Regina v Slattery

1. SMART AJ Carl Rodney Slattery appeals against his conviction by a jury after a 26 day trial of maliciously discharging a gun, namely, a shortened .22 calibre Stirling rifle with intent to do grievous bodily harm to another person. He challenges his conviction on the ground of inadequate and erroneous directions given by the trial judge as to the disadvantages the appellant suffered by reason of the destruction of the rifle and as to the conclusions that could be reached by the jury consequent upon the appellant not calling some four witnesses (the Jones v Dunkel direction). He has raised a question whether his acquittal on charges of cultivate commercial quantity of cannabis plant, supply commercial quantity of cannabis leaf and maliciously discharge firearm with intent to avoid lawful apprehension arising out of he same incident negatived the motive of guarding the crop attributed to him on the current charge. It was further submitted that thus the Crown could not present a case alleging that the accused's motive to discharge the firearm with intent to inflict grievous bodily harm was that of guarding the crop.

2. The appellant also sought to adduce further evidence. He attributes his not doing so at the trial to the amnesia from which he was suffering at that stage. He did not recall important material because of the amnesia and was not able to instruct his barrister adequately. Hence important matters were not raised at the trial. If all the relevant material had been used he would have been able to demonstrate (or at least raise a reasonable doubt) that the evidence of some four police officers was false. He seeks leave to lead evidence as to his amnesia at the time of the trial and contends that he did not then realise that he was suffering amnesia. He seeks leave to lead other evidence bearing upon the issue of fabricated police evidence. At the trial the Crown principally relied upon the evidence of a substantial number of police officers who covered the areas of importance.

3. At the start of the hearing the Court intimated that it would hear and determine the challenges to the directions as to the non-availability of the rifle and the appellant not calling four witnesses and the motive point. If necessary, it would then hear and determine the other matters. They were likely to require extended hearing time because there has been a long and complicated history with a number of court hearings and a large volume of documents.

About 6am on the morning of 25 March 1991 police officers, including some from the Drug Enforcement Agency, and some with SWOS training, were on the site of quite a large cannabis plantation spanning a dry creek bed in the Mount Kaputar National Park in north-western New South Wales. The plantation was some distance into the park and in quite rugged country. A number of camouflage tents had been set up. The police evidence was that they observed the appellant approach towards them with a dog along a track on the other side of the creek which led to where they were concealed.

The police said that the appellant was carrying a shortened .22 calibre Stirling rifle in both his hands across his chest at an angle of about 45 degrees. He also had a .38 calibre Webley and Scott pistol secured in his waistband. Sgt McIntyre, who was the SWOS officer in charge of the operation, revealed the identity of the police party by standing up and calling out, "Police". He immediately called upon the appellant to put down the firearm (the shortened rifle). According to the police evidence the appellant raised the firearm to a firing position and discharged it in the direction of Sgt McIntyre. The bullet hit a tree a few inches from Sgt McIntyre's head. Pieces of bark dislodged by the impact hit Sgt McIntyre in the cheek.

Upon the shot being fired, Sgt McIntyre and at least one other police officer responded by firing a number of shots, one of which killed the dog. The police alleged that the appellant had incited the dog to attack the police. The appellant ran from the scene and when in the dry creek bed, tripped and fell over. He was arrested by the police.

It was the Crown case that the appellant had deliberately discharged the firearm at the police with the specific intent of causing grievous bodily harm to one of the officers. The judge in his sentencing remarks was satisfied of this beyond reasonable doubt and that recklessness was not a factor.

As the judge told the jury (SU27) the Crown broadly relied on three categories of evidence. The first category comprised the evidence of the police officers who were part of the raiding party and who stated what they saw and what they say happened. The second category is the evidence of what the appellant allegedly said to three police officers at the crop site. The third category comprised the ballistics evidence.

The ballistics evidence was an important part of the Crown case. Det Sgt Constable who had worked in the Ballistics Unit for about thirteen years said that he was attached to that unit in 1983 and studied the technical investigation of crime involving firearms including studying forensics, firearms identification and the identification of ammunition components by comparative microscopy. He had tested several thousand firearms and examined the Australian small arms and ammunition production methods. He was also a member of the Association of Firearms and Toolmaker Examiners.

He said that he and Sgt Roach examined the shortened rifle on 8 January 1992. Sgt Roach was then a senior constable acting under his direction and learning about ballistics. He had worked in the unit for several years. Sgt Roach did the pencilling and the examination of the firearm under Sgt Constable's observation. Sgt Constable checked the results of the tests including the notes made by Sgt Roach. Sgt Constable said that the shortened rifle was in working order and capable of propelling by means of explosives a projectile which could inflict a lethal head wound on a human being. A pressure of 1180 grams (4 lbs 2 oz) was required to operate the single action trigger mechanism. That was normal for that type of weapon.

Safety tests revealed that that weapon was not prone to accidental discharge when handled in the normal manner or when subjected to moderate blows or when dropped. It was fitted with an efficient safety device and a magazine with the capacity to hold 15 .22 calibre cartridges. The barrel of the weapon had been shortened. When he used Winchester cartridges (being the type used in the rifle) and discharged the weapon, it did not operate as designed in that it did not expel the fired cartridge case before loading the next one. Sgt Constable said that the weapon did not have sufficient force in the blow back system to push the action back far enough to extract the fixed cartridge case so it remained in the chamber. When the rifle was operating normally the pulling of the trigger causes the bullet to be propelled out of the front of the barrel. The blow back system forces the slide action (the bolt) to the rear and extracts the fixed cartridge case from the chamber and ejects it to the side of the weapon. The next cartridge, which is located at the top of the magazine, is pushed forward into the chamber by the action which is pushed forward by a spring which overcomes the force of the rearward action.

Sgt Constable explained that if the weapon was fired and the cartridge case was not expelled, it would have to be extracted manually and reloaded. That was the case with the particular test cartridges. In its original non-shortened form the rifle was semi-automatic. Sgt Constable then used a non-shortened rifle of the same type as the shortened rifle and a magazine to explain the various points he made. The butt of the rifle had also been shortened. A shortened rifle has a lesser degree of accuracy and the bullets from it travel a lesser distance.

Sgt Constable said that microscopic examination revealed that the fired cartridge case (which had been found at Mt Kaputar) had been discharged from the Stirling shortened firearm.

In cross-examination it emerged that the police were unable to produce the three test cartridges that had been fired out of the shortened rifle in January 1992 and which enabled them to say by comparing them with the cartridge recovered at Mt Kaputar that that cartridge had been fired from the shortened rifle. The test cartridges are usually kept with the brief. As the shortened rifle and the cartridge found at Mt Kaputar had been destroyed and the test cartridges from January 1992 were not available, the evidence of Sgt Constable (and also of Sgt Roach) could not be checked.

Sgt Constable said that the notes of examination of the shortened rifle revealed that the chamber mouth of that rifle was very damaged. It was in poor condition. Sgt Constable said that the notes showed that the condition of the cartridge case recovered from Mt Kaputar was good. This was inconsistent with the cartridge jamming in any way at the entrance to the chamber.

Sgt Constable agreed that if from the time of firing the shot until his arrest the appellant had not touched the bolt then the weapon must have operated as intended, in that it ejected the fired cartridge case and stripped the next cartridge from the magazine and loaded it. He did not say that sawing off part of the barrel was responsible for the weapon not operating as a semi-automatic one. He agreed that firing a .22 round in the chamber of the rifle produced a very strong blow back pressure. He did not know, without reference to the manufacturer, what percentage loss in blow back pressure would result from the barrel being sawn off.

Sgt Constable did not know in what conditions the shortened rifle was stored between 25 March 1991 and 5 August 1991 when it was received into the ballistics unit. He did not know whether it had been exposed to moisture. The gasses arising from the combustion of gunpowder have a corrosive effect. The photographs of the rifle indicated that there was some surface rusting. He had recorded that the weapon was in poor to fair condition. It was not stripped down. He relied on the notes and did not remember the particular weapon.

Sgt Constable agreed that it was possible that the shortened rifle fired correctly as a semi-automatic one in March 1991 but did not operate as a semi-automatic one when tested in January 1992. He could not say whether or not it was operating as a semi-automatic weapon in March 1991. He could provide no explanation why it did not fire as a semi-automatic weapon in January 1992.

Sgt Roach also gave evidence. He did not remember the particular shortened weapon but had made extensive notes at the time of his examination of the shortened rifle on 8 January 1992. He noted that the weapon failed to extract on firing due to the extreme shortness of the barrel. That was the main cause. Perhaps some reluctance on the part of the weapon to extract cleanly was due to damage around the chamber mouth.

Sgt Roach carried out the drop test when examining the shortened rifle. That test is an attempt to see whether, with poor handling, the weapon would unintentionally go off. The Unit's records did not indicate that it was requested to investigate or pay attention to the discharge of the weapon on the application of force. It was his practice to ensure that his notes adequately reflected any specific requirement. Sgt Roach agreed that with cheap Stirling .22 rifles even if the weapon was prone to possible discharge on a knock, one time it may go off and a second time it may not. Unless warned by the investigating police that there was some scenario which needed particular attention only the standard drop test was done, as was the case here.

I have dealt with the ballistics evidence called on behalf of the Crown at some length because it received considerable attention at the trial and the complaint that the judge did not deal adequately in his summing-up with the disadvantages which the accused suffered from its destruction prior to the trial.

According to retired Det Supt Stephens, after arriving by helicopter in a landing zone near the scene of the incident he walked into a valley where he saw a large number of cannabis plants and a campsite. There were a number of police officers in this area.

After speaking to Det Snr Const Speck, he spoke with the appellant, who was seated near a tent and had a bandage on his forehead, saying "What happened to your head?" The appellant replied, "I fell over." After cautioning the appellant Mr Stephens said he asked, "How did you fall over?" He said that the appellant answered, "After I shot at them they started shooting back so I took off and I tripped over. If I hadn't they wouldn't have got me. Those TRG blokes are lousy shots." Mr Stephens said that so far as he was aware there were no other police officers present while he spoke with the appellant.

Mr Stephens said that he made a note in his notebook of his conversation with the appellant shortly after he spoke to him. He did not show that entry in his notebook to the appellant. The first time the appellant would have seen the statement allegedly made by him was when Mr Stephens' statement was served on the appellant's solicitor. Mr Stephens asserted that only the investigating officers were required to show an accused any alleged confession or incriminating statement which such an officer has entered in his notebook. Mr Stephens said, "I was there as a supervisory officer to ascertain how he occurred (sic) his injuries." Mr Stephens repelled all suggestions that the appellant had not said all that he (Stephens) had recorded in his notebook. Mr Stephens denied that their conversation was limited to him asking the appellant if he was "okay" and the appellant responding that he was all right.

In his evidence the appellant said that he had never owned a pistol before. However, he gave evidence in late 1991 at Burwood Local Court that he owned a .357 Magnum pistol. His explanation was that his then de facto wife was charged with possession of that firearm and that he took the blame to protect her.

The appellant's evidence was extensive. He said that at the time of the incident he was living at Strathfield. His daughter, Sheree, had a boy friend called Tony Walker whom the appellant considered a bad influence. Walker and his daughter had lived in his home at Narrabri. The appellant regarded Walker as a drug addict and had tried to break up the association between him and Sheree. Walker and Sheree had left the appellant's home. The appellant's second marriage broke down. He ended up finding another lady and living with her in her home at Strathfield from February 1991. A man called Peter Delfino, whom he had not previously met, came to the Strathfield home one day, introduced himself, and explained that he was looking for the appellant's daughter who lived with Tony Walker. Walker owed him a lot of money. The appellant said that Delfino told him that Walker and his family had Sheree working on the crop (cannabis), mainly watering. Delfino was quite angry. The appellant asked Delfino for the location of the crop and how he could get there. The appellant had last spoken to his daughter prior to her leaving the Narrabri home.

The appellant was wary of Delfino, suspecting that he might be a drug dealer. The appellant said that he was informed by Delfino that the crop site was located at Mt Kaputar. Delfino gave him directions how to get there and drew a rough map. He had not seen the map since 21 March 1991. Delfino said that his daughter and the Walker gang were usually at the crop site on weekends. The appellant resolved to go to the crop site. He did not want to lose another child. He had previously lost two sons in separate and tragic circumstances.

The appellant thought that Delfino's visit took place at the end of February 1991. The appellant said that about mid March 1991 he contacted Rudy Breen (or Green or Reen) and made arrangements to meet at the appellant's property in Narrabri and have him complete the fences. The appellant travelled to Narrabri.

The appellant said that while at Narrabri he was contacted by telephone on Thursday, 2i March 1991 by Delfino, who arranged to collect him on the Friday and take him to Mt Kaputar. The appellant said that he did not tell anyone at the farm that he intended go to the crop site at Mt Kaputar.

Delfino picked him up on the Friday (22 March 1991) and drove him to Mt Kaputar. It was a good hour's drive from Narrabri. They stopped at the small car park at the boomerang across the roadway. Delfino walked the appellant down to the bottom of the four wheel drive track and near the tower and said that he would pick him up the following day (Saturday) in the evening. Delfino gave the appellant further directions.

The appellant estimated that it took him a further 2½ to 3 hours of scrambling quickly through the bush before reaching the crop site which was in a ravine and that it was "middayish". The appellant described the main campsite, the tents and the guns he found in the big tent. He found a shortened .22 firearm and a shortened shotgun and took them into his possession for his safety. He said that the shortened rifle was fully loaded.

The appellant gave a detailed description of what he did on the Friday, Saturday and Sunday, including what he did with the guns. He also made friends with a dog. He did not find any evidence that his daughter had been there. Delfino had not come.

The appellant was awoken by the dog barking early on Monday morning. He walked up towards the mess tent and over a little rise. The dog kept getting under his feet and he said "get ahead" a number of times. The appellant said that he was carrying the shortened .22 rifle and was holding it across his chest at a 45 degree angle. He went onto the creek bed and stopped at a large rock on the eastern side. When the dog rushed onto the crop site he brought the gun into position. He had not seen any people walking down the mountain and thought that there could be a wild animal. Next moment he heard the words, "Yah, yah, yah" but he did not see any person,

The appellant said that at the first sound of "yah" he was really terrified and turned very quickly and ran. As he turned to run he brought the rifle back up to his chest so he could run. The rifle discharged. The appellant said that he did not know in exactly what position the rifle was when it discharged. He had no conscious recollection of touching the trigger. He was just turning to run. He said that normally he carried his finger on the outside of the trigger guard but he could not say now where his finger was just before the gun went off. At the time the rifle discharged he did not aim it at anybody and he did not intend to shoot at anybody. He did not hear words to the effect, "Police, stop, police, put the gun down now". He said that he just saw dark shadowy figures rising out of the crop. He had no idea who these people were. There seemed to be a lot of them and much yelling and screaming. The appellant denied that he said "Get them, get them" to the dog.

The appellant did not know whether a cartridge ejected when the gun fired. At no stage did he attempt manually to insert a round into the chamber. He did nothing to or with the rifle after it fired except carry it. He said that as he reached the dam wall he heard the words, "Kill the bastard". He said that he went over the dam wall down into the creek bed. He ran along the creek bed and jumped off a boulder into the "crouch position". As he landed he heard the words, "Don't move, don't move." He looked up and saw a man with a firearm. The man told him to lay down, put his hands on his head and not to look up.

The appellant said that he was tied up really tight with a black cord. A foot was put on his back. Det Sgt Leckey grabbed him by the hair, pulled his head back and said "How many are there? Where are they?" Det Leckey struck him on the lefthand side of the eye. The appellant said that when he replied "I'm the only one here", Det Sgt Leckey disbelieved him and struck him on the side of the face on the jawline with the butt of the shortened ,22 rifle. He felt that noise and pressure on the eardrum. Other blows were delivered. The appellant detailed subsequent events, alleging amongst other things, severe mistreatment. He denied that he said, "It's my crop" and that he had the guns "to guard my crop mate". The appellant did not recall seeing Mr Stephens at the crop site nor, naturally, the conversation alleged by Mr Stephens.

The appellant said that a police officer wiped his face with an antiseptic substance (eg Dettol) and put a fresh bandage on his head. A little later the binding was cut off and he was placed in handcuffs. He was taken by helicopter to a place called the Scout Camp. There he saw Tony Walker in a vehicle. The appellant was taken by car to Narrabri Police Station. The appellant said that he told Dets Leckey and Speck that he wanted the eye stitched and to be taken to hospital. He was taken to Narrabri Hospital where a doctor stitched his eye. The doctor did not look at any other part of the appellant's body. The police were present in the small room in which the procedure was performed. He was returned to Narrabri Police Station and later taken to Moree Police Station where there were overnight holding facilities. He was taken to a medical centre at one stage for treatment. He collapsed a few days later and was taken to Moree District Hospital. Some x-rays were taken of his head. On another occasion he was taken to the hospital and saw another doctor.

The appellant was eventually transferred to Maitland Gaol. He collapsed there and spent three days in the gaol hospital. He was then transferred to the prison hospital at Long Bay Gaol.

The appellant was cross-examined over nearly two days. Almost every aspect of his evidence was substantially challenged. While in his evidence-in-chief he had claimed he was close to his daughter, it emerged that he had not seen or talked to her since she had moved out of the Narrabri home in 1990. He did not know where she lived but believed that it was somewhere in the Tamworth area. She kept in contact with other members of his family.

The appellant agreed that he did not tell the police involved in this matter about Peter Delfino before he died. He did not know when Peter Delfino died but it could have been in he middle of 1991. He denied that he had selected Peter Delfino as the person who triggered his going to the crop site because his story could not be checked. The appellant stated that he had last seen the map which Delfino had given him on the Thursday immediately before he went to the crop site.

The appellant asked Delfino where he got his information that his daughter was watering the plants. Delfino asserted that he was involved in the cultivation with Tony Walker and others. When asked why he never mentioned this before the appellant replied that he had been asked to put the conversation in the first and second person, but he could not recall what Peter Delfino actually said to him. The appellant said that what made him believe Delfino, a stranger, was that he was connected with the cannabis crop.

The appellant said that he was desperately worried about his daughter and was concerned to find her as quickly as possible so that she would not get into trouble. He let a weekend go by and then went from Strathfield to his home at Narrabri and worked on that property. The appellant said that he was waiting for a telephone call from Delfino.

It did not occur to the appellant to telephone Rudi Breen (or Reen or Green) (whom he had contacted prior to leaving Sydney), tell him that something urgent had come up and to postpone the work until some other time. The appellant stated that his wife, from whom he had separated, was pressing for the work to be done on the Narrabri property to prevent the horses destroying some of the trees which had been planted.

The appellant agreed that he ran out of water at the crop site. Ultimately, but not at first, he found a little spring which was about 8 to 10 minutes walk from the main tent. He made two trips to the spring. The appellant agreed that his barrister did not ask the police a direct question as to the existence of a spring. The appellant denied that he had made up the existence of the spring in cross-examination. It had not been previously mentioned.

The appellant said that he fed the dog at the crop site. There were some cans of dog food which were clearly visible so he took one, opened it and gave the contents to the dog. On the Sunday he found some dry dog food at the site and gave it to the dog. As far as he could tell there was no one to feed the dog apart from himself. He denied that the dog was there to be used as a guard dog.

The appellant said that he did not expect to see Tony Walker at the crop because Delfino had advised that Walker was in prison.

The appellant insisted that he did not take aim with the gun nor point the gun in anyone's direction. He said "No way did I deliberately pull the trigger."

The appellant said that apart from supplying formal particulars he did not speak to the doctor (Dr Debelak) who treated him at Narrabri Hospital. The appellant did not tell the doctor that the police had bashed him down at the crop site as police officers were present in the treatment room. The doctor did not ask him how he was feeling or what the problem was and he did not tell the doctor about the extreme pain in his head. He did not tell the doctor that he (the appellant) fell over. The appellant stated that Dr Debelak carried out no tests whatsoever. This account of the appellant of his treatment was contrary to that of Dr Debelak.

Subsequently, on 27 March 1991, and after the appellant had been transferred to Moree, he was taken to see Dr Percival at the medical centre where she practised. The appellant said that he did not tell Dr Percival that he had been bashed by the police because he was accompanied by two police officers. He denied that he developed an infection in his ear that led to his ear drum becoming perforated. He said that the day after he was struck by the police he washed his ear. That was the day when the pain in the ear really started. Dr Percival gave him some antibiotics for the ear infection. While the appellant conceded that there was food in the mess tent, he stated that it was going mouldy and would have to be destroyed.

The appellant relied on the evidence of Mr R J W Barber, who for the last 28 years has been a forensic ballistics examiner. Until 1987 he was a police officer. He was the senior forensic ballistics officer of the NSW Police Department. He had had wide experience and studied ballistics and related matters intensively. The Crown accepted Mr Barber was a ballistics expert.

Mr Barber stated that being unable to examine the firearm was a difficulty. The number one priority was for him to examine the firearm and check the operation of it to see whether it functioned as it should and, if not, to determine why it did not do so. He had seen a photograph of the shortened rifle. Mr Barber said that one can estimate from the photograph how long the barrel may have been and also the position where the stock has been shortened. That is about the only assistance the photograph affords.

Mr Barber estimated that the shortened rifle in the present case had a barrel length of about 5¼ inches. It was not the shortest barrel of this variety of shortened rifle. It was a very popular weapon and not always used for criminal purposes. Mr Barber explained that when the barrel of a firearm is shortened the propellant in the cartridge does not have the time to be totally consumed or to fully burn so that there is not as much pressure in the blowback action. Other reasons why the weapon malfunctions include the residue left in the chamber and in the action by the propellant in the cartridges being burnt, tiny portions of the projectile and cartridge being scraped off and building up in the bore. There was also dryness of the action, foreign matter in the action, for example, dirt, leaves.

Mr Barber said that because he did not have the weapon he was at a severe disadvantage in assessing why the subject shortened rifle failed to operate as a semi-automatic weapon. He would not totally attribute the malfunction alleged to the shortness of the barrel. He was aware of a triple murder in which he was an adviser and witness, where the barrel length of exactly the same weapon, a Model 20 Stirling rifle, was 11 centimetres, which is shorter than the one in question. The weapon in that case worked well on testing; there was no problem with it.

Having regard to the figures published by a major manufacturer, Winchester, as to the effect of shortening the barrel of a Model 20 Stirling rifle, Mr Barber estimated that the shortening of the rifle in the present case would probably have reduced the blowback pressure from 15½ to 20 per cent; this was a ballpark figure.

When a Model 20 Stirling does not automatically extract and reload this, according to Mr Barber, is usually caused by the fixed cartridge case failing to clear the ejection port. The bolt travels forward and usually jams the fired cartridge case in the area immediately in front of the magazine. The cartridge case has to be cleared. Mr Barber said that if the shortened rifle had not functioned correctly as a semi-automatic one and had not extracted the fired cartridge and the bolt had moved back some of the way but not all of the way to eject the cartridge, one would expect to see damage on a cartridge. From the photograph of the fired cartridge case there did not appear to be damage to it.

There are two possible explanations for a round being in the chamber a very short time after being fired. First, an automatic reloading if the weapon functions as designed. Secondly, if the weapon had jammed, the fired cartridge case was removed by manual means and the weapon manually reloaded.

Upon the assumption that the shortened rifle functioned as designed as a semi-automatic one in March 1991, but did not do so in January 1992, Mr Barber said that the most obvious explanation was that during that passage of time there had been some build-up or deterioration within the weapon itself that caused the weapon not to work as a self loading weapon. The most common problem was rust. Mr Barber said that all weapons should be cleaned after firing. He added, "Unfortunately, we haven't got the firearm and its very difficult to take it any further. ..."

Mr Barber stated that the shortening of the barrel affects the weapon's accuracy. He thought that without a front sight the back sight would be of no use.

The knocks and drops tests are not exhaustive but it is hoped that they will assist the court in some way as to whether or not the weapon will, when subjected to those tests, accidentally discharge. If the cartridge failed to eject and was manually ejected by pulling the lever bolt back and pushing it back in, and if the spent cartridge was undamaged, most of the cause of the blowback system not operating properly was most likely to be incomplete cleaning of the residue in the chamber of the weapon, within its action and within its sliding mechanism. The reduction of the barrel length would also be a factor. The failure may be due to a combination of those factors.

Mr Barber said that normally a rifle shortened as the subject one was and with nothing wrong with its mechanism using long rifle ammunition will work quite well. He stated that with any self-loading firearm such as a Model 20 Stirling there is always a possibility that the weapon will malfunction. However, with a Model 20 in good condition a barrel shortened as in the present case and a magazine loaded with 15 rounds the weapon would be expected to fire every round satisfactorily but it could well be that perhaps the third or fourth round might not be extracted and eject properly and jam, and that could be what has happened. Any self loading weapon, whether shortened or not may malfunction. There are a number of reasons, one of which is the quality of manufacture. The Model 20 Stirling is one of the cheapest weapons and is not known for its quality. It can malfunction.

The shortening of the subject rifle could be a contributing factor to it malfunctioning, but not the entire cause. The chamber mouth damage may contribute to the malfunction but Mr Barber declined to express an opinion on that. He drew attention to the note "heavy particle residue" of the examining officer and thought that could be more of a contributing factor.

Mr Barber confirmed that a trigger pressure of at least 4 pounds 2 ounces was required to fire the weapon. That is normal for this type of weapon. There were a large number of questions about the conditions in which the shortened rifle was kept or stored and the possibilities of corrosion, but the evidence on these matters was not particularly informative.

I have dealt with Mr Barber's evidence at some length because of its importance. It highlights the difficulties in not being able to examine the weapon and it not being available in court. Matters of some importance had to be left up in the air.

A Brief History of Proceedings This does not deal with the charge of knowingly take part in the cultivation of not less than the commercial quantity of prohibited plants which arose out of a cannabis plantation at Colo Heights which had been under observation intermittently since September 1993, the appellant being arrested on 13 January 1994.

On 21 February 1992 the appellant was committed for trial on a series of drug and firearm charges including that the subject of the present appeal. On 18 June 1993 the matters were listed for trial on 22 November 1993. On 18 November 1993 the trial date was vacated as it was alleged that the appellant was unfit to plead due to psychiatric illness. On 14 June 1994 the District Court found that the accused was unfit to be tried and referred the matter to the Mental Health Review Tribunal under s.14 of the Mental Health (Criminal Procedure) Act. On 14 July 1994 that Tribunal determined that the accused probably would not become fit to be tried during the 12 months following 14 June 1994.

On 18 September 1994 the Attorney General directed that a Special Hearing be held as to the Mount Kaputar matters pursuant to s.18 of the Act. On 20 February 1995 the District Court began a Special Hearing on those matters which continued until 7 April 1995 when the jury acquitted the appellant of the charges of maliciously discharge firearm with intent to avoid lawful apprehension, cultivate a commercial quantity of cannabis plants and supply a commercial quantity of cannabis leaf. The jury found the charges of maliciously discharge a firearm with intent to inflict grievous bodily harm, possess shortened firearm and possess unlicensed pistol proved. On 9 June 1995 the District Court imposed limiting and additional terms in accordance with s.23 of the Mental Health (Criminal Procedure) Act as follows: 1. Maliciously discharge firearm with intent to inflict grievous bodily harm, limiting term of 6 years and 4 months to date from 13 January 1994 with an additional term of 3 years,

2. Possess shortened firearm - limiting term 3 years concurrent.

3. Possess unlicensed pistol - limiting term 3 years concurrent.
4. The matter was referred to the Mental Health Review Tribunal to be dealt with in accordance with s.24(2) of the Act. The appellant was remanded in custody.

68. On 15 December 1995 consequent upon a report by Dr Perminder Sachdev, the Tribunal determined under s.82(1)(b) of the Mental Health Act 1990 that the appellant had become fit to be tried. After a Fitness Hearing on 11 and 12 June 1996 the District Court held that the appellant was fit to be tried. By virtue of s.26 of the Mental Health (Criminal Procedure) Act the appellant could not be tried for the offences of which he had been found not guilty. On 7 September 1998 the District Court refused the appellant's application for a permanent stay.

69. On the application for leave to appeal to this Court, differently constituted, against that refusal it was contended, as it had been before the primary judge, that as the Crown case was that the applicant was motivated to do what he did because he was guarding a marihuana crop, there would be an abuse of process if the trial was allowed to go forward because the Crown could not bring its case without effectively re-litigating the charges of cultivating a crop at Mt Kaputar and possessing a quantity of the leaf. The Crown case on supply at the Special Hearing had asserted possession for the purpose of supply, relying upon the applicant's possession of the drug in combination with the statutory presumption from the amount involved that the reason for possession was an intention to supply. The appellant (the applicant in the earlier application) contended that if he was guarding the crop, he was exerting control over it, from which it must follow that he was in possession of it. Thus it was submitted that the verdict of not guilty of the cultivation charge would be traversed if the trial continued.

70. This Court pointed out that proof of the elements of the offence charged did not require proof of the possession or the supply of marihuana or of the cultivation of the crop. It also accepted the view of the primary judge that the conduct of the trial in the manner intended by the Crown would not effectively re-litigate any issue already finally decided by the jury at the Special Hearing.

71. This Court accepted the judge's view that it was permissible for the Crown to adduce evidence that the applicant was in close proximity to a substantial marihuana crop, so long as that evidence were used for a proper purpose and not interpreted in such a way as to deny the appellant the benefit of his acquittals. This Court was satisfied that it would not be inconsistent with the verdicts in the Special Hearing for the Crown to tender evidence showing that the applicant was guarding the plantation and that adequate directions could be given about the correct use of such evidence. For the reasons briefly outlined leave to appeal was refused.

I agree with the reasons given by this Court, as earlier constituted. At SU 35-36 the judge directed the jury that if they accepted the evidence of the existence of the cannabis crop and the finding of the appellant in close proximity to it they could use that evidence only as a basis for a conclusion that the appellant was motivated to discharge the gun because he was there for the purpose of in some way guarding or protecting the cannabis crop. This point should not be sustained.

The police gave evidence that the shortened rifle held by the appellant had been destroyed. There was tendered in evidence a memo dated 14 September 1994 from Det Snr Sgt A J Krawczyk in these terms: "Current Position After confirmation with the Crown from the DPP in this matter exhibits in question are no longer required Recommendation Exhibits in question may now be disposed of under Departmental Policy." That appears to have been signed by a senior officer. It bears the stamp "Approved for Destruction," and that approval bears date 16.8.95 74. At T349-350 Det Sgt Leckey said that this document indicates that some time after 16 August 1995 the guns were destroyed. The guns were not destroyed until after the Special Hearing which took place from 20 Febriuary to 7 April 1995 and the applicant had been sentenced. It was not until December 1995 that a report was received that the appellant was fit to plead.

75. One of the important and major issues in the trial was whether the gun was discharged deliberately as the Crown alleged. The appellant's case was that any discharge was not deliberate. There was extensive evidence as to the condition and propensities of the shortened rifle. There was cogent evidence as to the trigger pressure required to fire the weapon and that it was not functioning as designed. While Sgts Constable and Roach were inclined to attribute the malfunction to the shortened barrel Mr Barber thought that this may be a contributing factor but it was not the entire cause and that other causes were more likely. Sgts Constable and Roach discounted the possibility of the shortened rifle discharging accidentally. They relied, inter alia, on the trigger pressure required to fire the gun, the knocks and drops tests which were carried out, the appellant reloading the gun manually and the shot fired from the shortened rifle landing a few inches from Sgt McIntyre's head. The appellant disputed the alleged manual reloading. There was a substantial issue whether the shortened rifle was in the same operating condition in March 1991 and January 1992 and whether any difference (or possible difference) in the weapon between the two dates explained why the shortened rifle might discharge accidentally or function as designed in March 1991 but not in January 1992 by not automatically discharging the cartridge from the breech. Sgt Constable attached importance to the weapon being in poor condition to the extent that in January 1992 the firearm damaged cartridge cases. Curiously, the photograph of the discarded cartridge case did not suggest that that cartridge case had been damaged.

76. The evidence of Mr Barber commanded respect. He made it plain that he was at a considerable disadvantage in not being able to examine and test the weapon.

77. It was the Crown case that the shortened rifle was not operating as a semi-automatic one in March 1991 but was being used as a handgun.

78. The appellant contended that the judge inadequately directed the jury on the substantial disadvantage and potential unfairness to the appellant in not being able to have his expert examine and test the destroyed shortened rifle and place it before the judge and use it to demonstrate to the jury why what he said was reasonably possible. It was important for the appellant to be able to have Mr Barber, or some other ballistics expert, or perhaps his counsel demonstrate to the jury how the weapon could have functioned as a semi-automatic one.

79. In explaining to the jury the importance of the ballistics evidence in the Crown case the judge said (SU 27-28): "... the testing conducted by Sergeants Constable and Roach brought the finding on their evidence that the weapon was not functioning as a semi-automatic, that is to say given on the Crown case when the accused was arrested there was a bullet in the breech ... and there was an empty cartridge case found back near the rock ... that it could only have got there if it was not functioning as a semi-automatic by the weapon being reloaded. Now that is a matter of dispute between the experts. Mr Barber says that it could have functioned as an automatic. Now there are certain disadvantages, I suppose, which flow from the fact that the weapon was not available to Mr Barber and is not available to you ...". The use of the words "I suppose" was unfortunate.

80. At SU 37 the judge said: "You have not got the benefit of being able to handle this relevant weapon, this shortened 22 calibre. You have evidence in the form of a document from the police administration that it was destroyed. There is nothing sinister to be gained out of that, it was destroyed on advice the document would suggest, it is unfortunate that you have not got it, you are not able to test the trigger pressure, test the weight of the weapon and that sort of thing nor was Mr Barber able to exercise his expertise in conducting his own tests. Now that is a matter of some significance, it is for you to decide what significance it is but you are deprived of the opportunity of testing the trigger pressure for example which the experts give as sixty six ounces I think, four pounds two ounces and generally feeling the weapon and having a feel about it, getting to know what it felt like."

While that passage points up the problem of the jury and Mr Barber not being able to examine and test the weapon, it does not point up the considerable disadvantages suffered by the appellant as a result of the weapon's destruction. 81. At SU 57 the judge said: "The absence of the gun, it's a matter for you to assess its significance. I've already said something about that but you've been addressed on behalf of the accused as to the disadvantage he is at by reason of his expert not being able to test it and you've not had the opportunity of yourselves testing the trigger pressure, seeing what 66 ounces is on that and generally getting a feel about the weapon by handling it."

That passage does not emphasise the real disadvantages which the appellant suffered. 82. At SU 59 the judge said: "The defence says well it's a pity this weapon is not here we're at a disadvantage over that but the disadvantage if there is one affects the ability of the Crown to convince you beyond reasonable doubt of these matters pertaining to the firearm." That passage significantly understates the substantial disadvantages faced by the appellant. The words "but the disadvantage if there is one" and especially "if there is one" do not accurately reflect the true situation. The reference to the effect on the Crown was not to the point. 83. Counsel for the appellant at the trial objected to the admission of the ballistics evidence of Sgt Constable principally on the ground of the absence of the shortened Stirling rifle because of its destruction. Objection was also taken to Sgt Constable giving evidence that the rifle was not operating in a semi-automatic fashion. This matter was not included in his report of January 1992. The appellant contended that he could not adequately meet this evidence. The judge admitted the evidence. His ruling obviously covered the evidence of Sgt Roach. 84. In the closing speech of the Crown Prosecutor to the jury he referred to counsel for the appellant having applied good dramatic effect to the question "Where is the gun." The Crown Prosecutor referred to the rifle having been produced at the committal proceedings in 1992 and the earlier Special Hearing in the District Court in 1995. That did not assist in the present case. It was not suggested that either of those hearings involved a full investigation of the ballistics evidence. A Special Hearing occurs when an accused is not fit to stand trial. The Crown Prosecutor urged the jury to stick to the evidence they had and not to speculate. The Crown Prosecutor suggested that the appellant had cocked the weapon for a second time. In dealing with Mr Barber's evidence the Crown Prosecutor acknowledged that Mr Barber was at a disadvantage in saying what exactly had happened at the scene of the crime with the rifle because he did not examine the gun. The Crown Prosecutor continued: "But we know that two experts did examine the gun and came to the conclusion that the most likely reason for the blow back system not operating properly as they said was because of a combination of the shortened barrel on the rifle together with the fact that there was damage to the face of the breech of the gun." 85. The Court does not have a transcript of the lengthy closing speech of counsel for the appellant to the jury so it does not know exactly what he said about it. The summing-up contains but brief references to the matter. They have been quoted.

86. The appellant relied on the decisions of the High Court in Longman v The Queen (1989) 168 CLR 7 and Crampton v The Queen (2000) 75 ALJR 133 and submitted that what was required was a direction similar to the one given in those cases but suitably adapted to the circumstances of the present case. It was submitted that the judge should have instructed the jury: (i) The disadvantage was real and not speculative (ii) The disadvantage was heightened by the Crown relying on persuasive expert ballistics evidence which could not be tested by reference to the firearm or otherwise met or rebutted by the appellant. (iii) The disadvantage was one over which the appellant had no control and no ability to stop; it was forced upon him (iv) It would be dangerous to convict the accused when such evidence formed a significant part of the Crown case and could not be adequately tested without at least scrutinising that evidence with great care. It was submitted that such a direction should have been given with the "unmistakable and firm voice" of the trial judge. On any view the suggested directions would need to be revised.
87. Longman and Crampton were both cases of sexual assault where the trial took place either over or about 20 years after the alleged offences occurred. In Longman the joint judgment of Brennan, Dawson and Toohey at 90 stated: "There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge." and at 91 continued (citations omitted) "But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, in scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."
88. In Longman at 95-96 Deane J spoke of the trial judge's responsibility of giving the jury appropriate directions to assist them in the performance of their function as the judges of fact. He continued: "That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury."
89. In Crampton at 141 Gaudron, Gummow and Callinan JJ stated: "The trial judge should have instructed the jury that the appellant was, by reason of very great delay unable adequately to test and meet the evidence of the complainant ... The denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions."
90. It was pointed out in Longman at 86 that "the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case". It is this general principle upon which the appellant relies.

91. The ballistics evidence was only one category of evidence against the appellant, albeit an important one. However, it would have been open to the jury to convict the appellant on the basis of the eye witness evidence of the police at the crop site. There were also the alleged admissions to the three police officers.

92. The jury were alerted in the evidence of Mr Barber to the difficulties which he faced in giving evidence without the opportunity to examine and test the weapon. The judge referred to this in his summing-up but in muted terms. These difficulties would have been apparent in part to the jury. Experience in the criminal trial courts has made judges aware that when the weapon is available a ballistics expert (and sometimes counsel with firearms experience) is able to show a jury how the weapon may have accidentally discharged. Similar considerations apply to the automatic reloading of the weapon rather than manual reloading. The disadvantages suffered by the appellant were considerable. This is especially so when the evidence of Sgts Constable and Roach was persuasive. They had seen and tested the weapon.

93. A warning was required but the circumstances dictated that it be along these lines, bearing in mind the other evidence in this case, namely: The Crown has relied on the expert ballistics evidence of Sgts Constable and Roach. They have expressed the view that in January 1992 the Model 20 Stirling shortened rifle was not functioning as a semi-automatic weapon but as a handgun, that it required manual reloading upon a shot being fired or discharged and a trigger pressure of at least 4 pounds 2 ounces before it would fire and was therefore unlikely to discharge accidentally. Those views were based on their examination and testing of the weapon. The weapon was destroyed some time after August 1995. Accordingly, the appellant's expert witness, a person of considerable experience, has not had the opportunity to examine and test the weapon nor have that witness, the appellant and the appellant's counsel had the opportunity to demonstrate before you how that weapon may have discharged and reloaded and functioned as a semi-automatic weapon. These are severe disadvantages. It is important in the interests of a fair trial that an accused have the opportunity to examine and test the weapon. In the present case by reason of the destruction of the weapon the accused is unable to adequately test and meet the evidence of the Crown's ballistics experts. If the accused's expert had had the opportunity to do so, he may have been able to show you that the weapon was or may have been capable of functioning as a semi-automatic weapon and that it could discharge accidentally quite readily.. We do not know. The opportunity to cross-examine the Crown's ballistics experts is no substitute for independent examination and testing of the weapon by an experienced ballistics expert. Further, such an examination and testing may have provided the appellant's counsel material with which to cross-examine the Crown's ballistics experts. This was of particular value in the present case as the initial ballistics report made no mention of the rifle not operating as a semi-automatic one. Such cross-examination could cast doubt on the critical parts of the evidence of Sgts Constable and Roach. We do not know if this would have happened. With the destruction of the weapon you are dependent on what the Crown ballistics experts say as to the weapon and that is untested in any meaningful way. Accordingly it would be dangerous to convict the accused relying on the ballistics evidence of Sgts Constable and Roach unless you, in scrutinising that evidence with great care considering the circumstances and paying heed to the warning including that that ballistics evidence cannot be properly tested on behalf of the accused and the disadvantages earlier mentioned, were satisfied of the truth and accuracy of the ballistics evidence of those officers.
94. I do not think that the matters to which I have referred and their significance would occur to the jury in the absence of a warning along the lines indicated. They were matters which required a warning, especially as the ballistics evidence led by the Crown was capable of being regarded as cogent.

95. When the judge ruled upon the admissibility of Sgt Constable's evidence he stated that it was important that the appellant retain his own expert witness, recommending that legal aid funding be made available for this purpose. No application was made at the trial for a direction based on Longman or Crampton or to similar effect. However, as earlier mentioned counsel objected to the admissibility of the evidence of Sgt Constable

96. Even if a Rule 4 point were technically available to the Crown leave should be granted to the appellant to rely on this ground. The Crown ballistics evidence provided important support for the Crown case where the other police evidence was under sustained attack. It could not be said that on the other evidence conviction was inevitable. On this point alone a new trial is required.

97. Direction As to Witnesses not Called The appellant submitted that the trial judge erred in giving a "Jones v Dunkel" direction as to the accused's failure to call Sheree Slattery, Rudy Breen, Janet Slattery and a Moree medical practitioner in that the circumstances did not warrant a direction regarding his failure to call them.
98. During the course of the accused's cross-examination on Friday, 16 April 2001, the jury sent the judge a note asking, amongst other things: "4. Why are we not going to hear evidence from (a) Carol Duggan (b) Sheree Slattery (c) Janet Slattery (d) Rudy Reen (e) alleged doctor at Moree Hospital to whom the accused reported the assault by police (f) the friend that visited the accused at Narrabri police station on the day of arrest.: (T1409)

99. The judge told the jury that counsel would address the matters they had raised in the following week (T1410). In the course of the Crown Prosecutor's final speech to the jury he referred to a number of witnesses from whom they could have expected to hear, namely Rudy Reen, the Moree medical practitioner to whom he complained about being assaulted and who treated him and "those witnesses whose names he said he gathered when dragged out of the cells at Moree police station." Counsel told the jury that if they were not satisfied with the explanations for their absences it was open to them to conclude that the evidence would not have assisted the appellant in his case (T1513). There is no transcript available to this Court of what counsel for the appellant said to the jury on this topic. There is however a brief summary of what counsel put in the summing-up.

100. Counsel sought to discuss the directions to be given to the jury upon the conclusion of the evidence but the judge preferred to hold that discussion after both counsel had addressed the jury. The Crown Prosecutor sought a Jones v Dunkel direction as to Sheree Slattery, Janet Slattery, Rudy Reen and the Moree medical practitioner. This did not seem to be opposed by the appellant's trial counsel.

101. In his summing-up the judge said (SU32-35): "But where it appears that there is a witness, and there are some such here you may think, it is a matter for yourselves, who could be expected to have been able to give relevant evidence but who has not been called, you are not entitled to speculate upon what that witness may have said had he or she been called. But where a witness is a person who in the ordinary course you would expect the accused to either call or offer a satisfactory explanation for the fact that the witness was not called, you are entitled if you see fit to draw an inference that the evidence of that person would not have assisted the accused's case. Whether the explanation offered is satisfactory in the case of the witnesses I am about to come to, is a matter for you. If it is then no such inference can be drawn. But even if there was no explanation offered or the explanation is not particularly satisfactory in your consideration of it, you do not have to draw an inference. It is for you to decide whether or not you should do so. Now the people I am speaking of, of course, are Sheree Slattery, the daughter of the accused, and on the accused's case it was she and her situation that motivated him to go down to this plantation and that was really the real explanation from him as to why he was there; Rudy Reen the person who apparently assisted the accused in the maintenance and general work he did around Narrabri; Janet Slattery who was the accused's second wife and with whom he lived at Narrabri; and also the doctor then from Moree to whom the accused reported the assault and who treated him, that doctor's notes are I think the last exhibit 9. So it is in relation to those people that I am addressing these directions to you.

Each of them has to be looked at separately. If we start with Rudy Reen, the evidence you have from the accused in that respect is that he lost contact with him, he has not seen him for eight or nine years I think he said and he does not know where he is, does not even know if he is dead or alive, in that respect the accused offers you an explanation.

As to his daughter Sheree Slattery, well, the accused said in relation to her that he has not seen her for quite some years. I was going to say some time since she left their home in Narrabri which would be before March 1991, but there was some reference in the evidence to, and I am trying to put this neutrally and tentatively, and I can be corrected by counsel on it, there was some evidence which suggested that she may have been present at the funeral of her brother who on the evidence you have heard later died of AIDS. But in broad terms the accused explains the non calling of her by saying well I have simply lost contact with her, she is my daughter and I love her and I am not very happy that we have lost contact but the fact of the matter is we have. Janet Slattery, I think on the evidence, remains his wife, but the evidence would suggest to you that they separated some time prior to March 1991 and it might be one thing to say that people can be brought to Court on subpoena and made to attend Court assuming they can be found, it may be quite another thing, however, to make a decision as to whether you are going to call a witness with whom you may or may not be on good terms. But the state of the evidence as I recollect it and I invite correction if I be wrong, is that there is no current contact between the accused and Janet Slattery, that in formal terms she remains his wife but they are estranged and were estranged prior to March 99.

In relation to the doctor from Moree well Mr Howen I think addressed this matter to you. He said well you have got the doctor's notes after the lapse of time since 1991 as you have seen from the various witnesses from whom were called (sic) that they do place great reliance upon notes made reasonably contemporaneously with the events of which they speak and the doctor would have really no memory, very likely to have no memory except that which he can get by re-reading his notes and it is put to you that well you have got the notes anyway and that situation really cannot be improved upon.

So it is a matter for you whether you would draw the inference or not as I have said to you, even if no explanation were given but you have an explanation coming as to three of them from evidence and the fourth, that is the doctor, well Mr Howen put the argument to you in his address to you."

The appellant accepted that the judge had put his explanations. However, he submitted that no such direction should have been given. He relied on the lengthy lapse of time between the commission of the alleged offences in March 1991 and the hearing in March 1999. He submitted that no one could be expected to remember the events with any degree of accuracy. The evidence was that the appellant and Janet Slattery, his second wife, although still married did not enjoy a good relationship. She had given evidence against him in civil proceedings he had brought against Carol Duggan, his ex de facto. That evidence was given by the appellant but there was no evidence to the contrary. The appellant could not sensibly be expected to call Janet Slattery. As to his daughter the appellant said that he had lost contact with her after she left his Narrabri home in about 1991 He had next seen her at her brother's funeral. He had no relationship with her as at the date of the trial. He believed that she lived in the Tamworth area. 102. The appellant said that he had not seen Rudy Reen for about eight or nine years and lost contact with him.

103. The notes of the Moree medical practitioner were tendered in evidence. They record that on 29 March 1991 the appellant had a perforated eardrum. On 3 April 1991 there is a note that the appellant complained of headaches since allegedly being hit by a gun butt on the left ear. The perforated ear drum was noted. On 5 April 1991 it is noted that the appellant was treated for a perforated right eardrum and "assaulted 14 days ago". That last entry probably related to what the doctor was told. There was other medical evidence that the perforated eardrum was due to an infection and not to trauma. That evidence was rather compelling. The doctor's notes in the Hospital records are relatively brief but they probably represented the best evidence available.

104. Each of the suggested witnesses goes to some of the lesser issues rather than one of the central issues, although the jury by their note indicated an interest in hearing what they had to say. In view of the doctor's notes and their being tendered it is hard to see the basis on which a Jones v Dunkel direction should have been given. There was no evidence as to who the doctor was and that he was available to give evidence. One could not make any assumption eight years after the event. The evidence which it could be anticipated Mr Reen might give may have had some marginal bearing on the time of the appellant going to the cannabis plantation. Such evidence was of minimal to no importance.

105. As to Sheree Slattery, she may have been able to say that she had been at the plantation and her father, the appellant, had not been there on any occasion. This is speculative. Her father said that she had been taking heroin and he was concerned for her welfare. Once the daughter was fully advised that she did not have to make any self incriminating statements it is hard to see her giving much useful evidence. Nor could her father be expected to call her and put her in a self-incriminating situation. The appellant could hardly be expected to call his estranged wife when she had previously given evidence against him in civil proceedings.

106. The Court was referred to Buckland (1977) 2 NSWLR 452 at 459 where Street CJ said: "In criminal proceedings, however, the making of a comment or the indication of the available inference will be attended by a marked degree of caution, inasmuch as in many cases the absence of a witness either for the Crown or the accused might well be explicable upon grounds not readily capable of proof. If it is suspected that there may be some valid reason for a witness not being called, then, in a criminal trial in particular, a careful appraisal is requisite before commenting on the absence of that witness either in address or in the summing up."
107. Reliance was also placed on this passage in the judgment of Sperling J (with whom Spigelman CJ and Carruthers J agreed) in R v Mohamed Zreika [2001] NSWCCA 57. "20. In such a case as this, if the direction is to be given, the jury would have to be warned, without necessarily being over-specific, that there may be an explanation that has not been disclosed because the accused has reasons for not disclosing it. That is even more so where the absent witnesses are members of the accused's family. One cannot know what under-currents might have come to bear on a decision not to require relatives to testify in such circumstances."
108. In R v Scott [2000] NSWCCA 187, James J stated: "35. The so-called 'Jones v Dunkel' direction, on an analysis is often of little assistance in criminal trials and in any event, when such a direction is applied to an accused in a case in which the Crown bears the onus, is likely to undermine that onus. In a succession of cases, including The Queen v Buckland (1977) 2 NSWLR 452; Regina v Newland (1997-98) 98 A Crim R 455); OGD (1997) 45 NSWLR 744 at 753 and Regina v Taufua [1999] NSWCCA 205, although the Court of Criminal Appeal had recognised that in an appropriate case such a direction might be given, emphasis had been placed on the caution with which the giving of such a direction should be approached and of the necessity for precision and care in the direction itself when it is given."
109. The Crown submitted that the judge's repetition of the appellant's explanations for not calling the witnesses and the evidence for example, that the appellant and his wife had been estranged prior to March 1991 would have had the effect of neutralising the Jones v Dunkel directions. I doubt if this is so.

110. Very little attention appears to have been paid to what useful evidence Janet Slattery, Sheree Slattery and Rudi Breen (or Reen or Green) could give and what evidence the Moree medical practitioner could give over and above the notes which he had made. The directions given in the present case ran the risk of reversing the onus of proof. They are not appropriately qualified. They diverted attention from the major issues.

111. Accordingly the Jones v Dunkel directions given in the present case should not have been given. No objection was taken to the directions which were given. There is one further matter. In his address the Crown Prosecutor stated that amongst other witnesses from whom the jury might have expected to have heard were the witnesses whose names the appellant said he gathered when dragged out of the cells at the Moree Police Station. Subsequently, no Jones v Dunkel direction was sought or given in respect of these. In a long trial slips occur. Leave should be given to raise the point that a Jones v Dunkel direction should not have been given. Given the jury's question it seems that the jury regarded the non-calling of the four witnesses as being of some importance.

112. I have concluded that the appellant is entitled to have the verdict set aside as a result of the judge not giving the requisite warning and giving the Jones v Dunkel directions earlier quoted.

113. The Crown stated that if the Court came to this conclusion it would not press for a new trial. There are a number of reasons why it would be incorrect to order a new trial. It is now 11 years since the events occurred, the shortened rifle was destroyed by the police after August 1995 and the appellant's non-parole period expires on 20 January 2003.

114. This renders it unnecessary for this Court to consider the appellant's other grounds. I propose the following orders: 1. Extend the time within which the appellant may appeal to this Court. 2. Appeal allowed; conviction quashed; verdict of acquittal entered.

115. HODGSON JA: I agree with Smart AJ
116. The Crown case was strong, even without the ballistics evidence. However, the Crown chose to lead expert ballistics evidence, notwithstanding the destruction of the gun; and the effect of the Crown ballistic evidence, if it was accepted, was devastating to the appellant's case that the gun discharged accidentally. This evidence supported the conclusions not only that the trigger could not have operated without significant pressure being applied, but also that the appellant must have deliberately reloaded the gun after it discharged.

117. In those circumstances, it was necessary to give the jury a clear direction and warning as to the very substantial disadvantage to which the destruction of the gun put the appellant, in that the appellant was both unable effectively to test the evidence of the Crown expert witnesses in cross-examination and also unable to lead satisfactory evidence in his own case. Some of the evidence about the gun suggested that, had the gun not been destroyed, the appellant may well have been able to do substantial damage to the Crown expert evidence.

118. The Jones v. Dunkel directions were inappropriate in this case: they could have given the impression that there was an onus on the appellant to call evidence to establish his innocence, and that the accused must have had something to hide in not calling these witnesses.

119. HIDDEN J: I agree with Smart AJ. ***********

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