CRIMINAL LAW - PRACTICE AND PROCEDURE - Directions - elements of assault occasioning actual bodily harm - elements of affray - flight of accused

CRIMINAL LAW - PRACTICE AND PROCEDURE - Directions - defendant's failure to give evidence - Evidence Act 1995 (NSW), s 20

CRIMINAL LAW - PRACTICE AND PROCEDURE - Separate trials - inconsistency in Crown case against co-accused - where co-accused subsequently acquitted by direction - whether verdict unsafe and unsatisfactory

CRIMINAL LAW - PRACTICE AND PROCEDURE - Directions - corroboration - unreliable witnesses - conflicting directions - Evidence Act 1995 (NSW) ss 164, 165

CRIMINAL LAW - PRACTICE AND PROCEDURE - Directions - elements of assault occasioning actual bodily harm - elements of affray - flight of accused

CRIMINAL LAW - PRACTICE AND PROCEDURE - Directions - defendant's failure to give evidence - Evidence Act 1995 (NSW), s 20

CRIMINAL LAW - PRACTICE AND PROCEDURE - Separate trials - inconsistency in Crown case against co-accused - where co-accused subsequently acquitted by direction - whether verdict unsafe and unsatisfactory

The appellant was convicted of one count of murder (s 19A of the Crimes Act 1900 (NSW)); two counts of, in company with others, using unlawful violence towards the deceased (s 93 of the Crimes Act); and two counts of assaulting the deceased and occasioning actual bodily harm (s 59 of the Crimes Act). The appellant appealed against his convictions and sought leave to appeal against his sentence.

The appellant's application for a new trial challenged a number of the trial judge's directions to the jury. In particular, the appellant alleged the trial judge failed to adequately or properly warn the jury in relation to two witnesses, West and Barrett, as to the requirements of corroboration and the provisions of ss 164 and 165 of the Evidence Act 1995 (NSW). The judge gave a number of directions as to corroboration, which he later withdrew, which were challenged as both confusing and erroneous. It was also submitted that further confusion was introduced by the directions given by the trial judge when withdrawing his directions as to corroboration.

The other challenges to the trial judge's directions related to the elements of the offences of assault occasioning actual bodily harm and affray; failure to warn the jury in relation to their use of evidence of flight by the appellant; and comments on the appellant's failure to give evidence.

The appellant's application for the murder conviction to be quashed as unsafe and unsatisfactory was based upon alleged inconsistency in the case brought by the Crown against the appellant and against a co-accused, Stephen Mordy, who was tried separately after the appellant and was acquitted by direction.

(1) Although the judge correctly withdrew an erroneous direction on corroboration in relation to West, both the direction and the withdrawal were confusing.

(2) The judge failed to give a warning in relation to the evidence of Barrett which he was obliged to give: see s 165 Evidence Act.

(3) The judge's directions as to the elements of assault occasioning actual bodily harm and affray were not so deficient and confusing as of themselves to require an order for a new trial.

(4) The judge's comments in relation to the flight of the appellant were inadequate.

(5) The judge's directions on the appellant's failure to give evidence had the capacity to confuse the jury and to give undue emphasis to the appellant's election not to give evidence.

(6) When the case against the appellant and the case against Mordy were properly understood, the murder conviction was not unsafe and unsatisfactory.

BEAZLEY JA: On 23 July 1996 the appellant was found guilty by a jury of the murder of Damon Dennis (s 19A of the Crimes Act 1900 (NSW)). He was also found guilty of two counts of, in company with others, using unlawful violence towards the deceased (s 93C of the Crimes Act) and with two counts of assaulting the deceased and occasioning actual bodily harm (s 59 of the Crimes Act). The convictions arose out of an incident or series of incidents involving a number of members of the Rebels Motorcycle Club (the Rebels) and patrons of the Mawson Park Tavern, Campbelltown, New South Wales in the early hours of Friday, 4 February 1994.

The appellant appeals against his convictions. He also seeks leave to appeal against sentence. On the appeal against conviction the appellant seeks a new trial or an order that the murder conviction be quashed as unsafe and unsatisfactory.

On the application for a new trial, the appellant challenged a number of the trial judge's directions to the jury. In particular, it was submitted that the trial judge failed to give appropriate directions in respect of the evidence of two witnesses, Simon West, the principal Crown witness, and Nicole Barrett, both of whom were alleged to be unreliable. The challenge to the murder verdict as unsafe and unsatisfactory was directed principally at the alleged inconsistency in the case brought against the appellant and the case brought by the Crown against one Stephen Mordy, a co-accused, who had also been charged with the murder. Mordy, who was tried separately and after the appellant, was acquitted by direction.

In early February 1994, a number of former members of a Victorian motorcycle club, the Warlocks Motorcycle Group, had travelled to Sydney to be made full members of the Rebels. Simon West was one of those persons. The conferral of full membership was followed by a celebratory drinking spree on the night of Thursday 3 February 1994 at various pubs and taverns, ending at the Mawson Park Tavern where about 25 motorcyclists arrived at about midnight. About an hour or two later, a fight broke out. The fight occurred in three separate locations within and outside the tavern - in the foyer, in the Casino Bar and in the driveway. During the course of the fight on the driveway the deceased was stabbed in the back of each of his thighs. The stabbing of the right thigh severed the femoral artery. The deceased was taken to Campbelltown Hospital but was transferred to Liverpool Hospital several hours later. He died on 17 February 1994 from multi-organ failure due to haemorrhagic shock which occurred as a result of the stab wound to the right leg. Cardiomyopathy was also a contributing factor to his death. It was the Crown case that the appellant had inflicted the fatal stab wound to the back of the right thigh.

Simon West was involved in the brawl with the deceased and also assaulted another patron of the Tavern, Julie Lolesio, who required hospitalisation.

Simon West was never charged with any offence relating to the deceased.

Simon West was the principal Crown witness at trial. His evidence, so far as it is relevant to the issues raised on the appeal, was that after the deceased had been dragged out of the Tavern onto the driveway he saw several men, including a Rebel member David Davies, pound the deceased in the head and torso. He then saw the appellant pull out one of his knives from the pouches on his hips and stab the deceased in the backs of the legs a couple of times "between the knees and the cheeks of the backside". West said that there was enough light for him to see blood squirt out of the deceased's leg like a fountain. This description was consistent with an artery having been severed. West also gave evidence that, prior to the stabbing, after the part of the fight that occurred in the foyer of the tavern, he had seen the appellant flicking and twirling two knives. After the fight, the appellant, West and other members returned to the Rebels clubhouse at Leppington, where the appellant became embroiled in an argument. At one stage during the course of the argument, the appellant slammed his knives down on the counter and demanded they be checked for blood. There was no suggestion in the evidence that the knives were bloodstained.

West's evidence that he had seen the appellant inflict two stab wounds was inconsistent with his statement to the police and his evidence at the committal hearing. On those earlier occasions, West had said that he had seen the appellant stab the deceased once.

Because of the inconsistency in West's evidence, the Crown sought and was granted leave to cross-examine him: s 38 of the Evidence Act 1995 (NSW). In the course of that cross-examination, the Crown prosecutor suggested to West that Mordy was involved in kicking the deceased on the driveway. The import of this cross-examination was to implicate Mordy in the murder, at least to the extent that he was present in the immediate vicinity of the stabbing scene. However, West denied the Crown suggestion. West was not cross-examined by the Crown to suggest that Mordy had inflicted one or both the stab wounds.

Nicole Barrett was at the Tavern on the night of the murder. She gave evidence that at one stage during the night she had moved from the Casino Bar to outside the tavern and was talking with a friend when the appellant came out of the tavern and joined her. During this time she observed him pull out a knife and slash the tyres of a car parked in the Tavern car park. The appellant rejoined Ms Barrett and threatened her with the same knife, warning her not to tell anyone what she had seen. Ms Barrett returned to the Casino Bar. A number of witnesses called by the Crown gave evidence of having seen the white Falcon with slashed or flat tyres.

A short time later, Ms Barrett witnessed the fight with the deceased in the foyer. She also saw the deceased go up into the Casino Bar, looking for the Rebel members with whom he had been fighting.

In cross-examination Ms Barrett agreed that she had consumed a substantial amount of alcohol and had smoked marijuana that night but denied the suggestion by the defence that she had fabricated the evidence against the appellant because he had rejected her in favour of another woman and also because she had become friendly with the deceased's father.

The central plank of the appellant's defence at trial was that Simon West was fabricating his evidence "to save his own skin" and that it was he who had stabbed the deceased. The defence sought to attack West's credibility on the basis that he had prior convictions for perjury and rape; that he had threatened a number of people; that he had a tendency to carry knives and was of a violent disposition, including having been involved in unprovoked stabbings on two occasions; that he had consumed a substantial amount of alcohol on the night in question; that he was in fact carrying knives on the night of the attack and had been involved in the fighting both inside the Tavern and outside; and that West had informed on the appellant and other members of the Rebels because he had been publicly humiliated by a high ranking member of the Rebels. He did not suggest, in any part of his case, that Mordy had killed the deceased.

Grounds one and two related to the evidence of Simon West and Nicole Barrett. As formulated in the Notice of Grounds of Appeal they were:

"Ground 1: His Honour failed to adequately or properly warn the jury in relation to their use of the witness West.

Ground 2: His Honour erred in failing to adequately or properly warn the jury in relation to the use of the evidence of the witness Barrett."

It became apparent during the course of the appellant's submissions that these grounds raised the question of the interaction of the principles relating to corroboration and the provisions of ss 164 and 165 of the Evidence Act. In particular, the following specific issues arose:

1. whether his Honour's direction in relation to Simon West's evidence was adequate, given that the evidence was of a nature which may be unreliable;

2. whether his Honour was correct in refusing to give any direction under s 165 of the Evidence Act in respect of the evidence of Nicole Barrett;

3. that his Honour's direction in respect of corroboration was both confusing and wrong; and

4. whether his Honour wrongly withdrew his direction as to corroboration from the jury.

Corroboration and its Interaction with ss 164 and 165 of the Evidence Act

Evidence which is corroborative of other evidence is evidence which "confirms" or "supports" or "strengthens" that other evidence in the sense that it "renders [that] other evidence more probable": see Director of Public Prosecutions v Kilbourne [1973] AC 729 at 758, per Lord Simon of Glaisdale; Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 211. It must do that "by connecting or tending to connect [the accused] with the crime" charged: see R v Baskerville [1916] 2 KB 658 at 667_; Doney_ at 211. Traditionally at common law, there were certain crimes and certain categories of evidence in which the common law required that evidence be corroborated. Perjury was such a crime and is one for which the requirement for corroboration has been statutorily preserved in s 164. Evidence which also required corroboration included evidence given by an accomplice, a complainant's evidence in sexual assault cases, and the evidence of children (the latter two categories being the subject of increasing debate). There is also the principle enunciated in R v Longman [1989] HCA 60; (1981) 168 CLR 79 that it may be dangerous to convict on uncorroborated evidence in certain cases. As the court said at 86:

"[T]he general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case..."

In Kahatapitiye v R (unreported, Supreme Court of Western Australia, 1 May 1998) Pidgeon J said:

"The essence of the [Longman] warning is that it would be dangerous to be satisfied beyond reasonable doubt on that evidence alone unless the jury scrutinising the evidence with great care and taking other precautions were satisfied of its truth and accuracy."

Section 164 of the Evidence Act abolished the requirement for corroboration in any criminal matter except in relation to perjury and similar or related offences. The abolition of the requirement for corroboration must be understood, however, first with an understanding that s 164 does not prohibit the giving of a direction in relation to corroboration and secondly, in conjunction with the provisions of s 165 which govern the giving of a warning in respect of evidence which may be unreliable. That section provides:

"(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury."

The combined effect of ss 164 and 165 is to give greater flexibility to the directions which may be given to a jury over that provided by the requirement for corroboration: see R v Spedding (unreported, NSW Court of Criminal Appeal, 11 December 1997). The need for flexible but adequate directions was commented upon by the Supreme Court of Canada in Vetrovec v R (1982) 136 DLR (3d) 89 when it stated, at 99:

"Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness."

A direction as to the dangers of convicting on uncorroborated evidence may still be given and in a particular case may still be necessary. In so stating I do not intend to indicate that words such as "danger", "dangerous" or "corroboration" must be used in any such direction. It is a matter for the trial judge to give a warning which is adequate in all the circumstances, and it may well be better to express the warning in terms of evidence that "supports" the witness, since this is likely to be more meaningful to a jury.

With these matters in mind it is necessary to return to the issues raised by the first two grounds of appeal. It is convenient to deal with the issues relating to corroboration first.

In the course of his summing up, the trial judge reminded the jury that on the murder charge, the Crown had invited them to make or draw eleven findings or conclusions from the evidence, commencing with a finding that Damon Denis was stabbed on the morning of 4 February 1994. In respect of the tenth matter, which related to the evidence of Nicole Barrett and its capacity to be corroborative of Simon West's evidence, his Honour said:

"The tenth matter is that you should accept Nicole Barrett when she says she saw Scott Lewis stabbing tyres earlier and threatening her, waving the knife at her chest. The Crown says that that is the second most important finding that you make and the Crown says they are interrelated because what Nicole Barrett saw is evidence that corroborates, not the actual stabbing, but corroborates circumstances in relation to that stabbing."

His Honour also drew the jury's attention to other evidence which the Crown contended was corroborative of Simon West's evidence, including the evidence of what Simon West himself said at the clubhouse. His Honour, after again referring to the evidence of Nicole Barrett, gave the following direction in respect of corroboration:

"Now, what the Crown says to you is that Nicole Barrett corroborates. Corroboration is not someone who saw: we often use "corroboration" to mean a second person saying exactly the same thing. That is not corroboration in law: corroboration is something which supports a fact without being necessarily direct evidence or similar evidence. If it were similar evidence, the law says that is redundant. That is not to say it cannot in fact corroborate: but corroboration is not something which is direct evidence, it is evidence supporting a fact."

His Honour referred to the question of corroboration on a number of further occasions during the summing up. One reference was in these terms:

"I want to now talk to you [about the] use of the word `corroboration'. Corroboration is not, for all criminal matters, an essential ingredient of an offence. However where, in a case such as this, such a serious allegation is made as murder/manslaughter, I warn you and direct you that is dangerous to act on uncorroborated evidence and I must, in warning you of that, direct you that if you do not find corroboration for events, then it is dangerous to convict on that evidence. I have told you that the Crown relies on the matters of corroboration of Simon West's evidence, in relation to the murder charge; the evidence of Nicole Barrett. The Crown has told you the ways in which corroboration can apply: not a second eye-witness of the precise events, but how corroboration through Nicole Barrett of all those matters, having the knife and the threats and so on and the stabbing of the tyres beforehand and the evidence of the surrounding witnesses, these can constitute corroboration. If you make findings in relation to those matters, then you can rely on that. But otherwise, in a serious matter such as this, you should take into account that you have to find corroboration in a serious charge such as murder and manslaughter and all of the medical evidence is a matter which also you may take into account, in part in that corroboration." (emphasis added)

These directions were challenged as being both confusing and erroneous.

His Honour's original direction to the jury, being the first passage reproduced above, whilst not as clear as it could have been, and not strictly correct as far as it suggests that direct evidence could not provide corroboration, was not so misleading or confusing as to require an order for a new trial.

The error alleged in the next passage is more substantial. The directions that it was dangerous to convict on a charge such as murder unless the Crown case was corroborated and that the jury "had to find corroboration in a serious charge such as murder" were clearly erroneous: s 164 of the Evidence Act, and if left to the jury would have required an order that there be a new trial. However, the directions were withdrawn. I will deal with the effect that had on the summing up shortly.

The trial judge in his directions on corroboration also directed the jury that they could rely upon the evidence of Nicole Barrett to corroborate that of Simon West. Senior counsel for the appellant submitted that his Honour erred in giving this direction as Nicole Barrett was herself an unreliable witness and one unreliable witness could not be used to corroborate other unreliable evidence. I do not agree. In R v Camp (unreported, NSW Court of Criminal Appeal, 3 September 1996, per Beazley JA at 16), the Court pointed out that the fact that evidence relied upon as corroboration may be met, contradicted, explained (or questioned as to its credibility) does not deprive it of its character as evidence which the jury may accept as corroborative. In other words, it is a matter for the jury to either accept or reject the evidence, just as it is a jury question to determine whether, having accepted certain evidence, that evidence is corroborative of other evidence. Likewise in the case of unreliable evidence. It is a matter for the jury to determine whether it will accept or reject such evidence. Section 165 provides the necessary safeguard for an accused where unreliable evidence is before the jury. If the jury accepts such evidence it is a matter for them as to what weight they will give to it, and if relied upon by the Crown as corroborative of another witness's evidence, whether they will so treat it. Accordingly, this submission must fail. However, whilst this particular submission fails, the trial judge did not give any warning under s 165 in relation to Nicole Barrett's evidence, a matter to which I shall refer shortly.

When the appellant's trial counsel sought a redirection in relation to the capacity of Nicole Barrett's evidence to be corroborative, the Crown prosecutor sought to have the direction as to corroboration withdrawn altogether, submitting first that on the authority of Longman v R there was no rule of law or practice which required corroboration in the case of a charge of murder, and that in any event, s 164 provided that corroboration was no longer required. He submitted that the only direction required in respect of the evidence of Simon West was a direction under s 165 and further submitted that no s 165 direction was required in respect of Nicole Barrett's evidence.

The submission as to s 164 was, of course, correct, although the submission in relation to Longman perhaps elided the extent of the principle stated there. Whether or not his Honour appreciated the precise import of Longman is not clear, but in any event, he granted the Crown application. He said to the jury:

"I want to withdraw the direction that I gave you about corroboration, that is, the need for corroboration, as a matter of law. You are not required, in relation to the offences before you, to find corroboration and I withdraw the comment that I made earlier. And I want to make it clear that, if you had interpreted that what I had said in relation to evidence to support his version, that you could not rely on it, I want to say in relation to the accused's case there is evidence to support his version, in the evidence of his tendency, the evidence of he having the knife and the evidence of the assault on Julie Lolesio." (emphasis added)

Senior counsel for the appellant submitted that, notwithstanding the provisions of s 164, his Honour erred in acceding to the Crown's application, because this was a case where the circumstances dictated such a direction in accordance with the principle in Longman. He further submitted that in withdrawing the direction as to the requirement for corroboration from the jury, the trial judge did so in a way which introduced further confusion and then failed to give an adequate direction under s 165 as to the unreliable nature of Simon West's evidence.

As I have already said, the direction to the jury as to the requirement for corroboration in an offence of this sort was erroneous and had to be withdrawn. This was done. However, there is merit in the submission that in doing so his Honour introduced further confusion.

The first area of confusion arises out of his Honour's use of the pronouns "his" and "he" without identification of the person to whom reference was being made. In my opinion, it would not have been clear to the jury whether he was referring to the appellant or Simon West in these directions. Secondly, the statement that there was evidence to support "his version", introduced the language of corroboration when his Honour appears to have moved from that to giving a direction relating to matters relevant to the unreliable nature of Simon West's evidence. Thirdly, and this follows from the second, his Honour not only dealt with two different concepts "in the one breath", he did not clearly differentiate for the jury matters relevant to the unreliable nature of West's evidence. Fourthly, in the manner in which the direction was given it may have been understood by the jury as an invitation to consider whether there was corroboration for the case of the accused - an approach which would involve a reversal of the onus of proof. Fifthly, having withdrawn the direction as to "the need for corroboration as a matter of law", he gave no direction to the jury as to the use they could make of the evidence which he had previously identified as available to corroborate Simon West's evidence. This last matter leads to the next point.

Senior counsel for the appellant further submitted that the jury was, in any event, left with a direction as to Simon West's evidence which was manifestly inadequate and that in whatever terms the direction under s 165 was given, it should have included: (i) a plain warning of the danger of convicting on the evidence of West alone; (ii) a brief explanation of why this was so; (iii) an explanation of what other independent evidence, if any, which if accepted by the jury was capable of supporting the evidence of West; (iv) a direction that it was for the jury to decide whether in fact they accepted that other evidence; (v) a direction that it is a question for the jury to decide whether that other evidence did or did not strengthen or support the evidence of West that Lewis stabbed the deceased; (vi) that it would be dangerous to convict on the evidence of West alone and they ought to carefully scrutinise his evidence; (vii) and, that if the jury was not ultimately satisfied beyond reasonable doubt that West was giving honest evidence concerning the stabbing of the deceased by Lewis, then the existence of other supporting evidence would not permit them in this case to convict on the evidence of West.

It is not necessary for this Court to endorse in whole or part this catalogue as being necessary or sufficient for there to have been an adequate direction under s 165. As I have already indicated, the effect of his Honour withdrawing his direction as to the requirement for corroboration from the jury was to leave the jury not knowing whether they should or should not approach West's evidence with caution and without any clear direction as to what evidence, if any, supported West's version. In my opinion, the jury was entitled to appropriate directions to assist them on these matters. When there is added to this the confusion inherent in his Honour's withdrawal of the direction in respect of corroboration referred to earlier, I am of the opinion that there must be a new trial.

Failure to Give a s 165 Direction in Respect of the Evidence of Nicole Barrett

At trial, counsel for the appellant sought a direction under s 165 of the Evidence Act in respect of the evidence of Nicole Barrett. It was submitted that her evidence was unreliable in that it was tainted by bias, that she had imbibed a large quantity of alcohol in the hours prior to the murder and that she was a drug user, and in fact, had used marijuana on the night in question. Such a direction was resisted by the Crown on the basis that s 165 did not apply "to gather up all kinds of strands of evidence that may be relevant [in this case bias, alcohol and drug use] to attract a judicial warning". It was submitted that if the section was intended to extend to such matters, the section would have expressly so provided.

The trial judge accepted the Crown's submissions and rejected defence counsel's application holding:

"I do not consider in relation to Nicole Barrett that the matters of marijuana, bias and alcohol are encompassed by the specific words of section 165 subsection (1), nor do I consider they are of the same genre".

His Honour's ruling was based on a misunderstanding of s 165. Section 165 is directed at evidence "which may be unreliable" and specifies, by inclusion, a list of such evidence. The fact that the list is inclusive and not exhaustive means that by the express terms of the section, there is evidence not included in paragraphs (a) to (g) which "may be unreliable" for the purposes of the section. Put simply, s 165(1)(a)-(g) is not an exclusive code of the unreliable evidence to which the section applies. Evidence afflicted by bias, or evidence of an event given by a witness affected by alcohol or drugs at the time of the event may be unreliable and thus fall within the section.

The trial judge was, therefore, obliged to give a warning in relation to the evidence of Nicole Barrett, a request to do so having been made by counsel for the appellant: see s 165(2). There was no suggestion that there were good reasons for the trial judge not to have complied with the request: see s 165(3). The trial judge's failure to give a direction under s 165 in relation to Nicole Barrett's evidence would, of itself, have been sufficient to have ordered a new trial.

Subsidiary Attack on Directions Relating to Nicole Barrett's Evidence

Attack was also made upon the manner in which his Honour dealt with Nicole Barrett's evidence that she saw the accused with "the knife". Counsel for the appellant submitted that:

"So there is the immediate problem: the person Barrett has been involved in that term which is unfortunate but is capable of being construed as the murder weapon, "the knife". And the Crown goes on to say that that piece of evidence corroborates and goes on to give a description of the corroboration ... [t]he danger flowing from the contention of "the knife" and corroboration is that it appears that his Honour is saying to the jury that somehow the use of "the knife" is corroboration. There was nothing in the evidence identifying a knife, Nicole Barrett she said she had seen as the murder weapon. At its highest it is "a knife"."

"Turning to the second principal Crown witness, Nicole Barrett, [the Crown prosecutor] says that she gave the evidence about the accused having the knife, about the way he handled it, about what Nicole Barrett says happened then. You have, in fact, the evidence of the car tyres. You can draw your own conclusions about the sort of implement that caused the injuries to the car. She described the blade, then she described that conversation that you heard." (emphasis added)

His Honour then explained the meaning of corroboration in the passage to which I have already referred. His Honour continued:

"So the Crown says to you that her evidence can be used in four respects: both as direct evidence and as corroboration that the accused had a knife, that he behaved aggressively, that he behaved threateningly and the evidence of the blade size.

So, the Crown says that Nicole Barrett assists, corroborates, the evidence of Simon West and that corroboration, the Crown says, is of the events of the stabbing later. But she does not say that she saw that stabbing, or the events in the driveway, of course, other than Damon Dennis being brought down." (emphasis added)

His Honour's reference to "the knife" was confusing although the confusion was tempered by reference to the appellant having "a knife" and by his Honour having made it clear that Nicole Barrett had not seen the stabbing.

I do not consider however, that those references were sufficient to dispel the suggestion that the knife Nicole Barrett saw was the murder weapon - or at least to dispel the confusion which this portion of the summing up engendered. This is particularly so when the references to "the knife" not only preceded but also followed references to "a knife" and when no reference was made in that part of the summing up to the fact that others present on that night, including Simon West, also had knives. This adds to the overall strength of the complaint made as to the summing up and the consequent need for a new trial.

The appellant relied upon a number of other grounds in support of his appeal that he be granted a new trial, although his counsel treated them as very much subsidiary to the first two grounds. Having regard to the conclusion to which I have come in respect of those grounds, I will only comment briefly on the balance of the grounds. Ground 3, that his Honour failed to direct the jury adequately in respect of the elements of murder was effectively abandoned and therefore does not require any comment.

4. His Honour gave directions concerning the elements of the offence of assault occasioning actual bodily harm which allegedly occurred in the Casino doorway which were inadequate and misleading.

5. His Honour gave directions concerning the elements of the offence of assault occasioning actual bodily harm which allegedly occurred in the driveway area which were inadequate and misleading.

6. His Honour's directions concerning elements of the offence of affray in relation to the incident in the Casino doorway were inadequate, irrelevant and misleading.

7. His Honour's directions concerning the elements of the offence of affray in relation to the incident in the driveway were inadequate and misleading.

Two essential complaints were made in respect of these grounds of appeal. First, that the trial judge failed to direct the jury that in order to find the appellant guilty of the first assault charge they had to be satisfied that any striking by the appellant of the deceased caused actual bodily harm. Secondly, that both in respect of the first and second assault charges, there was a risk of duplicity because, as to the first, the trial judge included a reference to the stabbing and as to the second, he included a reference to the first assault. It was further submitted that his Honour erred in directing the jury as to the second of the assault charges, which were of "using unlawful conduct" he did so in terms of "threatening unlawful conduct".

Although there is substance in each of these complaints, no point was taken at trial in relation to the inadequacy of the directions. However, notwithstanding that the point was not taken below I am satisfied that the summing up to the jury was generally so deficient and confusing that there should be a new trial on all issues.

Ground Eight: Direction as to the Appellant's Flight

On three occasions during the summing up the trial judge referred to the fact that the appellant had fled to Adelaide after the stabbing. The first reference was whilst his Honour was dealing with evidence which might support Simon West's evidence. The second reference was incorporated in a reference to the matters which the jury might take into account in their determination of the "first ingredient [of the crime of murder] that it was the act of the accused". His Honour said:

"The Crown says that you should rely on the evidence of flight"

and then specified the evidence which indicated flight. The third reference which his Honour made to flight was again in the context of the appellant not giving evidence.

In none of these directions did his Honour direct the jury that for the Crown to be able to rely on flight in aid of proof of the guilt of the accused, there had to be a link between that conduct and the charge. As Street CJ said in R v Sutton (1986) 5 NSWLR 697 at 701:

"[R]eliance by the Crown on collateral conduct eloquent of guilt, such as flight or a lie, is fraught with the risk of miscarriage. The link between the conduct and the crime in question must be demonstrable."

If flight by the accused was to be used there should have been a clear direction to the jury that they had to be satisfied that there was the necessary link.

There were other inadequacies in the manner in which the question of flight was dealt with by the trial judge. One reference to flight was made in the context of a direction on corroboration. The direction on corroboration was of course withdrawn completely. This could have added to the jury's confusion on this issue. The reference to flight on three separate occasions was also undesirable and could have given it unwarranted weight in the jury's mind.

Ground Nine: Trial Judge's Comment on the Appellant's Failure to Give Evidence

The appellant did not give evidence. Pursuant to s 20 of the Evidence Act the trial judge was entitled to comment on his failure to do so, but could not suggest that the reason he failed to give evidence was because the appellant was, or believed that he was, guilty of the offence concerned. Section 20 does not prohibit any other comment which may be made on a failure to give evidence: see Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217, where Mason CJ, Deane and Dawson JJ said at 228:

"a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them."

"It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence."

The Crown did not seek any comment from the trial judge as to the appellant's election not to give evidence. Nonetheless, his Honour did comment upon it. He made a comment not once, but three times, on successive occasions withdrawing his earlier directions and giving a redirection. The first two directions each ran over three pages of the transcript. His Honour gave the final direction after having first obtained the agreement of the Crown and the appellant's counsel to the terms of the redirection.

In my opinion, the multiple directions on the point had the capacity to confuse the jury and to give undue emphasis to the appellant's election not to give evidence. The potential for unfairness in this further adds weight to the need for a new trial on all charges.

The second principal issue on the appeal was whether the verdicts were unsafe and unsatisfactory. Under this rubric, it was submitted that the trial was vitiated by fundamental irregularity and that the verdicts were not supported by the evidence. As to the first of these approaches, it was submitted that at the trial of the co-accused Mordy, the Crown had submitted a case to the jury which was inconsistent with the case it had conducted against him and on which he had been convicted. Central to this submission was that in the appellant's trial the Crown did not disclose that it was not proposing to call evidence from two witnesses, a Russell Kent and a Robert Benson, whose evidence implicated Mordy in the murder and which was capable of raising a doubt as to the accused's guilt. It is necessary for the purposes of this limb of ground ten to revisit the statement by Simon West to the police and his evidence both at committal and at trial.

Simon West was first interviewed by police on 7 April 1994, when he stated he had seen the appellant stab the deceased. He could not remember which leg was stabbed. This is significant as it was the stab wound to the right leg which ultimately led to the deceased's death. He also told police that Mordy was present and participating during the incident in which the stabbing occurred. Simon West gave this same version of events at both Mordy's committal and the appellant's committal proceedings.

At the appellant's trial, which it will be remembered was heard prior to Mordy's trial, the Crown opened the case against the appellant on the basis that he had inflicted the fatal stab wound. The Crown made no reference to Mordy in its opening address. Simon West's evidence at trial was that the appellant inflicted the stab wounds to both legs. The Crown challenged West's evidence at the appellant's trial, inter alia on the basis that his change in evidence was due to a bias in favour of Mordy. West and Mordy had been friends for ten years. However, in its s 38 cross-examination of West, the Crown did not suggest that Mordy had inflicted any stab wound, let alone the fatal stab wound.

Mordy's trial commenced eight days after the appellant's conviction. The Crown case against Mordy was that he was involved in a joint venture with Lewis and that whilst it was the appellant who had inflicted the fatal wound, Mordy was present with Lewis at the time of the stabbing and that it was Mordy who inflicted the non-fatal wound to the left leg.

In his opening the Crown prosecutor told the jury that Simon West would be called as a witness but that he anticipated that West's evidence would not implicate Mordy and that the Crown would be asking the jury not to accept West's evidence. He explained that the Crown would rely upon a "confession" made by Mordy to a Russell Kent on Friday 5 February 1995, in the car park of the Clubhouse Hotel in Yass. In that "confession" Mordy was alleged to have said to Kent "I'm off to Melbourne `cause I had to get out of Campbelltown `cause I stabbed a bloke and he looks like dying. I usually prefer to use a bullet because a bullet is quicker". Mordy said similar things a few times during the conversation and had then said "I shouldn't be telling you this".

Kent had given evidence at Mordy's committal. At the committal, Kent gave evidence not only of the confession but also that the next day he saw Mordy leave the hotel and travel in the direction of Melbourne. He also gave identification evidence.

The Crown prosecutor did not make any reference to the evidence of Robert Benson, the licensee of the hotel. Benson gave evidence at Mordy's committal to the effect that Mordy and another co-accused David Davies had booked into the hotel on the evening of 4 February and left the following morning in the direction of Melbourne. Benson gave identification evidence of Mordy and Davies.

As the Crown had anticipated, Simon West gave the same evidence at Mordy's trial as he had given in the appellant's trial. In short, he denied that Mordy was present during the stabbing. It was at that point that the trial judge directed the jury to acquit Mordy, presumably upon the basis that the conflicts in his evidence was such that the jury ought to have been left with a reasonable doubt. This course was followed notwithstanding statements in the majority judgments in decisions such as R v R (1990) 18 NSWLR 74 and Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 that such a conclusion by a trial judge does not provide a basis for a direction of acquittal. Rather, the matter remains for the jury to determine, in the light of all the evidence, the addresses by counsel and the directions of law which are given. The Crown at that stage had not had the opportunity to call Kent (or Benson if that was its intention), nor had the jury heard the remaining evidence.

Mr Lamprati, Crown counsel on the appeal, denied that there was any inconsistency in the presentation of the two cases. He explained that the case against the appellant was that he had inflicted the fatal stab wound. The case against Mordy was that he was present with the appellant and part of a common enterprise of stabbing the deceased and that he had inflicted the other stab wound. He submitted that this had always been the Crown case against each accused as was apparent from the transcript of the application for separate trials. During the course of that application, the Crown prosecutor had informed the trial judge that in the Mordy trial, the Crown's case of "acting in concert" with the appellant in the stabbing incident was based on the alleged confession to Kent. He had also informed the court during the course of that application that the Crown case was that the appellant had inflicted the fatal wound and that the other wound was relatively superficial "but that the Crown's position was that Mordy, by his confession, put himself acting in concert with [the appellant] in inflicting the first wound and then carried on the enterprise, and his confession must also mean that he inflicted the second wound". (Emphasis added).

The transcript of the separate trial applications indicates that the appellant's counsel at trial was present when these submissions were made by the Crown prosecutor. The evidence of the appellant's solicitor, given on this aspect of the appeal, confirms that this was the case. There is no indication in the transcript for the separate trial application that the confessional material was identified, nor is there any indication that any clarification of its nature was sought by the appellant's counsel. He may not, therefore have been aware of what that evidence was. The appellant's solicitor gave evidence in this appeal that he did not raise the matter of Mordy's confessional statement with Mr Horler QC nor did he appreciate that it was relevant or admissible at the trial of the appellant. The list of witnesses with which he had been supplied for the purposes of the appellant's trial did not refer to Kent or Benson. However, he had also acted for the appellant's brother in the Mordy committal at which Kent's evidence was given and had been supplied with copies of both Kent's and Benson's statements in the original brief delivered to him by the prosecution in respect of that committal.

Subject to one matter which requires further examination, there is no inconsistency between the two cases when the nature of the case against Mordy is understood. The one matter which may throw some doubt on this is the Crown's statement at the very end of the separate trial application that "this confession must also mean that he inflicted the second wound". However, having regard to the Crown's earlier statement that the appellant had inflicted the fatal wound and the fact that the Crown prosecutor in his opening in the Mordy trial did not state that Mordy inflicted the fatal stab wound, I am of the opinion that any apparent inconsistency in the two cases raised by this comment disappears. This is reinforced by the fact that the appellant's defence to his case was not to implicate Mordy but to blame Simon West.

Whilst the change in West's evidence between committal and trial may well give the appellant a sense of personal grievance, that of itself and in the circumstances of this case, does not make the murder conviction unsafe and unsatisfactory. It thus becomes unnecessary to give any specific consideration to the solicitor's failure to understand the relevance of the confessional material to the appellant's case or to the Crown's omission to refer to Kent and Benson in the list of witnesses. I should also note that this limb of ground ten could only provide further grounds for a new trial, which is required under earlier grounds in any event.

The challenge mounted under the second limb was that it was not open to the jury to find guilt beyond reasonable doubt on the evidence, and thus the verdict was unsafe and unsatisfactory. Under this limb, if made out, the appellant would be entitled to a verdict of acquittal: M v The Queen (1994) 181 CLR 487; Jones v The Queen [1997] HCA 56; (1997) 72 ALJR 78, 149 ALR 598.

The way this was put in argument was that the Crown case depended on West's evidence that the appellant had stabbed the deceased in both thighs, the wound to the right thigh being identified as the cause of death from the spurting blood from that wound described by West in his evidence. It was submitted that West was such a demonstrably unreliable witness that a reasonable doubt was unavoidable.

It is true that there were weighty considerations against acceptance of West as a reliable witness. He had given a different account to the police and at the Mordy committal, namely, that there was only one stab by the appellant and that he (West) could not say to which leg.

West also changed his story about the involvement of his friend Mordy, saying at first that Mordy participated in the attack on the deceased and later that he did not. In addition to that, West's criminal record was brought out, including a prior instance of perjury by himself and of paying a witness to give false evidence on his behalf. However, the jury were entitled to accept West's account of the appellant's actions on the night despite this attack on his credit. There was no objective evidence which made West's account at the trial implausible. Whether to accept West's sworn account or not was quintessentially a matter for the jury with the advantages they had in seeing and hearing him give his evidence.

Senior counsel for the appellant relied upon other matters in support of this ground. In my opinion, they were not made out, and do not require comment.

I would order that the appeal against conviction be allowed, the convictions be quashed and a new trial ordered on all charges.

WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Beazley JA. I agree with her reasons and the orders she proposes.