REGINA v. JOHNS [1999] NSWCCA 206

Court of Criminal Appeal (NSW)|1999-05-17|Before: Dunford J, Greg James J, Smart AJ

New South Wales Court of Criminal Appeal CITATION : REGINA v. JOHNS [1999] NSWCCA 206 FILE NUMBER(S) : CCA 60481 of 1998 HEARING DATE(S) : Monday 17 May 1999 JUDGMENT DATE : 2 August 1999

PARTIES : REGINA v. JOHNS, Terrence Stanley JUDGMENT OF : Dunford J at 1; Greg James J at 2; Smart AJ at 68

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 67/76 LOWER COURT JUDICIAL OFFICER : O'Brien, J.

No. 60481 of 1998 CORAM: DUNFORD, J. GREG JAMES, J. SMART, AJ.

JUDGMENT 1 DUNFORD, J: In this case I have had the opportunity of reading the judgment of Greg James, J. in draft form. I agree that the appeal should be dismissed for the reasons given by his Honour.

No. 60481 of 1998 CORAM: DUNFORD, J. GREG JAMES, J. SMART, AJ.

The trial and original appeals 2 On 25 February 1977, Terrence Stanley Johns (the appellant) was convicted of the murder and assault of Raymond Keith Morriss on 18 April 1975 at Potts Point after a trial with a co-accused Dodge, before O'Brien, J. and a jury. His appeal against conviction to this court was unsuccessful (see Regina v. Johns (1978) 1 NSWLR 282) as was his appeal against sentence, which was heard by a special bench of seven judges of this court. (That decision is reported at (1978) 2 NSWLR 259.) 3 Special leave to appeal to the High Court in respect of both the conviction and sentence was granted but the appeal was dismissed: Johns v. The Queen (1979-80) 143 CLR 108. Those decisions were all substantially concerned with the liability and sentence for those complicitous in the offence of murder as accessories and the ambit of the doctrine of common purpose.

A further appeal 4 By reference dated 24 August 1998, the Attorney-General, pursuant to s.474C(1)(b) of the Crimes Act 1900 referred the whole case to this court to be dealt with as an appeal under the Criminal Appeal Act 1912 (the Act). 5 On such a reference, the court is required, by s.474L of the Crimes Act, to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Act and the Act is to apply accordingly. Rule 78 of the Criminal Appeal Rules and that section require the court to treat the proceedings as an appeal on foot and deem any necessary leave to have been obtained. 6 Those provisions of the Crimes Act are contained in Part 13A of the Act, which, by Act No. 64 of 1993 replaced the former s.475 of that Act (the predecessors for which pre-dated any other criminal appeal) and s.26 of the Criminal Appeal Act 1912, pursuant to which a whole case might have been referred to this court to deal with as on appeal. 7 The new provisions were enacted following a review by the Criminal Law Review Division of the Attorney-General's Department of the operation of the former provisions and in consequence of their perceived mechanical clumsiness and inadequacies in dealing with a number of matters that had required either an enquiry post-conviction or a further examination post-appeal of whether the conviction should stand, usually because of the asserted availability of important fresh evidence. 8 Provisions of a like kind were to be found in other Australian jurisdictions and, over the years an extensive jurisprudence had developed as to the appropriate approach to the hearing of such matters as on appeal (see article "Executive References to a Court of Criminal Appeal" 34 ALJ 163). There does not appear to be any indication in the new provisions displacing the applicability of that jurisprudence. 9 It has been held that on such a reference the court was re-invested with jurisdiction notwithstanding an appellant had exercised and exhausted the ordinary right of appeal: Regina v. Gunn (No. 1) (1942) SR (NSW) 23; (1943) 60 WN (NSW) 1 but that the court was not called on to re-adjudicate upon any ground of appeal which had already been heard and disposed of unless some new matter arose (eg. fresh evidence) warranting a re-consideration (Regina v. Gunn (No. 2) (1943) SR (NSW) 27; (1943) 60 WN (NSW) 9). Mickelberg v. The Queen (1989) 167 CLR 259), which confirmed the current test for the admissibility of fresh evidence on appeal, was itself an appeal from the Court of Criminal Appeal of Western Australia on a reference of the whole case under a similar provision. The jurisprudence developed as governing the reception of new and fresh evidence on appeal has been held to be applicable to these matters: Mickelberg (supra); Davies v. The King (1937) 57 CLR 170. Mickelberg (supra) establishes that:- "Prima facie, the reference of the whole case required the Court of Criminal Appeal to consider the case in its entirety, subject only to the limitation that it 'be heard and determined … as in the case of an appeal by a person convicted'. That limitation necessitates that the matter be determined by 'legal principles appropriate to an appeal': Ratten (1974) 131 CLR at 514, per Barwick CJ. See also R v. Gunn [No. 1] (1942) 43 SR (NSW) 23 at 25, per Jordan CJ and Allen, Allen and Winter (1910) 5 Crim. App. R. 225 at 226. It has been held that, where the whole case is referred, the court may consider matters not relied upon in the petition ( R v. Gunn [No. 2] (1942) 43 SR (NSW) 27 at 31 and matters not specified in the reference ( Reg v. Chard [1984] AC 279. On the other hand, it has been said that, as a matter of practice, the considerations may be confined to those in the petition or the reference: see Re Matthews and Ford [1973] VR 199 at 201; Reg v. Chard [1984} AC at 292-293. And in R v. Gunn [No. 2] (1942) 43 SR (NSW) at 29 Jordan, CJ. stated:- 'In a case in which there has already been an appeal which has been disposed of on the merits … the court, in the case of a reference such as the present, is not called upon to re-adjudicate upon any ground of appeal which has been already heard and disposed of, unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable.' The words of s.21(a) of the Code, so far as they require 'the whole case … [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorise the exclusion of issues which are frivolous or vexatious: see Jackson v. Sterling Industries Limited (1987) 162 CLR 612; Tringali v. Stewardson Stubbs & Collett Limited (1966) 66 SR (NSW) 335; Metropolitan Bank v. Pooley (1885) 10 App. Cas. 210. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented." 10 In the present case it has not been sought to revisit any of the grounds of appeal previously dismissed, although related matters are now raised and it is not sought to appeal on any ground outside the petition.

Grounds of appeal 11 The grounds of appeal now asserted are:- "1. The evidence regarding the appellant's involvement in the death of Raymond Keith Morriss is insufficient to prove the appellant's guilt on the charge of murder. The conviction of the appellant on the charge of murder constitutes a miscarriage of justice on the ground that the verdict of the jury is unreasonable, and cannot be supported, having regard to the evidence in the case.

There is fresh evidence available to call the correctness of the appellant's conviction into question. There is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial.

The evidence of the admissions said to have been made by the appellant at a time when he was in police custody should not have been admitted in the trial proceedings.

The directions to the jury on the evidence of admissions said to have been made by the appellant at a time when he was in police custody were inadequate." 12 The applicability of Rule 4, which would otherwise require leave in respect of grounds 3 and 4 to be obtained is displaced by s.474L and Rule 78. Similarly, and for the same reasons, insofar as in Ground 1 if is sought to appeal in respect of matters of fact, no leave is necessary, notwithstanding s.5 of the Criminal Appeal Act 1912.

The case at trial 13 I take from the judgment of Begg, J. in the report [1978] 1 NSWLR 282 at 290-291E of the appeal against conviction the following summary of the case:- "The Crown case was that a man named Geoffrey Thomas Watson, in company with Dodge, proposed to carry out an armed hold-up late in the night of 17 April 1975, of Morriss at his residence off Wylde Street, Potts Point. Morriss was said to be a dealer in stolen jewellery and was known to carry large sums of money and valuables involved in these dealings. Watson and Dodge, who were then residing together at Green Valley, intended to hold Morriss up with a loaded pistol at his residence, rob him and decamp. The Crown case was that the appellant, knowing of this plan, agreed to drive Watson to a rendezvous at Kings Cross in a vehicle belonging to the appellant where Watson was to join Dodge in Dodge's vehicle and proceed to the scene of the intended armed hold-up. The appellant agreed to wait at the rendezvous, where it was planned that the proceeds of the robbery would be handed to him; and it was alleged that he agreed to hide the stolen property in a construction site at which he was working in Liverpool Street, Sydney until it could be handled with greater safety. The Crown case was that Johns was to receive a portion of the profits of the robbery. It should be noted that Watson himself was murdered on 2 December 1975, and that, in due course, his murderer was convicted. The Crown case further was that the arrangement between Watson and the appellant had been made by them at a hotel at Cabramatta, and that it was carried out as planned, except that, at Wylde Street, Morriss resisted the attempted robbery and was killed by Watson with the pistol he carried, and Watson and Dodge ran from the scene of this crime without any loot. They returned to where the appellant was waiting in the vehicle. He was told that the affair had 'gone bad' and that they got nothing. He then drove off in his own vehicle. He was arrested nearly a year later, namely in March 1976, as was the co-accused Dodge. In the latter's record of interview which was Exhibit R at the trial, the appellant was inculpated (that evidence itself was, of course, not admissible in the case against the appellant). The appellant went into the witness box and gave evidence denying that he was in any way implicated in the crime, and he purported to set up an alibi. In addition, he gave evidence that his unsigned record of interview, which was tendered, contained concoctions by the police." 14 In addition to the matters referred to in his Honour's summary, I note that the appellant, had prior to his arrest, provided information to the police which was contained in a written statement tendered in evidence, Exhibit AA. At the trial he contended that the police were, by reason of his provision of that information, their own investigations and the information improperly obtained from the co-accused able to concoct an apparently persuasive set of, what he asserts were falsely contended to have been, his admissions and had lied concerning the time at which those admissions were said to have been made so as to conceal that they were thus armed with sufficient knowledge. On appeal, the document in which the admissions were contained was asserted to be inadmissible although neither at first instance nor on appeal until now was the admissibility of the content challenged. Relevantly, Begg, J. records that (at 299-300):- "The next matter to be considered is the submission concerning the admission into evidence of the unsigned record of interview dated 7 March 1976: Exhibit Z. I think it is sufficient to say that there is considerable discussion between counsel for the accused and the learned trial judge prior to this document being admitted in evidence. The attitude of counsel for the accused was that he did not wish to object to the document being tendered, and certainly did not desire to have a voir dire examination about it. He pointed out to the trial judge that he challenged its validity, that he wanted to be able to tell the jury that the document was a concoction by the police. At 167, his Honour asked: 'You do not object to its admission, but you challenge its validity?' Answer: 'That is correct, I do not object to it, but I do ask for permission to say briefly what I have said to your Honour on the formal tender so that it is noted on the record in front of the jury'. There was a deal of discussion, but counsel did not ultimately object to the tender and it was, accordingly, received in evidence. Indeed, if one looks at the cross-examination of Det. Sgt. Chad by learned counsel, it is obvious that he wanted to be in a position to refer to a great number of the answers in that interview. In addition to that, it must be borne in mind that the appellant sought to establish an alibi for the evening of 18 April 1975. That this failed is obvious from the jury's finding of guilt. I have considered the judgment of the High Court of Australia in Driscoll v. The Queen (1977) 51 ALJR 731 handed down on 10 August 1977, that is, after the present trial had been concluded. Perhaps if the law in that case had been propounded and available to counsel for the appellant prior to the trial, he might have taken a different course. However, the fact is that the document was admitted without counsel's objection, and there was no submission by counsel that his Honour should reject the document. It must also be remembered that the appellant himself gave evidence in the case and devoted a great deal of evidence to an allegation that he had been 'framed' by the police and that his alibi was correct. It was, no doubt, convenient for his counsel to have the record of interview before the jury so that a number of matters alleged in it could be shown to be untrue. I have come to the conclusion that what was involved was a question of tactics, and did not result in success for the appellant. Having considered all aspects of the case, I do not think there was any miscarriage of justice in admitting the document in evidence. One other feature of the trial was that the co-accused, Dodge, had implicated the appellant in his interview with the police. In another part of his evidence, the appellant sought to show that the reason why Dodge had implicated him was because Dodge considered that the appellant, Johns was responsible for the death, on 11 February 1976, of his (Johns') wife, who was a sister of Dodge. What Dodge then said about him was material which the jury had to consider. It was sought by the appellant to show that it was out of revenge that Dodge had mentioned his name to the police. This also obviously was not accepted by the jury, but it is another fact which, to a degree, interlocked with the record of interview. Having considered these matters, I do not feel that any error in admitting the document has been shown, and do not think that any miscarriage of justice, because of its admission, has been shown. This grounds, therefore, fails. 15 With his Honour's conclusion on those matters, Street, CJ. and Lusher, J. agreed. 16 The admissions as recorded in the unsigned record constituted the real substance of the case against the appellant. The appellant denied his guilt on oath, asserted an alibi and contended he had been framed by the concoction of the admissions. 17 The course taken by his counsel as described by Begg, J. is consistent with an attempt to use the document to discredit the police testimony. No challenge is now made to the correctness of his Honour's description of the events at trial and a reading of the transcript confirms that as the trial was conducted, both the evidence of admissions and the form that evidence took went before the jury with at least the acquiescence of defence counsel. Counsel made no objection in the upshot to the tender of, nor to the form of the admissions as they went before the jury, nor was application made to the trial judge to reject the document or the admissions in the exercise of his discretion. Counsel disclaimed the seeking of a voir dire, seeking only to assert that the admissions were falsely attributed to his client. The evidence of admissions was, in the conduct of the case, met head on by the denial in evidence of the applicant of their making, a reliance on the circumstances in which they were said to have been made and the nature and format of the unsigned record of interview as admitted into evidence. The following passage from the transcript dealing with what purported to be an objection to the record of interview, illustrates counsel's position clearly:- "(Record of interview with accused Johns tendered; objected to by Mr. Scott. Jury retired from court.) IN THE ABSENCE OF THE JURY MR. SCOTT: Two matters I wish to raise with your Honour. The first is in relation to this document I had spoken to my friend about this and nothing has been done. If your Honour looks at question 13, I am seeking that the question and answer be masked. I will not seek to gain any advantage throughout the case from that being done. CROWN PROSECUTOR: My friend did mention that to me but there was nothing I could do until this stage. I am not pressing that answer. MR. SCOTT: I do not wish to challenge this document by way of a voir dire examination, but I would seek your Honour's direction and permission to indicate to you on the formal tender of this document that we regard it as a fabrication as to the first three pages, compiled without the co-operation on 7 March of the accused Johns, that the three pages were typed up in his presence but without his co-operation, and as to the fourth page that he was never shown that on 7 March and it was not made available to him for a lengthy period, in fact 27 April 1976 I think it was. Subject to those matters and being allowed to put those, I would not wish to carry the matter any further. HIS HONOUR: You do not object to its admission but you challenge its validity? MR. SCOTT: That is correct. I do not object to it but I only ask permission to say briefly what I have said to your Honour on the formal tender, so that it is noted on the record in front of the jury. HIS HONOUR: You either object to its admission or you do not. MR. SCOTT: Then I would formally object to it on the basis that the first three pages are a fabrication, that he took no part in the compilation. HIS HONOUR: That is not an objection as to admissibility. MR. SCOTT: I am aware of that. I do not wish to do it in terms of seeking a direction or ruling from your Honour. I do not wish to have a voir dire examination. I will take a formal objection to it. HIS HONOUR: A formal objection on the basis that it will be admitted is, in effect, no objection in law to its admission. There is no way of getting before the jury at this point of time what you propose to say later about it. You can simply say nothing at this time and it goes in and it will be understood by me that you are not wishing to take a point on its admissibility, but you will be asking the jury to assess its worth. MR. SCOTT: That is true, that is what I am seeking to do eventually. HIS HONOUR: Then you have no objection to its admissibility? MR. SCOTT: No. The only reason I am seeking this, and it has been done before and acceded to before, is that the jury is under no misapprehension that because it is tendered I am conceding its accuracy. HIS HONOUR: They will not be under any misapprehension about that, I take it, in due course. I do not understand what you mean when you say it has been done before. It has never been done before in my court. MR. SCOTT: No. HIS HONOUR: Or in the Supreme Court. MR. SCOTT: I cannot give your Honour that assurance from the bar table. HIS HONOUR: If you say nothing, it will be tendered, it can be marked as an exhibit and in due course you can raise the matter in cross-examination, no doubt. MR. SCOTT: As far as the record is concerned, I would not wish to be heard to say nothing. I do object to the document going in, as far as the record is concerned. HIS HONOUR: Then I will send the jury out and find out why and then I will tell the jury that I have admitted it. You will not make speeches at this time. MR. SCOTT: I am not seeking to make speeches to gain an advantage. HIS HONOUR: Anything counsel does in a trial is to gain an advantage. MR. SCOTT: I submit it is to do their duty. I only seek to make sure on behalf of Mr. Johns that the jury does not misunderstand my absence of saying anything. HIS HONOUR: The addition of that extra matter does not add anything to your submission. You appear for Mr. Johns and what you do is in his interest. MR. SCOTT: If that is the situation I will then remain silent in respect of the tender. HIS HONOUR: It will not be mistaken. If you say nothing I will just have it marked as an exhibit. (Jury returned to court)." 18 Detective Chad, who had given evidence of the making of the admissions and their incorporation in the unsigned record of interview, was cross-examined extensively to show his evidence was false. Various matters arose in his evidence upon which counsel, no doubt argued to the jury that there were inconsistencies indicative of fabrication of the admissions. It was squarely put to him by the cross-examiner that he and Detective O'Brien had produced the document and fabrication the admissions. Detective Chad's credit was clearly critical. Similarly, there was vigorous cross-examination of Detective O'Brien and in particular as he was the typist, that cross-examination included reference to the physical layout of the document as evidencing interruptions to the typing process during which the paper had been removed from the typewriter. 19 Detective Gardiner was also cross-examined as to the time at which any such interview might have occurred and as to the layout of the interview room. 20 The accused gave evidence and called evidence in support of his alibi. He and his witnesses were rigorously and clearly effectively cross-examined. The Crown obtained leave to make a case in reply but that case was limited to the admission into evidence of Exhibit AB, a note purporting to record a statement by the co-accused Dodge that he had, under a misapprehension and as a result of improper inducement, falsely inculpated Johns in his signed record of interview, Exhibit R. 21 In dealing with the admissions said to have been made by the appellant in his summing up, his Honour directed the jury that that it was the Crown case that Johns had volunteered the relevant admissions expecting, incorrectly, that they would not inculpate him in the murder and that when later he discovered that they did, he invented the claim of police fabrication. 22 His Honour at various points of the summing up made it clear to the jury that an acceptance by them of the admissions as accurate was critically important to the establishment of the Crown case. 23 His Honour noted the submission made by Mr. Scott that the police were engaged in a major conspiracy to implicate two men who were innocent. He directed the jury:- "Unless you feel able to reject that submission beyond reasonable doubt, they must be acquitted." 24 His Honour reiterated the substance of that direction when he came to turn to the respective cases made against each accused, when he discussed the evidence of the taking of their respective records of interview and at the closing of the summing up where he described as entirely correct counsel's submission that there was no evidence independent of the record of interview and that if the jury did not find the record of interview acceptable or found it doubtful, then the accused could not properly be convicted. 25 Notwithstanding that counsel for the co-accused sought a direction arising from what was said by the High Court in Burns v. The Queen (1975) 49 ALJR 248; (1975) 132 CLR 258 relating to drawing the jury's attention to those circumstances in the knowledge of the police which might well have assisted in the fabrication of a record of interview, no such application was made by counsel for the appellant. The only directions that were sought on his behalf appear in the following passage from the transcript:- "MR. SCOTT: I would seek a direction in the following terms: that the jury cannot convict the accused Johns of either of the charges in the indictment unless they are satisfied beyond any reasonable doubt that the record of interview and the implicatory statements in the interview were made, and that they must be satisfied of that fact they were made beyond reasonable doubt before they can convict Johns of either of the charges in the indictment. I would ask your Honour to put that, with great respect, as a clear statement to the jury. HIS HONOUR: That is your sole request? MR. SCOTT: Yes. HIS HONOUR: I have in effect said just that more than once but I think there is authority on this Mr. Scott. I do not have to direct as you suggest so long as I tell them what the case is broadly, and that they must be satisfied beyond reasonable doubt of guilt. MR. SCOTT: I ask for that for a particular reason. If your Honour does not do that - your Honour mentioned to the jury the onus incumbent on the Crown was to prove each of the ingredients of the charges. That is under s.18 and s.98. But your Honour nowhere said that the crown has the incumbent burden of satisfying them beyond reasonable doubt that the factual situation that obtained on that morning had to fit the proof of the charges beyond any reasonable doubt. That was the link between the two. I know that was intended but it was never put in that clear direct way and I am concerned if your Honour is not prepared to put that to the jury as far as Johns is concerned; and also, with great respect to your Honour, the jury is misled by your Honour's summary of the facts in the accused's case made by the accused Johns, and I would seek at your Honour's hands withdrawal of your Honour's directions to the jury in relation to Johns and for your Honour to redirect them. HIS HONOUR: I think I said more than once that the Crown case thereafter depended upon the records of interview of each of them, that they were made and contained substantially the truth. MR. SCOTT: What I am trying to put to your Honour is that if the jury do not accept the record of interview, or the statement in it, beyond reasonable doubt they cannot convict him of either of these charges. HIS HONOUR: It was said in various ways by yourself from the bar table and I consider I have said it in various ways just as emphatically as you. MR. SCOTT: It is quite obvious the jury will accept what your Honour has said and not accept what is said by me. HIS HONOUR: I would not say that. MR. SCOTT: In relation to the law they will obey your Honour implicitly. I only seek that in respect of the accused Johns. HIS HONOUR: It is not the only evidence against the accused. MR. SCOTT: Without it they cannot convict him of either charge. HIS HONOUR: I think I have said that often enough. MR. SCOTT: Your Honour is saying your Honour will not put that to the jury? HIS HONOUR: Yes. MR. SCOTT: Then I will ask your Honour to withdrawn your Honour's summing up to the jury. HIS HONOUR: That is no longer a usual request. MR. SCOTT: Not now, your Honour. It is old-fashioned." 26 In that context, it is convenient to deal with the grounds of appeal in the order in which counsel opened them in the argument before this court. That is to say, dealing firstly with ground three, the admissibility of the evidence of the admissions; secondly, with the directions to the jury on the evidence of admissions; thirdly, the assertion that the admissions were an insufficient basis upon which to establish guilt; and fourthly, the new material ground, remembering when dealing with the earlier grounds, that the fresh evidence going, so it is said, to the credibility of the evidence of Detective Chad, may at least lend colour and support to the contentions: that the admissions should have been rejected in the exercise of his Honour's discretion; that his Honour should have given a direction as to the danger of relying on them and that as a foundation for conviction they were insufficient as unreliable.

The admissibility of the admissions 27 As the ground was argued, the submission was made that the evidence of the admissions should have been rejected not because of their then inadmissibility in law or the form in which they were tendered, but because of the vulnerable position of the appellant in custody and the possibility of police inappropriately affecting the making of them. 28 At the time at which this trial proceeded, the content of the unsigned record of interview as to admissions was, as the law then stood, admissible unless involuntary at common law or excluded under s.410 of the Crimes Act (now repealed) or rejected by the trial judge in the exercise of his discretion. Both the law, as it then was understood and the practice in New South Wales are set forth in the article "The Admissibility of Self-Incriminatory Evidence" by the Honourable Mr. Justice McClemens (1971) 54 ALJ 57. The practice which was given impetus by his Honour's views in Regina v. Ragen (1964) 81 WN (NSW) 572 in favour of putting the unsigned record before the jury for challenge there rather than utilising it as a mere device to assist recollection was unanimously disapproved in Driscoll v. The Queen (1977) 51 ALJR 731. If orally or otherwise adopted, the record was evidence of the admissions and admissible otherwise it was hearsay, useful as an aide memoire to oral testimony but inadmissible unless by consent. Often its admission would be allowed to pass without objection to enable flaws in the document and the police failure to obtain a signature to confirm the making and voluntariness of the admissions to be relied on as explicit matters tending against acceptance of the oral evidence of the making of admissions. That appears to be what occurred here. Begg, J. appears to have considered counsel might have adopted a different tactical course had Driscoll (supra) been decided before the trial. 29 Before this court, reliance was placed on the discussion by the High Court of Australia in The King v. Lee (1950) 82 CLR 133 on their consideration of the decision of the Victorian Full Court, and particularly the judgment of Smith, J. relating to the discretion to "reject evidence of confessional statements obtained by the police by improper methods if, having regard to the nature and degree of the impropriety and the effect which it is likely to have had in causing the statement to be made or upon the form and contents of the statement, it would in all the circumstances be unfair to the accused to use the statement in evidence against him" for a submission that the discretion should have then been exercised and should now be exercised in the appellant's favour to reject the admissions because of the asserted police conduct and the disadvantageous position of the appellant in custody. The bases for the exercise of discretion have been considered in detail subsequently in Foster v. The Queen (1993) 113 ALR 1; (1993) 67 ALJR 550. 30 It is clear that in Lee (supra) the court was having regard to the position of an accused person in custody and at a disadvantage when it said (at 159):- "It is, of course, of the most vital importance that detectives should be scrupulously careful and fair. The uneducated - perhaps semi-illiterate - man who has a 'record' and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a 'statement' may be 'taken' which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the 'statement' made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them. … The duty of police officers to be scrupulously careful and fair is not, of course, confined to such cases. But, where intelligent persons are being questioned with regard to a murder, the position cannot properly be approached from quite the same point of view A minuteness of scrutiny, which in the one case may be entirely appropriate, may in the other be entirely misplaced and tend only to a perversion of justice. Each case must, of course, depend upon its own circumstances considered in their entirety." 31 It is apparent, however, on a reading of the decision and on the reading of the decision of Wood, J. in Regina v. K (1984-85) 14 A. Crim R. 226 and the cases cited both in the High Court and by Wood, J. that what that case and Wood, J. was dealing with were questions of whether the admissions comprising the content of the statement were obtained by some impropriety such as to prevent the accused doing justice to himself in what he himself had said. Their Honours were not dealing with the question of whether or not the accused had made the statement:- "The purpose of the unfairness discretion is not to exclude evidence of the making of a confession when the judge thinks that the confession has been or may have been fabricated. The question whether an alleged confession was made is for the jury ( Macpherson (1981) 147 CLR 513 at 522-523)." (per Brennan, J. in Duke v. The Queen (1988-89) 180 CLR 508 at 513). 32 There is nothing in the way the trial was conducted or in the law as it stood at the time which required that the evidence should have been rejected. The making of the admissions and the truth of the admissions was a matter for the jury. Even taking into account the matters raised on the fresh evidence ground, there was no occasion for the exercise of the trial judge's discretion. It was never invoked. No question of any error in its exercise arises. This matter does not involve impropriety in the inducing of the appellant to make the admissions. The only impropriety alleged to relevantly attract the discretion is the fabrication which the jury accepted beyond reasonable doubt had not occurred. The submission must be rejected. 33 The submission was made that the provisions of the Evidence Act 1995 should be applied retrospectively to this trial. But that submission must also be rejected as this court sits as a court of appeal for error: see Kurtic v. The Queen (1996) 85 A. Crim R. 57 and Victorian Stevedoring & General Contracting Co. Pty. Limited v. Dignan (1931) 46 CLR 73 at 85, 87, 109-113 and the Act only applies to trials commencing after its commencement (the Evidence (Consequential and Other Provisions) Act 1995) which by Schedule 2 of the Act provides as follows:- "Proceedings '2(1) A provision of the Evidence Act 1995 or Evidence on Commission Act 1995 does not apply in relation to a proceeding the hearing of which began before the commencement of the provision, except as provided by this Schedule.'" Directions to the jury on the evidence of admissions 34 As well as asserting police fabrication in response to the admissions tendered in his own case, the appellant was not content to rely on appropriate directions by the trial judge for separate consideration of the cases against the two accused and as to what evidence was only available for and against each accused but, in attempting to meet the effect of the co-accused's inculpation of him in the signed record of interview, admissible only against that co-accused, raised the suggestion that inculpation also was both false and had been improperly procured by the police officers. The note Exhibit AB admitted in reply was relevant to that and it was to those matters which, the trial judge referred in the following passages in his summing up:- "Both these records of interview had to be removed and hence the Crown case is that not only do you now find here a claim made that this was an invention - conspiracy - by the police against Johns, but also a conspiracy by the police against Dodge, although we still have an effort made here, notwithstanding the law that what Dodge said is no evidence against Johns, to explain how Dodge came to make this allegation against Johns. … The case for Dodge and Johns is that these records of interview were concocted, that the Crown case therefore fails and if this be so they must necessarily be acquitted. So you have to front up to the submission that the whole of this case against these two accused - these two records of interview - is a major conspiracy to implicate two men who are innocent. Unless you feel able to reject that submission beyond reasonable doubt they must be acquitted. I will adjourn now." 35 It was submitted that these directions "suggest that it is necessary to find that police officers in the case have been guilty of serious misconduct before it is possible to reach a verdict finding in favour of an accused person where there is a disputed confession". 36 Such a submission misconceives his Honour's directions on that matter and those in respect of the onus and standard of proof, as to which there is no challenge. Had the directions been to the effect contended they would have been gravely in error for a number of reasons including infringing the principles as to onus. What these direction do is to draw the jury's attention to the case propounded by the appellant, ie., that he was "verballed" and that the police had sought to add verisimilitude to that verbal by procuring, improperly, the inculpation of him by Dodge to provide apparent support for the concocted admissions. 37 In the passages from the summing up I have earlier referred to, His Honour clearly directed the jury that unless the appellant's contentions were rejected beyond reasonable doubt and unless the jury were satisfied beyond reasonable doubt of the acceptability of the admissions as contained in the unsigned record then the appellant had to be acquitted. I do not think his refusal to add to those directions in any way showed error nor do I consider that his Honour fell into the error referred to in Regina v. Towner (1991) 56 A. Crim R. 221 described in the following passage from the judgment of Allen, J., with whom Priestley, JA. and Badgery-Parker, J. agreed, at 226-227:- "What is argued for the appellant is that whilst his Honour's general directions as to the onus of proof were correct his specific directions in relation to the confessional evidence posed the method of resolution of the ultimate issue of whether the Crown had discharged the onus of proving the appellant's guilt as being, in so far as it turned upon the confessions, that the jury were to determine which they would prefer out of the two 'competing choices' namely, on the one hand, the police version that the confessions were made voluntarily and were regularly and properly recorded and, on the other hand, the appellant's version that there had been 'a deliberate pattern of perjury, of conspiracy, and at least in one respect of forgery'. Reading his Honour's directions as a whole I have come regretfully to the conclusion that there is at least a grave risk that the jury would have understood the specific directions, despite the impeccable general directions, in the way of which the appellant now complains. So understood the directions contained the error identified in McKinney as follows) at 476-477; 245):- 'The question which is inevitably raised by a challenge to police evidence of confessional statements is … whether it is a reasonable possibility that the police evidence is untruthful, which, in the circumstances, entails the possibility that police witnesses have perjured themselves and conspired to that end. That is a different question from the question whether they have, in fact, perjured themselves and conspired to that end. It cannot be sufficiently emphasised that a jury should never be directed in terms which suggest that it is necessary to decide that latter question.' That passage in the joint judgment of the majority of the High Court in McKinney was not a statement of any new requirement of practice to be observed in the future. It was a statement of the existing common law. It had many precursors which are conveniently collected in McLeay (unreported, Court of Criminal Appeal, NSW, Hunt, Carruthers and McInerney, JJ., No. 60381 of 1990, 7 June 1991). It suffices to refer specifically to what was said by Wilson, J. and by Toohey, J. in Duke (1989) 38 A. Crim. R. 305. Wilson, J. said (at 311) of the summing up then under consideration:- 'His Honour disregarded the observation made by King, J. in Collins (1976) 12 SASR 501 at 519-520:- 'The comment in a summing up that the denial by an accused person of the statement attributed to him by the police involves a charge of conspiracy against the police officers, although often made, does not, in my view, assist jury to an unprejudiced consideration of the issues before it. It can easily divert the attention of a jury to a consideration of whether a charge of conspiracy has been made out against the police and away from the true issue for its consideration, namely, whether the charge against the accused person has been established beyond reasonable doubt.' The Court of Criminal Appeal of South Australia agreed with that view in White (1976) 13 SASR 276. I too respectfully agree with that view.' Toohey, J., although dissenting as to the result in the particular case, expressed a like view. He said (at 320):- 'A direction in the terms set out has been criticised by the courts, because it invites the jury to approach their task as if the issue is whether or not the police falsified the confession. It therefore diverts their attention from their true role which is to consider whether the charge against the accused person has been proved beyond reasonable doubt.'" 38 Allen, J. defined the relevant content of a summing up dealing with such a case further at 228-229:- "A trial judge has a delicate task when directing a jury in respect of a confession challenged as a fabrication pursuant to a conspiracy by police. There will be, usually, diametrically opposed versions given by the police on the one hand and the accused on the other. Both cannot be right. One must be wrong. In that sense a choice is predicated. The trial judge must deal with the opposing versions, however, in such a way that it is made clear to the jury that it is not their task to make that choice, that is to determine which of the versions it is that is the correct one and which it is that is the false one. Their task is simply to determine whether they are satisfied beyond reasonable doubt of the guilt of the accused - which not uncommonly will mean satisfaction beyond reasonable doubt of the truth of evidence of confessions. If they are so satisfied in respect of the confessions it follows that they have rejected the accused's version. That, however, is the result of accepting the police version. It is not the result of choosing it in preference to the version given by the accused. That it is not a matter of choice is made manifest by a consideration of the position where the jury is not satisfied beyond reasonable doubt of the reliability of the police evidence in relation to the confessions. If they are not so satisfied they must acquit. But that does not mean that they have chosen the accused's version in preference to that given by the police. They well may have been very unhappy about his version but still have had reasonable doubt as to the reliability of what the police had said. Indeed they could positively have disbelieved his version yet still have had such doubt as to the police version. Liars on both sides of the record are not an unknown phenomenon. The delicacy of the task of the judge in summing up in relation to disputed confessional evidence is the greater because there can be no quarrel with the observation of the majority in McKinney as follows (at 475-476; 244):- 'A heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end.' Their Honours were not there saying that there is any legal burden upon the accused to adduce evidence which raises a doubt as to the confessional evidence. The ultimate legal issue is the simply one of whether the Crown has proved the guilt of the accused beyond reasonable doubt. If there remains in the jury's opinion such a doubt then it matters not whether it was 'raised' by evidence of the accused, or of any other witnesses, or whether the jury entertain the doubt simply because the police witnesses impressed the jury as being persons concerned not with niceties of fairness and accuracy but with obtaining a conviction. It is of course, in the accused's interest himself to raise a doubt as to the reliability of the police evidence - if he can. What the High Court was pointing out is that it is no easy task for him to do that. It is the more difficult where the raising of the doubt imputes the possibility that the police have acted with outrageous criminality. Where the context so admits it is far easier to persuade a jury that a fellow human being has misunderstood what another has said, or that he has become confused, or that his memory is at fault as to words used than it is to persuade the jury that he has behaved with calculated, gross impropriety to inflict callous harm upon someone else. The 'practical burden' upon an accused can be, as the High Court points, out, heavy." 39 At the time of this trial and until the decision in Regina v. McKinney & Judge (1991) 171 CLR 468, the ambit and necessity of a direction as to the caution with which a jury should regard a confession was a matter for the discretion of the individual judge in the individual case: Ross v. The King (1922) 30 CLR 246; McKay v. The King (1935) 54 CLR 1, and other cases which are reviewed in Carr v. The Queen (1988) 165 CLR 314, the decision in which was applied in Duke v. The Queen (1988-89) 180 CLR 508. In McKinney (supra), the High Court did not follow Duke (supra) and its predecessors and re-defined for the future the appropriate practice in relation to warning the jury of the danger of convicting on a disputed confession allegedly made while in police custody in the absence of reliable corroboration. However, that requirement represented an exemplification of the principle that juries should be adequately warned of the dangers of accepting evidence that might be unreliable lest the requirements of the principles as to onus and standard of proof be not observed. Even applying those principles here rather than following the precedents as they then stood, this summing up, in my view, answered the requirements. 40 The reference to a police conspiracy was not merely a passing comment by the trial judge but was a necessary statement of the appellant's case and propounded the very issue the appellant chose to put forward. The whole of the directions sufficiently drew to the jury's notice the issue as to the reliability of the evidence of admissions, observing the distinction noted by the High Court in McKinney (supra at 476-477) cited in the passage from Towner (supra) above and complying with the principles enunciated by Allen, J. in the last extract from Towner cited. The directions accurately left the ultimate legal issue and accurately left the evidential burden on the Crown. Neither did they suggest that the appellant should be convicted unless the jury thought a conspiracy as alleged did exist. Nor did they invite the jury to choose between competing accounts. Even having regard to the matters raised on the fresh evidence ground as context, I am unable to conclude the trial judge fell into error. The appellant denied his guilt, asserted the alibi and asserted the police conspiracy. From the directions and the conduct of the case it must have been clear to the jury that any doubt on those matters would have required acquittal. I would also reject this ground.

The fresh evidence ground 41 This ground is expressed as follows:- "There is fresh evidence available to call the correctness of the appellant's conviction into question. There is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial." 42 The principles to be applied by the court when considering the admissibility and effect of fresh evidence have been enunciated by the High Court in Gallagher v. The Queen (1985) 160 CLR 392 and confirmed in Mickelberg (supra) as noted above. The evidence must be material, credible and cogent. It must at least have the capacity of creating a significant possibility that, had it been before the jury, in conjunction with the evidence led at the trial, it would have produced a significant possibility that the verdict would have been one of acquittal. In a given case it must have, particularly since the Evidence Act, at least the capacity to influence the jury's acceptance of the credibility of a critical witness: Regina v. Zaidi (1991) 57 A. Crim. R. 189. The question for this court on a ground such as this, is whether or not there has been, by reason of the absence of the evidence now brought forward, a miscarriage of justice at the trial: see Kurtic (supra) and Gallagher (supra). 43 Evidence of police misconduct or improper conduct might well answer the requirements of fresh evidence in this context: see The Queen v. Beattie (1996) 40 NSWLR 155 and in particular as a consequence of the recent Royal Commission, there have been cases since Regina v. Miller (CCA, unreported 3 May 1996); Regina v. Marsala (CCA, unreported 31 May 1996); Regina v. Selewski & Ors (CCA, unreported 19 June 1996); Regina v. McLaren (CCA, unreported 22 October 1996), a number of which are reviewed in Regina v. Baartman (CCA, unreported 6 May 1997), and recently Regina v. Thomas [1999] NSWCCA 68 decided on 13 April 1999, where, as a consequence of the Royal Commission, fresh evidence, in particular going to the credit of police officers where they had said that an accused had made admissions, was held to answer the criteria and convictions consequently re-examined. It was not, however, in every case where an accused contended that police had fabricated evidence and where the Royal Commission raised matters concerning the impropriety of one of the officers involved, that a conviction would be overturned. 44 In Regina v. Geza Vastag (CCA, unreported 12 May 1997), Levine, J., with whom Studdert, J. agreed, when looking at the application of the fresh evidence test to a Royal Commission revelation of corruption, considered the credibility and cogency of that evidence, and after reviewing the earlier cases, concluded that (at p.24):- "It cannot be stated as a general proposition that merely by reason of a police officer, who has given adverse evidence in a trial, being himself the subject of adverse examination or other adverse reference in the Royal Commission, is sufficient in every case." (at p.26) "Just as the court should not be quick to allow an appeal on a 'fresh evidence' ground merely because police officers involved in a given trial have been adversely referred to in the Royal Commission, nor, in my opinion, should the court be quick to dismiss a 'fresh evidence' appeal by reason of the absence of coincidence between the adverse references in the Royal Commission and the specific subject matter of the trial under appeal. What can be no more than a guide may be stated thus: material from the Royal Commission should be considered to determine whether it is capable of disclosing conduct or, possibly a reputation therefor, pointing to a preparedness in the officer to act corruptly, at least by dishonesty, in his performance of his duties in criminal investigations. The closer the suggested adverse conduct is in the Royal Commission material to that which is relevant to the particular trial, the more persuasive will be the position of an appellant in an appeal of this nature. I do not consider it possible or indeed desirable to enunciate any fixed test. 45 Meagher, JA., dissenting held:- "There are, it seems to me, three categories of appeal which may come under the heading 'Fresh Evidence - Police Royal Commission Material appeal'. The first is where the police evidence in the Royal Commission actually involves admissions made by police officers concerning the very facts of the case under appeal. At least if those admissions are of any substance, the appeal should be upheld and a new trial ordered. The second is where the police evidence in the Royal Commission does not involve any admissions concerning the facts of the case on appeal, but does involve admissions of misconduct in other matters. In this class of case, if the admissions are of sufficient gravity, the appeal should also be upheld and a new trial ordered. The third is where there is involved no question of any policeman making any admission about anything, but all that happens in that the police officer has been made the subject of adverse cross-examination or adverse reference in the Royal Commission. In this class of case I can see no principles basis on which an appeal should be allowed." 46 That decision was noted in The Queen v. Hastings (CCA, unreported 29 September 1997) without any disapproval and upon a reading of the judgment of Gleeson, CJ. it would seem the Chief Justice there applied principles enunciated by Meagher, JA. and consistent with those by Levine, J. 47 Before us, no affidavit containing the asserted fresh evidence was provided. No evidence directly relevant to the facts of this conviction nor from the former Detective Chad nor challenging his evidence at the trial was proffered. In order to decide questions of credibility and cogency, such evidence would, after so many years, be most important: see Gallagher (supra). Reference was made to portions of the Royal Commissioner's Report (Final Report of Royal Commission into the New South Wales Police Service, Vol. 1, Corruption, May 1997) and particularly that part of Chapter 4, particularly dealing with process corruption from pp.84-95. In that portion, the Commissioner described techniques of perverting the course of justice by perjury, "verbals in the form of unsigned records of interview and notebook confessions", and noted the techniques were both subtle on occasion, and on occasion, crude and direct. The Commissioner found that the evidence before him was replete with examples of verbals, ie., fabrications of admissions. He examined particular examples of police activity in which such activities had been carried out. He concluded that it is clear that it has been long and widely practiced within the Service and that a blind eye had been turned to it by supervisors. We were not directed to any matter detected by the Royal Commissioner specific to the appellant's trial nor to any matter particularly affecting the police involved. The reception of this material was challenged by the Crown as fresh evidence as was the evidentiary material contained in a decision of this court in Regina v. Chad (unreported 13 May 1997) also tendered. 48 I am content to refer to both bodies of material for the purposes of examining the submissions on this ground. It does not answer the description of fresh evidence in itself. It is, as I understand it, provided to us to show what factual material, by way of fresh evidence, might be admitted at a new trial. The materiality and cogency of the evidence might require examination of it as tendency or credibility evidence. The Crown's objection is, however, content to rest on the asserted inability, no matter how considered, for the material to satisfy the materiality and cogency criteria for fresh evidence. No objection is taken to the form in which the material is provided to us. Therefore, I need not stay to examine the applicability of Parts 4.3 or 4.6 of the Evidence Act and what application of the doctrine of judicial notice might now be appropriate in the light of that Act nor to consider questions of tendency and credibility except as is necessary for the purpose of deciding the materiality and cogency questions. 49 What is relied on as fresh evidence in the decision of this court referred to above is the content of the judgment in Chad (supra), a Crown appeal on sentence, in which the court records the fate of Mr. Chad, the former Detective, the interviewing officer, almost 20 years after the trial when in consequence of his pleas of guilty before the District Court to one charge of destroying documents with intent to delay or obstruct an Independent Commission Against Corruption investigation and one charge of giving evidence before that Commission which was, to his knowledge, false in a material particular, coupled with the court having been asked to take another offence of giving false evidence into account, pursuant to s.21 of the Criminal Procedure Act, he was convicted and fined the sum of $5,000 and ordered to perform 400 hours of community service. The relevant investigation by the ICAC was into the conduct of public officials in accessing and disseminating official information belonging to public authorities and of persons dealing with such officials. The evidence of Chad's dishonesty to ICAC relates only to dishonesty in relation to his own conduct as a licensed private enquiry agent after he had left the Police Service and occurred some 14 years after the appellant's trial. 50 The Crown appeal was unsuccessful in that this court, in its discretion, dismissed it holding:- "… these offences for which sentences were being imposed involved dishonesty of a high order, in that the respondent knowingly gave false evidence before ICAC. His character - as opposed, apparently, to his reputation - was already seriously flawed in this aspect. Two of the three departmental charges which were found by the Police Tribunal to have been proved, and which led to the respondent's dismissal from the Police Service, were the making of wilfully false statements on separate occasions seven months apart when interviewed by the Internal Police Security Unit. In those circumstances, less weight must be given to evidence of his character as a courageous and efficient police officer and lifesaver, and little weight if any at all should be given to those references attesting to his honest and integrity (cf. s.110(3) of the Evidence Act 1995). It is significant that, although the judge referred specifically - although, in reality, only in passing - to the respondent's dismissal from the Police Service for misconduct, he does not refer to the nature of that misconduct, or expressly recognise that the nature of that misconduct was very relevant to the aspect of his character involved in these offences." 51 The court had earlier noted:- "There can be no doubt that the respondent's character was indeed exemplary in relation to his actions as a police officer over some 30 years, and as a life saver over an even longer period, in both of which capacities he displayed great courage - indeed heroism." 52 The trial judge had noted that the prisoner was held by a number of people as being a person of integrity and capacity. 53 The reference to furnishing wilfully false answers to the Police Tribunal is of unspecified date and unspecified content, but probably also relates to his own conduct some years after the appellant's trial. None of the material in Chad's appeal or in the Report of the Royal Commission relates to Chad, whilst a detective and at or about the time of the John's trial, fabricating false admissions in criminal investigations by way of unsigned records of interview or otherwise, or giving perjured evidence in relation thereto. 54 Questions arise as to the admissibility and use of this material as tendency or credibility evidence under the legal regimes pre and post Evidence Act. 55 Notwithstanding the remoteness in time and the difference in substance of the matters, it is submitted that the material was sufficient to show a possibility the jury's verdict was fraudulently obtained; alternatively it is submitted that, had the jury been given, in 1977, evidence of the dishonesty committed nearly 20 years later, it is likely that the appellant would have been acquitted. Neither submission is factually attractive. There are temporal and logical problems involved with both submissions. Applying both the tests enunciated in Vastag (supra), by Levine, J. and Meagher, JA, I do not consider that, even in the context of the facts giving rise to the conviction and what is said in the Royal Commissioner's Report, as well as a degree of scepticism I hold as to some of the answers as they appear in the appellant's unsigned record of interview, that the appellant has discharged the onus to demonstrate a real prospect of a miscarriage of justice in the light of all the evidence at the trial including the appellant's own evidence and in the light of the conduct of the trial and the directions to the jury. Looking for the moment only at the credibility of the impugned witness in the context of the conviction and the practices revealed by the Royal Commission, the closer the suggested adverse conduct is in subject matter and time to the events of the trial, the more persuasive would be the position of an appellant in an appeal of this nature asserting the fresh evidence would sufficiently tend to affect credibility. Conversely, the further removed, as in this case, the harder it is to demonstrate the possibility of a miscarriage. 56 Considering the matter on a tendency basis requires a retrospective of nearly 20 years. I cannot conceive how this evidence now, in that context, can be regarded, in accordance with the authorities, as showing a significant possibility that Detective Chad (as he then was) then lied. 57 Subsequent to the argument of this case, this court decided Regina v. Robinson [1999] NSWCCA 186 in which, on a similar reference under s.474C, this court examined evidence asserted to be fresh evidence as to whether police officers had lied at the appellant's trial to procure his conviction. The trial occurred in 1972. The events upon which reliance was placed to impugn the conviction included the acceptance of a bribe three years later by one police officer and events in 1994 and 1996 asserted to operate adversely against the credit of the other police officer. This court reviewed extensively those appeals in which reliance on fresh evidence, having emerged in the Royal Commission, occurred and in particular, where that reliance was for the purpose of impugning the credibility of the police officers and considered for the first time the circumstance where the fresh evidence had related only to credibility and was of events which happened significantly later than the time at which the credibility of the relevant witness fell to be examined. Barr, J., with whom Abadee and Ireland, JJ. agreed, concluded that the remoteness of the evidence was such that it lacked the necessary probative value to be admissible. 58 On the application of the legal tests, the evidence tendered lacks the materiality and cogency necessary to affect this conviction. I am not persuaded any injustice has occurred by reason of this material not being brought to the attention of the jury. I would reject this ground.

The insufficiency of evidence ground 59 In considering the submissions on this ground, I have regard to the form in which the admissions went to the jury as well as to their content, the conduct of the case, the sworn denials of guilt and of confessing and the alibi evidence. I have regard to the trial being held before Driscoll (supra) and McKinney (supra) were decided by the High Court, to the situation of the appellant in custody and to my personal scepticism as to certain of the statements in the interview. I refer to the background observations of Gaudron, J. in Carr (supra at 341):- "Although there has been judicial criticism of the satisfactoriness of disputed confessional evidence ( Reg. v. Thompson [1893] 2 QB 12 at 18 per Cave, J.; Pattinson v. The Queen (1973) 58 Cr. App. R. 417 at 426 per Lawton, LJ.) and recognition that confessional evidence may sometimes be fabricated, including by the bringing into existence of a typewritten 'record of interview' ( Driscoll v. The Queen (1977) 137 CLR 517 at 542 per Gibbs, J.; Wright v. The Queen (1977) 15 ALR 305 at 318 per Jacobs, J.) confessional material has traditionally been accepted as not falling into a special category requiring the trial judge to give a warning to the jury as to its reliability: Ross v. The King (1922) 30 CLR 246 at 255; Burns v. The Queen (1975) 132 CLR 258 at 261. In any case where evidence (including a confessional statement) is potentially unreliable, the jury must be made aware of the dangers of convicting on that evidence: Bromley v. The Queen (1986) 161 CLR 315 at 319. Even though confessional material appears sufficient to submit to a jury, a conviction based upon that evidence may be set aside upon appeal, if, upon independent assessment of the nature and quality of the confessional evidence, the verdict is unsafe and unsatisfactory: see McKay v. The King (1935) 54 CLR 1 at 9-10; Wright (1977) 15 ALR at 310-311; Whitehorn v. The Queen (1983) 152 CLR 657 at 660; Morris v. The Queen (1987) 163 CLR 454 at 463-464, 470-471, 472-473." 60 I also have regard to the course the High Court came to take in due course in McKinney (supra) and the modern requirements for the recording of confessions. 61 Our attention was drawn to two cases involving oral admissions where particular appeals have been successful. In Wright (supra) because of evidence contrary to an oral confession, in particular circumstances relying on the passage cited by her Honour from McKay (supra at 304). The High Court set aside a conviction. In Regina v. Smith (1979) 2 NSWLR 304, this court overturned a conviction on flimsy evidence, which included two brief replies by way of admission held to be of little weight. However, the entire line of authorities from Cave, J. in Regina v. Thompson [1893] 2 QB 12 to the present establishes, notwithstanding judicial scepticism, that the propositions put by Dixon, J. (as the then was) in McKay (supra at 10) remain good, that confessions are admissible and can found safe convictions, but all turns on a careful appreciation of the evidentiary value of the confession and the acceptance of its making in the given case. Thus the necessity where, as here, the probative value is high and the issue is put to the jury as critical, with directions they need to be satisfied beyond reasonable doubt of the making, to have proper regard to the opportunity for assessment by the jury of all the evidence including that of the appellant and his witnesses: Chidiac & Asfour v. The Queen (1990-91) 171 CLR 432. 62 It is not simply a matter of putting the evidence into some general category of unreliable evidence of little weight or requiring its rejection in discretion, that is what the High Court refused to do in Duke (supra) and Carr (supra). The course taken in McKinney (supra), shows the High Court would not go so far. The evidence is to be left to the jury but with the appropriate warning to which I have regard when considering whether the jury should have had a doubt. I consider the admissions as part of the whole evidence to resolve that question. 63 On my reading of the whole of the evidence, I can see the effectiveness of the Crown's attack on the alibi and the defence's difficulty in successfully attacking the content and timing of the admissions as unattributable to the appellant. I consider the Crown evidence had powerful probative force. 64 Having regard to the evidence as a whole, I am unable to conclude that the jury should have had a reasonable doubt applying the test in M v. The Queen (1994) 181 CLR 487 at 492-493. 65 On the required review on appeal, it is not for this court to re-try the case on the transcript, as it might on a re-hearing appeal. With respect to a jury verdict as well as with respect to judicial decisions, in an appeal of this kind, this court sits as a court of appeal for error (Histollo v. National Parks & Wildlife Service (CCA, unreported 10 December 1998 at 10-18)). It is our task on such an appeal to decide judicially whether the jury, with its advantages of seeing and hearing the evidence, fell into error such that there is a significant possibility an innocent person has been convicted. Looking at the matter in that way, I find no such error. 66 I have also considered the cumulative effect of the matters argued to ascertain whether "on any other ground whatsoever there has been a miscarriage of justice" (s.6(1), Criminal Appeal Act), Regina v. Giam [1999] NSWCCA 53 at paras.31-43) and whether the jury might have been misled by some feature of the case (Davies (supra)) but in the way the case was conducted and on the evidence I see no basis on which the verdict should not stand. 67 I would propose that the appeal be dismissed.

No. 60481 of 1998 CORAM: DUNFORD, J. GREG JAMES, J. SMART, AJ.

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