Regina v Robinson

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70056/99 FILE NUMBER(S) : LOWER COURT The Honourable Justice Barr JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60398/00

BEAZLEY JA HIDDEN J CARRUTHERS AJ

Monday, 18 August 2003 REGINA v Harry ROBINSON Judgment 1 THE COURT: Harry Robinson appeals against his conviction at the Supreme Court Sydney on 20 April 2000 of the murder of John Thomas Kennett. On 16 June 2000 Justice Graham Barr sentenced the appellant to imprisonment for a term of twenty-two years commencing on 12 December 1999 and expiring on 11 December 2021. His Honour set a non-parole period of fifteen years. The appellant will therefore become eligible to be released on parole on 11 December 2014. 2 The appellant was arraigned before his Honour and a jury of twelve at the Supreme Court Sydney on 3 April 2000 upon an indictment containing one count, namely the murder of John Thomas Kennett (to whom we shall refer as "the deceased"). The trial followed an earlier trial in the preceding March which culminated in the discharge of the jury. Neither counsel for the Crown nor counsel for the appellant before this Court were counsel at the trial. 3 The offence allegedly occurred at the Junee Correctional Centre on 17 September 1998. The deceased was serving a sentence imposed for several sexual offences committed upon young boys during his time as a teacher. This fact became known among fellow inmates at the centre, of whom the appellant was one. The deceased was therefore classified as a paedophile. On the day of the offence, the deceased was bashed in his cell. He received injuries, principally upon the head, from which he died. The Crown case was that the appellant killed the deceased by punching him, and, when the deceased went to the floor, "stomped" on his head repeatedly. There was no issue at the trial that the deceased was murdered. The issue was whether the appellant was responsible.

Summary of the Evidence. 4 The Crown Prosecutor called five persons who were prisoners at Junee at the time of the offence. Generally, the testimony of this group included evidence as to the appellant entering the deceased's cell and attacking him, and statements made by the appellant before and after the murder. DNA evidence was called as to the presence of DNA on the sole of one of the appellant's Nike runners consistent with being that of the deceased. Other evidence related to separate comments, claimed by the Crown to constitute admissions, made by the appellant to a Correctional Service Officer, Phillip Bouffler and to a Police Prosecutor, Senior Constable Barron, when he was taken to the Wagga Wagga courthouse. 5 The fellow inmates called by the Crown were Mathew Digby who deposed that he had actually seen the appellant attacking the deceased in the deceased's cell. Secondly, Noel Roach, who gave evidence implicating the appellant. Thirdly, Franciscus Soonius, a Dutch national who also gave evidence implicating the appellant. Fourthly, Leendert Van Hofwegan, also a Dutch national, who also gave evidence implicating the appellant. 6 The fifth inmate witness was one Mark Brazel whose evidence was such that the Crown was given leave to cross-examine him as an unfavourable witness. 7 The area of the Junee Correctional Centre which is relevant to the present appeal is B Unit, which is also referred to as B Pod. It is classified as "normal protection". B Pod is divided into four parts, A, B, C and D. Each inmate has his own cell. There are two levels. The bottom level consists of cells numbered individually B1 to B16. The top level consists of individual cells numbered B17 to B32. On each level the cells are against two walls at right angles to each other. On the ground level there is a shower block. There are two stair wells running from the top level to the ground level. Telephones are also located on the ground level. 8 With one exception the inmates to whom reference was made in the evidence were housed in cells on the top level. 9 The first witness called by the Crown was Matthew Digby (B25). He deposed that shortly after 5 pm on the evening of Thursday, 17 September 1998 he was in the cell occupied by Leo Tonelli (B23). Also present were Terry Johnson (B7), another person identified as "another Mat" and Damien Hopper (B30). They were drinking home brew and playing the guitar and cards. Digby said he was not drinking. At some stage Terry Johnson left the cell and went to the cell of the deceased (B20). 10 Digby also noted that other inmates in the cell were Noel Roach (B24), Mark Brazel, Mark Johnson, a person named Michael and the appellant. They appeared to be reading statements. The deceased was not present. 11 Digby overheard discussion initiated by Brazel to the effect that they had to get rid of the deceased out of their section of the gaol. 12 The inmates then all left the cell. 13 Shortly thereafter Digby saw the appellant and Brazel enter the deceased's cell, walking single file. The cell door was closed and Digby looked through the glass observation window in the door. He observed the deceased lying on the floor and both the appellant and Brazel bending over and punching him. Brazel was punching the lower part of the body and the appellant was punching the head. The deceased did not try to defend himself in any way. Following the punching he observed the men kicking the deceased. Digby said: "Harry was, like, stomping kind of on his head and Brazel was kicking into his stomach kind of." 14 He thought that the appellant stomped on the deceased's head no more than twenty times. Digby said he was stunned. 15 The door then opened and the two men walked out of the cell. Digby said that the appellant grabbed him and said: "What am I doing kind of and got me to get going". 16 Digby said that the appellant was wearing "gaol greens". He was wearing shorts and Digby noticed that he had an elastic support on one of his knees. He said that he was wearing black shoes but could not say what kind of shoes. He then identified black running shoes (which had been removed by investigating police officers from the appellant's cell later that evening) as being "like the same kind of shoes". 17 The alarm was activated and a female correctional officer went to the deceased's cell. She screamed and radioed for assistance. Other correctional officers then came to the scene. All the inmates were then locked in cells, not necessarily the cell which they normally occupied. 18 Whilst the locking up process was going on Digby said that the appellant came up to him and said: "Just that he was spewing up that he couldn't jump on his head properly because of his sore leg." 19 About this time, according to Digby, the appellant "was yelling out, you know, compliments: 'Sucko, Rocky'". "Rocky" or "Rock Spider" are colloquial terms for a paedophile. 20 Digby said that later that evening the appellant passed him a note which had written on it "Just not to say anything, be cool, you know, be sweet; when the officers come around don't say anything". He burnt the note and put it down the toilet after he had read it. 21 A few weeks or so after the incident Digby was taken to the correctional centre at Kirkconnell. Digby there spoke to a psychologist and then made a statement to the police setting out his version of what had happened on the evening in question. 22 A considerable amount of the cross-examination of Digby was directed to the suggestion that Terry Johnson was the person responsible for the murder. This was denied by Digby. 23 The Crown also called Noel Roach who had been a fellow inmate with the appellant at either Bathurst or Goulburn Correctional Centres prior to their both being at Junee together. He was aware that the appellant suffered from a disability in his right knee which required him to wear a knee brace. 24 On the afternoon of September 17 1998, Roach was with a group of fellow inmates playing cards in Evan Collier's cell (B28). Also present were the appellant, Terry Johnson, Troy Erskine and Matthew Digby. 25 Terry Johnson entered the cell with some tobacco which he said that he had got "from his boyfriend". This was a reference to the deceased. When it was suggested to Johnson that he should repay the deceased, Roach said that his response was "he wasn't sure because he believed he (meaning the deceased) was a joy rider". This is another colloquial term for paedophile. 26 Terry Johnson then left the cell and went to the deceased's cell where he obtained copies of transcripts of legal proceedings involving the deceased which contained references to his being involved in sexual relations with young males. 27 After some discussion the appellant said "that he was going to go thump him". This prompted Roach to indicate that the card game was over. He picked up the cards and walked out of the cell. 28 Roach returned to his own cell and was watching television. He then heard "tremendous loud thumps". He said "about four or five". He looked outside his cell and saw Digby standing close to the deceased's cell door. No-one else was in the vicinity on the landing. 29 Roach then returned to his cell. Later, on the landing he saw inmates milling around. Someone said: "The cunt's not getting up". In response, the appellant said: "That he couldn't stomp on his head hard enough because he has a sore knee". 30 Roach said that from what he remembered at the relevant time the appellant was wearing "a black pair of old work boots". 31 Franciscus Soonius, a Dutch national, was also called by the Crown. He was housed in cell B22, two cells down from the deceased's cell. On the afternoon of 17 September he heard conversations taking place on the landing of the top floor of the wing outside cell B26 (the appellant's cell) "about what the deceased was in custody for". Terry Johnson was also there. 32 The witness saw Johnson searching for paperwork in the deceased's cell. The paperwork was located and it was being read in the appellant's cell. The witness heard conversation emanating from the cell that the deceased was a "rock spider" and "we must get rid of him". The appellant was present when these words were uttered. 33 Later that afternoon the witness was standing with Leo Van Hofwegan (B29) on the landing outside cell B29. From this position the witness had a view of the landing outside cells B17 to B23. 34 Mr Soonius' evidence continued: "Q. Can you tell the Court exactly what you saw at that time? A. I saw two persons walking up to Mr Kennett's cell. Q. Did you recognise either of those two people? A. Yes. Q. Who were they? A. One was Harry Robinson and the other one was Mark Brazel. Q. Had you seen him before? A. I had seen him before but I didn't know his name at that time. Q. You have learnt his name since that time? A. Since that time I have learnt his name. Q. Was he housed in that area? A. No, he was housed in the A section. Q. They were walking together, or separate? A. No, together. Q. Where did they go to? A. To Mr Kennett's cell. Q. Did you see Mr Kennett at any stage? A. I could see Mr Kennett in front of the cell. Q. What happened then? A. There was a very short conversation and then Mr Kennett stepped in his cell and Mr Robinson and Mr Brazel stepped in too. Q. I take it the door was open at that stage? A. The door was open at that stage. Q. Did something happen in relation to the door? A. Not at that moment. First I could hear some scraping of a chair. Q. Scraping? A. Yeah, some noise of -- Q. Were those cells equipped with furniture? A. We have got plastic furniture Q. Do I take it from that, you are talking about a plastic chair? A. Yeah, plastic chairs. Q. You say you [heard] the scraping of this? A. Yeah, scraping of it. That's it. Q. What happened then? What did you hear next, or see next? A. I heard something hard hit something hard and I heard a noise from something hard hit something hard. Could be anything. Q. Was the door of the cell open, or closed at this stage? A. The moment we heard the bang, the door closed completely. Q. You told the Court about the scraping noise of the chair? A. Yes. Q. Was the door open at that time, or closed at that time. If you don't know just simply say you don't know? A. I don't know. Q. Could you see anything happen in Mr Kennett's cell, from where you were? A. No, not when the door closed. You couldn't see nothing any more. Q. Did you, after the door closed, did you hear anything else happening in Mr Kennett's cell? A. Yeah, you could hear that there was a kind of struggle going on. Q. Did you hear any particular noise? A. Yeah that noise, that something hard hit something else hard. Q. What was the next thing you saw? A. The next thing I say saw was the face of Mr Brazel coming to the window of the door again, to probably open the door but the door was closed and so that face turned back out the window again to go to - there is a button in the front of the window in the cell, where you can push a button and four, five seconds you go to the door, open the door yourself. So he had to go back to open the door with the button, with the buzzer. Q. You saw his face initially. He turned? A. Yes, he turned. I can see nothing any more. Then I saw him come back. Q. I take it from what you tell the Court the door was open? A. The door opened again and they walk both out. Q. And what is your recollection of which direction they went? A. I saw Harry and somebody, not next to him, but somebody with him walking back on the balcony. Q. This is what direction? A. In the direction of my cell. Q. What about, was anyone moving in any direction? A. I thought Mr Brazel went straight away up (sic) the stairs in front of Mr Kennett's cell, walked downstairs, but I am not sure. Q. You mentioned three people. You say Mr Robinson appeared to walk, as I understand your evidence, with somebody else is that correct? A. Yes, yeah. Q. Did you see when this other third person got into the area of Mr Kennett's cell? A. No, not really. Q. You didn't notice that person? A. No, I was not looking at him, let's say that way. Q. How were you feeling at this point of time? A. I was very nervous. I knew something, what happened. I was feeling nervous. Q. And after you saw the two people walk along towards your cell and other man leave, I take it you were still in that general area near the balcony outside? A. Yes, but I was going back to the cell, inside the cell. Q. Did you actually go back inside? A. Yes, I went back inside. Q. Leo was still inside? A. Leo was still inside. Q. Did you see Leo out on the balcony? A. No. Q. What about the man, David Young? A. Yes, but he went also inside again. Q. Right and I take it there was some conversation when you got inside. I don't want you to tell the court about that? A. Yes, I had conversation in English first and then in Dutch. Q. And after that, what happened next? A. Just when I talked to him I had small conversation in Dutch with Leo and how much after that I don't know, but Harry brought some pot into the cell. Q. I want you not to tell the court what he said if he said anything. I want you to tell the Court what he did initially? A. He went for coffee can (sic). Q. Where was that situated? A. Good question, where was it at that moment. I think on the bench. Q. You say he went to the coffee can? A. Yeah. Q. You meant he went and grabbed the coffee can? A. Yes, he went to grab the coffee. Q. Prior to taking the coffee did he ask if you could have some coffee? Just say yes or no? A. No, he didn't ask anything. Q. And then after he got the coffee did he have a conversation at that time with Leo? A. Yes, he little bit apologised that he grabbed the coffee without asking. Q. And I think he said, 'Please give me some coffee'. Listen to these words. I don't want you to say anything else. Did he say those words? A. Yes, he said that. Q. And then did he say something else and then did he say, 'I did it. I hit, I knocked him. He is unconscious'? A. That's what he said. Q. 'I knocked him'? A. 'I knocked him'. Q. 'He is unconscious'? A. He is unconscious'. Q. Was Mr Young still present when those words were said? A. Yes, he was present. Q. How did Mr Robinson appear at that time? A. He was fairly nervous. That is what he said too. Q. Did you notice what he did in relation to the coffee? A. He put it in his cup. Q. Did he use one spoon or two? A. Two spoons, I think. Q. Did he actually stay there and have the coffee at that time? A. No, he didn't. Q. By that, I take it, he walked? A. He walked out. Q. Did he come there with a mug? A. Did he come with a what? Q. With a coffee mug? A. Yes. Q. He brought one into the cell? A. Yeah. Q. And at that particular time he was in quite close proximity to you? A. Yes. Q. Can you tell the Court if you noticed what he was wearing, Mr Robinson? A. Yes, he was wearing not the gaol issue greens, but some darker sweater and shorts. Q. Greens, I think green is the uniform? A. Light green, but, say, dark green. Q. I take it we can say prisoners, if they have green shorts of their own, are entitled to wear their own green shorts? A. Yes. Q. That is what happened on this occasion, Mr Robinson was wearing his own green shorts? A. Yes, correct. Q. What about his footwear? Do you recall what he was wearing on his feets (sic)? A. Black shoes, I call them basketball shoes. Q. And what about any other item of clothing or anything he was wearing? A. Yes, he had a brace around his knee. He had some knee problems. Q. Do you remember which knee it was? A. It is a long time ago, 18 months ago, but I thought it was his right knee. Q. Can you describe this type of brace to the court? What colour was it? A. It is a blue elastic brace." (T119-122) 35 The Crown called Leendert Van Hofwegan, who was housed in cell B29. He confirmed that Soonius was in his cell with him around 5 pm. Soonius went outside the cell and the witness then heard a big bang. After the bang Mr Soonius walked back into the cell. About thirty seconds later the appellant came into his cell and asked for coffee. The appellant said: "I just bashed a rock spider ... and that the cunt is unconscious". 36 Later that evening, just before they were locked in, the witness was alone in his cell when the appellant came in and asked for a bit of tobacco. The witness gave it to him and asked him if the man was dead. The appellant hit the wall with a clenched fist on the notice board on the wall and said: "Fuck". He then had to leave because the officers were at his cell to lock him in. 37 The Crown called Mark Brazel, who, at the relevant time, had been an inmate of cell B4 of A pod and had access to B pod. Reference has already been made to the evidence of Digby implicating Brazel in the death of the deceased. 38 In his evidence in chief Mr Brazel was referred by the Crown Prosecutor to a lengthy ERISP between the witness and police officers at Junee Police Station on 28 September 1998. Brazel responded that it was "all fictional and I made the whole thing up". 39 After Brazel gave evidence on the voir dire, his Honour granted leave to the Crown Prosecutor pursuant to s 38 of the Evidence Act 1995 to treat the witness as an unfavourable witness. His Honour also granted to the witness a certificate under s 128 of the Evidence Act granting him privilege against self incrimination in other proceedings. 40 In cross-examination by the Crown Prosecutor the witness was referred to the record of interview to which we have made reference. Particular attention was directed to question 19 in which the witness was asked what he knew about John Kennett. He replied: "I seen a few prisoners geeing ... um ... Harry up ... a prisoner. And I seen him storming off towards the bloke's cell." 41 The answer continued: "Umm ... I followed Harry ... a couple of ... say five, six seconds later, I was following him. I've heard a couple of loud bangs and I've walked into the cell and I said, 'What are you doing Harry". By this time the man was knocked out in his chair ... um ... and I've heard a bang behind me and the door shut, and I've seen Harry hit him once around the head, temple area and I've seen him kick him twice, really hard in the side of the head. And I've grabbed Harry by the back and shook him and that and said 'what are you doing mate. Common (sic), get out of here. He's had enough.' And ... umm ... when he looked at me his eyes had rolled back in his head and I sort of spun out a bit." (T176) 42 The witness insisted that the above answer was untruthful. 43 In cross-examination the witness was directed to further statements in answers to police officers' questions which implicated the appellant in the murder of the deceased. All such answers were contended by the witness to be untrue. 44 His Honour admitted the contents of the statement as evidence implicating the appellant, if the jury accepted that what the witness told the police officers was truthful. 45 During the course of addresses, the Crown Prosecutor submitted to the jury that they should accept such material as the truth. Defence counsel contended, however, that the jury should not accept any part of the statement as being true. 46 At no stage during the course of his evidence did Brazel deny that what was in the statement was material which he had told the police officers. One will never know of course whether the jury accepted the Crown's contention. If the jury did accept that what Brazel had said to the police officers was the truth, then of course it was very damning evidence against the appellant. 47 No other inmates were called by the Crown. However, the appellant called David Young, who was housed in cell B14. This witness gave evidence that at about 7.30 pm on the evening of 17 September 1998, he was in Van Hofwegan's cell with Soonius also present. The appellant came in and asked for a cup of coffee. The appellant said: "I think a rockie has just been crushed, belted". ["Crushed" is prison jargon for belted.] Soonius said to him, "Who did it?". The appellant replied, "I don't know". 48 Soonius then said, "Did you do it?". The appellant replied, "No". 49 Young said that when the appellant came into his cell at 7.30 pm, he had on a pair of thongs, a knee guard and shorts and a shirt. 50 The appellant was taken to Junee Police Station on 18 September 1998. After having exercised his right to silence, the appellant was charged at approximately 2 pm that day. 51 On 19 September at about 4 pm Correctional Officer Phillip Bouffler with officers Uebel and Hindmarsh were responsible for escorting the appellant to the police cells at Wagga Wagga and then to the immediately adjacent Wagga Wagga Local Court. They travelled in a Ford Falcon station wagon. 52 Bouffler gave evidence that during the journey the appellant said to him, "I didn't do it but I'm taking the rap for it". Bouffler replied, "That's pretty stupid". 53 After the Local Court hearing, the appellant was leaving the police cells whilst handcuffed. According to the witness, the appellant said, "When do I receive my medal?". 54 The witness made no contemporaneous notation of the conversations. His evidence was given purely by recollection. 55 Senior Constable David Barron was the "on-call prosecutor" for Wagga Wagga Court on 19 September. He was present when the three correctional officers escorted the appellant from the police station to the courthouse, via an alley running between the two. He described in evidence a roller door which can be lowered and block the view of the public to the alleyway. As they walked through the alleyway, he said to the appellant, "That'll be down on Monday", indicating the roller door. The appellant replied, "What for the cameras?". Barron said, "Yeah, I'll make sure it's down on Monday for you". The appellant then said, "Do I get my medal then? That's what I should get, that I knocked him". 56 Shortly thereafter Barron, according to his evidence, wrote down on a piece of paper in the court room the remarks which had passed between him and the appellant, and placed the paper in a police file. Whilst in the court waiting for the Duty Magistrate to arrive, Barron deposed that the appellant said to him, "I don't know why you're prosecuting me. You should be thanking me." Barron said that he made a note of the comment on the police file. On the following Monday he typed up a formal statement. We shall refer to certain aspects of Constable Barron's evidence subsequently. 57 Robert Goetz, the senior forensic biologist with the Division of Analytical Laboratories, gave evidence that he received a blood sample of the deceased and various samples from the appellant. He also received a pair of Nike runners, a T-shirt, shorts, rugger shorts, sloppy joe and hair that came from the Nike runners. 58 Mr Goetz determined that the hair was not suitable for DNA analysis because it did not have a root or follicle. He obtained preliminary results for blood on the Nike runners and the T-shirt. He could not detect any blood on the other items of clothing. He determined that the blood on the T-shirt did not come from the deceased. There was no blood on the left shoe. He found three small areas on the sole of the right shoe which gave positive results for blood. There was no blood on other areas of the shoe. It was possible that if someone had trodden in blood and left damp prints in blood over the surface they were walking on, and then came and walked over it, that would be sufficient to leave prints. 59 Mr Goetz conducted DNA testing on those areas of staining underneath the shoe and it was his opinion that there was a mixture of DNA which came from two people. He also conducted then a testing on the sample of blood coming from the deceased. He said that the deceased could not be excluded as being a contributor to that blood. 60 Mr Goetz then gave the following evidence: "Q. If I may look at that in a different way, it is quite clear in your mind there are two people's DNA on the shoe? A. That's correct. Q. If we take one possibility of it being Mr Kennett's and somebody else's and another possibility of being two people neither of whom are Mr Kennett, can you tell the jury the sort of odds of that occurring? A. Yes, I have calculated these. It is approximately a million times more likely to have found this in fact came from Mr Kennett and an unknown than from two unknown individuals. Q. Can you tell us step by step how you came to that result, it involves mathematics? A. Yes, it does. It requires a knowledge of the different frequencies of the different DNA types I detected and then working out the two hypotheses you brought up, the chance of finding that profile it came from Kennett and an unknown, and the second hypothesis what is the probability if it came from two unknown people in the population. Q. You work it out from a base sample of the population at large? A. Yes. Q. It is a system which has been recorded as providing a reliable source of information for you in your calculations? A. That's correct. Q. It is quite a large sample of people in the population? A. Yes. Q. You then calculate the odds for one probability and the odds for the other? A. Yes. Q. You combine -- A. Combined one with the other and came up with the answer of a million." 61 In cross-examination Mr Goetz (inter alia) gave the following evidence: "Q. If someone walked in blood they transferred an area and left a bit of blood there and someone touched it with their shoe you could see? A. Yes, qualifying the blood was wet when the person walked with these shoes into this stain. Q. So it is a question of time? A. That's correct." (T384-385)

The Appellant's Case. 62 In written submissions to this Court the appellant's case was summarised as follows: "11. The Appellant's case may be summarised as follows: The Appellant did not give evidence at his trial. It was the Appellant's case that the witnesses Soonius and Van Hofwegan came forward to obtain a benefit, some special treatment in the prison system, perhaps some reduction in their sentence. (p38) In cross-examination of Mr Digby it was suggested that he was asked by Mr Johnson to stand outside the cell of the deceased and keep watch. Mr Digby gave evidence that he knew Terry Johnson to be a violent man and that he had tried to seek sexual favours from the deceased and that he was being 'geed up' by other prisoners about this. He agreed that Terry Johnson was angry when they found out that the deceased was a rock spider. He also agreed that Mr Johnson had been drinking alcohol on that day. Mr Johnson told Mr Digby that he spat on the body of deceased. He also stole the deceased's watch when he was in the shower (p45). He said that Mr Johnson had asked everyone to keep watch as a cockatoo. He couldn't remember hearing any noise come from the cell of the deceased. (p54)" 63 Reliance was also placed on the evidence of David Young set out above.

Grounds of Appeal. 64 In all there were fifteen amended grounds of appeal filed on 24 April 2003.

Grounds 1 and 2: Directions on prison informers and accomplices. 65 It is convenient to deal with the first two grounds of appeal together. Ground one is in the following terms: "The directions given by the learned trial Judge on the approach that the jury should take to the evaluation and assessment of the evidence of prison informer witnesses were inadequate by reason of their failure to meet the standards established by the High Court of Australia in Pollitt v The Queen (1993) 174 CLR 558 and insufficient to satisfy the requirements of s 165 of the Evidence Act 1995." 66 The second ground is in the following terms: "The directions given by the learned trial Judge on the approach that the jury should take to the assessment of the evidence of witnesses who might reasonably be regarded as accomplices were inadequate and insufficient to satisfy the requirements of s 165 of the Evidence Act 1995 regarding the directions on the potential unreliability of the evidence of witnesses who are criminally concerned in the events the subject of the charge." 67 The relevant passages from his Honour's summing-up with regard to the first two grounds of appeal are as follows: "It will be apparent to you that some of the witnesses who gave that evidence were also inmates of the prison. Some others were not. Mr Barron was not. He was a police prosecutor you will remember on duty on the Saturday following and the prison officer Mr Bouffler was not. His duty was to take the accused to and from the Court for the purposes of charging and bail application. I want to say something to you about these kinds of witnesses and about this kind of evidence. First of all, I want to deal with the evidence of prison informers. You will appreciate that each of the witnesses, Digby, Roach, Soonius, Van Hofwegan and Young, was an inmate at the prison, and Mr Brazel. The experience of the Court demonstrates that evidence from prison informers is potentially unreliable because such witnesses are first likely to be of bad character and motivated to fabricate evidence against an accused person by the perception perhaps of a likely benefit in their sentence or by reason of pressure put upon them in the prison system that may not be apparent to you the jury. It will be quite clear I think from the evidence of prisoners and what you have seen of the prison that there was a relatively large number of young men living in that prison in a fairly closely confined area. It was a fairly close social group and you can imagine that if pressure were put upon a member of it, that pressure might be in all the circumstances hard to resist. You have heard about prison culture. You have heard about pressure against people dobbing in their mates. You have heard the expression 'dog' used several times during this trial but there might be pressure the other way, pressure of which you do not and cannot know. You should understand that those things might possibly operate on the mind of a prison informer, a person who gives a statement to the police and comes and gives evidence in a court, and for those reasons, as I say, the evidence is potentially unreliable. I think you must be aware, if you are not generally at least from some of the evidence that has been given in this case, that it is possible for a prisoner, who assists the authorities in a formal way such as giving evidence in a serious criminal trial such as this one to obtain benefit, to put up a case to the authorities perhaps to lessen his sentence or to deal with him in some favourable way. There is no secret about that; it is something that is officially and properly done because it is in the interests of the community to encourage such people to give evidence in a manner that assists the administration of justice. Because for the reasons that I have given you the evidence of a prison informer is potentially unreliable, it is necessary for you to be cautious about relying on evidence and to scrutinise it very carefully. Now, there [defence counsel] has pointed to Mr Soonius and Mr Van Hofwegan in particular and says that you should conclude that they gave their evidence in anticipation of receiving some benefit in the way that they were officially dealt with in the prison system. I do not know that there is any evidence that Mr Soonius actually received a benefit. There is evidence that Mr Van Hofwegan did. You remember he got ten months taken off his sentence. The point may not be what actually happened, however, but what was in the mind of the person when that person decided to assist the police, give a statement and in due course come to Court and give evidence, what was in the mind of the prisoner at the time." (S/U 24-26) 68 And later: "When a prison informer gives evidence of admissions like these, it is necessary for me to warn you that in the absence of substantial confirmation by independent evidence that each such admission was made, it is dangerous to convict the accused on the evidence of the witness concerned. Independent evidence of the kind that is desirable is not likely to be provided by other prison informers because they are likely, for the same reasons, to be motivated to concoct their evidence as well. Now, there is evidence of admissions which is given by witnesses who are not prison informers, namely, Senior Constable Barron and Mr Bouffler. Police and Correctional Service Officers do not fall into a special category of witnesses who, by their very nature, may be unreliable, so I do not give you any special warning about the treatment of their evidence. However, the evidence of Mr Barron and Mr Bouffler still has to be approached by you with caution for the reasons I have given you about admissions generally, that they are very easy to fabricate, virtually impossible to test and difficult to refute. The final warning I have to give you about witnesses whose evidence may be unreliable because of the position they find themselves in are those who may reasonably be supposed to have been criminally concerned in the events out of which the charge arose. It is a matter for you as the judges of the facts whether any witness was criminally concerned in the attack on the deceased. [Defence counsel] submits to you that two of them were, namely, Mr Digby and Mr Brazel. The Crown agrees about Mr Brazel; disagrees about Mr Digby. I give you this warning: If you think that a witness was criminally concerned in the attack on the deceased, you should understand that the evidence of that witness may be unreliable because such a witness has a motive to try and minimise his own part and shift the blame from himself by putting the blame on to somebody else or exaggerating the part played by that other person. Such a witness may also fabricate evidence because of dislike of the accused or to get some revenge on him for some reason and for these reasons you should scrutinise such evidence very carefully. I think it will be obvious to you that this warning applies to any witness whom you think was criminally concerned in the events. Both counsel agree, and it seems pretty obvious, that Mr Brazel was criminally concerned in the events so you will have to heed this warning so far as you consider Mr Brazel's evidence. Whether this warning applies to Mr Digby's evidence, however, depends upon the view you take of him, whether he was criminally concerned, and I will come back to deal with the respective arguments about Mr Digby but I can summarise them just for the moment by saying that [defence counsel] says that he was not there by accident, just sticky-beaking, that is unbelievable, but that having first offered to Mr Johnson to bash the deceased he accepted the invitation to go and be the cockatoo, if he was there." (S/U 28-29) 69 The Crown conceded that all witnesses who were prison inmates "fall into the category of prison informers" (SU 15). 70 The leading case on the appropriate warnings to be given to a jury in respect of evidence of prison informers is, of course, Pollitt v The Queen (1991-1992) 174 CLR 558. 71 The relevant principles as enunciated by the various members of the High Court are conveniently set out in the headnote at 560-561, the relevant portions of which we set out hereunder: "Evidence of prison informers

Per Brennan, Dawson and Gaudron JJ. In all but the exceptional case it is necessary for the judge to warn the jury of the danger of convicting on the evidence of a prison informer unless it is corroborated by other evidence connecting or tending to connect the accused with the offence charged. ( Per Brennan J . A warning is required to be given whenever one is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.)

Per Deane, Dawson, Gaudron and McHugh JJ (and semble Brennan J). In cases where the issue is whether the informer has given an account of a conversation or incriminating conduct, that did not occur, to be of real use, the warning must be in terms which direct attention towards the need for material which substantially confirms the actual making or doing of the confessional statement or incriminating conduct.

Per Deane J. The warning as to the likely unreliability of the evidence of a prison informer should be moulded to fit the circumstances of the case. There will be cases where the minimum necessary warning will be in unqualified terms which draw attention to the fact that the evidence is of its nature potentially unreliable, which stress the need for very careful scrutiny of it and which warn that it would be dangerous to base a conviction on it.

Per Toohey J. The warning should be couched directly in terms that it is dangerous to convict upon the evidence of a prison informer, that such evidence should be scrutinized with great care and that the jury must be satisfied beyond reasonable doubt as to the guilt of the accused, having regard to the potential unreliability of the evidence of a prison informer and the risk of a miscarriage of justice by attaching too much importance to it. The direction should be properly tailored to the circumstances of the particular case. This will ordinarily require the judge to refer specifically to those facts that are likely to render the evidence of the witness unreliable.

Per McHugh J. A jury must ordinarily be directed that it is dangerous to act on the evidence of a prison informer where his account is not substantially confirmed by independent evidence. Only in the most exceptional circumstances, if at all, could the evidence of a fellow prisoner be regarded as independent evidence. Further more, the jury should be warned not only of the inherent or general danger of acting upon the evidence of a prison informer but, where appropriate, instructed to consider any specific matters which could reasonably be regarded as undermining the credibility of the witness. Its attention should also be drawn to any matters which could reasonably be regarded as confirming the evidence of the prison informer. Per Deane, Dawson and Gaudron JJ (and semble Brennan J). There is no rule of law or practice that evidence which attracts a corroboration warning cannot corroborate or be corroborated by other evidence attracting the same warning." 72 Additionally, McHugh J said at 616: "In McKinney (1990-1991) 171 CLR at 476, this Court held that a trial judge was bound to direct the jury that: 'they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated.'" McHugh J then emphasised in Pollitt (at 616-617) that such a direction was required even though the Court made it plain that there was no suggestion (at 478) "that police evidence is inherently unreliable or that members of a police force should, as such, be put in some special category of unreliable witnesses" (citing McKinney 478). Further, because evidence by prison informers is inherently unreliable, it follows that a confession allegedly made to a prison informer must be the subject of a direction at least as stringent as that required when a disputed confession is alleged to have been made while the accused was in police custody. 73 Following Pollitt, this Court in R v Clough (1992) 28 NSWLR 396 considered appropriate directions to be given to juries in respect of the evidence of prisoner informants. 74 At 405, Hunt CJ at CL (with the concurrence of Carruthers and Mathews JJ) said: "(3) Evidence of a prisoner informant that the accused has confessed his guilt to him is potentially unreliable because: (i) the witness is likely to be of bad character; (ii) the evidence is easily concocted; (iii) The witness is likely to have been motivated to concoct such evidence either: (a) by his perception that he will derive some benefit in terms of sentence, treatment or release from custody if such evidence is given, or (b) by reason of pressures upon him - which may not readily be apparent to the jury - arising from his prison environment, where conventional standards of conduct are replaced by a culture in which values such as truth and respect for the rights of others have little relevance; and (iv) there is usually no way in which the accused can meet such evidence except by his own denial." 75 And further, at 406: "(5) The traditional direction given in relation to the evidence of accomplices - that it is dangerous to convict upon their evidence unless it is corroborated in that usual sense - is not appropriate in relation to the evidence of a prisoner informant. Indeed, because of the usual availability of such corroborative evidence in such cases, a warning in those terms may mistakenly convey to the jury an invitation to accept the evidence that the confession was in fact made by the accused to the prisoner informant. The various judgments delivered in Pollitt v The Queen discuss different aspects of the nature of the direction to be given wherever the Crown places significant reliance upon such evidence of a prisoner informant. It must be said (with due respect) that they are not always wholly consistent. Considerable assistance is nevertheless given, both in those judgments and in the joint judgment in McKinney v The Queen - where similar emphasis was placed upon the issue as to whether the confession was in fact made rather than upon corroboration in the usual sense. The direction to be given must be moulded to fit the circumstances of the particular case, and not follow any set formula. It should, however, include warnings: (a) that the experience of the courts over the years has demonstrated that the evidence of such witnesses is potentially unreliable, together with the explanation as to why that is so; (b) that it is for that reason necessary to scrutinise the evidence of the particular witness in question with great care; (c) that, in the absence of substantial confirmation provided by independent evidence that the confession was in fact made, it is dangerous to convict upon the evidence of that witness; (d) that such independent evidence is unlikely to be provided by a fellow prisoner, because he is likely to be motivated to concoct his evidence for the same reasons; and (e) that, having regard to the potential unreliability of the evidence, there is a risk of a miscarriage of justice if too much importance is attached to it. The judge must as well instruct the jury to consider any specific matters which could reasonably be regarded as undermining the credibility of the witness." 76 Hunt CJ at CL concluded (at 406-407): "On the other hand, the judge should also draw to the jury's attention any matters which could reasonably be regarded as confirming the evidence of the prisoner informant. Finally, the judge should direct the jury that, notwithstanding the absence of corroboration of the fact that the confession was made, they may nevertheless convict the accused upon the evidence of the prisoner informant if, after taking all of those warnings into account, they remain satisfied by that evidence beyond reasonable doubt of the guilt of the accused." 77 Since the above two cases were decided, the Evidence Act 1995 has come into operation. Section 165(1) includes as "evidence of a kind that may be unreliable": "(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, and (e) Evidence given in a criminal proceeding by a witness who is a prison informer." 78 The Dictionary does not define "prison informer". 79 Counsel for the appellant referred us to the judgment of Batt JA in the Court of Appeal of the Supreme Court of Victoria in Brooks (1999) 103 A Crim R 234 at 252 where his Honour said: "Now, it was held by a majority of the Justices in Pollitt that, in cases (of which this was one) where the issue is whether a prison informer has given an account of a conversation or incriminating conduct that did not occur, to be of real use, a warning that must be given to the jury of the danger of convicting on the evidence of a prison informer unless corroborated, must be in terms which direct attention towards the need for material which substantially confirms the actual making or doing of the confessional statement or incriminating conduct." 80 Counsel for the appellant rely particularly upon the above passage because it does not draw any distinction between incriminating conduct and incriminating conversation. Secondly, it emphasises the need to look for independent evidence which confirms that words were said or things were done. 81 It was submitted that the risk of a jury not appreciating the culture of the prison environment was high. The chance of an innocent person being wrongly accused is, therefore, high. The need to give a comprehensive warning is therefore much greater. Having regard to all of the considerations above, it was submitted that, in order to meet the requirements of s 165, the directions and the warning to the jury must achieve the following objectives: (1) They must identify the witness who has the particular characteristic requiring a warning and identify those parts of the evidence of the witness upon which the Crown relies to establish its case against the accused person. (2) They must inform the jury that the experience of the courts has demonstrated that evidence of a particular kind given by the witness may be unreliable. (3) They must inform the jury of the reason, and more usually, all the reasons, why the evidence in question may be unreliable. (4) They must inform the jury of the need to subject that part of the evidence of the witness which supports the Crown case to careful scrutiny: see Jamieson, Elliott and Blessingdon (1992) 60 A Crim R 68 at 76 and R v Baker [2001] NSWCCA 151 at [27]-[28]. (5) They must identify any specific matters which undermine the credibility of the witness in a manner whereby the authority of the trial judge is used to impress the significance of the matter on the collective mind of the jury: see Domican v The Queen (1991-1992) 173 CLR 555 at 562. (6) They must warn the jury that in the absence of substantial confirmation provided by evidence which is independent in a true sense, it would be dangerous to convict the accused on the basis of that evidence. (7) They must in the case of prison informers, warn the jury that in order for there to be substantial confirmation it is not sufficient that two or more prisoners tell the same story, for the opportunity for concoction is clear and the conditions within a prison are fertile for making false allegations; and finally (8) They must, in the case of a prison informer, convey to the jury all of the matters referred to above in Clough , together with the additional matters referred to above. 82 Generally, it was submitted on behalf of the appellant that his Honour did not adequately comply with the well established principles set out in the cases to which reference has been made. The directions did not, it was said, provide the complete guidance required for a jury in order to guard against the risk of miscarriage of justice by reason of the evidence of prison informer witnesses. 83 Specifically, it was contended that there was insufficient discussion of the "pressure" that may be felt by a person in a prison environment, and the nature of the risk that false evidence may emerge from that environment. Although his Honour referred (at SU 25) to "pressure of which you do not and cannot know", it is argued that this was oblique in the extreme. The jury needed to be told of the different forms of pressure which might be productive of unreliable or deliberately false evidence. 84 It was submitted that it is not enough to direct a jury in general terms about "the prospect of a discount" or "pressure". Where available, the detail needs to be spelt out in order to inform the jury of matters of which they have no knowledge: see R v Sullivan [2003] NSWCCA 100 at [96]-[97]. 85 Further, it was argued that the directions given do not distinguish between the evidence given by the prison informers which was favourable to the appellant and that which supported the Crown case. Indeed the evidence of Mr Young, which is almost entirely favourable to the appellant is treated in equivalent terms to those witnesses whose evidence supports the Crown case. Similarly the evidence of Mathew Digby, Noel Roach and Mark Brazel, some parts of which are favourable to the appellant, and some parts of which are favourable to the Crown, are the subject of a general warning rather than a warning fashioned in a manner which distinguishes the different parts of their evidence. 86 The directions, it was argued, did not convey with sufficient force, and "an unmistakeable and firm voice", the message that it would be dangerous to convict on this evidence unless there was some independent support for its truth and accuracy. The directions as a whole, it was submitted, do not give the jury a clear warning that the evidence of the prisoner witnesses may have been concocted for the purpose of protecting the true perpetrators of the crime. 87 Thus, applying Sullivan it was argued that the directions about Mr Soonius and Mr Van Hofwegan should have pointed out the extent of reduction in sentence that each of these prisoners was seeking by their co-operation with the authorities. Mr Van Hofwegan received an actual discount of ten months from the sentence that was imposed on him in the District Court. The directions speak of a "reward", a "reduction in sentence" or a "benefit". The actual reduction is not expressly referred to as the ten month period by which his sentence was reduced until a later stage in the summing-up. Perhaps the most important point is that each of these men was seeking to obtain, and in one case in fact received, a discount which represented the whole of the remaining time they had left to serve under their sentences. 88 Counsel for the appellant submitted that Rule 4 of the Criminal Appeal Rules should not operate as a bar to the first two grounds of appeal, albeit further directions were not sought at the trial. The request by counsel at the trial that a direction on this issue be given clearly denoted that this was a real issue in the appellant's case. It was submitted that the reliability of evidence given by prison informers was not merely an issue in this case, it was fundamental to the determination to be made by the jury. Any deficiency in the directions given to the jury on this topic must therefore be regarded as a fundamental flaw in the trial proceedings. The length of time that the jury spent considering its verdict in this case would suggest, it was argued, that there were issues which took some time for the jury to resolve. It could not be said that if the jury had been given more complete directions on the task of evaluation and assessment of the evidence of prison informers, then it would have inevitably made the same decision. Putting this another way, it could legitimately be said that the failure to give adequate directions on this topic deprived the appellant of the chance of acquittal that was reasonably open to him. 89 It should be noted that prior to commencing the relevant part of his summing-up, his Honour raised with counsel the appropriate warnings to be given under s 165(1)(a),(d) and (e). It is clear from the transcript that unanimity was reached. This explains, no doubt, why no application was made for any further direction at the conclusion of his Honour's summing-up. 90 Dealing firstly with the submissions that have been made under these grounds of appeal, it must be respectfully acknowledged that in certain respects there was room for expansion in the summing-up. In particular: (i) When dealing with the reasons why evidence of the prison informers was potentially unreliable, there was no reference to the fact that as a prisoner, the witness is necessarily of bad character, and being of bad character, that is a factor which should be taken into consideration in determining his reliability and honesty as a witness. (ii) When speaking of prison culture, the point which is generally made is that conventional standards of conduct are replaced by a culture in which values, such as truth and respect for the rights of others, have little relevance. (iii) The circumstances called for a direction that alleged admissions in the prison context, in particular, are easy to make and difficult to deny. A possible reason for a false allegation of confession is that the witness himself may fear that he will be blamed for the offence. (iv) No reference was made to the fact that the experience of the Courts over the years has demonstrated that the evidence of prison informers is potentially unreliable. 91 That takes us then to the question of independent evidence supporting the evidence of the informers and asserted accomplice. The point should immediately be made here that in Pollitt, Deane, Dawson and Gaudron JJ (and semble Brennan J) held that there is no rule of law or practice that evidence which attracts a corroboration warning cannot corroborate or be corroborated by other evidence attracting the same warning. (Nevertheless, see the remarks of Dawson and Gaudron JJ at 600, and the cases there cited.) It goes without saying, however, that the Court must look with circumspection upon the situation where a witness requiring independent evidence of support can only find it in the evidence of another witness likewise requiring independent evidence of support. 92 In the instant case the prison informer with the most incriminating evidence of the appellant is Digby. He does receive some support, however, from Roach, Soonius and Van Hofwegan. If the jury were to accept that the statement which Brazel made to the police officers was truthful then, of course, confirmation of Digby's evidence can be found in that source. 93 The Crown also relied upon the evidence of the alleged admissions made to Officers Bouffler and Barron, together with certain video and DNA evidence, to which reference will be made later in this judgment. 94 Particularly bearing in mind that Rule 4 applies to these grounds of appeal, the Court does not consider that, in the circumstances, any miscarriage of justice has been established. Accordingly, grounds one and two are rejected.

Grounds 3 and 4: Alleged oral admissions to Police Prosecutor and Corrective Services officer. 95 The third and fourth grounds of appeal may conveniently be dealt with together. 96 The third ground of appeal is in the following terms: "The learned trial judge erred in admitting the evidence of admissions said to have been made by the appellant to (a) Senior Constable Barron (b) Corrective Services Officer Bouffler" 97 Ground four is in the following terms: "The learned trial judge erred in his directions to the jury on the approach they should take to the assessment and evaluation of admissions already made by the appellant to (a) Senior Constable Barron (b) Corrective Services Officer Bouffler at times when the appellant was effectively in the custody of those officers." 98 We have already referred to the evidence of admissions allegedly made by the appellant to Barron and Bouffler. 99 His Honour ruled on 27 March 2000, during the course of the earlier trial, that admissions to the prosecutor, Senior Constable Barron, made by the appellant whilst on the way to the court room and in the court room were admissible as they were not "in the course of official questioning" (as required by s 108 (now s 281) Criminal Procedure Act 1986) and were volunteered by the appellant rather than as a result of questions put to him. His Honour had earlier ruled (on 22 March 2000) that there was no impropriety on the part of Barron in the recording of the conversations or in not inviting the appellant to give some formal acknowledgement of their accuracy. 100 Section 281 is in the following terms: " 281 (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that related to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. reasonable excuse includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. tape recording includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording." 101 As stated earlier, his Honour's judgment concerning the evidence of Senior Constable Barron in light of [s 281] of the Criminal Procedure Act was delivered on 27 March 2000. His Honour accepted that the appellant's statement to Barron as set out above constituted "admissions", and that the requirements of pars (a) and (c) of subsection (1) had been satisfied. However, as we have indicated, his Honour concluded that the admissions had not been "made in the course of official questioning" as required in par (b) of the subsection. 102 As to the first admission made to Barron while walking with the appellant to the courthouse, his Honour noted that there was no questioning of the appellant by Barron and that the appellant's words were not said in response to anything said by Barron. The comment of the appellant appeared simply to have been a statement volunteered by the appellant. 103 The second conversation in the court room was, his Honour found, initiated by the appellant. The relevant admission was not made in response to any question asked by Barron, and his Honour found that nothing Barron said had been calculated to bring forth any information, let alone the comment made by the appellant. His Honour concluded, therefore, that neither of the admissions allegedly made by the appellant had occurred during the course of official questioning, and that therefore [s 281] did not apply. 104 A similar conclusion was reached by his Honour in the judgment of 11 April 2000 as to the admissions allegedly made to Corrections Officer Bouffler. At the outset of the judgment, his Honour made reference to the earlier judgment relating to admissions made to Senior Constable Barron. Counsel for the appellant suggests that his Honour appears to have done so to indicate that similar considerations applied to the admissibility of the statement made to Bouffler, as had been held to apply to those made to Barron. However, we do not consider that his Honour intended to suggest that s 281 applied to Bouffler, who was not a police officer. Probably, his Honour meant to indicate that there was no impropriety on the part of Bouffler. 105 Section 424A of the Crimes Act (which was the precursor of and in identical terms to s 281) was considered by this Court in Horton (1998-1999) 104 A Crim R 306. In that case, s 424A was held to be applicable to the situation where the appellant was informed at the scene that she was under arrest for murder after she volunteered the relevant admission in response to a question by an investigating police officer. In the absence of proof of the existence of a reasonable excuse for the absence of either of the tape recordings contemplated by s 424A, the evidence was not admissible to show that the appellant had made the admission alleged. Horton was applied by this Court in Moffatt (2000) 112 A Crim R 201 at 207-208. 106 In Moffat the admissions were volunteered by the appellant while he was in the dock at the police station, subsequent to having been charged and cautioned by a police officer. The admissions were noted at the time but the appellant was never given the opportunity to adopt them. The Court noted (at 208) that absent proof of a reasonable excuse for the absence of either of the forms of tape recording contemplated by the section, "the evidence was not admissible to show that the appellant had made the admissions described". Although the Court did not specifically refer to the question, it must be assumed that the Court was satisfied that the admissions were made in the course of official questioning because the appellant had been informed that he was under arrest for murder and cautioned before he volunteered the admissions. 107 In Marlow & Kelly (2001-2002) 129 A Crim R 51 (a judgment of the Court of Criminal Appeal, Tasmania) Slicer J held (in a dissenting judgment) at [143], [150] and [153] that the words "in the course of official questioning" should be given the widest possible meaning to ensure accused persons are protected from what are colloquially referred to as "verbals" as the legislation was introduced for this specific purpose and in consequence of the decision of the High Court in McKinney, to which reference has already been made. 108 In Marlow & Kelly, the relevant admission was volunteered shortly after the conclusion of a formal video-taped interview. The majority (Underwood and Evans JJ) held, however, that the volunteered statements by the appellant Kelly at that stage did not amount to a confession or admission made "in the course of official questioning" within the meaning of s 8 of the Criminal Law (Detention and Interrogation) Act. 109 At pp 75-76 Underwood J (with the concurrence of Evans J) said: "However, with respect to the admissibility of the evidence, the task of the learned trial judge was, and the task of this Court is, to ascertain the intention of parliament as enacted by the provisions of the Criminal Law (Detention and Interrogation) Act , s 8(1). It is quite clear that parliament did not intend to provide that no admission or confession would be admissible unless its making is recorded on video tape. Had parliament intended this, then it would have said so. Further, it is clear that parliament did not intend that volunteered admissions should fall within the scope of s 8: see Julin [2000] TASSC 50. The provisions of s 8(1) make it perfectly clear that parliament only intended to inhibit the admission of confessions that were made in the course of questioning by a police officer in connection with the investigation of the commission, or possible commission, of an offence. The plain fact in this case is that the impugned admission was volunteered by the appellant Kelly and was not made in the course of any questioning at all. The questioning had clearly come to an end at the time the appellant Kelly left the video interview room and set off for the charge room. The evidence was that no other question was asked of him by Detective Lopes or Detective Pretyman thereafter. It would be straining the language of the legislature to hold that, by reason of the matters advanced by Mr Proctor, the course of official questioning was still in progress when the impugned admission was made. I detect no error in the ruling of the learned trial judge in this respect." 110 Questions of fact and degree necessarily arise when considering whether an admission has been volunteered other than in the course of official questioning. Moffatt may be taken to be, perhaps, an extreme situation. 111 Whatever the true construction of the phrase "in the course of official questioning", it could not extend to the present situation, which was subsequent to the formal declaration by the appellant of his election to remain silent and the consequential termination of any questioning. 112 Thus, the argument by the appellant based upon s 281 must be rejected. 113 It is convenient at this stage to note that his Honour gave a direction to the jury regarding the admissions the subject of these two grounds of appeal, immediately following the directions which he had given to the jury in relation to prison informers and accomplices. Specifically, his Honour said: "Now, there is evidence of admissions which is given by witnesses who are not prison informers, namely, Senior Constable Barron and Mr Bouffler. Police and Correctional Service Officers do not fall into a special category of witnesses who, by their very nature, may be unreliable, so I do not give you any special warning about the treatment of their evidence. However, the evidence of Mr Barron and Mr Bouffler still has to be approached by you with caution for the reasons I have given you about admissions generally, that they are very easy to fabricate, virtually impossible to test and difficult to refute." (S/U 28) 114 At a later stage of the summing-up his Honour summarised the evidence of Barron and the relevant submissions by defence counsel to the effect that the jury would reject his evidence, and then said: "That is the evidence of Mr Barron. The question for you is: Were the words said? If they were said, do they bear the meaning contended for by the Crown, that these words were said in full recognition that he, the accused, had done the act about which they were concerned." (S/U 48) 115 His Honour then turned to the evidence of Bouffler, and said: "Mr Bouffler, who remembered nothing about that conversation, did give evidence of two other conversations, however, on the same day. He was part of the escort. On the way to the Court he has the accused saying 'I'm taking the rap. I didn't do this but I'm taking the rap for it' and on the way back, apparently after having left the police cells and about to be transported back to the place where he was kept in the prison, he said, 'When do I receive my medal?' Again, the Crown would contend for, first, a conclusion that the words were said. Secondly, that whatever he meant when he said he did not do it, he was taking the rap for it, there was no doubt about what he meant when he was asking when he would receive his medal. [Defence counsel] does not submit to you that the accused did not say those words, 'I didn't do it. I'm taking the rap for it'. He asks you to doubt whether the accused said the other words, 'When do I receive my medal?' He points out to you that Mr Bouffler's statement was not made until March 2000 and that he is recounting events eighteen months later and you have to be cautious about relying on the memory of somebody who at first begins to think about something in detail eighteen months after it happened, if it happened. They are the arguments, I think, about those two conversations." (S/U 48-49) 116 It is now necessary to deal with the submission that his Honour erred in the exercise of his discretion to admit the evidence of the alleged admissions. It is convenient to deal first with s 90 of the Evidence Act which is in the following terms: "In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." 117 In order to determine whether there is any substance in the submission on behalf of the appellant that it was unfair to the appellant to use the evidence of Bouffler and Barron in relation to the alleged admissions, it is necessary to consider closely certain of the evidence which was given by the relevant witnesses in this regard. 118 Bouffler was the first of the relevant witnesses called. It will be recalled that he gave evidence that during the journey to Wagga Wagga the appellant said to him "I didn't do it but I'm taking the rap for it", and the witness replied, "That's pretty stupid", and later, when escorting the appellant from the cells to the motor vehicle for the trip back to the Correctional Centre the appellant said "When do I receive my medal?". This was said just prior to the appellant leaving the cells. 119 Insofar as Bouffler's evidence is concerned, the alleged statements by the appellant might be considered to clearly be exculpatory in the sense that the appellant was intending to convey to Bouffler that he considered himself entitled to a medal for taking the rap. 120 However, the alleged admissions made to Barron completely change the significance to be attached to the appellant's assertion that he was entitled to a medal. This is simply because, according to Barron, the appellant asserted that he was entitled to a medal because he "knocked" the deceased. 121 It is convenient now to look at certain cross-examination of Bouffler, which established that whilst the appellant was being escorted to the courthouse from the police cells, his hands were handcuffed in front of him and Bouffler was beside him holding on to the handcuffs. Officers Uebel and Hindmarsh were reasonably close. Hindmarsh was in front of the appellant and Bouffler. Uebel was behind them and he was armed. 122 Bouffler deposed that "a police officer" was with them (this was obviously Barron) but Bouffler heard no conversation between the police officer and the appellant, despite their physical proximity. 123 Barron was called two days after Bouffler gave evidence. The following passages from his examination in chief are important: "Q. It's the position that in all police stations there's an officer in charge of prisoners who might be in custody? A. Yes, in the cell complex. Q. Did you speak to him? A. Yes, I did. Q. After speaking to him did you do something? A. Yes, I had a further - Sergeant Macrae had a short conversation with the defendant. I was present during that and than the three correctional officers and myself escorted the defendant to the courthouse, which is adjacent to the police station. There's an alleyway running between the two so we walked through the doorway from the police station towards the courthouse. There's an alleyway running between the two with a roller door that can come down to block the view from that alley - from the street, from the public. As we walked through the alleyway I said to the defendant, 'That'll be down on Monday' - indicating the roller door. He said, 'What, for the cameras?' I said, 'Yeah, I'll make sure it's down on Monday for you'. He said, 'Do I get my medal then? That's what I should get, that I knocked him'. I didn't say anything in reply to that. We were still walking through and continuing going through to the courthouse. We came up through the tunnel into the courtroom, which is similar to this, and I put my papers on the bar table and came up to the Bench. I had forgotten to take a pen with me to Court that day so I went up to the Bench to find a scrap of paper and actually found a pen on the bench. It was this one (produced). It was a green pen. I took the pen and wrote down immediately the words that he had said to me on the way through on a piece of paper that I had found on the Bench. Q. I hand you these two documents (shown). You say you made some sort of written record, is that right? A. Yes. Q. Which one are you looking at now? A. I'm looking at a white piece of paper. Q. Don't worry about what's on the back at this stage? A. With the green writing that I recorded when I returned to Court. Q. I take it that that writing, in effect, records exactly what you have told the Court about now? A. This records the words that the defendant said to me, 'do I get my medal then? That's what I should get, that I knocked him'. MFI #17 WHITE PIECE OF PAPER IDENTIFIED BY SENIOR CONSTABLE BARRON." (T360-361) 124 Barron was then asked to draw a sketch plan of the area traversed between the police station and the court, which sketch was tendered as an exhibit. Barron's examination in chief continued: "Q. You say you made a notation on that piece of paper, MFI 17, and did you do something with that piece of paper after you had written on it? A. Yes, the Court papers that I referred to receiving when I got to the police station, were kept in this manila folder. Q. You're indicating a yellow manila folder in your hands now? A. Yes, that was in there with all the other paperwork and a covering sheet on the front. I put that piece of paper in with the papers in that manila folder. Q. I take it then that the bail hearing took place? A. Yes, Mr Adams was the Registrar that day. He arrived shortly after I made the note and put it in the folder that the bail hearing proceeded. The defendant was unrepresented. He made no application for bail. HIS HONOUR: Q. Just answer the question you're asked. You were only asked if the bail hearing took place? A. It did. CROWN PROSECUTOR: Q. I think just prior to the arrival of the gentleman Mr Adams that you referred to a moment ago, you had a further conversation with the accused? A. Yes. Q. I want you to just take it step by step. For a start he asked you a question? A. Yes. Q. What was that? A. Initially - this is before Mr Adams arrived - he said to me, 'Are you the prosecutor?' Q. I want you to take it step by step. I think at that stage you gave a response? A. Yes. Q. You said? A. I said, 'Yeah'. Q. Did he say something else to you at that stage. Just tell the Court what he said to you? A. He said, 'I don't know why you're prosecuting me. You should be thanking me.' Q. At that point of time I think you made some brief comment to him and then you also once again made a record of that second conversation that took place? A. Yes. Q. When did you make that second record? A. I made it on the manila folder. Q. Is that the same manila folder you held up before? A. Yes, that's the case. Q. Did you record the exact words which you just told the Court about a moment ago? A. Yes, I did. MFI #18 MANILLA FOLDER. Q. I think after you had made that particular notation on the manila folder, it was at that stage that the gentleman Mr Adams arrived? A. Yes. Q. The bail hearing proceeded in its normal way? A. Yeah. Q. It, in due course, came to an end and I think at that stage the accused was then returned to his former cell? A. Yes. Q. And you travelled with him and the correctional officers that were with him? A. Yes. Q. I think at that stage when you got back into the police station you had another conversation with someone. Did you speak to somebody else at that stage? A. Yes, I did. Q. Who was that person? A. Acting Sergeant Macrae. Q. Did you, when you spoke to him, show him something? A. Yes, I did. Q. What did you show him? A. I showed him the white piece of paper that I made the first notation on. Q. As a result of that, did he tell you to do something? A. Yes, he suggested something. Q. And after speaking to him did you in fact do something? A. No, I attempted - I did go to a computer and attempted to make a statement at that time but I was unable to access the macro on the computer. In my role as a police prosecutor, I don't make statements generally, so I wasn't used to it. I don't know if it was the computer or me but, for whatever reason, I couldn't access the macro to make the statement. Q. You had trouble pulling up the template? A. On the computer, yes. Q. Having tried to do that and not succeeding what did you do then? A. I thought I'll leave it till Monday, I'll do it over on my computer in the office where there'll be people who might assist me. Q. Is that in fact what you did do? A. Yes, that Monday, two days later, I made the statement then." (T361-363) 125 The following evidence given by Barron in cross-examination is also important. "Q. As a police officer you are, of course, issued with official notebooks, aren't you? A. Not at that stage. As a prosecutor I didn't have a police notebook. Q. Did you have nothing upon which you could have officially noted something? A. Well, no, all that I had with me were the court papers themselves. Q. I understand that. Why is it that you wrote one note on a piece of scrap paper and one note inside the folder? Why the two different places for the writing of the note? A. As soon as I got into the courtroom I looked for a piece of paper to write it on because I didn't want to mark the Court papers. That was why I didn't make the first note on the Court papers but then when he made the second comment, I had the folder open and the pen in my hand so I scribbled it down quickly immediately. There was a clean side on the open page of the manila folder so I just scribbled it there. Q. Did you put any date on the piece of paper -- A. No. Q. - that you made the note on? A. No, but at that time all of the Court papers were still attached so the date was on those. Q. On the piece of paper? A. No, I didn't. Q. Any date? A. No, I didn't. Q. Why not? A. It didn't occur to me. Q. It didn't occur to you as a trained officer. You think you have heard something of importance; you go to the trouble of writing it down, you tell this jury, but you don't even put a date on it? A. No. Q. That means it could have been written any time, doesn't it? A. Well, except I know when I did it. Q. We have only got your word for that, haven't we? A. In the same way if you say a date was there, you could say I had written that at any time. Q. You kept the pen for two years or more? A. Yeah. Q. To show this jury? A. Yeah. Q. But you didn't even date the paper? A. Yeah, that's the case. I didn't specifically keep it for that purpose but when I found I had taken it home, I kept it by the phone and then I -- Q. Please finish your answer? A. I put it by the phone at home and I (sic) was there for some time and then I put it in my jacket when I came to Court on the last occasion and I've left it there since. Q. Just to convince someone that the green ink in the writing is the same as the green ink in the pen in your hand? A. No, just because it was there and I thought it may be relevant, so I thought I'd bring it. Q. Did it occur to you at any time as a trained police prosecutor to give this man the opportunity of reading to him what you say he said to you? A. No, it didn't. Q. You'd have to agree that is normal police procedure, is it not? A. I'm not specifically trained in that area so I'm not certain if that is a part of that training or not but it's not a part of my training. I'm trained as a prosecutor. Q. For example, if he had signed it we'd have some pretty strong evidence that he knew and agreed what he had said, wouldn't we? A. Yes. Q,. Did you ever get any opportunity to do that? A. No, that, unfortunately, didn't occur to me. Q. A police prosecutor; it didn't occur to you, is that right? A. That's right. Q. Trained to be in Courts; know how everything is admitted into evidence? A. Yes. Q. Know what the meaning of corroboration means? A. Yes. Q. Didn't occur to you? A. No. Q. What about the folder; did it occur to you to give him the benefit of reading what was in the folder? A. No, it was in the same position. Q. I mean, you went to the trouble, you tell this jury, to bring this to the attention of another policeman, didn't you? A. Yes, I did. Q. Why didn't you go to the trouble of bringing it to the attention of the man you say used the words? A. The only time that I ever mentioned it, I think in the defendant's presence, was a bail application - in a bail application. I'm certain that I did mention it then but I'm not certain when or where. Q. You didn't mention that in your statement, did you? A. No, the statement was made two days after the event. Q. Who asked you to make a statement, do you remember? A. It was always my intention to make the statement. Sergeant Macrae suggested to me in addition on the Saturday that I make it and also on the Monday I spoke with Detective Sergeant Jones about the matter. I'm not certain if that was before or after I made the statement but I certainly either told him I'd made it or told him I would make it; I'm not certain which. Q. Did you tell Sergeant Jones about the note? A. Yes, I did. Q. Did you show it to him? A. Well, not on the Saturday. I didn't see him on the Saturday but on the Monday - I'm not certain if I showed it to him or just delivered it to his office." (T366-368) 126 At a later stage of the cross-examination, reference was made to the words allegedly uttered by the appellant in the walkway. The cross-examination continued: "Q. Are you sure they are the words, sergeant? A. Yes, definitely. Q. On your assertion this man suddenly just tells you he has committed a murder? A. Yes, that is why I wrote them down straight away. Q. No conversation leading up to it? A. No." (T370) 127 And later: "Q. Wasn't the fact however, detective, this accused said that the bloke who did this deserves a medal? A. No. Q. That's what he said? A. No. Q. And that you have changed that to: 'I deserve a medal'? A. No, I wrote the words down straight away word for word what he said. Q. And did not give the man the opportunity to read them to say whether he agreed with it or sign it? A. No, that didn't occur to me. Q. How long have you been a police officer? A. I have been in the Police Service for 12 years but almost all as a police prosecutor so I am not used to that side of -- Q. You know about getting someone to sign a statement, you know the benefit of one? A. In hindsight I wish I had. Q. Every day police come to court and say: 'I spoke to the man who had the accident, I spoke to him and asked him to sign this.' You see that every day? A. Yes. Q. You did not speak to the accused? A. Not at the time, no." (T371) 128 Phillip Steven Uebel, the third Correctional Services officer involved in the escort, was then called. His evidence was relatively brief but we note the following passage from his examination in chief: "Q. Now, I think there were a number of other officers involved in that particular transportation? A. Yes, with that sort of rating of the inmate there was three of us. Q. That is a standard number? A. Hm mmm. Q. Do you have a clear recollection of forming the escort? A. It is a fair while ago, I even forgot about the whole thing, but as time went by I remember going on the escort. Q. What can you remember about the role you performed? A. The only thing I can, other thing I can think of is he was handcuffed to Barron, (sic) I equate Barron with being smaller, and he was handcuffed to the inmate, and I carried the weapon. Q. As a result of you carrying the weapon did you keep a distance away? A. Yes, there is a safety distance you must maintain whenever you carry a weapon even if the inmate is handcuffed. Q. Can you remember the distance? A. You must remain in sight of the inmate, but usually about five feet is the distance. Q. Do you have any recollection of any conversation that took place at any stage while you were performing that role? A. Well, the inmate was fairly talkative but for the life of me I can't remember what he said. Q. Did you actually go into Court that day? A. It's the first time I've actually been in a Court. I remember walking up steps; it was all strange to me. Q. You remember walking up steps? A. Yes. Q. You cannot assist the Court with any conversation that occurred that day? A. If I could I would. Q. That is something you have done before? A. The only thing I do remember he was talking I believe but, as I said, being the first time I was in Court that was unusual. Q. That sticks in your memory? A. Yes. Q. That the accused was talking a lot? A. Yes, he was talking quite a lot but nothing sticks." (T372-373) 129 Correctional Services Officer Hindmarsh, who was the third member of the escort party was not called and no explanation was given by the Crown for the fact that he was not called. 130 Sergeant Harvey McRae was the final witness called on this issue. In evidence in chief he was asked what occurred after the court hearing was concluded and Barron approached him: "Q. Tell the Court what occurred, not what was said, what occurred? A. When Sergeant Barron, the Junee correctional officers and the accused returned, I was approached by Mr Barron, the prosecutor -- Q. He spoke to you at that stage? A. Actually he had a bit of a stunned look on his face. OBJECTION QUESTION PRESSED ALLOWED Q. I do not want you to tell the Court what was said? A. That's correct. Q. Unless it was in the hearing of the accused? A. Yes. Q. Where was the accused at that particular time? A. I believe the actual accused would be about two to three yards away. Q. I will not press that, but you noticed something about the expression of Mr Barron you told the Court about. Did he speak to you? A. Yes, the actual prosecutor told me certain things. Q. Did he do anything else at that stage? A. Yes, actually when he walked in he made a comment to me, which amazed me quite a bit, and from the document he had with him he actually read a phrase. HIS HONOUR: I would be obliged if you would just answer the question that you are asked. Ladies and gentlemen, it is not a matter for you whether Sergeant McRae was amazed at anything or not, put that out of your mind. CROWN PROSECUTOR: Q. In terms of the documents, the prosecutor had with him the actual court papers? A. Papers or I think it was a vanilla (sic) folder with the actual charge and an exhibit, other papers. Q. Did I understand from what you said before he read something from that paperwork to you? A. Yes, he made a comment to me. Q. Did he actually show you any paperwork? A. Not that I remember. Q. Did you have a brief conversation with him - don't tell me what was said? A. I did. Q. Did he at that stage then leave? A. I believe so, yes." (T375-376) 131 It is necessary when considering the question of unfairness to consider the combined effect of the abovementioned witnesses. The significant matters which have to be considered in this regard are, in our view, as follows: · Despite the circumstances in which the alleged admissions were made the Crown was unable to call any witness to support the relevant evidence of Bouffler or Barron that the statements in question were made to them. · The fact that in giving his evidence Bouffler was entirely reliant upon his recollection of events occurring one year and eight months earlier. The appellant was never offered the opportunity to confirm or deny that he had made the alleged statements to Bouffler. · There are grave problems about Barron's evidence in that despite his lengthy experience as a police prosecutor (who must be assumed to have a working knowledge of the relevant laws of evidence in criminal proceedings) no opportunity was given to the appellant to respond to the words written on the scrap of paper and the manila folder. · There is a discrete problem about the scrap of paper and the manila folder. Neither of these documents was admissible: see Driscoll v The Queen (1977) 137 CLR 517; Stephens v The Queen (1985) 156 CLR 664. They were, however, marked for identification, and it is obvious from the quoted portions of the transcript of Barron's evidence that it was made abundantly clear to the members of the jury what the contents of the documents were and that the words were written in green ink. They were prominently displayed in the court, having been marked MFI 17 and MFI 18 respectively. At one stage Barron read from the scrap of paper (MFI 17). The manila folder was not only produced but it was held up before the jury. The evidence was that the folder recorded the exact words which the witness had earlier related to the court. There was an added embellishment to the above in that Barron produced the green pen which he said he had used to make the relevant notations on the documents. · Barron's evidence received implied support from Sergeant McRae to whom the contents of at least one of the documents were read out. He noticed the "stunned look" on Barron's face when he first spoke to him. Interestingly, at that time the appellant was only two or three yards away from McRae and Barron but neither officer seems to have considered the appropriate course was to make the document available to the appellant for his response to be recorded. · No consideration seems to have been given to the fact that Barron's responsibility was to present, impartially and independently, to the duty magistrate the case for the prosecution in what was a bail hearing. The fact that no application was made for bail is not here to the point. It must have occurred to Barron that in the circumstances which occurred he became a potential significant witness in any future proceedings against the appellant. It would have been clear from the documentation available to Barron that the appellant had declined to be interviewed and Barron, according to his evidence, found himself in possession of evidence of a critically damning nature against the appellant. These exceptional circumstances imposed a very considerable responsibility upon Barron to exercise maximum care to avoid any unfairness or prejudice to the appellant by reason of what had happened within the precincts of the court.

132 In the case of the alleged admission made to Bouffler he did not make any written note of the conversation until 24 March 2000, and testified solely from his memory. Accordingly, no question arose of the appellant being asked to acknowledge the correctness of the alleged admission having been made. 133 The locus classicus on the principles applicable to an appellate court dealing with the exercise of a discretion such as in the present situation is the following passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR at 505: "It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 134 Section 90 of the Evidence Act vests the trial judge with a discretion to refuse to admit evidence by the prosecution of an admission if, having regard to the circumstances, it would be unfair to the accused to use the evidence. Particularly since the judgment of the High Court in Driscoll v The Queen (1977) 137 CLR 517 dealing with the admissibility, in particular, of unsigned records of interview with the accused, there has been much learning from the High Court and Courts of Criminal Appeal on the concept of unfairness in such circumstances. 135 The question of unfairness was recently revisited by the High Court in Swaffield and Pavic v The Queen (1998) 192 CLR 159. In the majority judgment (Toohey, Gaudron and Gummow JJ), their Honours said at 189: "Unfairness [53] The term 'unfairness' necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear: '[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.' Van der Meer v The Queen (1988) 62 ALJR 656 at 666; 82 ALR 10 at 26, per Wilson, Dawson and Toohey JJ. [54] Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted." 136 When their Honours turned to consider s 90 of the Evidence Act they noted (at 193) that the concept of fairness has been expressed in the widest possible form in that section. Having quoted the section, their Honours then said (at 194): "[68] Neither in s 90 nor anywhere else in either Act is there to be found a definition of unfairness. Part 3.11 - 'Discretions to Exclude Evidence' contains a number of provisions of a general nature empowering the court to refuse to admit evidence or to limit its use. In particular s 138(1) prohibits the admission of evidence obtained '(a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; ... unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained'.

This expresses in the widest terms the policy discretion developed by the common law. It is true that an approach, expressed in such terms, lacks certainty. But as the Law Reform Commission of Canada has said: see Australian Law Reform Commission Report No 26, Evidence (1985), vol 1, p 534.: 'there is an undeniable advantage in granting judges discretionary power, since it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities.'" 137 As we have previously explained the real sting in the use by the appellant of the word "medal", is to be found not in the evidence of Bouffler but in the evidence of Barron, a well experienced police prosecutor. There can be no doubt that, at times, suspects or accused persons from time to time voluntarily and independently of any interrogation make statements to police officers amounting to admissions. On such occasions the responsibility is then imposed upon the relevant police officers (well knowing the forensic significance of such admissions) to take such procedural steps as are necessary in the circumstances to avoid any unfairness to the suspect or accused. A fundamental requirement in this respect is to record the statement in a notebook or other document and provide the suspect or accused with the opportunity, without delay, to inspect the entry and to acknowledge in writing the accuracy of the entry. A formal record should be kept of the response by the suspect or accused. Such a procedure is wholly consistent with the case law which has developed over the last twenty-five years. 138 In fairness to Barron he acknowledged in cross-examination that he wished that he had taken such a course. However, his failure to do so together with the other aspects of concern about the reliability of his evidence, in our view, required the rejection of his evidence. In our respectful view, the exercise of discretion miscarried so that a potential injustice (albeit unwittingly) has been established. 139 In the event of a new trial, a question may well arise as to the admissibility of Bouffler's evidence in the absence of Barron's evidence. 140 Accordingly, for present purposes it is sufficient if this Court rules that ground three is upheld in relation to the evidence of Senior Constable Barron. 141 In the circumstances it is not necessary to deal with ground four.

Grounds 5 and 6: Admissibility and reliability of evidence of witness Brazel declared an unfavourable witness. 142 It is convenient to deal with grounds five and six together. Ground five is in the following terms: "The learned trial judge erred in admitting the evidence of the witness Brazel, or alternatively, erred in ultimately leaving his evidence to the jury." 143 Ground six is in the following terms: "The directions given by the learned trial judge on the evidence of the witness Brazel were inadequate." 144 It will be recalled that the evidence of the witness Mark Anthony Brazel was given against the background that he had initially made a statement (in the form of an ERISP) to the police, in which he gave a version implicating the appellant, but then claimed later to have no recollection of the events about which he had spoken, and then at a later stage claimed that he did recall those events sufficiently to say that the version he had given to the police was untrue. 145 At an early stage of the summing-up, in the absence of the jury, his Honour raised with counsel the question of appropriate directions relating to Brazel's evidence. In this regard the following discussion took place: "CROWN PROSECUTOR: I suppose Young falls into that same category of gaol informer. Brazel might. I don't know what weight my friend places upon Brazel. On one version he said quite a lot. Obviously your Honour is going to have to give some direction to the jury as to what they make of the evidence he gave to the police. HIS HONOUR: I chose my words very carefully when I was summing up just now on matters of fact and my opinion. I told the jury that I did not generally intend to comment upon disputed questions of fact. I'm wondering about Brazel, whether I should say something about my view of the credibility of his evidence. I might say that my view is that he is incredible. [DEFENCE COUNSEL]: Could your Honour put it a bit more mutually than that and say on one version he says this and on another version he says this; that on one version he says very little and on another he says a lot. HIS HONOUR: I still haven't decided whether I will comment on his evidence. CROWN PROSECUTOR: I do think his evidence falls into the category of a gaol informer and I think Young does too. [DEFENCE COUNSEL] : I have no objection to that, your Honour. HIS HONOUR: But the evidence I was referring to was we have three lots of evidence from him. CROWN PROSECUTOR: Which version falls into that category? [DEFENCE COUNSEL]: The difficulty is which one does the Crown rely on. [DEFENCE COUNSEL]: I will leave that to your Honour. I will see what falls from your Honour and if there is something I may want to ask I will consider that later." (S/U 16-17) 146 In his summing-up to the jury his Honour said in relation to the evidence of Brazel: "The last of the prison informer witnesses is Mr Brazel. He was by any account criminally involved so you must treat his evidence with the greatest caution. But quite apart from that, you know that he gave one statement to the police at Junee. In it he put himself inside the deceased's cell, not taking part in the attack but pulling the accused off the deceased saying he had better get out. The second version was that he remembered nothing of the events at all. He did not remember even who the accused was, didn't remember whether he had close relatives, children. The third version told of a miraculous recovery of his memory in which he told you that, yes, he did remember being there, he did know the accused, he did go to the police station, he did make the statement which was read to you - that is the transcript of the electronically recorded interview - but that none of it was true. You remember the Crown Prosecutor cross-examined him about that and he conceded some parts of it were true, for instance, that he was at Junee on that day but none of it was true as far as it puts him in the cell or the accused in the cell. It was submitted to you by the Crown Prosecutor that notwithstanding the obvious, perhaps insuperable, difficulties of knowing what you could believe in the evidence of such a witness, you could accept that he was in the cell, not because of anything he said necessarily but because that is what he said in the first place to the police and there seems no reason he would give a lying version putting himself in the cell, why would he do that, but, more particularly, because of the other evidence that he was in the cell, not only of Mr Digby who saw him there doing what he was doing and of Mr Roach who saw him walking along towards the cell in the presence of the accused and going into the cell. So the Crown says you can accept some things in the statement he made to the police. [Defence counsel] says that Mr Brazel gave quite a frank answer to a question that he asked him, the effect of which was that he would say anything if he thought he could get an advantage. He said that you should reject his evidence out of hand. It is just so obviously suspect that you do not know where the lies end. You should not accept any of that evidence." (S/U 42-43) 147 No redirection was sought by Defence counsel. 148 It is convenient now to refer to the interlocutory judgment which his Honour gave on 5 April 2000 during the course of Brazel's evidence in chief granting the Crown leave to cross-examine Brazel generally as an unfavourable witness in reliance upon each of the three paragraphs in s 38(1) of the Evidence Act. Section 38(1) is in the following terms: " 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement." 149 His Honour's interlocutory judgment is as follows: "1. HIS HONOUR: Before this trial began the Crown made application to cross-examine one of its own witnesses, Mark Anthony Brazel, and to tender as a prior inconsistent statement the record of an interview he gave to Detective Sergeant Jones at the Junee police station on 28 September 1998. I granted leave to the Crown to cross examine him and to have read in court the contents of the interview, though I did not give leave to tender the record of interview as a document. I gave reasons for my decision on 27 March 2000. 2. The basis of my reason for deciding as I did was that I took the view that Mr Brazel was not making a genuine attempt to give evidence on a matter that he knew about. It was also common ground that his evidence was unfavourable to the party calling him, namely the Crown, and that his interview with Detective Sergeant Jones was a prior statement inconsistent with evidence he then proposed to give, namely that he had no memory at all of the events at Junee in September 1998, having at least six months retrograde amnesia from a car collision in which he was involved in March the following year. 3. Thus all the conditions of section 38(1) of the Evidence Act applied. For reasons which do not need to be explained there has been a substantial delay between my decision and the calling of Mr Brazel to give his evidence before the jury. 4. He has been called this morning and counsel on both sides have been taken by surprise because his evidence has changed significantly. He now says that he remembers the events at Junee Correctional Centre in September 1998, whereas before he did not. He says that he remembers being interviewed by Detective Sergeant Jones, whereas before he did not. What he now says is that although the record of interview with Detective Sergeant Jones correctly records what he said, it is not true insofar as it deals with any part that he played. 5. When the change became apparent I interrupted the trial and asked the jury to withdraw because it seemed to me that the basis upon which the Crown had its leave to cross-examine Mr Brazel and to use the contents of the interview might no longer exist, and that the accused might have an opportunity to put something against my continuing to hold out the leave which I had granted the Crown. 6. Mr Brazel has been examined on the voir dire. His evidence is now as I have summarised. It is true, as [defence counsel] has submitted, that the fact that a witness has made a prior inconsistent statement is not of itself sufficient to ground a conclusion that that witness is not doing his or her best to tell the truth about something he or she knows about. However, there is much more here. In view of the contents of the interview, of the evidence of Mr Brazel on the voir dire and of his evidence this morning, which put forward three entirely different factual states of affairs, I am quite satisfied that he is still making no attempt to tell the truth about a subject matter he knows about. 7. I think that the three conditions of paragraph 38(1) of the evidence Act continue to be (sic) apply. The Crown will continue to have leave to cross-examine Mr Brazel, if it wishes, and to read the contents of his interview with Detective Sergeant Jones if it wishes." 150 During the course of the cross-examination of the witness by the Crown Prosecutor the critical aspects of his ERISP were put to him so that that material came before the jury. It clearly implicated the appellant in the murder of Mr Kennett. 151 That situation having arisen a question then arose (however, it was not adverted to by counsel) for the judge to determine whether he should exercise the jurisdiction vested in the Court under s 136 of the Evidence Act to limit the use of the evidence to the issue of the witness' credibility. If the evidence were limited to the witness' credit a direction along the following lines would have been appropriate. "Mr Brazel was called as a witness by the prosecution but gave evidence which was unfavourable to the prosecution case, the prosecution was therefore allowed to cross-examine him to show that he had earlier made statements which were inconsistent with the evidence he has now given in court. The contents of those statements are not part of the evidence in the trial except for the parts of them which he has told you are true. Those statements were put before you by the prosecution solely to throw doubt on the reliability of his evidence in the court. You have to decide, in the light of the challenge to his credibility, whether you can accept any part of the evidence which he has given in court and, if so, what part of it. If you decide that there is such a serious conflict between the evidence he gave you and the statements previously made by him, you may think that you should reject his evidence altogether." 152 In the absence of such a direction, as happened here, the material in the ERISP implicating the appellant in the murder went before the jury on the basis that they could accept such material (if they believed it was true) as evidence going directly to the guilt of the appellant. This is so even though the witness asserted that that material was untrue. Those parts of the ERISP which the witness accepted to be true had no effective probative value insofar as the Crown case was concerned. 153 The reality of the situation is that the direction which his Honour gave to the jury was not the subject of any objection by defence counsel. However, it should be remembered that there was an initial objection by the defence to leave being granted on any basis under s 38 for the Crown to cross-examine Brazel. 154 It was suggested on this appeal by the Crown that defence counsel obviously wished to take forensic advantage of the varying nature of Brazel's accounts as to what happened at the crime scene, to emphasise unreliability in the Crown case. 155 It is argued on appeal that his Honour should have excluded the evidence on the basis of s 137 of the Evidence Act which does not provide the trial judge with a discretion but provides that the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 156 Alternatively, the appellant has argued that Brazel's evidence should have been excluded under the general discretion vested in the judge under s 135 of that Act on the basis that the evidence was unfairly prejudicial to the appellant. 157 There is no doubt, as the Crown has emphasised before this Court, that his Honour had cautioned the jury to take care with the evidence of all prison informers, including Brazel, as set out earlier in this judgment. 158 Further his Honour complied with defence counsel's request and juxtaposed summaries of the three versions given in evidence by Brazel. His Honour's summary, indicating the changes in tack of the witness clearly illustrated defence counsel's point. 159 There is no doubt that Mr Brazel's changes of tack created problems not only for the learned judge but also for both counsel. 160 It was clearly within his Honour's discretion to allow the Crown to cross-examine Brazel generally under s 38 of the Evidence Act. It is (with respect) unfortunate, however, that more careful consideration was not given at the conclusion of his evidence as to the basis upon which it was to go to the jury, or, indeed, whether it should be taken away from the jury. A real question arose as to whether its prejudicial nature outweighed its probative value. Its probative value depended wholly upon the jury accepting that the incriminating statements made in the ERISP by Brazel were truthful. Otherwise the evidence was of no value. 161 As the Court has determined that a new trial is necessary, further consideration of this ground is unnecessary to avoid any complication arising in the re-trial.

Ground 7: Reliability of evidence of witness Digby. 162 Ground seven is in the following terms: "The directions given by the learned trial judge on the assessment of the evidence of Mathew Digby were inadequate in that those directions failed to draw to the attention of the jury: (a) that to the extent that the Crown case depended on observations of the assault upon the deceased, it depended in its entirety on the evidence of Mathew Digby; (b) specific weaknesses in the evidence of Mathew Digby, in particular the inconsistency of the versions he had given of relevant events; (c) that the version of events given in the trial by Mathew Digby was contradicted by the evidence of the video tape recordings, Exhibits J and K." 163 There is no doubt that Digby was an important witness in the Crown case. Indeed, as counsel for the appellant contends, his evidence was "crucially important". 164 During the course of his summing-up, his Honour analysed in considerable detail the evidence given by Digby and adequately summarised the competing arguments about it. However, it is argued that in his Honour's analysis there is no clear direction to the jury that in order for the jury to be satisfied of the appellant's guilt on the basis of his observed conduct, it was necessary for them to be satisfied beyond reasonable doubt of the truth of the evidence of Mathew Digby. Further, in order to underline the importance of that direction, it was also important for the jury to be told that no other witnesses had given a version of events which supported that given by Mathew Digby. 165 Having carefully examined the detailed analysis that his Honour made of Digby's evidence we are unable to conclude that his Honour was under an obligation to say anything further. 166 The video tapes, Exhibits J and K, reproduced images from some of the security cameras within the Correctional Centre. A technician explained in evidence that the surveillance system digitalized the images from each unit and recorded them on videotape from one camera after another. The viewer sees a frame from each camera, updated every couple of seconds. Images of people are too blurred to enable any individual to be identified. Of the two video tapes in evidence the more important is Exhibit K, derived from two cameras in B Pod, in which can be seen the deceased's cell and the area around it. 167 It was the Crown case at the trial that the movement of inmates seen on this video was consistent with Digby's account. Defence counsel contended that it was not. Having viewed the video ourselves, we can understand the basis of the defence argument. However, the video is not a continuous photographic representation of movement in the relevant area, as a normal videotape would be, and, in our view, it could not be relied upon either in support of the Crown case or in contradiction of it. Its probative value appears to us to be slight. In any event, his Honour dealt adequately with this aspect of the evidence. 168 We reject this ground of appeal.

Ground 8: Directions concerning identification of shoes alleged to be worn by appellant at time of offence. 169 Ground eight is in the following terms: "The learned trial judge erred in the directions given to the jury as to the identification of the shoes which were Exhibit G in the trial proceedings as being shoes worn by the appellant at the time of the alleged offence." 170 Relevantly to this ground of appeal, the Court notes the following portion of his Honour's summing-up: "The Crown submitted to you that the video will satisfy you that nobody went into that cell after the alarm was raised and that if the accused's shoe had not been in there at the time of the attack, how could the blood have got on it? But there is no concession that the shoe was the accused's, I might say, that the evidence is that it was taken from the cell and I think no strong submission was put to you about that by [defence counsel]." (S/U 49) 171 The manner in which the shoes were dealt with in counsel for the appellant's address can be discerned from a discussion between his Honour and counsel in the absence of the jury during the course of the summing-up. "HIS HONOUR: [Defence counsel] you didn't make any submission that the shoes, Exhibit G, were not the accused? [DEFENCE COUNSEL]: No, as far as I know they look to be the same shoes. That's the best we can do, so I didn't say it wasn't. HIS HONOUR: You didn't make any submission that the jury ought to doubt whether they are the accused's shoes? [DEFENCE COUNSEL]: No, I only raise the difference in the evidence, as your Honour has done, one with thongs and one with work boots. That's all I did. Perhaps I should have but I didn't. Your Honour can only deal with what I did do." (S/U 44) 172 The reference to "thongs" is of course a reference to the evidence of Young. The reference to "work boots" is a reference to the evidence of Roach. 173 Accepting that it was essential to the Crown from the DNA point of view to establish that the shoes belonged to the appellant, it was submitted that the evidence was insufficient to establish this fact. 174 Reliance was placed upon the principle enunciated by this Court in R v Clout (1996-1997) 41 NSWLR 312 that the frailty of identification evidence, and the consequent need for directions, applies equally to objects as it does to people. 175 The major difficulty which the appellant faces for this ground of appeal is that evidence given by Detective Coleman that the black Nike runners (Exhibit G) were taken from the appellant's cell on the evening of 17 September 1998 was never challenged. Nor was the evidence of Soonius who was shown Exhibit G in the witness box that the shoes belonged to the appellant challenged. 176 No warning was sought as to the dangers of identification of the shoes which is perfectly understandable in the circumstances. 177 The final reference by his Honour to the shoes in the summing-up was immediately prior to the jury retiring to consider their verdict. His Honour said: "In the jury room you will have with you all the exhibits, including those shoes. I haven't sent them out with you so far. You may not need to take them out of the paper bag, I don't know what value you would have from taking them out and looking at them. The evidence about them has not been such that you would have to. I would warn you to be careful about handling them. I don't say that in any way derogatory of the accused. There are blood products on them." (S/U 58) 178 Those comments which were not the subject of any objection by defence counsel reflect the reality that by the time the jury retired there was no issue about Exhibit G constituting the appellant's shoes. Inherent in this situation must be the assumption that Roach and Young were mistaken, when they asserted that the appellant was wearing different shoes. 179 This ground of appeal is rejected.

Ground 9. 180 This ground, concerned with an aspect of the cross-examination of the witness, David Young, was not pressed.

Ground 10: directions regarding evidence favourable to the appellant by prison inmate David Young. 181 This ground complains that the trial judge erred in his directions relating to the evidence of Mr Young. 182 It will be remembered that David Young was called in the appellant's case and gave evidence favourable to him (pars 47-49 of this judgment). Nevertheless, in the passage of the summing-up quoted at par 67 his Honour included Mr Young in the category of prison informers. Later in the summing-up he said: "There seems to be no suggestion that Mr Young received any benefit from giving evidence but his evidence is to be treated in the same way as that of the other prison informers because he made a statement to the police and held himself out as being able to give evidence in this matter and he is therefore likely to have been motivated in the way the others might have been motivated." (S/U 41) 183 Earlier (par 81), we referred to Jamieson & Ors (1992) 60 ACrim R 68 at 76 and R v Baker [2001] NSWCCA 151 at pars 27-28. Those were cases dealing with the evidence of an accomplice, and the passages referred to are authority for the proposition that a warning about evidence of that kind is apposite if it is relied upon by the Crown, but not if it is led in support of the defence case. The same must be so of other categories of evidence calling for a warning in the interest of fairness to an accused. The reasons of policy which dictate such a warning when the evidence is led in proof of guilt have no application when it is relied upon in favour of an accused. Of course, the testimony of Mr Young was challenged by the Crown prosecutor at the trial and the jury would have been entitled to examine it with a critical eye. However, it was not appropriate that they should do so against the background of a direction by the trial judge that it was evidence of a kind which, in the experience of the courts, might be unreliable. The same must be said of aspects of the evidence of the other prisoner witnesses which was favourable to the appellant (referred to at par 85). 184 We are not dissuaded from that conclusion by the fact that defence counsel sought no redirection and, indeed, raised no objection to a direction of that kind in discussion at an earlier stage of the summing-up. From the transcript of that discussion (set out at par 145) it appears that neither counsel assisted his Honour by reference to the relevant law. This ground is made out.

Ground 11: Admissibility of evidence of presumptive testing for traces of blood on appellant's clothing. 185 This ground is in the following terms: "Evidence that various items of clothing matching the descriptions of those said to have been worn by the appellant had tested positive to a presumptive test for traces of blood should not have been admitted, having regard to other expert evidence which established that the items of clothing in question did not contain traces of blood." 186 A physical evidence officer observed what appeared to be recent stains on a number of items of the appellant's clothing apart from the shoe which was the subject of DNA testing. Those stains reacted positively to a field test for blood and the clothing was submitted for testing by the forensic biologist, Mr Goetz. As recited above (par 58), one stain proved to be blood, but not that of the deceased. The other stains were not blood. 187 The complaint on appeal was that the evidence of the presumptive testing by the police officer had no probative value and could have been unfairly prejudicial to the appellant. However, the evidence was not objected to and it is not apparent how the appellant could have been unfairly prejudiced by it. The limited significance of presumptive testing was explained to the jury, and the tests by the police officer were put in their proper perspective by the evidence of Mr Goetz. The evidence was not entirely devoid of probative value, in so far as it explained why those items of clothing were submitted for biological testing. 188 Evidence of this kind is frequently led in murder trials. This is not to suggest that it should be led as a matter of course, without consideration of its relevance to the issues in the case at hand. In the present case the evidence was of little significance and, no objection having been taken to it, we would reject this ground.

Ground 12: Directions regarding DNA evidence. 189 This ground is that the trial judge's directions on the approach that the jury should take to the DNA evidence were erroneous and inadequate. 190 The ground arises from his Honour's directions to the jury about the evidence of Mr Goetz, summarised at pars 59-61 of this judgment. The relevant passage from the summing up is as follows: "Mr Goetz' opinion was that the DNA matched the DNA of the deceased. There was also present the DNA of somebody else. He could not say who that was and the question for him was: Was this any two people in the community or was it one random person and the deceased and he said the chances of it being two random people, neither of which were the deceased, was a million to one against. I do not know whether I have put that right. It was a million times more likely that the deceased was one of the contributors to the DNA on the shoe . (Our emphasis) (S/U 52) 191 The complaint is that the last sentence of that passage falls into the error known as the "prosecutor's fallacy" explained by Mason P in R v GK (2001) 53 NSWLR 317 at par 47ff: see also JCG (2001) 127 A Crim R 493 at par 79ff and Keir (2002) 127 A Crim R 198. Mr Goetz' evidence of the chance of the DNA being that of two random people in the community, neither of them the deceased, was admissible. However, it was argued, to reason from that evidence that it was a million times more likely that some of the DNA was that of the deceased was impermissible. 192 The Crown prosecutor in this Court acknowledged as much but argued that, in the circumstances of the case, the error did not give rise to a miscarriage of justice. Following the passage quoted from the summing-up, his Honour warned the jury in general terms about their approach to this statistical evidence, pointing out that a "statistical distribution" may not be "factual distribution". More importantly, however, while there was no concession by the defence that the DNA on the shoe was that of the deceased, that does not appear to have been a live issue. What was put to the jury was that some of the deceased's blood may have got on to the appellant's shoe innocently as a result of the movement of people in the area immediately after the killing. 193 One can well understand why defence counsel took that course. Given that the appellant and the deceased were members of a confined prison community, the probability that the DNA was that of the deceased was high indeed. In this respect there is some parallel between this case and JCG, which involved an allegation of sexual assault within a group home operated by the Department of Community Services. No redirection about the matter was sought. In all the circumstances, we are persuaded that no miscarriage of justice was occasioned by this part of the summing-up and we would not uphold this ground.

Ground 13: Directions regarding defence case that fellow inmate Terry Johnson had not been excluded, on the evidence, as the perpetrator. 194 This ground is in the following terms: "The learned trial judge erred in failing to fully leave the defence case to the jury, in particular the alternative hypothesis available on the evidence that the inmate Terry Johnson had not been excluded as the perpetrator." 195 It will be remembered that Terry Johnson was referred to in the evidence of several of the prisoners, especially in cross-examination of Matthew Digby. Reference to the effect of that cross-examination is to be found in par 62 of this judgment. Clearly, it was the defence case that it was at least reasonably possible that it was Mr Johnson who killed the deceased. 196 In summing-up his Honour dealt with that aspect of the case as follows: "In addition, [defence counsel] says to you that Mr Johnson had a motive to kill the deceased. He was sexually attracted to him. It had been discovered he was a paedophile. Mr Johnson had become an object of ridicule for that reason. He was by disposition an angry and violent man. He was the one who went into the cell to find out if it was really true that the deceased was a paedophile. His clothes were not examined. Mr Johnson is the principal suspect. They are [defence counsel's] submissions to you. 197 This, of course, was no more than a reference to defence counsel's argument. The submission on appeal was that his Honour should have left the proposition that Mr Johnson was the killer as an alternative hypothesis and should have directed the jury that, unless it could be excluded beyond reasonable doubt, the appellant must be acquitted. In our view a direction about the evidence relating to Johnson was called for. His Honour gave the conventional directions about the burden and standard of proof and the drawing of inferences, but there are trials in which those directions should be related not only to the elements of the offence charged, but also to a particular factual issue which might be decisive of the case. This was such a trial, and an appropriate direction was necessary to ensure that the defence case was properly put. 198 Whether the evidence was capable of raising a reasonable possibility that Johnson was the perpetrator was a matter for his Honour to determine. If it were not so capable on his Honour's determination, the issue should not have been left to the jury. However, it appears to have been common ground at the trial that the issue did arise. That being so, his Honour should have directed the jury that the appellant must be acquitted unless that possibility was excluded beyond reasonable doubt. Of course, his Honour would have been required to make it clear that the appellant bore no burden of establishing that Johnson was the killer and that the question was whether, on the whole of the evidence, including that relating to Johnson, they were satisfied beyond reasonable doubt of the guilt of the appellant. 199 While defence counsel did ask his Honour to deal with the evidence relating to Mr Johnson, he did not seek such a direction. Nevertheless, the matter is of such significance that we have concluded that this ground also should be upheld.

Ground 14. 200 This ground arises from the fact that the jury experienced technical difficulties viewing the security video tapes after they retired to consider their verdict. As we have decided that there must be a new trial, it is not necessary to deal with it.

Ground 15: Whether verdict of guilty was unreasonable having regard to the evidence. 201 This final ground asserts that the verdict is unreasonable, having regard to the evidence. We have given this ground careful consideration, assisted by comprehensive summaries of the evidence provided by the Crown and counsel for the appellant, but we have determined that it is not made out. 202 In arriving at that conclusion, we have left out of account the inadmissible evidence of Snr Const Barron. We recognise that the evidence of Mark Brazel was of little value, and we consider the security camera video to be equivocal. Nevertheless, the combined effect of the evidence of the other prisoners and the DNA evidence is such that it would still be open to a jury, properly directed, to be satisfied of the appellant's guilt to the requisite degree.

Conclusion. 203 It may be that none of the grounds which we have upheld, standing alone, would be sufficient to require the verdict to be set aside. Viewed in combination, however, they satisfy us that the trial miscarried and that there must be a new trial. Accordingly, the appeal is allowed, the conviction is quashed and a new trial is ordered.

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