 3. For the purpose of considering the present ground his evidence may be put to one side entirely. 43 The evidence of the witness Mrs Salwa needs careful examination in the light of the submission that that the verdict is unreasonable and cannot be supported by the evidence. A summary of the critical aspects of her evidence is set out below.

(i) Mrs Salwa is the cousin of the appellant. She had been on friendly terms with him and his brother Richard. At around 4.00am on the morning of the death of Constable Carty the appellant called to Mrs Salwa's home. As soon as she let him in he went to the kitchen and made a telephone call. She understood him to speak with the wife of his brother, Richard. He asked whether Richard had returned home. Mrs Salwa asked what had happened that required him to ring his brother's home at that hour. She described the appellant as being shaky. He told her he just wanted to find out if Richard was at home.

(ii) Mrs Salwa had seen the appellant the previous evening. At that time he was wearing black trousers and a beige shirt with brown shoes. He had said he was going to the pub. She noted he was wearing different clothes when he called at 4.00am.

(iii) The appellant slept at Mrs Salwa's house following his early morning arrival. Later that morning she went with him to his family home. She was present when he burned the beige shirt she had seen him wearing the previous night. He said, "I was wearing this in the pub and I am burning it". He also said, "They might come and investigate and I don't want them to know that this shirt, I was wearing there". He poured kerosene on the shirt and burned it and washed the ashes away.

(iv) On the same day Mrs Salwa watched the appellant as he washed his car. She had seen him driving the same car the night before. He washed it at the back of her house. He also cleaned out the interior. He said he was cleaning the car in case "something is in the car, spots of blood or something, so it won't be seen". Mrs Salwa did not see spots of blood either inside the car or on the shirt.

(v) About four or five days later the appellant asked Mrs Salwa to hide the pants he had been wearing on the night. Mrs Salwa put them in the wardrobe in her son's room. About three days after this the appellant called on Mrs Salwa with his brother Richard. They said that the pants were to be burned because they had blood on them. The pants were laid out on the bed in Mrs Salwa's son's room during this discussion. She did not see any blood stains on them. The appellant told her that they had been washed. The appellant and his brother burned the pants in the back yard at Mrs Salwa's home and after so doing they flushed the ashes down the toilet.

(vi) About two days before the death of Constable Carty, Mrs Salwa saw the appellant with a knife. It had a walnut-coloured timber handle and was a fold-up style. When the blade was extended it was about 19/20 cms in length. Subsequently the police took Mrs Salwa to a sports store where she identified a knife as being similar to the knife that she had seen the appellant with prior to the death of Constable Carty. The knife she selected was one which might have inflicted the chest wound which caused Constable Carty's death.

(vii) About one week after the death of Constable Carty the appellant called to Mrs Salwa's home at about 7.30pm. The had a conversation in the small hallway of her home. The appellant appeared to be affected by alcohol. The conversation was in these terms: "A. I asked him about this police was killed, 'What have you here?' I ask him. Q. And what did he say?

A. He was laughing and he said, 'I hit him once, too'.

A. I said, 'Why did you do that?' He said, 'Everybody else did, and I did too'.

Q. And did you notice anything about him, apart from laughing, about his manner?

A. He was saying that, why he was laughing, 'I am going to go for ten years'.

A. In gaol." The appellant did not stay long at Mrs Salwa's home on this occasion. He said to her, "Don't tell to anyone".

(viii) After the conversation in which he admitted to hitting the policeman the appellant threatened Mrs Salwa on a number of occasions. He told her she should leave Sydney. The appellant also spoke of the house being bugged and on an occasion when he and his brother were both present one said in the presence of the other that the telephone might be "censored". 44 On 16 July 1997 Mrs Salwa went with her husband and her brother to the police and complained that the appellant was making threats to her. 45 The appellant did not give evidence. Mrs Salwa's version although challenged in cross examination was uncontradicted. Her evidence, if accepted by the jury, was itself a sufficient basis upon which the appellant might have been convicted of the murder of Constable Carty. 46 The force of the submission that the Crown's case against the appellant was inconsistent with the evidence of Mr Batterham and Mr Davies needs to be evaluated in the light of the evidence which established that Constable Carty was suffered a number of wounds inflicted with a knife or other cutting weapon. The incident took place quickly and a number of persons were present. The admission made to Mrs Salwa was capable of proving that the appellant was one of the persons who stabbed Constable Carty. 47 Mrs Salwa's evidence tended to support the evidence of Dennis Oshana and Tony Bakos that the appellant had changed his clothes in the immediate aftermath of the attack on Constable Carty. If the evidence of Oshana and both Bakos brothers was accepted that the appellant had left the scene and returned dressed in different clothes, it was open to the jury to conclude that the appellant lied in his interview with the police as to his movements and that the lies evidenced his consciousness of his guilt. Mrs Salwa's evidence was also able to found an inference of the appellant's consciousness of his guilt. 48 Mr Byrne submitted that Mrs Salwa's evidence was inherently improbable and that a reading of it would suggest doubts as to her reliability. These were said to arise in two ways. Mrs Salwa had "psychiatric difficulties" and she had a motive to make false allegations against the appellant. 49 Mrs Salwa was cross examined about aspects of her medical history. She agreed that she had been admitted to Fairfield hospital on 13th April 1997 having taken an overdose of tablets. She did not agree that she had made any deliberate attempt on her life. Her account was that she had been tired and had low blood pressure. In May of 1996 Mrs Salwa had been admitted to hospital after an incident at her home. She remembered that she had been sitting at home with her husband and children when she had felt uncomfortable and later an ambulance attended. She denied that she had suffered a "panic attack" on that occasion. She said she had felt dizzy and sick. 50 At trial Mr Waterstreet had suggested that Mrs Salwa was motivated to make false allegations against the appellant for "revenge, vengeance, spite, sexual obsession". Mrs Salwa denied that she had engaged in a sexual affair with the appellant. She agreed that she and her husband had been separated. There was one occasion when the appellant had slept in her bed but she denied that there had been sexual relations between them. 51 The suggested motive was not established. Even if Mrs Salwa and the appellant had been on intimate terms in the past, it is a substantial leap to infer that the breakdown of their relationship might move her to falsely implicate him in a murder. The evidence as to Mrs Salwa's medical history does not on a reading of the transcript raise concerns as to her ability to give reliable evidence. 52 Mrs Salwa did not say that the appellant had admitted to being one of those who struck Constable Carty when she gave evidence at the committal hearing. At the trial when asked about that omission she said that she had been afraid on the earlier occasion. There was thus an inconsistency between Mrs Salwa's evidence at trial and committal on a crucial matter. However, it should be noted that she had been asked at committal, and agreed, that in a recorded interview with Sergeant Dayment made on 27 July 1997 she had said that the appellant told her, "I only hit the policeman with the knife once only". 53 A reading of Mrs Salwa's evidence does not suggest that it lacks cogency, or displays discrepancies or other inadequacies such that this court would conclude that it was not open to the jury to have relied upon it as tending to establish the appellant's guilt. The challenge as to Mrs Salwa's suggested fragile mental state and the alleged motive for revenge was a matter for the jury to evaluate in the light of its assessment of her. 54 The court is not persuaded on a review of the evidence that this ground has been made out.

Ground 2 - The trial judge erred in admitting the statement of Detective Sergeant Hans Rupp and failed to discharge the jury following this illegal admission 55 This ground of appeal was stated in the above way in the appellant's notice of appeal. In the appellant's written submissions the ground of appeal was said to be "the irregularity of the statement of Detective Hans Rupp in the jury room". It is clear that the real ground of appeal is that the trial judge erred in not discharging the jury, after it was discovered that a written statement of Detective Rupp had been in the jury room. Detective Rupp's statement had not been admitted into evidence, so that the allegation in the ground of appeal in the notice of appeal, that the judge had erred in admitting it, is clearly wrong. 56 Detective Rupp gave oral evidence in the Crown case. So far as the appellant Gilbert Adam is concerned, he gave evidence that on 22 April 1997 he had interviewed the appellant and on 22 July 1997 he and another police officer had arrested the appellant at the home of his cousin Mrs Salwa and conveyed the appellant to the Fairfield Police Station, where the appellant was charged with the murder of David Carty and Detective Rupp had some other dealings with the appellant. 57 Detective Rupp had made a number of written statements in the police investigation into the death of David Carty, including a statement made on 22 July 1997. This statement included the following paragraphs, in which the appellant is referred to as "the defendant". "35. About 9.10pm on 17 April 1977 (this was a wrong date and should have been 17 July 1997) Gilbert Adam was arrested by Detective Inglis and I at 57 Nereeni Street, Fairfield Heights. The defendant was wrestled to the ground and handcuffed. At the time he was arrested the defendant said, 'Why I come to my cousin's place?' He then said something in another language. At the time both Mrs Salwa and her brother were present. 36. The defendant said, 'Please, I want to ring my family?' The defendant was then taken to the telephone and I dialled the phone number supplied by the defendant. The phone was held up to the defendant's ear. He said, 'No work." I repeated this on a number of occasions, but no contact was made. 37. A short time later other police arrived and the defendant was conveyed to the Fairfield Police Station. At the Police Station the defendant was taken to an interview room. 38. I said to the defendant, 'I intend to ask you some questions about the murder of Constable Carty on 18 April 1977. You don't have to say or do anything unless you wish but say nothing.' 39. I said, 'You are going to be charged with the murder of Constable Carty, do you understand that? He said, 'Yes'. 40. I said, 'We also require a sample of your blood for comparison purposes. I will arrange to have a police medical officer present to take the sample of your blood. 41. When Dr Moynham arrived at the police station a telephone interpreter was contacted and a request was made for the defendant to supply a sample of his blood. 42. The defendant refused to supply a sample of his blood. The defendant was then charged with murder and the telephone interpreter was again contacted. 43. I spoke with the interpreter and I read out a formal demand to the interpreter and I instructed her to translate demand to the defendant. The phone was handed to the defendant and he spoke to the interpreter. I again spoke to the interpreter and she said 'He objects to the sample being taken, but he will allow you to take it.' I said, 'Will you ask him if he is prepared to sign the consent form?' She said 'Yes'. I then handed the phone to the defendant and he spoke to the interpreter. The defendant handed the phone back to me and the interpreter said, 'Yes, he will sign the form.' I then read the form to the interpreter and handed the phone to the defendant. He had a conversation with the defendant and he returned the phone to me. I said to the interpreter, 'Is he still prepared to sign the form?' She said, 'Yes'. 44. I then handed the form to the defendant and he signed the consent form. Dr Moynham then took the defendant in an interview room and took a sample of blood from the defendant. 45. The defendant was then returned to the cells at the police station". 58 Before Detective Rupp gave evidence at the trial the admissibility of evidence by him in accordance with parts of this extract from his statement of 22 July 1997 was argued. Counsel for the appellant at the trial objected to the adducing of evidence, in accordance with par35 of the statement, that when the appellant was arrested he had been "wrestled to the ground". After some discussion the Crown Prosecutor said that he would not adduce evidence that when the appellant was arrested he was wrestled to the ground. Counsel for the appellant also objected to the adducing of evidence, in accordance with par42 of the statement, that the appellant had initially refused to supply a sample of his blood. It would appear that the Crown Prosecutor agreed not to adduce such evidence. 59 When Detective Rupp subsequently gave evidence, the Crown Prosecutor led him through these parts of his evidence. The following questions and answers occurred in Detective Rupp's evidence in chief:- CROWN PROSECUTOR: Q. Detective Sergeant, is it the case that on 17 July 1997, Gilbert Adam was arrested by you and Detective Inglis at Mrs Salwa's premises at (ADDRESS GIVEN)? A. That's correct. Q. Was it 9:10pm? A. Yes, it was. Q. And subsequently was he conveyed to the Fairfield Police Station? A. He was. Q. And was he subsequently charged with murder? A. Yes, he was. Q. And is it the case that he subsequently signed a consent form for a sample of his blood to be taken by the police medical officer, Dr Moynham? A. That is true. Q. And a sample was taken and submitted to Mr Goetz at the Division of Analytical Laboratories? A. Yes, that's correct. Q. As I said before, there is no suggestion any blood was found on any of the items of clothing." 60 The trial judge concluded his summing-up on 22 December 1998 and the jury commenced deliberating. In the late afternoon of 22 December 1998 the jurors were permitted to separate. At 9 o'clock the following morning the jury re-assembled and resumed deliberating. The jury were in the court room between 10.15am and 11.05am, while questions they had asked were being answered, including a question the answer to which involved reading to the jury much of the evidence of one of the witnesses. 61 The transcript records that after a short adjournment the trial judge said to counsel in the absence of the jury:- "As I have informed counsel, so they could get instructions about it, it has been brought to my attention by one of the jurors, that somehow or another a statement by Detective Sergeant Rupp of 22 July was found by them this morning amongst their papers - their papers, as I understand it, in that jury room, being confined to the exhibits, the transcripts which we have given to them, plus the document that Mr Foord had prepared (a chronology), and the written directions" 62 Counsel for the appellant at the trial applied for a discharge of the jury. Counsel submitted that Detective Rupp's statement contained prejudicial material. He submitted that "a natural inference" from par35 was "that he was either resisting arrest or taking flight, leading to a logical inference of consciousness of guilt", in a case where the Crown Prosecutor was seeking to rely on other evidence as being evidence of consciousness of guilt. It was submitted that the material also suggested that the appellant was a violent person. 63 Counsel for the appellant also submitted that par42 of Detective Rupp's statement was prejudicial to the appellant, because there was a risk of a jury inferring from the appellant's refusal to give a sample of his blood that he had a fear of the truth and because counsel for the appellant in his address to the jury had, in attacking the evidence of the Sako brothers, based a submission on an alleged refusal by the Sako brothers to give samples of their blood. There was no doubt that this submission had been put to the jury by counsel for the appellant but the trial judge raised the question of whether there was in fact any evidence that the Sako brothers had refused to give samples of their blood. 64 It was further submitted by counsel for the appellant that it was in any event prejudicial for a police officer's evidence to be before the jury in written form, that the material had gone to the jury without counsel having had an opportunity of dealing with it by cross-examination of Rupp or in counsel's address to the jury and there was no direction the trial judge could give which could overcome the prejudice the appellant had sustained. 65 The application made by counsel for the appellant for a discharge of the jury was opposed by the Crown Prosecutor. 66 The trial judge refused the application for a discharge of the jury. In his judgment on the application the trial judge set out pars35-45 of Detective Rupp's statement and summarised the events which had happened, the argument about the admissibility of evidence in accordance with parts of the statement, the evidence given by Detective Rupp and the submissions made on the hearing of the application. The trial judge, having had an opportunity of checking the transcript, observed that there was no evidence that either of the Sako brothers had declined to supply samples of blood. 67 In his judgment his Honour said:- "It is a matter of great regret that the document should have found its way into the jury room, but that of itself is not determinative of the question which arises. The test for a discharge of the jury is not in any doubt; there needs to be a high degree of need for such a discharge. See R v Boland (1974) VR 849 at 866-7 and R v George (1987) 9 NSWLR 527 at 532-3. It is appropriate for a trial judge to take into account the length of time which a trial has occupied, along with any inconvenience to witnesses and the cost of another trial, see R v Gallagher (1987) 29 A Crim R at 41. That matter, however, must take second place where the Court takes the view that there is a tangible risk that an accused would be denied a fair trial by reason of the event which has occurred, and is further satisfied that the problem cannot be appropriately cured by a direction to the jury. In this latter regard, it is to be assumed that the jury will accept the direction given: R v Masland (Court of Criminal Appeal New South Wales 1992, unreported) and R v Lansdell (Court of Criminal Appeal New South Wales 22 May 1994, unreported). 68 His Honour then referred to R v Domican (1990) 46 A Crim R 428 (reversed but not on this aspect, in Domican v The Queen (1991-1992) 173 CLR 555). His Honour continued:- "In that case, six photographs, which were not exhibits, found their way into the jury room. The photographs were themselves apparently innocuous and were similar to others which had been tendered and admitted into evidence. As Kirby ACJ observed at 448: 'There is no doubt that the presence in the jury room of material which was not in evidence, was an irregularity. Its importance in the context of the trial was a matter for the assessment of Roden J. This Court would only disturb that assessment where it was convinced that the judge had made a mistake or, otherwise, that a miscarriage of justice had occurred, see Ball (1961) SR (NSW) 37 at 40-41. See also Owen (unreported Court of Criminal Appeal, New South Wales 7 July 1988), Smithson (unreported Court of Criminal Appeal New South Wales, 29 September 1989)' His Honour concluded that the trial judge had not erred in the exercise of his discretion, in refusing to discharge the jury, although: 'Fortified by hindsight, I believe that it would have been preferable for his Honour to have withdrawn the photographs from the jury room and not to have returned them to the jury. I also believe that he should have given a specific instruction that the non-exhibit photographs were to be entirely ignored.' His Honour concluded in relation to this aspect of the appeal: 'As the New Zealand Courts have said in Bates (1985) 1 NZLR 326 and Gillespie unreported Court of Appeal NZ, 7 February 1989, the extra curial information must be on a 'vital' or at least important issue before discharge is required. It is not every irregularity that requires that drastic course'". 69 His Honour the trial judge concluded his judgment by saying:- "I have come to the conclusion, having regard to the somewhat peripheral and inconsequential nature of the paragraphs in question, that the case is one where the error can be dealt with by way of appropriate direction to the jury to ignore the particular paragraphs and to not draw any inference adverse to the accused from them. In particular, I am satisfied that none of this statement goes to a vital or important issue in the trial. So far as the provision of a blood sample is concerned, a direction could be given, if Counsel seeks it, that they are to proceed upon the basis that the accused did, this day, allow a sample to be taken. So far as the arrest is concerned, the paragraph is silent as to the nature of the response by the accused, as distinct from the response by the police. There is no suggestion in paragraph 35, for example, that the accused attempted to depart from the scene or initiated a struggle. It is equally open to the inference that the police reacted in a peremptory way. The paragraph does not, on its face, indicate that the accused did anything either to resist arrest or to escape. His comment is entirely neutral. As I observed, the matter is extremely unfortunate, but I take the view, in all the circumstances of the case, that the application should be refused. The document should now be withdrawn from the jury, accompanied by an appropriate instruction to them". 70 After the trial judge had given his judgment refusing the application for a discharge, counsel for the appellant asked the trial judge to give the jury a direction to "totally ignore" Detective Rupp's statement. When the jury returned to the court room, the trial judge gave the following direction:- "Members of the jury, I am grateful to you for bringing to my attention this morning that amongst your papers somehow or other there appears to have been a statement by a police officer. It was not an exhibit in the trial. It is not evidence in the trial. It should not have been in the jury room with you. Presumably it has been picked up somewhere amongst the papers as they have been passed around the court, or some other fashion, but it should not have been there. All I can do, I think, is to tell you that you must totally ignore it. It is not evidence from which you may draw any inference of any kind; just put it entirely out of your minds. It is as though it didn't exist. I think that is all I can say. It just does not exist for your purposes and you must not use a single portion of it in any way, either in advance of the Crown case or otherwise. It simply must be ignored." 71 On this appeal it was submitted that the trial judge had erred in not discharging the jury. The submissions which were made on behalf of the appellant were similar to the submissions which had been made at the trial. 72 In his judgment on the application at the trial the trial judge referred, appropriately, to the judgment of Kirby ACJ in R v Domican. The general subject of the principles to be applied on an application for a discharge of the jury on the grounds of "an inadvertent and potentially prejudicial event that occurs during a trial" were discussed by Toohey, Gaudron, Gummow and Kirby JJ in their joint judgment in Crofts v The Queen (1996) 186 CLR 427 at 440-441. In Crofts a complainant had given evidence of acts of sexual misconduct by the accused, which were not the subject of charges and in respect of which the trial judge had given an earlier ruling that evidence of them should not be given. 73 At pp440-441 their Honours said inter alia:- "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript". Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice". 74 Later in their judgment their Honours said at p441:- "…it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account". 75 In R v Philip Harold Bell (unreported, Court of Criminal Appeal 8 October 1998), in which this Court dismissed an appeal from a refusal to grant a permanent stay of criminal proceedings on the grounds of pre-trial media publicity, this Court referred to a number of authorities in which confidence has been expressed by courts in the ability of juries to decide cases on the evidence they hear in the court room, to ignore other prejudicial information and to comply with directions given them by the trial judge. 76 We do not consider that in the present case the trial judge made any error in the exercise of his discretion or that his refusal of the application for a discharge of the jury occasioned the risk of a substantial miscarriage of justice. 77 The principles applied by the trial judge were the proper principles to apply and the factors his Honour referred to were factors he could properly take into account. 78 As his Honour found, neither of the matters particularly relied on, that the appellant was wrestled to the ground when he was arrested and that the appellant initially refused to give a sample of blood, went to a vital or important issue or was "serious in the context of the contested issues". Each was properly described by the trial judge as "peripheral" or "inconsequential". The assertion that the appellant was wrestled to the ground by the police stated nothing about the conduct of the appellant and was as consistent with over-zealous action by the police, as with the appellant resisting arrest. There was no assertion of flight by the appellant. The conduct of the appellant relied on by the Crown as constituting evidence of consciousness of guilt was different, unrelated conduct. After his initial refusal the appellant had agreed to provide, and had provided, a sample of his blood. The appellant's English was imperfect and he had had the assistance of a telephone interpreter only in responding to Detective Rupp. 79 The trial judge was entitled to take into account the stage the trial had reached and that the mishap had occurred apparently inadvertently. 80 The trial judge was able to give, and gave, directions to the jury, which referred specifically to Detective Rupp's statement and which directed the jury to totally ignore the statement. The trial judge was in a superior position to this Court in being able to evaluate the likely effectiveness of the directions. His Honour was entitled to proceed on the basis that the jury could be relied on faithfully to comply with directions given to them. That the jury had itself brought to the trial judge's attention the presence of Detective Rupp's statement in the jury room of itself suggested that the jury had an appreciation of their obligation to reach a verdict, only on the evidence that was properly before them. The trial judge had Detective Rupp's statement withdrawn from the jury. 81 This ground of appeal should be rejected. Ground 3 - The learned trial judge erred in admitting the evidence of the witness Thaier Sako. 82 As the above recitation of the factual chronology makes clear, Thaier Sako was a critical witness. He was one of only three people (one being the appellant) present at the time of what was described as the first wave of the attack. He received an injury to his neck which caused some considerable amount of bleeding. This injury was inflicted during the period that led immediately to the murder of Constable Carty. 83 As the trial proceeded, the Crown did not know what evidence Sako would give if called. A voir dire was conducted before Wood CJ at CL. During the course of this voir dire it became clear that the witness, if called, would not adhere to statements he had made in a police interview. Indeed, if called he would give evidence which would harm the Crown case. Prior to giving evidence Sako was given an indemnity by the Attorney General. Furthermore Wood CJ at CL gave a certificate under s128 of the Evidence Act. The evidence he eventually gave before the jury was in substance that given during the course of the voir dire. 84 Thaier Sako was called by the Crown. During the course of his evidence he indicated that when he left the Cambridge Tavern he walked along the path in front of the hotel and passed a person whom he did not know. The person swore at him, grabbed hold of his neck and pushed him over. Sako then gave the following evidence: "Q Did you get up? A Yes. Q What did you do then? A That when I get up, I saw blood coming from my neck. Q Did you see anybody else near you and that man? A No I didn't. I didn't feel when I fell off and I saw blood I didn't see nothing. Q Before you fell did you see anybody else? A No." 85 Thaier Sako's evidence at this point was contrary to the evidence given, or to be given, by a number of other Crown witnesses to the effect that Thaier Sako received his wound in the course of an altercation between himself and two other persons with the deceased Constable Carty. 86 The Crown Prosecutor sought and was granted leave under s38 of the Evidence Act to cross-examine on a prior inconsistent statement. The Crown Prosecutor put to Sako a statement that he had made to the police on 2 July 1997. During the course of his examination by the Crown on this statement, he acknowledged that he had said to the police interviewer: · when he left the tavern he saw the appellant and Eddie Esho talking to Constable Carty at his car. · he was pushed to the ground by one or both of them during which he sustained the injury to his neck. · he saw both the appellant and Esho punching the deceased. At this time he saw blood coming from the deceased's body - "spitting out" or "sprinkling". · during the acts he described as "punching", he saw that there was something in the appellant's hand. Eddie Esho did not have anything in his hand. 87 His evidence in Court was that, although admitting that he had told the interviewing officer all the matters recorded, he asserted that he was simply reciting what he had been told by others. 88 For example, when his statement that he had seen the two men punching Constable Carty was put to him, he admitted that he had said that, but added: "A No I've said that, I haven't seen nothing. Whatever I've said, I've heard from other people. Q So you say you saw nothing, is that right? A Yes." 89 Eventually, in the following questions and answers he contradicted the key statements he had made in his interview: "Q You saw him on the ground before you went unconscious, didn't you? A No I didn't. Q And you saw Gibbey and Eddy hitting him, didn't you? A No I didn't. Q And you saw that Gibbey had something in his hand, didn't you? A No I didn't." 90 In the course of this cross-examination, he was referred to the statement in his record of interview as to the way in which Eddy was punching down on Constable Carty. He again said that that statement was based on "whatever I've heard". Then the following questions were put: "Q Who told you how the punch was thrown? A No nobody no I don't know they say it "this is the way they hit him". Q Who is 'they'? A I just say, nobody told me, I just. Q You made it up did you? A Yes." 91 Immediately after this, he was asked to demonstrate the punch in the way that he had done to the interviewing officer and then said: "This is what I heard." 92 A few questions later he said with respect to the same demonstration: "Yes I made it up by myself." 93 Sako's evidence was also of significance to provide the context in which to assess the evidence of other witnesses. He was able in his police interview to locate a number of witnesses at the scene and describe their behaviour. 94 For example, he had made reference in the course of his interview, to a woman and had told the interviewing officer: "Yeh when I was bleeding I saw that girl coming out of the car screaming. She saw how Gibbey and Eddy were punching the police."

In his evidence in Court, he refused to confirm his observations of this character. 95 Wood CJ at CL noted the significance of Sako's evidence: "On any view the account that the witness could give, if he tells the truth, is of critical importance in the trial. He was an immediate witness to the first phase of the incident, and save for any of the others who were present in the immediate vicinity at that time, there could be no more relevant or important witness." 96 The purpose of the Crown in calling Sako was set out by Wood CJ at CL in his judgment of 3 December 1998 on the Crown application: "Since it is the Crown assessment that the witness is not now telling the truth, it would not call him at all in the trial unless leave is given, and unless the evidence of the prior representations is allowed to go in as proof of the facts asserted. It would not advance the case at all for the Crown to call the witness to say one thing, and then to neutralise that by an attack on his credibility, through cross-examination on his prior inconsistent statements. Its forensic purpose in calling him would be to get into evidence the substance of what he said in the ERISPs as proof of the facts there asserted." 97 His Honour went on to observe that this course could not have been contemplated before the Evidence Act 1995. His Honour referred to the High Court decision in Blewitt v The Queen (1988) 62 ALJR 503. 98 Mr Byrne relied on Blewitt and submitted that s38 of the Evidence Act should be construed so as not to affect what he described as the "principle" in Blewitt. He submitted that s38 should be read as directed towards the situation where a party calling a witness is confronted unexpectedly by evidence that is unfavourable to that party. 99 The construction of s38 propounded by the applicant would lead to an unnecessary restriction on the words used in the section. Nothing there appears which suggests that the provision is only available in the case of an unexpected eventuality. Indeed, any such construction could lead to the Crown, in the case of a doubtful witness, objecting to an examination on the voir dire, a technique of great significance for the conduct of criminal trials before juries. 100 Section 38 is based on the recommendations of the Australian Law Reform Commission. In its report, the Commission expressly referred to a suggestion that the change in the law should be limited to situations of evidence that is unexpected. It expressly rejected any such restriction. (See Australian Law Reform Commission ALRC 26 Evidence vol 1 par 626). 101 The two relevant passages from the judgment in Blewitt are: "It is established that the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove facts against the accused is improper and might well give rise to a miscarriage of justice. See R v Thompson (1964) QWN 25; R v Hall (1986) 1 QdR 462 at 465-466." (505 column 1 E-F)

The High Court expressed its conclusion, when dismissing the application of this test to the facts of Blewitt, in the following terms: "This was not a case in which the witness was called merely in order to place before the jury the contents of what would otherwise be an inadmissible out of court statement" (505 column 2 F) 102 The words emphasised in these two passages refer to the proposition that under the law, as it existed prior to the Evidence Act 1995 (NSW), the Crown could only cross-examine a witness on prior inconsistent statements on the basis that the examination would not be evidence establishing the truth of what the witness had said, but would only be relevant to the reliability of that evidence. (See eg Hammer v S Hoffnung & Co Limited (1928) 28 SR(NSW) 280 at 284; Hawes (1994) 35 NSWLR 294 at 301). The issue before this Court is whether the comments of the High Court in Blewitt continue to have application after the passage of the Evidence Act 1995, now that the prior statement may be admissible as proof of the facts contained therein. 103 The first of the authorities to which the High Court made reference was the decision of the Queensland Court of Criminal Appeal in Thompson ((1964) QWN 61) where Philp J delivering the judgment of the Court said: "The calling of a witness known to be hostile solely with the motive of using him as a conduit pipe as it were to getting inadmissible evidence would be improper and we should interfere if such a thing occurred." (61) 104 Again the proposition that the evidence was otherwise inadmissible was of central significance in the reasoning. 105 The second authority to which the High Court made reference with approval, was Hall (1986) 1 QdR 462 at 465-466. This decision is determinative of the present case. Subsequent to the decision in Thompson, the Queensland Parliament enacted the Evidence Act 1977 including the following provision: "101(1) Where in any proceeding - (a) A previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of sections 17, 18 or 19; or

……… that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible." 106 McPherson J, with whom Thomas J agreed, noted that s101 had changed the law so that prior inconsistent statements were no longer relevant only to credit. His Honour added: "Logically it also follows that the remarks in R v Thompson (1964) QWN 25 are no longer apposite to cases where the motive for calling a witness is to place before the jury evidence of a prior inconsistent statement which, if proved to have been made by that witness, would tend to establish the facts it contained. It is difficult to see how it can be said to be 'improper' to adopt a course leading to the reception of evidence that is affirmatively declared by statute to be admissible. What was said in R v Thompson does not in terms touch the adoption of such a course because it is confined to conduct that aims to place before the jury evidence that is 'inadmissible'. By the use of that expression I take it that Philp J was intending to refer to evidence that was not admissible for the purpose of proving facts in issue." (465)

In a separate judgment De Jersey J gave reasons to similar effect (474). 107 We find this reasoning compelling. It applies equally to the adoption of the common law principle in the joint judgment of the High Court in Blewitt. This is particularly so because that joint judgment referred to Hall with approval. The first basis on which counsel for the appellant submitted that the evidence of Thaier Sako should have been excluded, should be rejected. 108 Prior to permitting the Crown to cross-examine his Honour made findings of fact in the following terms: "The present case is a case where it is clear that the witness will give evidence, if called in the trial, that is unfavourable to the Crown; it is one where he has given a prior inconsistent statement; and it is also one where I am satisfied that he is not making a genuine attempt to give evidence of matters concerning the events in the car park, of which he may reasonably be supposed to have direct knowledge. Rather, he is on my assessment, attempting to assist the defence and to conceal what he must have seen. Each of the provisions of s38(1)(a) (b) (c) are satisfied." 109 His Honour went on to exercise the powers and discretions set out in s192(2) and ss135-137 of the Evidence Act. 110 The statements made by the witness during the course of the police interview are "previous representations". This term is defined in the dictionary in the Evidence Act to mean: "A representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced." 111 Such evidence will often be relevant and admissible, but for the fact that it falls within the proscription of the hearsay rule set out in s59(1) of the Evidence Act: "59(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation." 112 The statements made by Sako in his police interview were relevant. They were admissible if they fell within one of the exceptions to the hearsay rule. 113 Primary reliance was placed on s60 which provides: "60 The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation." 114 The Crown submitted before Wood CJ at CL and also in this Court, that the previous representations were not relevant only for the purpose of proof of the facts asserted therein. They were also relevant to the credibility of the witness. 115 Counsel for the appellant submitted that the Crown could not rely on this proposition because, as counsel for the Crown below and in this Court accepted, no issue of credibility would have arisen if the witness had not been called at all. Sako was only called in order to prove the prior statements. In our opinion, the Crown's motive for admission of the evidence is not determinative of the issue. 116 The word "purpose" does not mean a subjective purpose of the person seeking to adduce the evidence. The whole phrase is "relevant for a purpose other than proof of the fact intended to be asserted". The word "purpose" refers to the use to which the evidence, if admitted, would be put, as objectively ascertained. The objective nature of the terminology "relevant for a purpose" is confirmed by the definition of relevance in s55: "55(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." 117 When the witness was called, and prior to the grant of leave to cross-examine, Sako gave evidence that was harmful to the Crown case. He admitted his presence at the relevant time in the relevant place but asserted that he had seen nothing and specifically said that he had not seen the appellant at all. It was open to the Crown to attack his credit. 118 In GAC NSWCCA 1 April 1997 the judgment of the Court was delivered by Gleeson CJ. An eleven year old had been interviewed by the police a few days after a murder and robbery. He had given details of the events. When called to give evidence he professed to having no recollection concerning a number of important aspects of the events about which he had made comments in his electronically recorded interview. This is an authority to which Wood CJ at CL made extensive reference in his judgment in the present proceedings. In GAC this Court interpreted s60 as permitting the use of the record of interview, which in that case was itself tendered, to prove the facts stated therein. (See pp 14, 15 and 18). Gleeson CJ concluded: "By virtue of ss60 and 66 of the Evidence Act , the contents of his earlier statements to the police were admissible in evidence, subject to considerations of unfairness or unfair prejudice." (18) 119 A similar issue arose in Lee (1998) HCA 60; (1998) 157 ALR 394; 72 ALJR 1484. In that case the prior inconsistent statement of the witness consisted of earlier statements in which the witness had said that he had heard the appellant confess. The joint judgment of the High Court said: "The question in this appeal is whether s60 permitted an out of court statement that is itself a report of what someone else said, to be used as proof of the truth of what was reportedly said." [3] 120 The High Court emphasised that the prior inconsistent statements had several distinct elements: an account of what the witness himself had done; an account of what the witness himself had seen; and a conversation he had had with the appellant, asserted to be an admission [17 and 23]. The High Court said that there were broadly two kinds of statements: "Statements of what he had done or seen and statements of what he had said or heard." [23] 121 The High Court identified the relevant inquiry under ss59 and 60 as: "The inquiry is about what the person who made the representation intended to assert by it." 122 In this regard, the High Court distinguished what the witness, Mr Callin, intended to assert in the two different kinds of statements. On the one hand, there was his intention to assert the things he had done or seen and that certain words were said and heard. On the other hand, he had not intended to assert the facts sought to be proved, namely the contents of the confessional statement about the appellant having "fired two shots" and done "a job" etc. The witness's "statement" did not contain an assertion as to the relevant facts but only as to what had been said to him about the relevant facts. The fact that these things were said was not of itself relevant. 123 The High Court's reasoning in the following passage is directly pertinent to the issues in this case: "[26] Evidence that Mr Callin had seen what was recorded in his statements was relevant to the issues in the case. Mr Callin's representation out of court that he had seen these things was hearsay. Because his representation out of court (that he had seen these things) was relevant for the purpose of showing that he had made a prior statement that was inconsistent with his evidence in court, the hearsay rule did not apply and the representation was admissible to prove the existence of the fact that Mr Callin intended to assert by his earlier representation. [27] By contrast Mr Callin did not, in his out of court statements, intend to assert any fact about his conversation with the appellant other than that he had said certain words and that he had heard the appellant say the words attributed to him." 124 The conclusion in par [27] was in fact the issue in Lee. In a sense the analysis in par [26] is strictly obiter. However, it is compelling. It is, in our opinion, determinative of this case. 125 The evidence in the prior statements made by Thaier Sako in the present case was evidence of what he had done and what he observed. Nothing in the nature of a confessional statement was involved. This Court should follow the reasoning in par [26] of Lee. 126 Before the trial judge and in this Court, the Crown relied, in the alternative, on s66. (See eg transcript 2473 line 38; transcript 2635 line 5; judgment of Wood CJ at CL at pp 11 and 14). That section, relevantly, is in the following terms: "66(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise received the representation being made; if, when the representation was made the occurrence of the asserted fact was fresh in the memory of the person who made the representation." 127 In this regard, the submissions in this Court turned on the issue of freshness. The representations in the police interview were made some ten weeks after the events in question. The High Court has considered this matter in Graham (1998) 72 ALJR 1491. That case establishes that the reference to "fresh" in s66 means "recent" or "immediate" and is not concerned with the vividness or quality of the recollection. However that case involved a complaint some six years after the events in question. 128 The joint judgment of Gaudron, Gummow and Hayne JJ stated: "Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years." [4] 129 Callinan J, with whom the other members of the Court agreed, said: "Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity will almost always be the most important consideration in any assessment of its freshness … There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s66, but such cases will necessarily be rare and requiring of some special circumstance or feature." [34] 130 The application of the reasoning in Graham to a situation in which delay is measured in weeks, is not without its difficulty. 131 Wood CJ at CL did not, in the judgment of 3 December 1998, deal at length with the issue of freshness. That may have been because his Honour had considered the case of Graham in detail in an earlier judgment, where the issue that arose was leave under s32 of the Evidence Act for a witness to refresh his memory. 132 In that judgment of 19 October 1998, his Honour was concerned with the ability of a witness to refresh his memory from a recorded interview seven weeks after the events in question. His Honour said in that judgment, after referring to the relevant passages from Graham: "In my view the judgment of Gaudron, Gummow and Hayne JJ was not intended to confine the expression 'freshness' strictly or exhaustively in terms of mere hours or days. As the Law Reform Commission Report underlined, a measure of flexibility is appropriate. The question is, as their Honours point out, one of fact and degree. In my view a statement made seven weeks after an event is not one which should be regarded as being outside the period of fresh memory. It is in fact a relatively short period after events of the kind here involved. Having regard to normal expectation and experience of life, I would regard a statement made at that point of time as still being fresh in the memory of a relevant witness." 133 This view has much to commend it. It is not however necessary to express a final opinion on this alternative basis for admissibility. First, because of the application of s60. Secondly, because it is not entirely clear that his Honour made a finding of fact on "freshness". 134 This Court is a Court of error. An appellant must bring himself or herself within one of the limbs of s6 of the Criminal Appeal Act 1912. A finding of "freshness" within s66 is a finding of fact. There would be no "wrong decision of any question of law" within s6, unless it was not open to a trial judge to make that finding. As Brennan J put it: "There is no error of law simply in making a wrong finding of fact."

( Waterford v The Commonwealth (1986-87) 163 CLR 54 at 77). 135 Although his Honour refers to s66 in his judgment, there is no express factual finding of freshness. In view of our finding on s60, it is not necessary to decide this appeal on the alternative basis. 136 Counsel for the appellant, in the alternative, challenged the exercise of the discretion by his Honour to admit the evidence. In his judgment Wood CJ at CL gave detailed consideration to a range of matters relevant to the exercise of the various discretions. It is unnecessary to set out his Honour's careful and comprehensive assessment of the relevant factors. 137 The written and oral submissions in this Court on discretion were very limited. Emphasis was given to the fact this witness came forward at the same time as a number of other witnesses, who had a common interest. They all wished to shift culpability from the group, known as the Assyrian Kings, to which they belonged and move the attention of the police in the direction of the older group, to which the appellant belonged. These were matters of weight to which his Honour gave careful attention, together with a range of other matters. Counsel for the appellant was unable to point to anything that could constitute an error in the exercise of the discretion. 138 Specifically there was no basis for an assertion of unfairness to the appellant by reason of the calling of the witness Thaier Sako at the time he was called. The Court's attention was drawn to the fact that counsel for the accused made an application for the discharge of the jury immediately before Thaier Sako was called, on the basis that the Crown had opened the case that there would be an eye witness. That originally was another witness, Tony Bakos, who withdrew his evidence to that effect. Accordingly, the Crown, it was submitted, had called Sako to give allegedly eye witness evidence in the form of the prior inconsistent statements. His Honour rejected the application for discharge of the jury. 139 There was no unfairness to the accused in this. The issue of whether or not Sako would be called was in fact raised as a possibility before Tony Bakos went into the witness box. During the course of the transcript of 19 October 1998 the Crown Prosecutor said: "We have not given any notice we are going to call him, but it is a matter under consideration."

Counsel for the accused said: "I am glad we are told of that". Wood CJ at CL said that he doubted whether it would make a difference in cross-examination. Counsel for the accused said: "It certainly would with Mr Bakos and Mr Oshana". Finally his Honour said: "Mr Waterstreet at the moment it seems to me you should assume there is a possibility that Thaier Sako would be called."

In our opinion there was no element of unfairness in this regard. 140 There is no warrant for interfering with his Honour's exercise of discretion. 141 The third ground of appeal should be rejected. 142 The notice of appeal stated that this was an appeal against conviction and sentence. No submissions, either oral or in writing, were advanced on the application for leave to appeal against the severity of sentence. There was no suggestion that his Honour made any error of fact or law in the approach he adopted to sentencing the appellant. We do not consider that the sentence falls outside the range of the exercise of his Honour's discretion.

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