Regina v Taufua

COUNSEL : J S Stratton for the Appellant D N Howard for the Crown SOLICITORS : T A Murphy for the Appellant C K Smith for the Crown CATCHWORDS : Appeal against conviction whether Jones v Dunkel direction should have been given against the accused or the Crown or at all. ACTS CITED : S. 97 of the Crimes Act 1900 Jones v Dunkel (1959) 101 CLR 298 Regina v Buckland (1977) 2 NSWLR 452 Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 581-582. Weissensteiner v The Queen (1993) 178 CLR 217 CASES CITED: Regina v John Paul Newland (1997) 98 A Crim R 455. Regina v Apostilides (1984) 154 CLR 563 Regina v Su [1997] 1 VR 1 Cf v Yaari (1995) 101 CCC (3d) 401 Ratten v The Queen (1974) 131 CLR 510 at 517 DECISION : Application for leave to appeal out of time be granted; Appeal upheld; Conviction and sentence quashed and a new trial ordered.

• 29 - IN THE COURT OF CRIMINAL APPEAL 60006/98

FRIDAY, 30 JULY, 1999 REGINA v David Uaine TAUFUA JUDGMENT

FRIDAY, 30 JULY, 1999 REGINA v David Uaine TAUFUA JUDGMENT

3 CARRUTHERS AJ : The applicant David Uaine Taufua was brought to re-trial after a successful appeal to this Court in relation to a conviction at the Newcastle District Court on a single count of armed robbery on 25 November 1997.

4 The re-trial was held at the Newcastle District Court before Judge Freeman DCJ, and on 2 December 1997 the jury returned a verdict of guilty. On the following day the applicant was sentenced to a minimum term of four years and nine months to commence on 1 December 1997, together with an additional term of one year and eight months. The precise terms of the count under section 97 of the Crimes Act 1900, as amended are as follows: "for that he on 21 July 1994 at Mayfield in the State of New South Wales, being armed with an offensive weapon, namely a knife, did rob Lynette Ruth Barber of certain property, namely, a sum of money and a quantity of cigarettes."

5 As grounds of appeal against conviction were not filed until 7 April 1998 the applicant needs leave to appeal against the conviction. The reason for lateness was concisely expressed in his application for extension of time as follows: "legal advice was received after ten days of sentencing"

6 This application was signed on behalf of the applicant by a solicitor with the Legal Aid Commission.

7 There is a single ground of appeal in the following terms: "The learned trial judge erred in his directions to the jury about the failure of either party to call the witnesses Price and Brien"

8 The reference to " Price " is a reference to Dean Price who was alleged by the Crown to be the co-offender with the applicant in the subject robbery. Price pleaded guilty to this charge on 15 December 1994 and there was evidence of this fact before the jury in the subject trial. Detective Wright gave evidence that when he arrested and interviewed Price on 3 August 1994, he admitted the offence but declined to nominate his co-offender.

9 The applicant was born in the Pacific Islands on 26 March 1973 and accordingly was 21 years of age at the date of the alleged offence. Shortly stated, the Crown case was that the applicant and Price (who was armed with a knife) entered a mini market in Silsoe Street Mayfield, a suburb of Newcastle, and after having overborne the attendants stole $266.00 from the cash register as well as two packets of Winfield Red cigarettes and a packet of Longbeach Mild cigarettes. One of the attendants Lynette Barber participated in a police line-up on 27 October 1997 but the man whom she identified was not the applicant.

10 Ms Barber's daughter was present in the shop at the time of the robbery. She attended a police line-up and identified Dean Price as one of the robbers.

11 The sole issue at the trial was whether the applicant was Price's co-offender.

12 Detective Wright gave evidence that he originally interviewed the applicant on 4 October 1994 at the Mayfield Police Station. The applicant denied being in the Newcastle or Mayfield area on 21 July 1994 but said that he smoked Winfield Red cigarettes. He denied being involved in the robbery and agreed to participate in a police line-up. He admitted that he knew Dean Price. Detective Wright informed the applicant that Price had been charged with his involvement in the armed robbery, the subject of his inquiries, and informed the applicant that at the time of the offence, Price was armed with a knife. The applicant replied, " Did Pricey tell you that I did it with him ?". Wright replied, " Yes, he said that ." The applicant then told Wright that he was not involved in the offence. Thus, the jury had evidence before them that Price had nominated the applicant as his co-offender, despite Wright's evidence that when interviewed on 3 August 1994, Price would not name his co-offender.

13 On 27 October 1994 the applicant was interviewed by Det. Wright at Wallsend Police Station by way of an Electronically Recorded Interview of Suspected Person. He adopted certain answers he had previously given to Wright, but during the course of the interview he acknowledged that he had earlier attempted to mislead the police in relation to his whereabouts on the day of the robbery.

14 Two women who had had relationships with the applicant gave evidence of admissions which he had allegedly made to them. The first witness was Maria Louise Lightfoot who said that on 23 July 1994 the applicant remarked to her, amongst other things: "…me and Pricey… went to a shop… and I put the thermos up me jumper and we went into the shop and Pricey held the daughter down with a knife".

15 The second witness was Vanessa June Tochel who said that in about October 1994 the applicant told her that if the police found him, they would question him about an armed robbery that he and Dean Price had done at Mayfield. He said that Price was his "coey" and he would not give him up. He also said that if he participated in a line-up he would not be picked out because all islanders look alike.

16 Ms Tochel deposed that after the applicant was refused bail and went to Maitland gaol he asked her to request her mother, Beverley Tochel, to visit Dean Price so that the armed robbery could be discussed. This was orchestrated as follows. In February 1995 Beverley Tochel visited Price at the Maitland Correctional Centre while Vanessa Tochel visited the applicant. They sat in the visitors area at separate tables which were next to each other. Vanessa Tochel heard the applicant and Price talking about the armed robbery and " that Price was to say that the applicant had not been involved - it was somebody else ."

17 Vanessa Tochel gave details of further admissions which the applicant is alleged to have made to her.

18 Of particular significance, she deposed that on an occasion when she visited the applicant at the Long Bay Metropolitan Remand Centre, he told her that another inmate named David Brien who had committed several armed robberies, would cover for the applicant and say that he had committed the armed robbery with Dean Price.

19 Beverley Tochel gave evidence that at the Correctional Centre the applicant mentioned a man named Brien and that he had told her daughter that this man would take the rap for him.

20 Detective Wright gave evidence that he had interviewed David Brien, a Pacific Islander. on 16 October 1995. For some three weeks prior to that date, Brien and the applicant shared the same wing in the Long Bay Metropolitan Remand Centre.

21 Relevantly, insofar as the applicant's case in concerned, it is to be noted that the applicant did not give evidence, and that no evidence was called on his behalf. The Crown witnesses who gave evidence of alleged admissions, including the admissions relating to the asserted agreement with David Brien, were challenged in cross-examination. The evidence of the various witnesses was, however, adhered to despite the assertions in cross-examination that they were fabricating their evidence out of malice towards the applicant.

22 Neither Price nor Brien were called by the Crown or the applicant, although the jury were told by Det. Wright (without objection) that both men had given evidence in the first trial, having been called by the applicant. At the conclusion of the Crown case there was discussion between counsel and his Honour in relation to a submission by the Crown Prosecutor that because the applicant had not called Price or Brien the Crown was entitled to what was conveniently referred to as a Jones v Dunkel (1959) 101 CLR 298, direction in its favour. On the other hand, Mr Thomas of Counsel for the applicant submitted that the Crown was under an obligation to call Price and Brien and that the applicant was entitled to a Jones v Dunkel direction as against the Crown. His Honour ruled that the Crown was entitled to the benefit of a Jones v Dunkel direction and ruled accordingly. Defence counsel then informed his Honour that the defence would call no evidence and the matter proceeded immediately to counsels' submissions.

23 It is convenient, at this stage, to note certain passages from the summing up. His Honour gave a conventional direction in relation to the burden of proof in the following terms: "The direction that I give you now is usually regarded as the single most important direction given in a criminal trial. It is certainly one which you must bear in the forefront of your mind during all the time you are considering your verdict, and the direction is this. That at all times that burden lies on the Crown to prove the guilt of the accused, and to prove that beyond reasonable doubt. An accused is not required to demonstrate his innocence. In fact you are not concerned with innocence at all, you are concerned simply with the question, has the Crown proven the guilt of this accused beyond reasonable doubt or not? And if there is in your mind at the time you have considered all the evidence and the arguments, a reasonable doubt about his guilt, then he must be given the benefit of that doubt, you must acquit him, deliver a verdict of not guilty because that is the system of law under which we operate." 24 His Honour gave a Jones v Dunkel direction, as requested by the Crown and opposed by the applicant, in the following terms: "Further evidence was given about some gentleman named David Brien who was said to be a man doing time for six or seven armed robberies and who was prepared to take the rap. That is, accept the blame for this one in lieu of the accused. Well, neither of those men came forward to make those claims. Mr Price did not come to say the accused was not his cohort and Mr Brien did not turn up to say that it was in fact him who was the robber. The business of Mr Price and Mr Brien. I should tell you just this about it. You should not speculate about what they could or would have said had they been called. We simply do not know and it would be unfair for you to guess at what they may have said. If, however, you are persuaded that you expected to hear from them; that you thought they could and should have been called by the accused to give this evidence, and they are not called and you are not given any reasonable explanation as to why they are not called, then I stress you do not speculate about what they may have said but you are entitled to infer, if you wish, that what they would have said would not have advanced the case for the accused. Other than that, you put them to one side and concern yourself with them not at all".

25 At the conclusion of the summing up, and in the presence of the jury, defence counsel sought a withdrawal by his Honour of the Jones v Dunkel direction. His Honour did, however, then give the following additional direction: HIS HONOUR: "Perhaps I should however say this, I said to you earlier that if you have not heard from a witness whom you would expect to have been called, like Mr Brien or Mr Price, then in the absence of any satisfactory explanation you can, not necessarily, but you may infer that their evidence would not have advanced the case for the accused. I should however have added then and I certainly add now as a rider to that observation or direction the reminder that it is not the job of the accused to prove anything. If an accused takes the course that this accused did in not calling evidence and not giving evidence himself, that is his right to do so and you must not read anything untoward against him in relation to the exercise of that right. I repeat, it is the Crown job to prove his guilt beyond reasonable doubt. An accused person does not have the burden of proving anything. So you may think that there is not a great deal of weight that you can put on the earlier direction I gave you about drawing an inference because it is subject to the overriding principle that an accused does not have to prove anything." 26 If I may say, without meaning any disrespect, it is difficult to know what the jury would have made of this further direction. 27 After the jury retired to consider their verdict, a further application was made by Mr Thomas, defence counsel, with regard to the Jones v Dunkel direction in the following terms: THOMAS: "There is one other matter your Honour. I'd ask that your Honour expand the Jones v Dunkel direction by telling the jury that these two names of Price and Brien came up in the Crown case and that there was nothing to stop the Crown from calling them and accordingly, inferences could be drawn from the -

HIS HONOUR: "Yes I don't know that it's true to say there's nothing to stop the Crown is there? I mean we discussed this the other day."

HIS HONOUR: "No I think for that reason I should not expand the direction to include the Crown."

28 I turn to the question then whether there should have been a Jones v Dunkel direction against the applicant in respect of either Brien or Price. I shall first refer to some of the relevant authorities. 29 In Jones v Dunkel the majority of the High Court, Kitto, Menzies and Windeyer JJ (Dixon CJ and Taylor J expressing no opinion) may be taken to have stated the principle as follows: any inference favourable to the plaintiff for which there was ground in the evidence, might be more confidently drawn when a person presumably able to put the true complexion on the facts relied upon as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation for his absence. (See per Kitto J at p 308).

30 The case which is generally accepted in this State to be authority for the proposition that the Jones v Dunkel principle applies to a criminal case is Regina v Buckland (1977) 2 NSWLR 452, a decision of this Court consisting of Street CJ, O'Brien and Carmichael JJ.

31 In Buckland, the Judge replied to a question by the jury as to whether there was any reason why a particular person was not called to give evidence, as follows: "I will allow Counsel to address you on that, but the fact is that she was not called, and there was not any explanation as to why she was not called, and that is one of the matters which you are entitled to take into account when you look at the evidence. The law is that if a person is not called and there is no explanation for the absence of that witness , you are entitled to suppose that the evidence of that witness would not be favourable to the party concerned, and that is a matter you are entitled to take into account."

32 In his judgment, Street CJ referred (at 458-459) to views which he had earlier expressed in a civil case, namely, Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt.1) (N.S.W) 557 at 581-582, with regard to the appropriate inference able to be drawn by reason of the non-calling of a witness. Relevantly, in Dilosa the Chief Justice had said: "The inference which a court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness. The significance of this inference differs according to the closeness of the relationship of the absent witness with the party against whom the inference is sought to be propounded. Where the absent witness is a party himself then considerable importance may well attach to the inference. Similarly, the inference is significant if the absent witness is, as in the present case, a person who was a senior executive of a corporate party who was personally engaged in the transactions in question and who was in fact present at court during part of the hearing. At its highest, however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness. Failure to call a witness will not support a positive inference that the witness would have in fact given evidence damaging to the case of the party who omitted to call him. Failure to call a witness will assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party, but it will not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the opposing party."

33 The judgment of the Chief Justice in Buckland then warned (at 459) of the need to exercise a marked degree of caution as to whether a Jones v Dunkel direction should be given. The Chief Justice said: "The foregoing comments were made in the context of civil litigation. In criminal trials, there are some situations in which comment is expressly precluded by statute, eg the accused, or the husband or wife of the accused; Crimes Act, s 407 (2). In general, however, this rule of practice applies equally in criminal as in civil proceedings. 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." 34 Recent cases in this Court tend to indicate that this warning has not received the respect which it merits. 35 The Chief Justice then went on to deal with the particular answer given by the trial Judge in the following manner: "Returning to the facts of the present case, I have reached the conclusion that the terms in which his Honour answered the jury's questions were such as to leave the jury with an erroneous impression. To say that "the evidence" of the missing witnesses "would not have been favourable to the accused" postulates that the missing witnesses would have been able to give admissible evidence. It also presupposes that the accused was the party who would normally have been expected to have called Mr and Mrs Farr. But, even placing aside these two preliminary matters, there is to my mind a significant possibility of differing meanings attaching to a comment along the lines that "nothing which these witnesses could say would assist the accused" (which would have been a legitimate proposition) on the one hand, and, on the other hand, to say, as did the judge, that their "evidence would not have been favourable to the accused". An observation in these last-mentioned terms proceeding as it does without any preliminary discussion as to the justification for expecting the accused to call these witnesses, and, assuming as it does that admissible and relevant evidence would be forthcoming from them, is capable of leaving the jury with the impression that it can justifiably infer that their evidence would positively have been unfavourable to the accused."

36 In Weissensteiner v The Queen (1993) 178 CLR 217, the majority of the High Court (Mason CJ., Deane and Dawson JJ) approved a direction in the following terms: After telling the jury that the Crown had the onus of establishing the accused's guilt beyond reasonable doubt, that the accused did not have to prove anything, that he was under no obligation to give evidence, and the Crown case depended on the jury inferring guilt from a whole collection of circumstances, the judge said that such an inference might more safely be drawn from the proved facts where an accused elected not to give evidence of relevant facts which must be within his knowledge. 37 Particularly noteworthy is the following passage from the majority judgment (at 227-228). "We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly. Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them." 38 The learned trial Judge summed up in the instant matter on 3 December 1997 and therefore did not have the advantage of the judgment of this Court in John Paul Newland (1997) 98 A Crim R 455, which was delivered 5 December 1997. The judgment of Gleeson CJ (with whom McInerney and Abadee JJ agreed) is very instructive insofar as the problems which arose in the present trial are concerned.

39 The appellant was convicted of two counts of being an accessory after the fact to a felony, the felony in each case being the breaking and entering of a dwelling house. His asserted accomplices were two young men named Collins and Floyd. Prior to the trial they had each been convicted and dealt with in the Children's Court. The Crown called Floyd who gave evidence adverse to the appellant and, indeed, it was upon his evidence that the Crown case entirely depended. Without objection the investigating police officer gave evidence that Collins (who was present at the Court to the jury's knowledge) had been convicted of the relevant felonies and had been dealt with in the Children's Court, further that Collins had informed him he was not prepared to give evidence for the prosecution. [As Gleeson CJ pointed out it was unfortunate that defence counsel acquiesced in the Crown's leading of this evidence as it was " pregnant with possible confusion ".] The appellant's son Paul Newland was also alleged on the Crown case, to have had some knowledge of the events involving the commission of the subject felonies. Neither Collins, nor Paul Newland, was called by either party.

40 No evidence was given in the defence case. At the request of the Crown prosecutor and over objection by defence counsel, the trial Judge gave a Jones v Dunkel direction in the following terms: "There is a principle of law that, and this is the principle to which counsel, the learned Crown Prosecutor, referred, there is a principle of law that, if a witness who could have been called either by the Crown in the course of proving the guilt of the accused, and you must remember that the Crown bears the burden, onus or obligation to prove the guilt of the accused and the accused does not have to prove anything, or by an accused in his or her defence against the Crown's case and that witness is not called and a satisfactory explanation is not given for the absence of that witness, then the opposing party, be it the Crown or the accused, is entitled to comment on the failure to call that witness and to suggest to the jury that the inference that can be drawn by you as the judges of the facts from the failure to call the witness is that nothing that the witness could say would assist the party who would have been expected to call the witness.

So, what you have got to ask yourselves, members of the jury, could either Mr Michael Collins or the accused's son, Mr Paul Newland, give evidence concerning the events about which Mr Floyd gave evidence. You heard from the Crown Prosecutor through Constable May that Mr Collins had declined to give evidence for the prosecution. That means it would be pointless for the prosecution to have called Mr Collins because he would not have said anything. Mr Collins is a compellable witness. Compellable means he can be compelled to come to court and to give evidence. Of course, even though he is compellable, if the Crown called him to give evidence and he said nothing then his evidence would be useless.

The accused could have called Mr Collins to give evidence. You know that Mr Collins was here yesterday. He was outside court. There is evidence of that fact. You know that he told Constable May that he did not want to give evidence for the prosecution therefore you might think, and it is for you to decide, because you are the judges of the facts, there is a reasonable explanation for his not being called to give evidence by the Crown Prosecutor. You have not been given any reason as to why he was not called on behalf of the accused. You might think that he could give evidence about the matters about which Mr Floyd has given evidence.

Members of the jury, if you think that the Crown should have called him to give evidence, and if you are satisfied with the explanation of Constable May as to why he was not called to give evidence, then you put the fact that he did not give evidence to one side. If you think the accused should have called him to give evidence, and in the absence of any explanation as to why the accused did not call him to give evidence, then you can conclude that nothing that he would have said would have assisted the accused's case. You do not have to draw that inference but as the judges of the fact you are entitled to, if you wish to. 41 The appeal was concerned with the alleged inaccuracy of that direction in general, and to particular aspects of it, if a Jones v Dunkel direction were permissible at all.

42 I shall take the liberty of summarizing the observations of Gleeson CJ in his judgment upholding the appeal as follows: (1) As Collins was an asserted accomplice of the accused on the Crown case, the judge would have been obliged to have warned the jury, if Collins had been called by the Crown, about the potential unreliability of his evidence: see section 165 (1)(d) of the Evidence Act. A warning would also have been required because of the well-known propensity of accomplices to give an account of the circumstances of an offence minimising their own culpability.

(2) It was not unreasonable of the Crown Prosecutor to seek to deflect a Jones v Dunkel argument against the Crown by explaining why he was not calling Collins as a witness, although the manner and terms in which the explanation was given were capable of creating a false impression. Legally, Collins had no choice as to whether to give evidence or not. He had been interviewed by the police and had been dealt with in Court. If he had been called by the Crown it is possible that he could have been questioned under section 38 of the Evidence Act . The jury did not know, nor did the trial judge, what scope there might have been for effective questioning of him under section 38.

(3) There was a further problem in relation to the terms in which the trial judge ultimately directed the jury. Having told the jury, correctly, that Collins was a compellable witness, his Honour also indicated to the jury that if the Crown had called Collins he could have chosen to say nothing. The evidence of the investigating officer and the language of the directions given to the jury would have given the jury to understand that it was open to Collins to choose whether or not he would give evidence for the prosecution, and it was also made clear that he had chosen not to do so. This was at least a partially misleading impression.

(4) If one reason why the Crown Prosector was unwilling to call Collins as a witness was that he was regarded as unreliable, (cf R v Apostilides (1984) 154 CLR 563) then it would have been a proper reason for not calling him: (cf R v Su [1997] 1 VR 1). It would have been appropriate to seek to protect the Crown from a Jones v Dunkel comment for failing to call him, though it does not follow that the proper way to do that would have been by evidence given to the jury: ( Cf v Yaari (1995) 101 CCC (3d) 401). It was another thing, however, to go further and press a Jones v Dunkel argument against the defence on the basis of the failure by the defence's failure to call Collins as a witness.

(5) The terms in which the trial judge directed the jury themselves exacerbated the situation. Although the trial judge posed to the jury the question whether they thought the Crown should have called Collins to give evidence or whether they thought the accused should have called him, there was no material before the jury upon which they could reliably base a decision in this regard. Specifically, the jury knew nothing about the principles governing the obligation of the Crown Prosecutor to call evidence. They had received no instruction about the provisions of the Evidence Act which might have been called in aid by the prosecutor had Collins been recalcitrant. They knew nothing about what Collins had said to the police, or to the court which dealt with him, concerning any alleged involvement of the accused in the crimes committed by Collins and Floyd.

(6) At the conclusion of the evidence, Floyd's evidence stood uncontradicted by any other evidence. Neither side called Collins or Paul Newland. They were both accomplices in respect of whom a warning would have been required. Thus in the circumstances of this case a Jones v Dunkel direction was not called for, but rather, an instruction to the jury to refrain from speculation as to why these two potential witnesses were not called, or what evidence they might have given, and to decide the case on the evidence that was before them

(7) Finally, even if a contrary view were taken that it was proper to give a Jones v Dunkel direction, the jury were mislead about what course could have been taken by the Crown if Collins had been called but had been recalcitrant. The jury were lead to believe that the Crown could not have done anything about that. The jury were invited to decide who "should" have called Collins without proper guidance as to how they might arrive at such a decision. In the particular circumstances of the case there were complex considerations that might have affected that question.

The Chief Justice concluded (at 462): "In some cases the question of whom might reasonably be expected to call a witness might be answered simply as a matter of commonsense. In other cases, of which the present is an example, it might be a question the answer to which is far from simple. Cases of that kind require a deal of caution before Jones v Dunkel is involved."

43 As previously indicated the primary question in this appeal is whether the Crown was entitled to the benefit of the Jones v Dunkel direction which his Honour gave in relation to both Price and Brien. An immediate question which must be addressed here is, whether on the evidence it was reasonable to leave to the jury the question whether the applicant should have been expected to call both or either of them.

44 As far as Price is concerned the matter may be resolved quickly. He was an asserted accomplice of the applicant. The Crown had declined to call him, although, as was pointed out by the Chief Justice in Newland any obligation of the part of the Crown to call Price could not be resolved merely by reference to the fact that there was some evidence that he had declined to nominate his co-offender. There was clear uncontradicted evidence before the jury that on 4 October 1994 he had informed Detective Wright that his co-offender was the applicant. In these circumstances, it was quite inappropriate, in my respectful view, for the judge to leave to the jury the question whether Price should have been called by the applicant.

45 The fact that there was uncontradicted evidence before the jury that, at the first trial, Price had been called by the applicant, does not have any bearing upon the correctness or otherwise, of whether there should have been a Jones v Dunkel direction in favour of the Crown at the second trial. Neither the judge nor the jury had any knowledge as to the evidence which Price had given at the first trial. Although I note that there was no objection by defence counsel, I do not consider that this evidence was admissible. Its admission was capable of diverting the jury from the real issues in the case, and created a prejudicial situation for the applicant to deal with. In my respectful view his Honour erred in giving the Jones v Dunkel direction in favour of the Crown with regard to Price. The fact that one was given, was necessarily prejudicial to the applicant and could possibly have led to a miscarriage of justice. I respectfully agree, however, with his Honour's refusal to give a Jones v Dunkel direction against the Crown regarding Price. In this regard one has only to recall the considerations raised by Gleeson CJ in Newland's case. If his Honour had left to the jury the question whether they considered the Crown should have called Price, he would have been required to direct them upon the matters requiring their consideration on this question, such as the s165(1)(d) warning; his potential unreliability and the Apostilides considerations; the Crown's right to seek leave to question him under s38 and the conflicting statements which Price was alleged to have made to Detective Wright. This multiplicity of considerations would necessarily militate against the matter being left to the jury.

46 As far as the Jones v Dunkel direction with regard to Brien is concerned, it should be noted that the defence at the trial did not seek to present an affirmative case but relied upon an attempt to undermine the credibility of the lay Crown witnesses and the problems of identification inherent in the Crown case. Further, the defence sought to rely upon the denials which the applicant made when interviewed by Detective Wright. Again neither the judge nor the jury knew what evidence Brien had given when he was called on behalf of the accused at the earlier trial. They did know, however, that Wright had interviewed Brien on the 16 October 1995, and that for three weeks prior to that date Brien and the applicant were housed together in the same wing of the Metropolitan Remand Centre at the Long Bay Prison complex.

47 The reference to Brien in the Crown case arose only because the Crown wished to rely upon the evidence of Vanessa and Beverley Tochel to the effect that the applicant had informed them that he had entered into an arrangement with Brien, that the latter would cover for him. The relevance of this evidence was that it constituted an admission that the applicant was Price's co-offender in the robbery. It was not relied upon by the Crown (nor could it be) to establish that there had been a conspiratorial agreement between Brien and the applicant to pervert the course of justice.

48 In these circumstances I do not think that there was any obligation upon the Crown to call Brien. In any event the Crown could reasonably have considered, that any evidence which he did give would be unreliable because of his criminal record and the fact that he had a motivation to protect himself from any involvement in an alleged cover-up agreement with the applicant. This kind of considerations raised in Newland's case would also, parri passu, be relevant here. Thus I consider that his Honour was correct in not giving a Jones v Dunkel direction against the Crown with regard to Brien.

49 One asks then upon what basis then could the jury have reasonably been required to conclude that the applicant should have called Brien. In this regard (if I may respectfully say so) they received no assistance. If this were considered to be, by the trial judge, a potential Jones v Dunkel situation, the jury should have been advised that it would have been open to Brien, if called, to object to answering questions upon the basis that the answers may incriminate him. Further that because of his incarceration at the time of the arrangement he could well be considered by them to be an unreliable witness. Generally speaking, however, it seems to me in the context of this case that there was quite insufficient material before his Honour upon which he could conclude that the Crown was entitled to a Jones v Dunkel direction in relation to Brien. There were too many complicating factors to allow a just conclusion by the jury that they would have expected the applicant to call Brien. In any event it was the Crown which introduced Brien into the trial. His name was raised by two Crown witnesses whom the defence alleged were discreditable. The Crown did not call him to provide support for their evidence. In these circumstances there was no basis, in my view, for the defence to be expected to assume the burden of calling him. Such a proposition would involve an inversion of the onus of proof. 50 As indicated earlier, the applicant's stance at his trial was merely to put the Crown to proof of its case and to seek to undermine, through cross-examination, the strength of that case. In other words the applicant did not seek to raise by the tender of evidence, an affirmative defence or answer to the Crown case. In these circumstances it was not a legitimate forensic proposition for the Crown to seek a Jones v Dunkel direction against the applicant for not calling Brien, particularly taking into account the complex directions which would have been required from the judge if he assented to that course.

51 With regard both to the non-calling of Price and Brien by either party, I consider that this was a quintessential case which called, not for a Jones v Dunkel direction either in favour of the Crown or in favour of the accused with regard to either potential witness, but a case in which, like Newland , the judge should have directed the jury to resolve the case by reference to the evidence which was before them and not to speculate upon what either Brien or Price would have said had they been called.

52 Although it is now well established that the principles or rules of practice considered by the High Court in Jones v Dunkel apply to criminal as well as civil trials, it cannot be stressed too strongly that the utmost caution must be exercised in seeking to apply those principles or rules to criminal trials.

53 Although a criminal trial is acknowledged to be an adversary proceeding (see Ratten v The Queen (1974) 131 CLR 510 at 517), nevertheless an accused person has a privileged position compared to litigants in civil proceedings. In particular the latter do not have the benefit of the presumption of innocence or the right to silence.

54 In these circumstances the giving of the Jones v Dunkel directions against an accused person can be fraught with danger.

55 Regrettably the Jones v Dunkel directions which the trial judge gave in the subject case, despite his Honour's attempt to remedy the situation, may well have resulted in a miscarriage of justice. It is not, in my view, an appropriate case for the application of the proviso. It is most unfortunate that this is the second trial which has miscarried but, nevertheless, I am not persuaded a verdict of acquittal should be directed. 56 I propose therefore that the following orders should be made. 1 Application for leave to appeal out of time be granted. 2 Appeal upheld. 3 Conviction and sentence quashed and a new trial to be held.

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