Were the directions inadequate or erroneous?
138 The first complaint now made about the directions is that the warning given to the jury was "cursory and amounted to little more than recitation of formula". In my opinion, that criticism is unfounded. What his Honour said by way of informing the jury of matters that may make the evidence of an accomplice unreliable were adequate, generally speaking, to alert the jury to the potential unreliability of Braddick's evidence and to explain why they should exercise caution in acting upon it. There was nothing that his Honour said that was inappropriate to an assessment of the evidence of Braddick. Nor was what his Honour said ineffective in bringing home to the jury the danger generally arising from the evidence of an accomplice.
139 The next complaint made is that his Honour diluted the warning by telling the jury on three occasions that such a direction was given in every case where an accomplice gives evidence. As Badgery-Parker J pointed out in R v Chai at 178, the trial judge should in fairness to the Crown make it clear that, in giving the warning, he or she is not expressing a personal opinion about the evidence but rather that the warning is given because of the nature of the evidence which is before the jury. However, in R v Roddom [2001] NSWCCA 168, I cautioned against a trial judge repeatedly indicating to the jury that the particular warning was always given where evidence of that nature was before the court. It seemed to me that such a repetition runs a risk that the jury will treat the warning as a matter of routine.
140 I do not retreat from that view, but it is the particular summing up under scrutiny that has to be considered when determining whether the warning given was effective in bringing home to the jury the caution with which they were required to approach the evidence. In this particular case I do not accept that the repetition of the statement that such a warning is given in every case of evidence given by an accomplice had the effect for which the appellant contends. Quite the contrary, in my view, the repetition enforced the general distrust that the court attaches to such evidence. Two of the occasions when the statement was made occurred immediately after one another and were followed by an explanation as to why such a direction is always given: that is because of the special experience of courts concerning the unreliability of such evidence. The third time his Honour made the statement occurred at the end of the directions on accomplices immediately after the jury were told that they must remember the warning when assessing the evidence of Braddick.
141 The appellant's major complaint is that his Honour failed adequately, or at all, to refer to two matters which were significant in the jury's assessment of the evidence of Braddick. These matters were, firstly, that he had been given a discount of his sentence as a result of his undertaking to give evidence against the appellant and, secondly, that, if he failed to fulfil that undertaking, he might be the subject of a Crown appeal under s 5DA of the Criminal Appeal Act.
142 As I have already indicated, neither of these matters formed the basis of an accomplice warning at common law. That may be because discounts, undertakings and Crown appeals based upon the failure to comply with undertakings are relatively modern forensic weapons. But as part of an accomplice warning the judge was required to inform the jury that the witness might have a reason to implicate another person even to the extent of fabricating evidence against an innocent person. It was necessary that the jury be informed of this matter because it explained to the jury why the evidence of an accomplice might be unreliable in the absence of any evidence to suggest that the accomplice was to obtain any benefit as a result of giving evidence against the accused.
143 The fact that a discount of a sentence has been given to a witness as a result of an undertaking to give evidence against another person, is not a matter which is intrinsic to a witness who falls within s 165(1)(d), nor is it a matter which is exclusive to such a witness. There will be cases where a witness has been given, or will receive, a benefit as a result of undertaking to give evidence about events in which the person was not in any way concerned, criminally or otherwise. A paid police informer is an obvious example. Nor is it unusual for an allegation to be made to a witness that his or her evidence has been fabricated so that the witness can pursue a claim for compensation under victims compensation legislation, or to obtain custody of a child of the marriage, or for some other benefit personal to the witness and which the jury are asked to take into account as a possible reason for the witness to fabricate evidence against the accused.
144 I do not believe that the fact that a witness might obtain a benefit as a result of giving evidence against the accused necessarily brings the evidence within the scope of s 165. It is frequently the case that defence counsel puts to a witness that he or she has something to gain from implicating the accused in the criminal conduct giving rise to the charge before the jury. Yet I am not aware that it has ever been suggested, at least prior to the introduction of the Evidence Act, that a warning was required about the possible unreliability of such evidence. In my view there is no difference between an allegation that the witness is to obtain a benefit from giving evidence against an accused and an allegation that the witness has some other motive, such as bias, for giving the disputed evidence. Neither of these types of allegations, even if accepted by the witness as true, necessarily results in the evidence being of a kind that might be unreliable for the purposes of s 165.
145 In my opinion, the fact that there is evidence in the trial that the witness has actually received a benefit for giving evidence against the accused diminishes the necessity for the judge to bring that matter to the attention of the jury and to warn them of its possible affect on the reliability of the witness. A warning is required where the jury might not be able to ascertain that there is any benefit to be gained by the witness in giving evidence. There is, in such a case, a danger that the jury may give the evidence significant weight simply because they cannot perceive a motive for the witness to fabricate evidence implicating the accused in the offence before them. As I have already indicated, part of the rationale for the accomplice warning at common law was to alert the jury to the fact that the accomplice may have reason to implicate the accused even though the reason may not have been obvious.
146 Prison informers are viewed by the courts as potentially unreliable witnesses and, therefore, are specifically referred to in s 165(1)(e). One of the reasons why a warning was normally required in respect of the evidence of such a witness at common law was because the jury might not be able to divine any possible benefit to be gained by a prisoner who was serving a sentence at the time of giving evidence. In Pollitt v The Queen (1992) 174 CLR 558, when discussing the various factors which made the evidence of prison informers potentially unreliable, Deane J said (at 586):
"Another [reason] is the likelihood that a prison informer may be motivated to fabricate such evidence either by a perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury ". (my underlining)
147 I acknowledge that it is generally desirable for a trial judge to specifically raise with a jury the fact, if it be the case, that a witness coming within subs 165(1)(d) had been given a discount of his or her sentence on the basis of an undertaking to give evidence against the accused and the effect of a failure to comply with that undertaking; see Conway v R [2000] 98 FCR 204 at [207]. But these are matters that, in my view, fall into the category of comment on the evidence and there is no requirement that the jury be informed that they are matters that may cause the evidence to be unreliable under subs 165(2)(b). The question of whether the failure to refer to those matters has brought about a miscarriage of justice will depend upon a consideration of the evidence at the trial, the addresses and the effect of the summing up considered as a whole and not simply because there was a failure to comply with s 165(2).
148 At the end of the day what is required is that the jury be placed in a position where they can properly, fairly and effectively assess the evidence before them. If there is a matter that may adversely affect the reliability of the evidence or some part of it, what is required to adequately deal with that matter in the summing up will depend upon the nature of the matter, the issues before the jury and the conduct of the trial. What may be sufficient in a short trial with a single issue may not be adequate in a complex trial where the summing up occurs some considerable time after the particular piece of evidence has been given. What is required, where s 165 applies and a request for warning is made under s 165(2), may not be required where the evidence does not come within the section or no warning under the section is requested. If there is a risk that the jury might not have fully appreciated the significance of a matter that has the potential to affect the reliability of the evidence or may have been misled as to its significance, then the trial judge should warn the jury about the matter in order to avoid a risk of a miscarriage of justice.
149 This is why it is necessary that a trial judge should inform a jury of the relevance of a grant of immunity to an accomplice. Without the judge bringing that matter to the attention of the jury and informing them how that matter may cause the evidence of the accomplice to be unreliable, there is a risk that the jury may not have been in a position to properly evaluate the accomplice's evidence.
150 But, in my opinion, the same concern does not attend the fact that an accomplice has received a discount of his sentence upon giving an undertaking to give evidence against an accused. I do not believe that there is anything peculiar or special about that matter that would justify a warning or require that the judge inform the jury of its relevance in the assessment of the evidence of the accomplice. Generally speaking, there can be no real basis to fear that the significance of the matter may be lost on the jury. Nor can it be said to be a matter about which the court has some special knowledge that it should share with the jury. Although, the jury may have no general experience or understanding of a situation in which an offender has received a sentencing discount on the basis of giving evidence against another person, they would readily appreciate that a witness may fabricate evidence in order to gain a significant benefit for himself, whatever the nature of that benefit might be. I cannot accept that a jury would have any difficulty at all in fully appreciating the significance and relevance of the fact that a criminal might falsely implicate another in order to spend less time in gaol.
151 I do not believe that the jury had to be informed of such a matter under s 165(2). But if I were wrong in that view, it would have been well open to the trial judge to determine that there was a good reason, in the context of the trial and counsel's addresses, not to inform the jury of that aspect of Braddick's evidence because it would have been obvious to the jury and they would fully have appreciated its impact upon Braddick's reliability. As Wood CJ at CL stated in R v JGW [1999] NSWCCA 116:
"Moreover, it remains the fact that where a danger, such as unreliability is obvious to the lay mind, the lack of any specific reference to it is diminished in its significance: Bromley (1986) 161 CLR 315 at 325."
152 In any event, the trial judge in the present case did not fail to refer to the benefit received by Braddick during the summing up, even if he did so somewhat obliquely. As can be seen from the first passage that I have quoted from the summing up, at the very commencement of his discussion with the jury about the evidence of Braddick, Judge Garling referred to the circumstances in which the witness came to give evidence against the appellant. Although the trial judge did not mention the words "discount of sentence" or explicitly refer to the sentence of Braddick being reduced by reason of his undertaking, the jury must have understood that his Honour was referring to the discount given to Braddick by reason of his undertaking to give evidence against the appellant when the trial judge said:
"He was sentenced and as part of his sentence, it was taken into account as the law requires, he was going to give evidence in this trial."
153 It was appropriate that his Honour remind the jury of the matter, but having made a reference to it there was really nothing more to be said in order that the jury would fully understood and appreciate its significance to the single issue in the trial. The fact that defence counsel at the trial did not raise the matter with the trial judge, indicates that he was satisfied that the jury appreciated the point.
154 It was submitted on the hearing of the appeal that the trial judge should have mentioned this matter when informing the jury as part of the accomplice warning. I do not believe there is any merit in the complaint. Normally it is preferable that a trial judge give the warning and the information under s 165(2) at the one place in the summing up: R v Richards (NSWCCA, 3 April 1998) at 7. But, as I have already indicated, the fact that Braddick received a discount was a separate consideration from the fact that his evidence might have been unreliable because he was an accomplice. In my view there was no error in this regard, particularly having regard to the brevity of the summing up.
155 For the same reasons that it was not necessary, in my view, that his Honour specifically refer to the sentencing discount, there was no possibility of a miscarriage of justice arising by his Honour's failure to refer to the right of the Crown to appeal if Braddick had reneged on his undertaking. In the circumstances of this trial, that was not a matter about which his Honour was required to inform the jury when giving them the warning under s 165(2).
156 The following question and answer were given during cross-examination of Braddick:
"Q. Is it the case that someone has indicated to you today that if you did not come back into this Court and stick to what you told the police that you would be required to go back to court?
A. No I knew that before I came here today."
157 It can be assumed that defence counsel addressed the jury on the consequences for Braddick if he had failed to give evidence implicating the accused as he had undertaken to do. There has been nothing placed before this Court to suggest that he did not address on this matter as would be expected in light of the question he asked. The single issue before the jury was whether they could accept the evidence of Braddick beyond reasonable doubt. I find it difficult to believe, without evidence being placed before this Court to the contrary, that a central platform in defence counsel's address would not have been that Braddick had received a benefit for giving evidence implicating the appellant in the offence and that Braddick knew that, if he did not do so, he risked further punishment. I have little doubt that defence counsel would have placed great significance on the change in the nature of Braddick's evidence after he was cross-examined by the Crown on the inconsistency between his initial evidence and the contents of the ERISP.
158 Provided that the consequences for the witness in failing to give evidence in accordance with his undertaking has been sufficiently placed before the jury so that they would understand the significance of the fact that a witness is still at risk of further punishment when giving evidence in the trial, I do not believe that the trial judge is always required to raise this matter with the jury and inform them of its relevance in order to ensure that a miscarriage of justice did not arise. Whether or not the failure to refer to the matter in the summing up gives rise to the possibility of a miscarriage of justice will depend upon the circumstances of the particular trial. In this case the summing up followed immediately after defence counsel's address and there was a single issue before the jury: Braddick's reliability when implicating the appellant in the offence.
159 I acknowledge that it is important that the jury understands that a witness, who has been given a sentence discount or some other benefit for giving evidence implicating an accused, has at the time of giving evidence before the jury an obligation to give such evidence on pain of further punishment. The jury should not be left to assume that the witness has no reason to give false evidence implicating the accused at the time of the trial. They should be made aware that the fact that the witness has been sentenced for his part in the offence did not necessarily diminish the likelihood that his evidence might be unreliable: Conway at [207].
160 There was some discussion during the hearing of the appeal as to whether the jury would have inferred from the question and answer that I have quoted above that Braddick was at risk of some sort of penalty if he failed to fulfil his undertaking. I accept that a jury could not be expected to know of the mechanism by which Braddick might be further punished if he did not fulfil the undertaking that he gave, unless they had been told of the right of the Crown to appeal during the course of the trial. In the absence of any evidence to the contrary, I would assume that at least one counsel, if not both, referred to the matter during his address.
161 In any event, the jury were made aware that Braddick risked having to return to court if he did not "stick to what he told the police". The jury must have understood this to be a reference by defence counsel to Braddick's undertaking to give evidence for the Crown in accordance with the ERISP. The jury knew that he had received a discount of his sentence because of the undertaking. In my opinion, they must have appreciated that, if Braddick were required to go back to court for failing to stick to what he told police, it was because he was going to be punished in some way for not fulfilling that undertaking.
162 In the present case the trial judge told the jury that an accomplice might feel committed to maintain the version that he gave to police implicating the accused. His Honour informed the jury that one of the matters which gave rise to the potential unreliability of an accomplice was that he may feel locked into the account he had given to police. I do not believe that it was essential that he go on to tell the jury why Braddick may feel locked into that account, if the jury were aware, as I believe they would have been, of the consequences for him if he did not give that account in evidence before them.
163 The comments made by his Honour about the evidence of Braddick were less than ideal, but that is not the test to be applied by this Court when determining whether a miscarriage of justice may have occurred. In my view there was no breach of the requirements of s 165(2)(b). Insofar as the trial judge may have failed to comment on matters relating to the reliability of the evidence of Braddick, no complaint was raised at the trial and rule 4 applies. Defence counsel must have understood the significance of the discount and the consequences of the failure of Braddick to fulfil his undertaking, yet he apparently accepted that, in the context of the evidence and his address, the summing up was fair to the appellant and the jury were sufficiently warned in relation to the evidence against him.
164 There was one matter concerning the warning given by his Honour which was not raised as a ground of complaint or in the written submissions filed on behalf of the appellant but which arose during the hearing of the appeal. Subsection 165(2)(c) requires the trial judge to "warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it". During that part of his summing up dealing with Braddick as an accomplice his Honour said:
"My purpose in giving you this direction is only to warn you, that the evidence of an accomplice may be unreliable and for that reason alone, you must approach that evidence with considerable caution in the way which I will outline shortly."