Robinson v R

Robinson v R - [2006] NSWCCA 192 - NSWCCA 2006 case summary — Zoe

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R v Clough (1992) 28 NSWLR 396 Davies v Director of Public Prosecutions [1954] AC 378 Tripodi v The Queen (1961) 104 CLR 1 Jenkins v The Queen [2004] HCA 57; 211 ALR 116 Papakosmas v The Queen (1999) 196 CLR 297 R v Stewart (2001) 52 NSWLR 301 Conway v The Queen (2002) 209 CLR 203 Kanaan v R [2006] NSWCCA 109 Bromley v The Queen (1986) 161 CLR 315 Longman v The Queen (1989) 168 CLR 79 R v Spencer [1987] AC 128 Carr v The Queen (1988) 165 CLR 314 Kelleher v The Queen (1974) 131 CLR 534 Pollitt v The Queen (1992) 174 CLR 558 Domican v The Queen (1992) 173 CLR 555 R v Clarke (1997) 97 A Crim R 414 R v BWT (2002) 54 NSWLR 241 R v SJB [2002] NSWCCA 163; 129 A Crim R 572 R v WSP [2005] NSWCCA 427 Attorney General's Reference No 1 of 2001 [2001] WASCA 316 Crisafio v R [2003] WASCA 104; 27 WAR 169; 141 A Crim R 98 RBK v The Queen [2004] WASCA 216 Angliss v Western Australia [2005] WASCA 162 Kemp v Western Australia [2006] WASCA 6 Barton v The Queen (1980) 147 CLR 75 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 Jago v District Court of New South Wales (NSW) (1989) 168 CLR 23 Phillips v The Queen (1985) 159 CLR 45 CASES CITED: McKinney v The Queen (1991) 171 CLR 468 Dietrich v The Queen (1992) 177 CLR 292 Carter v Northmore Hale Davy and Leake (1995) 183 CLR 121 R v Fuller (1994) 34 NSWLR 233 R v Wilson [2005] 62 NSWLR 346 R v NZ [2005] 63 NSWLR 628 R v Robinson [2000] NSWSC 541 R v Robinson [2003] NSWCCA 188 R v Robinson [2004] NSWSC 465 Wilson v The Queen (1991-1992) 174 CLR 313 R v Solomon (1980) 1 NSWLR 321 R v King (1985) 17 A Crim R 184 King v The Queen (1986) 161 CLR 423 R v GAS (1998) 3 VR 862 R v Carr (2000) 117 A Crim R 272 R v Franco (2003) 139 A Crim R 228 Whitehorn v The Queen (1983) 152 CLR 657 Nudd v The Queen (2006) 80 ALJR 614 The Queen v Carroll (2002) 213 CLR 635 R v Ronen (2004) 62 NSWLR 707 Weiss v The Queen (2005) 80 ALJR 444 R v Meher [2004] NSWCCA 355 R v Tangye (1997) 92 A Crim R 545 Tran v The Queen (2000) 105 FCR 182 R v Pureau (1990) 19 NSWLR 372 R v Whitfield [2002] NSWCCA 501 R v RTB [2002] NSWCCA 104 R v Heuston (1995) 81 A Crim R 387 Kanaan and Ors v Regina [2006] NSWCCA 109 MFA v The Queen (2002) 213 CLR 606

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22 June 2006 HARRY ROBINSON v REGINA Judgment 1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Johnson J in draft. I agree with his Honour's reasons and orders. I wish to add a few observations with respect to Ground 4. 2 This ground of appeal was based on the proposition that the trial judge erred in failing to give a direction that, in the absence of substantial confirmation by independent evidence, it would be "dangerous to convict" upon the evidence of prison informers. This was part of the form of direction approved by this Court in R v Clough (1992) 28 NSWLR 396 at 406. The full direction proposed was: "The direction to be given must be moulded to fit the circumstances of the particular case, and not follow any set formula. It should, however, include warnings: (a) that the experience of the courts over the years has demonstrated that the evidence of such witnesses is potentially unreliable, together with the explanation as to why that is so; (b) that it is for that reason necessary to scrutinise the evidence of the particular witness in question with great care; (c) that, in the absence of substantial confirmation provided by independent evidence that the confession was in fact made, it is dangerous to convict upon the evidence of that witness; (d) that such independent evidence is unlikely to be provided by a fellow prisoner, because he is likely to be motivated to concoct his evidence for the same reasons; and (e) that, having regard to the potential unreliability of the evidence, there is a risk of a miscarriage of justice if too much importance is attached to it." 3 Cases at common law about potentially unreliable evidence must be treated with considerable caution by reason of the fact that this entire area of the law has been fundamentally altered by s.164 and s.165 of the Evidence Act 1995 (NSW). These sections are: "164(1) It is not necessary that evidence on which a party relies be corroborated. (2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence. (3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge: (a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect, or (b) give a direction relating to the absence of corroboration. 165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

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(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B." 4 At common law the requirement to give directions in particular cases, including in the form that it was "dangerous to convict" on the uncorroborated evidence of certain categories of witnesses, had started off as rules of practice but had hardened into rules of law. (See Davies v Director of Public Prosecutions [1954] AC 378 at 399; Tripodi v The Queen (1961) 104 CLR 1 at 9; Jenkins v The Queen [2004] HCA 57; 211 ALR 116 at [27]). 5 Section 164 of the Evidence Act has swept aside these rules of law. They have been replaced by a new regime in s.165 which both mandates a form of warning (s.165(2)) and preserves the discretion to give additional warnings (s.165(5)). 6 The s.165 regime applies to a range of quite disparate matters that had been treated in significantly different ways at common law including: hearsay evidence, identification evidence, children's evidence, evidence of the mentally handicapped, accomplice evidence and prison informer evidence. The very diversity of the pre-existing rules at common law, upon which a single regime has been overlain, indicates that prior case law with respect to each individual matter must be treated with considerable reserve. The intention of the Parliament was to enact a fresh start with respect to these matters. (See Papakosmas v The Queen (1999) 196 CLR 297 esp at [10], [46] and [88]; R v Stewart (2001) 52 NSWLR 301 at [2]-[14]; Cross on Evidence, 7th Australian edition, 2004, at [1560]. The significance of the change, in the context of accomplice warnings, was affirmed by the High Court in Conway v The Queen (2002) 209 CLR 203 esp at [53]-[55] and now see Kanaan v R [2006] NSWCCA 109 esp at [210]-[217].) 7 The experience with particular categories of unreliable evidence acquired by the courts over many years of applying the pre-existing common law rules will be relevant to the nature of the direction that a trial judge ought make under s.165. In particular, prior case law may inform the direction that a trial judge is obliged to make, in accordance with s.165(2)(b), by way of informing the jury of "matters that may cause [the evidence] to be unreliable". The nature of the direction to be given in this respect is a warning as to "the need for caution" in deciding whether to accept or to give weight to evidence in accordance with s.165(2)(c). This required warning, which does not require particular words (s165(4)), does not go far beyond (a) and (b) of the direction in Clough set out above. What additional warnings are appropriate must depend on the circumstances of the case. 8 As the High Court pointed out in Conway supra at [55], nothing in the Evidence Act forbids a trial judge giving directions in accordance with prior practice, including using such terminology as "dangerous to convict". That s165(2) is not a code in this respect is affirmed by s165(5), which expressly states that the section "does not affect any other power of the Judge to give a warning to, or to inform, the jury". Accordingly, as this Court pointed out in Kanaan supra at [217], a warning in terms of the formulation "dangerous to convict" may be given but a judge is "never under a duty to do so". This conclusion was based in large measure on the judgment of the High Court in Conway where, the Court pointed out, because such a warning is a warning in favour of an accused it is unlikely to arise by way of an appeal (at [55]). 9 Insofar as Clough established, as a matter of practice, let alone as a rule of law, that a "dangerous to convict" warning should be given in the case of a prison informer, that practice or rule has been set aside by s.164(3). In my opinion, that part of paragraph (c) of the direction in Clough, set out in paragraph 2 above, which refers to "the absence of substantial confirmation provided by independent evidence" encompasses a "warning to the same or similar effect" as a warning about acting on "uncorroborated evidence" within the meaning of s.164(3)(a). 10 The observations of Brennan J in Bromley v The Queen (1986) 161 CLR 315 with respect to the necessity and scope of a warning have been frequently cited. His Honour referred to the three categories in which a "dangerous to convict" on uncorroborated evidence was required to be given at common law, i.e. accomplices, children and sexual assault victims. His Honour said: "The courts have had experience of the reasons why witnesses in the three accepted categories may give untruthful evidence wider than the experience of the general public, and the courts have sharpened awareness of the danger of acting on the uncorroborated evidence of such witnesses" (324). "The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer [[1986] AC at p135] 'partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to the lay mind'. If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given" (324). "When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content" (325). 11 Brennan J's reasoning in Bromley was appropriately summarised in the joint judgment in Longman v The Queen (1989) 168 CLR 79 at 86: " [T] he general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case." 12 Sections 164 and 165 of the Evidence Act enable directions about unreliable evidence to come into alignment with the approach, which has come to the fore over recent decades, of avoiding formulaic incantations in directions to the jury. As Lord Hailsham put it in R v Spencer [1987] AC 128 at 135: "… Modern cases … are reluctant to insist on any magic formula or incantation, and stress instead the need that each summing up should be tailor-made to suit the requirements of the individual case."

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The formulation requiring a direction about the "dangers of convicting" was applied to prison informers in Pollitt v The Queen (1992) 174 CLR 558 at 599 per Dawson and Gaudron JJ and to identification evidence in Domican v The Queen (1992) 173 CLR 555 at 561-562. 14 I am aware of expressions of opinion to the effect that there is no material difference between a direction about the "dangers of convicting" and a "dangerous to convict" direction. (See R v Clarke (1997) 97 A Crim R 414 at 423-424.) However, from the perspective of a jury there is, in my opinion, a considerable difference between a warning about the "dangers of convicting", which identifies, without necessarily using that form of words, what those dangers are, on the one hand, and the use of a formula such as "dangerous to convict", on the other hand. Identifying the "dangers of convicting" is not equivalent to directing the jury, in terms, that it is "dangerous to convict". The former does not and the latter can, and, in my opinion, frequently does, intrude into the fact-finding process that is the province of the jury. 15 The actual declaration made by the House of Lords in Spencer supra at 146, referred to by the High Court in Bromley supra at 318-319, was that: "While it may often be convenient to use the words 'danger' or 'dangerous', the use of such words is not essential to an adequate warning so long as the jury are made fully aware of the dangers of convicting on such evidence." 16 The formulation "dangerous to convict" has given rise to difficulties in other areas of the law. It is part of the content of the full Longman warning, required in the case of substantial delay in sexual assault cases. (Longman supra at 91.) This has led to disagreement about the necessity to use the particular form of words between this Court and the Full Court of the Supreme Court of Western Australia. (Cf R v BWT (2002) 54 NSWLR 241; R v SJB [2002] NSWCCA 163; 129 A Crim R 572 and R v WSP [2005] NSWCCA 427 with Attorney General's Reference No 1 of 2001 [2001] WASCA 316; Crisafio v R [2003] WASCA 104; 27 WAR 169; 141 A Crim R 98; RBK v The Queen [2004] WASCA 216; Angliss v Western Australia [2005] WASCA 162 and Kemp v Western Australia [2006] WASCA 6.) 17 The overriding principle is the principle of a fair trial and such a trial must be fair to both sides, i.e. fair not only to the accused but also to the prosecution. (See Barton v The Queen (1980) 147 CLR 75 at 101; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630; Jago v District Court of New South Wales (NSW) (1989) 168 CLR 23 at 49-50; Phillips v The Queen (1985) 159 CLR 45 at 62, 64, 67; McKinney v The Queen (1991) 171 CLR 468 at 488; Dietrich v The Queen (1992) 177 CLR 292 at 335; Carter v Northmore Hale Davy and Leake (1995) 183 CLR 121 at 156, 166; R v Fuller (1994) 34 NSWLR 233 at 240E-F; R v Wilson [2005] 62 NSWLR 346 at [24]; R v NZ [2005] 63 NSWLR 628 at [4]; Spigelman "The Truth Can Cost Too Much: The Principle of a Fair Trial" (2004) 78 ALJ 29 at 44-45) 18 Notwithstanding numerous statements to the effect that no specific form of words was required, the familiarity occasioned by frequent repetition in criminal practice has led practitioners to overlook the impact that the formulation may have on persons not so frequently exposed to it. 19 In my opinion, the prior use of the terminology "dangerous to convict" has failed to give sufficient weight to the danger that a jury will regard the formulation as, in substance, an instruction by the judge to acquit. The formulation "dangerous to convict" is a powerful direction, capable of being understood, and in my opinion, is frequently understood, by a jury as, in effect, a direction by the judge to acquit the accused. It is a formulation that is best avoided, save in exceptional circumstances. 20 SIMPSON J: I agree with the orders proposed by Johnson J and with his Honour's reasons therefor. I also agree with the additional observations of the Chief Justice. 21 JOHNSON J: On 17 September 1998, John Thomas Kennett was a sentenced prisoner detained at the Junee Correctional Centre ("the Centre"). He had been sentenced to a term of imprisonment for child sexual assault offences. On the evening of 17 September 1998, Mr Kennett was beaten severely in his cell. He died within minutes as a consequence of injuries sustained in the beating. 22 The Appellant, Harry Robinson, was a prisoner detained in the Centre. He was charged with the murder of Mr Kennett. Following a trial before Barr J and a jury, he was convicted of murder on 20 April 2000 and sentenced to imprisonment for a term of 22 years with a non-parole period of 15 years: R v Robinson [2000] NSWSC 541. This trial followed an earlier trial in the preceding March which culminated in the discharge of the jury. 23 Following an appeal against conviction to this Court, the appeal was allowed, the conviction quashed and a new trial was ordered: R v Robinson [2003] NSWCCA 188. Following a trial before Greg James J and a jury, the Appellant was convicted of murder on 12 March 2004 and sentenced to a term of imprisonment of 22 years with a non-parole period of 14 years: R v Robinson [2004] NSWSC 465. That sentence commenced on 12 December 1999 and will expire on 11 December 2021. The Appellant will be eligible for release on parole on 11 December 2013. 24 The Appellant appeals to this Court against his conviction for murder. No challenge is made to the sentence imposed by Greg James J.

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Witnesses at the Trial 28 It is appropriate to refer, in some detail, to evidence given at the trial. This is of particular importance to Ground 1, the central ground of appeal. 29 As will be seen, it was the Crown case at trial that the Appellant and another prisoner, Mark Brazel, were seen to enter the deceased's cell and to attack him. 30 The Crown opened and closed the case to the jury on the basis that the Crown's eyewitness evidence ought be accepted and that the evidence was that the Appellant and Mark Brazel had entered the deceased's cell and attacked him. The trial judge instructed the jury that it was open to them to convict on one of several scenarios, including one where the jury was satisfied that the Appellant alone entered the deceased's cell and attacked him. The Crown had not advanced this alternative argument in opening or closing addresses. The Appellant now submits that the course taken by the trial judge was unfair and that a miscarriage of justice has resulted. 31 The Crown called three witnesses who were inmates housed in B Pod at the time of the offence - Matthew Digby, Noel Roach and Franciscus Soonius. The evidence of a further inmate, Leendert van Hofwegan, given at the first trial was admitted in the Crown case. 32 The Crown adduced technical evidence from Malcolm Le Conte, a maintenance technician employed at the Centre in September 1998, with respect to the location and operation of security cameras within B Pod. As will be seen, video evidence of events on the evening of 17 September 1998 assumed particular significance at the trial and to the first ground of appeal before this Court. 33 A Correctional Officer, Phillip Bouffler, was called by the Crown. 34 Detective Senior Constable Coleman and Detective Sergeant Wayne Jones gave evidence in the Crown case. 35 Finally, Dr Paul Botterill, Forensic Pathologist, was called by the Crown. 36 The Appellant did not give evidence at his trial. The transcript of evidence of a prisoner, David Young, given at the first trial was tendered in the Appellant's case.

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The Crown's Prisoner Witnesses 37 Matthew Digby was serving a sentence on 17 September 1998 at the Centre for the offence of larceny of a motor vehicle. He occupied Cell B25 in B Pod. He had been in prison for a couple of months at that time and was released on 25 June 1999, his expected date of release. He gave evidence about the layout of the Centre and, in particular, B Pod. Cells were located on two levels and there were two sets of stairs providing access to the upper level. There were two telephones on the lower level and he described the procedure for making a call. He described the normal procedure in B Pod as it operated in September 1998. 38 Mr Digby gave evidence of the names of other inmates within B Pod and their respective cell numbers. These included Terry Johnson, the Appellant, Mr Roach and others. 39 Mr Digby testified that, in the late afternoon and early evening of 17 September 1998, he and other prisoners were playing cards in Cell B27. Following a discussion, Mr Johnson went to the deceased's cell (Cell B20) and returned with a document (the deceased's statement). Mr Digby stood on the verandah whilst Mr Johnson went into the cell, the deceased at that time being in the shower. A number of prisoners, including the Appellant, Mr Johnson and others, looked at the deceased's statement and a conversation ensued concerning the deceased's offences and position as a "rock spider". According to Mr Digby, somebody said that they should get rid of the deceased from B Pod by giving him "a couple of clippings" (T138). Mr Digby believed that such action would result in the deceased making an application to move or the prison officers moving him straight away (T139). Prisoners spent about five to 10 minutes talking about this course of action before walking out of the cell (T139). 40 The Crown Prosecutor asked Mr Digby (T139.23): "Q. What happened? Did you all stay there or did some people go, was something said? A. Braz - Harry said that to get rid of him, get him out of the unit. We all walked out of the cell and everyone just hung around. Harry went to the cell. I stood out on the verandah with Braz and the other boys and Harry come out and that's when they went into the cell.

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Q. What did you say? A. Yeah, sweet, no worries." 44 Mr Digby alleged that the Appellant passed a note through the window to him about the same time as this conversation took place. He could not remember what was on the note (T146). He later disposed of the note. 45 The next day, Mr Digby learned that the Appellant had been taken away. He did not see the Appellant again. Soon after, Mr Digby was transferred from the Centre to Kirkconnell Afforestation Camp where he remained until his release (T148). 46 Much of the cross-examination of Mr Digby was directed to the suggestion that Mr Johnson was the person responsible for the murder. This was denied by Mr Digby. He said that he had known Mr Johnson for a month in 1995 and met up again with him in 1998 when they were both incarcerated at the Centre. He agreed that Mr Johnson was a man who tried to form sexual relationships with other prisoners in custody and had shown a sexual interest in the deceased (T158). He agreed that certain prisoners were telling Mr Johnson that his new friend (the deceased) was a paedophile and that people were winding Mr Johnson up about his sexual advances towards the deceased (T159). He agreed that it was this type of humiliation that caused Mr Johnson to enter the deceased's cell to locate the statement (T159). He denied that Mr Johnson had asked him to keep an eye out for the deceased (who was in the shower block) whilst Mr Johnson went to the deceased's cell to get the statement, although he said that he probably would have told Mr Johnson if he had seen the deceased returning (T159). Mr Digby agreed that Mr Johnson was a "fairly violent character" and had bashed people in gaol, although not his mates (T160). 47 During the course of cross-examination by the Appellant's Counsel (who did not appear on the appeal), Mr Digby was asked (T181.4): "Q. I suggest this: You did do something in that when a person went into Kenneth's [sic] cell at about 7.15, you went and followed that person and acted as a lookout whilst the assault took place. What do you say to that? A. No, I was just standing there. You asked me if I could see him and I said yes, I could.

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Q. Who are the people that you believe you recognised? A. I could see Harry at one stage. I'm not sure if it is or not but Terry Johnson at one stage and myself at one stage, I think." 55 Mr Digby said that he thought that a person wearing light-coloured long pants who appears at 19.17.22 hours on Exhibit B1 was Terry Johnson (T277-8). He indicated that a figure that comes from the upper left-hand portion of the screen (at 19.20.55) moving to the bottom left-hand portion was the Appellant (T278). Mr Digby identified a figure in the middle of the screen (at 19.32.56 hours) who was wearing a black knee brace on his left leg, shorts and a light-green top as being the Appellant (T279). 56 Noel Raymond Roach was then called as a witness for the prosecution. In September 1998, he was serving a sentence of 12 months' imprisonment for break, enter and steal and balance of parole for an armed robbery offence (T287). He had known the Appellant for about six months as at September 1998. Mr Roach was accommodated in Cell B24 within B Pod, next door to Mr Digby's cell. 57 Mr Roach said that, on the afternoon of 17 September 1998, he was playing cards in Cell B28 which was occupied by Mr Collier. During that time, other inmates came into the cell including Mr Digby and Mr Johnson (T290). Mr Johnson came into the cell with some rolling tobacco which he said he had got off his boyfriend, Mr Kennett (T291.34). When the topic arose of Mr Johnson paying back the deceased for the tobacco, Mr Roach testified that Mr Johnson said, "I don't think I'm going to pay him back because I believe there's word around that he's a rock spider" (T291-292). Someone said to Mr Johnson, "If you are going to accuse this person of being a child molester, prove it". Mr Johnson said, "I believe John's got paperwork under his bed" and he was asked to go and get it (T292.16). Mr Johnson returned five or six minutes later with some papers and a number of persons, including the Appellant, were present when the papers were examined (T292). 58 The Crown Prosecutor asked Mr Roach (T292.57): "Q. Was there any conversation after people started to read it? A. A short way through the paperwork I said - I'd gathered that the card game is over, the card game is finished. There was talk about fixing up Mr Kennett as far as getting him out of our unit, we didn't want him in there.

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Q. How were they showing their agitation? A. Talking angry. I can't really describe it." 59 The card game stopped and Mr Roach went to the door of the cell where he looked across and could see the deceased outside his cell. He thought that, at that time, Mr Digby said, "Do you want me to go and belt him"? The others said, "No, because he's outside there" (T294.8). Mr Roach left the group and went to his own cell and walked downstairs to make a phone call. He walked down the stairway outside the deceased's cell and saw the deceased standing alone against the rail on the landing at that time (T294-295). Mr Roach returned to his cell (B24), made a cup of coffee, smoked a cigarette and watched television (T296). Whilst he was doing that, he heard five very loud thumps coming from the landing between Cells 17 and 23 (T296). After hearing these noises, he went to his doorway and looked out the window. He saw Mr Digby in the doorway of the deceased's cell holding the door which was slightly open (T297-298, 303). Mr Roach did not see anyone else. He sat back down on his cell bed. He heard some more thumping noises coming from the same direction and he waited a short while and then went downstairs to use the telephone again using a different staircase outside Cell B27. He did not see anyone outside Cell B20, but there were people standing alongside the walkway between the cells of the Appellant and Mr Collier (T298). He remembered seeing a number of people in that area, including Mr Johnson and Mr Brazel (T299). 60 Mr Roach gave evidence of hearing a conversation concerning the deceased. He went back to Mr Collier's cell to see if there was to be a further card game. Someone said, "the cunt wouldn't get up" and the Appellant said, "I don't care if he doesn't get up" (T301.3). 61 Franciscus Karois Joseph Soonius, a Dutch national, was called by the Crown. In September 1998, he was incarcerated at the Centre having been sentenced in May 1997 to 11 years' imprisonment with a non-parole period of seven years for importing a prohibited drug into Australia. His sentence was reduced on appeal to a term of imprisonment of nine years with a non-parole period of five years and three months with the non-parole period to expire on 14 October 2001. He told the Crown Prosecutor that representations were made on his behalf to Commonwealth authorities for leniency to be afforded to him for his assistance in relation to the murder of Mr Kennett and the disappearance of Samantha Knight. As a result of this co-operation, Mr Soonius was released from custody some 14 months early on 9 August 2000 (T319-320). 62 Mr Soonius said that, between 5.00 pm and 6.00 pm on 17 September 1998, he was watching television in his cell (B22) which was two doors from that of the deceased (T323). He left his cell and went to that of Mr Van Hofwegan, another Dutch national (Cell B29). A number of prisoners were gathered there and were discussing whether the deceased was a child molester (T324). 63 A short time later, Mr Soonius observed the Appellant and Mr Brazel approach the deceased in front of the deceased's cell. The Crown Prosecutor asked Mr Soonius (T327.44): Q. And what did you see happen? A. Well, there was a very short conversation and I saw Mr Kennett walking inside his cell.

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Q. And when they came out did the door remain open or closed or what was the situation? A. Halfway open, a little bit open." 64 Mr Soonius said that he observed Mr Johnson outside the deceased's cell, but that he did not see anyone apart from the Appellant and Mr Brazel enter the deceased's cell (T330). Some time later, the Appellant entered Mr Van Hofwegan's cell and said, "Leo, can I have some coffee? I'm nervous". Mr Van Hofwegan said words to the effect, "What's up? What did you do"? The Appellant replied, "I did it, I hit him. He's unconscious" (T335). Mr Soonius said that the Appellant appeared "really nervous" and was "walking around and looking" (T335). Mr Soonius said that the Appellant was "always very relaxed" and he could see that he was different on this occasion (T335). 65 Under cross-examination, Mr Soonius said that he thought that the Appellant and Mr Brazel were one behind the other as they entered the deceased's cell (T345). After the last man went in, the deceased's cell door closed (T345.40). When the deceased's cell door opened, Mr Soonius said that Mr Brazel came out first followed by the Appellant "one by one but very quickly" (T347). 66 In cross-examination, Mr Soonius said that he had heard the name Matthew Digby but that he did not recall him (T351). 67 Mr Soonius denied that he had a conversation with police about an early release at the time he made a statement to them on 18 September 1998 (T472). He did speak to the Consul for the Netherlands by telephone around 18 September 1998, but did not discuss the possibility of early release for giving a statement to the police. He had a conversation with his Consul about his own safety when the Consul visited him at Berrima Correctional Centre within four weeks of his making the statement (T472-473). Mr Soonius agreed that he wrote a letter to the Commonwealth Attorney-General's Department on 3 October 1998 asking to be returned to Holland. He agreed that in that letter he wrote (T474): "Because of the seriousness of the crime the police agreed that for our safety we will be sent to Holland after we make an official statement. On the morning of the 18th we called the consul and together with the police we all agreed that after the statement we would be sent to Holland …"

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Mr Soonius agreed that he was not being truthful in that letter as there had not been a discussion in which the police had offered to send him back to Holland (T475). 68 Mr Soonius agreed that once he came to prison, he was desperate to return to Holland. He looked at getting transferred from Australia to Holland to serve the rest of his sentence, but he did not explore all avenues open to him to get out early (T522). He denied that he knew his best chance of getting out of gaol was to offer assistance to the authorities so he could claim some benefit (T524). He denied that he was lying about the Appellant because he wanted to get a benefit to go home to Holland early (T534). 69 In re-examination, Mr Soonius said that he was living in Holland and had not been subjected to any pressure nor given any benefit to return to Australia to give evidence in the Appellant's trial (T534). Mr Soonius was employed in the Netherlands and was experiencing a financial loss in coming to Australia to give evidence (T536-537). He had not been to prison in any country apart from the sentence he served in Australia (T537). 70 The evidence given by Leendert Van Hofwegan at the first trial before Barr J and a jury on 5 April 2000 was read in the Crown case. He was a Dutch national who was serving a sentence in September 1998 for importing ecstasy into Australia. He knew Mr Soonius, a fellow Dutch national, quite well (T581). He was housed in Cell B29. In the early evening of 17 September 1998, he was in his cell with Mr Soonius and another prisoner, David Young (T583). Mr Van Hofwegan heard "a big bang" at a time when Mr Young was in his cell and Mr Soonius walked in afterward (T583-584). About 30 seconds after hearing the big bang, Mr Van Hofwegan said that the Appellant entered his cell alone (T584). The Appellant asked for a coffee and said, "I just bashed a rock spider" and that "the cunt is unconscious" (T584.40; T587.40). Mr Van Hofwegan saw the Appellant again that evening when he came to Mr Van Hofwegan's cell and asked for some tobacco. Mr Van Hofwegan gave him some tobacco and asked him if the man was dead. The Appellant punched the wall and said, "Fuck" (T585-586). 71 Mr Van Hofwegan spoke with the Dutch Consul and then was interviewed by police (T588-9). He returned to the Netherlands where he was living at the time of giving evidence at the first trial (T589). In cross-examination, he said that he was due to be released on 3 October 2000, but was in fact released on 13 January 2000 (T597). He said that he was released 10 months' earlier for compassionate reasons relating to his daughter (T597). He denied enquiring about an early release date before making his statement to police (T597). He asked the Dutch Consul when he spoke to him on the morning of 18 September 1998 about the possibility of getting back to Holland for his own safety (T597). He agreed that in his written application for early release he gave two reasons; one being compassionate grounds relating to his daughter and the other being s.21E Crimes Act 1914 (Cth) concerning his preparedness to give evidence in this matter (T605-606). He said that he was not aware of a possibility of getting a reduction in sentence prior to making his statement to police (T606). He wrote to the Commonwealth Attorney-General to review his application for early release in a letter dated 21 December 1998 (Exhibit K). In that letter, he stated, "I hope that your review has good result for me because the Wagga detectives promised me and Mr Soonius that after we made a statement we will be sent back to Holland" (T607-608). He said that he first became aware of the possibility of getting his sentence reduced a couple of days after making his statement (T608). He said that, as far as he knew, his early release was for compassionate reasons relating to his daughter in Holland (T609).

[204]

The Defence Opening 86 Following the Crown's opening address, Counsel for the Appellant made an opening address to the jury for the purposes of s.159 Criminal Procedure Act 1986. In the course of that address, Counsel said (T40.13): "Mr Digby has stated that he saw, as it were, two men enter cell 20. The Crown says that the video is consistent with two men entering the cell. I would ask you to look at that video closely. It is the submission of the defence that in reality that video would depict only one man entering the cell at a time when a second man was closely behind him. Was at the cell door on the outside, had walked a short distance away, and walked back to the cell door. In other words, the man outside was, in the vernacular, a cockatoo, a lookout, a watch." 87 Counsel submitted that the jury may conclude that Mr Digby was the "cockatoo" (T40.24). Counsel played portions of the cell video to the jury in the course of his opening address. Before doing so, he told the jury (T42.29): "What I envisage the video will show is at some stage earlier Mr Kennett comes back to his cell. He goes in an [sic] out a number of occasions, stands around the doorwell, goes back in. Then we would say two people, one lookout, one who never went into the cell, comes from the left. Unfortunately the left, towards the left-hand corner of the yard, is not clear on the video. That is just the way it is. But it is people coming from the left, a number of people, and what happens at the door which is of critical importance. When that time comes I would hope to be able to alert you in sufficient time that it is happening. It is something, once its tendered - and I make this to you in all seriousness - that needs to be watched again and again and again. From the defence point of view it is, in our submission, the pivotal piece of evidence because it is not influenced by motive, by dishonesty. What it depicts as best it can is what happened. So I'd ask at this stage that it be played."

[215]

91 Later, the Crown Prosecutor told the jury (T648.34): "As I indicated on the evidence you might think it is more likely that the accused, if you are satisfied that he was one of these men, had an intention to at least cause him really serious physical injury. … Again, depending upon the way you evaluate the evidence, it would be open to you if you were not satisfied as to murder, to find the accused guilty of manslaughter. You could do that in one of two ways in my submission: firstly, if you were satisfied that the accused did go into the cell and he did participate in an attack upon the deceased with those [sic] other man Brazel, and that was an unlawful attack, then it would not matter whether it was the accused or Brazel who inflicted the wound, the kick that caused the brain injury that led to his death, provided you were satisfied they were each engaged in an unlawful attack upon the deceased and that unlawful attack was both unlawful and dangerous." 92 The Crown Prosecutor addressed the jury concerning the evidence of Mr Digby. He said (T654.15): "Digby then says he saw the accused and Brazel go to the deceased's cell. They went in, he said he went up, looked through the window and he saw them attacking Mr Kennett. He described how Brazel was at the lower end, the accused at the upper end and described how he had seen the accused kicking the deceased in the head, stomping on him, they then came out of the cell and the accused, said something along the lines 'move along' or 'don't say anything" and they went their separate ways." 93 The Crown Prosecutor referred to the cell area video in the course of submissions to the jury concerning Mr Digby's evidence (T656.45): "It has been submitted to you already that the video does not support him. Indeed it is submitted to you it contradicts his evidence. His evidence is two men went into the cell, whereas on the video you can only see one go into the cell and one come out. You might think it would be extraordinary for Mr Digby to give a false account or fabricate an account of two people going in when in fact one went in. I also submit his evidence that two went into the cell is supported by a number of other pieces of evidence and I will come to that shortly.

[219]

So there is two features of Mr Soonius' evidence upon which the Crown of necessity must rely and they are: firstly, his observation of seeing the accused and the blond headed man go into the cell and come out. Secondly, his evidence in relation to the accused coming into the cell and saying those words which the Crown submits, if you find that he did say those words, amounts to an admission by the accused that he had been a party to the attack upon the deceased only seconds before." 95 The Crown Prosecutor touched upon the knowledge of prisoners concerning the video surveillance system (T659.25): "But it does seem to be common ground the inmates were aware there was video surveillance in operation there and there is some evidence from one of the witnesses, Mr Roach, that they commonly used to throw blotting paper up to block the cameras." 96 Towards the close of his address, the Crown Prosecutor told the jury (T664.52): "Finally the Crown does submit in this case that Mr Digby, who is an important witness, critical witness, does receive support from other sources. Albeit that they are witnesses who will attract the same cautious approach as he requires, but nevertheless he does derive support from his other witnesses. He is supported by Mr Soonius, who sees the men go into the cell and come out, by Mr Roach, by Mr Soonius, and by Mr Van Hofwegan, both as to the terms of the admission made by the accused. And further he is supported in my submission by the video evidence that shows a figure outside the cell looking in walking back looking in.". 97 Early in his closing address to the jury, defence counsel said (T665.56): "And it would be patently apparent to you that the essential issue in this trial is did the accused go into cell B20 with another man in - the man alleged principally by the person Digby, and in a subsidiary or roundabout way, by the person Soonius." 98 During the course of his address to the jury, defence counsel placed heavy emphasis upon what was depicted in the cell area video (Exhibit B1) in contrast to the oral evidence of Mr Digby and Mr Soonius. He submitted that an examination of the video revealed one person only exiting the deceased's cell at around 17:16 hours and one person waiting outside (T675.12). This was a recurring theme in the defence address to the jury.

[222]

When I say in that context 'they', I am referring to the persons who entered the cell and participated in the attack. There is no issue in this case but that some one or more persons did enter into the cell and attack the deceased by blows of heavy to moderate force, in particular to the deceased's head region, occasioning the injuries to the deceased that Dr Botterill gave you evidence about." (emphasis added) 103 There were further passing references in the summing up to scenarios involving one or more persons being involved in the attack upon the deceased. His Honour adverted to the "state of mind of the person or persons who attacked the deceased" (SU18). In the course of further directions concerning murder, his Honour said (SU25): "If you are in doubt as to whether it was the act of the accused, and you would be so in doubt if you are not satisfied that the accused either on his own or with another entered the cell and attacked the deceased, or if you are in doubt as to whether the accused had that intention, they being the two crucial issues for murder in this case, you would acquit the accused of murder." (emphasis added) 104 Soon after, his Honour told the jury (SU28): "You are being asked on their [Soonius and Van Hofwegan] evidence to reach a conclusion that the accused had gone into the cell of the deceased, either on his own or with another , at the time at which the assault occurred, so that you would conclude that it was the accused who had participated in the attack on the deceased." (emphasis added) 105 In the course of directions concerning the drawing of inferences, his Honour referred to the video exhibits (SU29-30): "You are entitled to take into account the videos, as [defence counsel] has urged you to do so. You can take the videos into account to see whether you are of the view that they add support to the oral evidence, contradict the oral evidence, or are merely consistent with the oral evidence. You can consider the videos and see what support the oral evidence gives to them.

[223]

It will be for you to make what you decide is appropriate of the videos, though you would of course when considering the reliability of the video evidence, bear in mind the evidence concerning the images being somewhat indistinct and the frames being taken on a time delay basis so as to be two or three seconds apart. You would bear in mind what the eye witnesses or persons claiming to be eye witnesses have said concerning what is depicted in the video." 106 His Honour gave the jury the following direction (SU32): "In this case in particular the question arises of whether you are satisfied beyond reasonable doubt that it was the accused who, whether on his own or with others, entered the cell of the deceased at about that time, about 7.16, because if so it would seem on the whole of the evidence that the accused had the opportunity to participate in the attack which was said to have caused the death." (emphasis added) 107 Soon after, his Honour said (SU32-33): "Now, the way in which the case has been fought the principal question though, as I hope I have made very clear to you, not the only question, is: Was the accused one of those persons that went into the cell and attacked the deceased?" 108 Further passing reference was made by his Honour to the question, "Whether the accused did go into the cell and attack the deceased with another or on his own" (SU59). 109 During a break in the summing up and in the absence of the jury, defence counsel expressed concern about his Honour's direction that it was for the jury to consider whether the Appellant entered the deceased's cell on his own or with another person (SU64-65): " [COUNSEL] : Your Honour keeps saying that in relation to the accused they could find that he either went with another or on his own. That is not this case in my submission. The Crown case is he went with the person Brazel. The video evidence - if the video to the minds of the jury raises a doubt that only one man went in, in my submission this man cannot be convicted on the evidence of Digby, Soonius etc etc.

[269]

Appellant's Submissions 122 Senior Counsel for the Appellant submitted that the Crown opened its case upon the basis that two men had entered the deceased's cell and beaten him to death. It was submitted expressly to the jury that "the Crown case [is] that those two figures seen entering the cell are, in fact, the accused and the man Brazel" (T36.15). Defence counsel had opened, following the Crown address, and submitted that the Crown could not exclude the reasonable possibility that only one man had entered the cell and the reasonable possibility that the man who did so was Terry Johnson (T39-41). 123 Mr Le Conte expressed the opinion that the video showed one "large man" entering the cell at the time of the attack and the same man exiting the cell shortly afterwards (T98.15). The officer-in-charge of the investigation, Detective Jones, was also able to see only the shape of one person entering the cell (T563.50). It was observed that this opinion evidence was not objected to by the defence because it assisted the defence case that there was only one person who entered the deceased's cell. 124 Mr Game SC submitted that the Crown Prosecutor in his closing address had maintained that the Crown case was that two men had entered the deceased's cell and beaten him. The Crown had maintained this submission knowing the defence case on this issue. Mr Game SC submitted that the Crown Prosecutor, no doubt for good forensic reasons, submitted that the jury ought accept the evidence of Mr Digby and Mr Soonius that two persons, the Appellant and Mr Brazel, had entered and then left the deceased's cell. The Crown Prosecutor submitted that the cell area video lacked clarity and omitted certain parts. It was the Crown submission that the video supported the evidence of Mr Digby and Mr Soonius or, at least, was not inconsistent with it. 125 At no time during the Crown closing address was an alternative scenario submitted whereby the jury ought find that the Appellant alone entered the deceased's cell and beat him to death. 126 The closing address of defence counsel emphasised the contrast between the evidence of Mr Digby and Mr Soonius that two persons, the Appellant and Mr Brazel, had entered and then left the deceased's cell and the images which were said to be contained in the video indicating that one person only had entered and left the cell. This argument was advanced, together with a number of others, in support of a submission that a jury would not be satisfied beyond reasonable doubt of the account given by Mr Digby and Mr Soonius. 127 Mr Game SC submits that it was the trial judge who introduced, for the first time, an approach to fact finding in the case which invited the jury to consider whether the Appellant, either on his own or with someone else, had entered the cell and attacked the deceased. Despite objection by defence counsel, his Honour maintained this direction which was given on several occasions to the jury. Mr Game SC emphasises that his Honour declined to withdraw this aspect of the summing up and rejected an application to discharge the jury arising from this aspect of the summing up. 128 Mr Game SC submits that this approach by the trial judge in summing up gave rise to procedural irregularity and unfairness to the Appellant. The trial had been conducted by both the Crown and defence counsel on a particular basis which was different from the several possible bases ultimately left to the jury as alternative scenarios under which the Appellant could be convicted. It was submitted that the Appellant had no opportunity to address the alternative bases for conviction either in cross-examination or in Counsel's closing address. Mr Game SC relied upon a number of authorities where complaint was made that the trial judge had left to a jury a basis for conviction which had not been advanced by the Crown at trial: R v Solomon (1980) 1 NSWLR 321; R v King (1985) 17 A Crim R 184 at 187; King v The Queen (1986) 161 CLR 423; R v GAS (1998) 3 VR 862 at 863, 877-8; R v Carr (2000) 117 A Crim R 272 and R v Franco (2003) 139 A Crim R 228. 129 Mr Game SC submitted that his Honour's approach to the summing up was unfair to the Appellant in that he was deprived of the opportunity to deal with this suggested basis of fact finding in the defence case and, in particular, in his closing address. Had the Crown chosen to advance submissions in support of this alternative approach to fact finding, it would have been open to the Appellant's trial counsel to make a strong attack upon the Crown case and the alternative ways in which it was put. Defence counsel could have submitted with some force that a factual scenario involving the Appellant entering the cell alone would have been destructive of the evidence of Mr Digby and Mr Soonius in the Crown case. No doubt, considerations of that type had led the Crown Prosecutor to confine his submissions to a case based upon the evidence of Mr Digby and Mr Soonius that two persons, the Appellant and Mr Brazel, had entered the deceased's cell and beaten him. The sting that arose from his Honour raising this scenario for the first time during the summing up was that the Crown was saved from advancing different and inconsistent scenarios and defence counsel was deprived of the forensic opportunity of attacking the Crown case as a result of the Crown adopting such an approach. Mr Game SC submitted that this constituted a serious procedural irregularity and unfairness to the Appellant in the context of a criminal trial for a serious offence. 130 Further complaint was made for the Appellant that apart from this procedural irregularity, a conviction based on reasoning that one person entered the cell and killed the deceased and that this person was the Appellant was not, in any event, supported by the evidence. It was submitted that the trial judge did not clearly leave to the jury the evidence in the trial that could support a conviction on this basis. Insofar as it could be suggested that a conviction might be open on this basis by reference to the alleged admissions made by the Appellant to Mr Soonius and Mr Van Hofwegan, Mr Game SC points out that the learned trial judge did not point to such a basis in the summing up. 131 Mr Game SC submits that a miscarriage of justice has resulted from this procedural irregularity which gave rise to unfairness to the Appellant.

[270]

Crown Submissions 132 The Crown submits in this Court that this ground of appeal ought be rejected. The Crown submits that the prosecution case, as opened to the jury, was that the Appellant was a principal in the first degree in the murder of the deceased and that the Appellant, although assisted by another person, caused the fatal injuries by kicking and stomping on the head of the deceased. The Crown acknowledges that Mr Brazel was nominated as the person who assisted the Appellant in this regard and that this arose from the evidence of Mr Digby. The Crown submits that the Appellant was directly involved in the act causing death and that his liability was not dependent upon whether he was assisted by any other person and, if so, by whom. It was the Appellant's case at trial that he took no part in the act causing death and did not know who was responsible, although Mr Digby was cross-examined to suggest that he had acted as a lookout for Mr Johnson who had entered the cell. 133 The Crown submits that the essential case that confronted the Appellant at trial was that he personally was involved in the bashing of the deceased in the cell and that this case did not change throughout the trial. The Crown seeks to distinguish King v The Queen, submitting that a fundamental change of direction occurred in that case involving the basis of liability of the accused. It was submitted that, in the present case, the fundamental basis for the conviction of the Appellant did not change. There was no alternative basis of liability raised during the summing up of the type involved in King v The Queen. 134 The Crown points to the fact that, during submissions by defence counsel in support of his application for discharge of the jury, it was not contended that prejudice had been suffered from the manner in which counsel had conducted the trial. The Crown pointed to directions given by the trial judge during the summing up concerning the potential impact of the video (which the Appellant argued depicted only one person entering the cell) on the credibility of the witnesses, Mr Digby and Mr Soonius. 135 The Crown points to the comments of this Court expressed in the appeal arising from the first trial (R v Robinson [2003] NSWCCA 188 at paragraph 166-167) to the following effect: "The video tapes, Exhibits J and K, reproduced images from some of the security cameras within the Correctional Centre. A technician explained in evidence that the surveillance system digitalized the images from each unit and recorded them on videotape from one camera after another. The viewer sees a frame from each camera, updated every couple of seconds. Images of people are too blurred to enable any individual to be identified. Of the two video tapes in evidence the more important is Exhibit K, derived from two cameras in B Pod, in which can be seen the deceased's cell and the area around it. It was the Crown case at the trial that the movement of inmates seen on this video was consistent with Digby's account. Defence counsel contended that it was not. Having viewed the video ourselves, we can understand the basis of the defence argument. However, the video is not a continuous photographic representation of movement in the relevant area, as a normal videotape would be, and, in our view, it could not be relied upon either in support of the Crown case or in contradiction of it. Its probative value appears to us to be slight. In any event, his Honour dealt adequately with this aspect of the evidence." 136 It was the Crown submission that the Appellant had suffered no unfairness at the trial and that the first ground of appeal ought be rejected.

[271]

Relevant Legal Principles 137 Where a ground of appeal against conviction asserts that a miscarriage of justice has occurred arising from the trial judge leaving to the jury a possible basis of conviction which had not been relied on by the Crown, a number of principles arise for consideration and application. 138 Firstly, a criminal trial is conducted as adversarial litigation: Whitehorn v The Queen (1983) 152 CLR 657 at 682; Nudd v The Queen (2006) 80 ALJR 614 at 618 [9]. An accusatorial process is involved in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt and in which the prosecution must put its case fully and fairly before the accused is called on: The Queen v Carroll (2002) 213 CLR 635 at 643 [21]; R v Ronen (2004) 62 NSWLR 707 at 722-3 [67]; Weiss v The Queen (2005) 80 ALJR 444 at 455 [43]. 139 A cardinal principle of adversarial litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue: Nudd at 618 [9]. 140 Secondly, the judge's role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at paragraph 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case - first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paragraphs 87-93. 141 Thirdly, the obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence, but to indicate, in conceptual terms, the nature of the Crown case to assist the trial judge, counsel for the accused and the jury: R v Tangye (1997) 92 A Crim R 545 at 556. Although there are no formal pleadings as such in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case: Tran v The Queen (2000) 105 FCR 182 at 203 [133]. 142 If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final addresses: Tangye at 556. Where the prosecutor has nailed the Crown's colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Tran at 206 [148]. 143 Fourthly, a trial judge is obliged to leave to the jury defences which appear to the judge to be reasonably open, notwithstanding that they have not been canvassed by defence counsel. This forms part of the obligation of the trial judge to ensure that the accused person has a fair trial according to law. There is, however, no corresponding obligation on the judge to give directions upon matters tending towards conviction: Solomon at 327. However, where the Crown has elected to formulate and present its case in a particular way, a question may arise as to whether there are other matters of fact or law which the trial judge, in the discharge of the duty to ensure a fair trial according to law, considers it necessary to put to the jury even though the matter was not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will be evaluated by the trial judge and will be to the forefront in the decision as to how far, if at all, new considerations will be put to the jury: Solomon at 327-328, 336. 144 A trial judge who is considering instructing the jury concerning a basis for conviction which is not relied upon by the Crown must consider the fairness of such a course and, in particular, any tactical disadvantage which it may create for the accused: Solomon at 328, 333-334, 336; R v Pureau (1990) 19 NSWLR 372 at 377. 145 Relevant unfairness will ordinarily be looked for in procedural considerations. The judge will be appreciative of the tactical considerations which have governed counsel in the conduct of the case for the accused, including objections to evidence, lines of cross-examination, decisions concerning the tender of material and the content of the final address to the jury on behalf of the accused: Solomon at 328. Where it appears to a presiding judge that the evidence in the case leaves open a finding of guilt on a basis not opened by the Crown, the better course is to raise the matter with counsel prior to final addresses and then, according to the responses of counsel, a decision can be made whether it is appropriate that the direction be given. If it is to be given, the jury will have the benefit of the submissions of both counsel upon the question: Solomon at 336. The accused then will not be deprived of the opportunity of having submissions made on his behalf on that issue: Solomon at 336; GAS at 863, 877-8; R v King at 187; King v The Queen at 432-3; Carr at 285 [49]; R v Whitfield [2002] NSWCCA 501 at paragraph 67. 146 Unfairness to the accused in the conduct of the trial resulting from the trial judge's direction to the jury upon a basis for conviction not relied upon by the Crown may arise from a range of tactical disadvantages, including an inability to cross-examine Crown witnesses, adduce evidence in the defence case and make closing submissions to the jury on the matter: Solomon at 328, 336; GAS at 863; Carr at 285 [49]. Even if the prejudice to the accused was confined to the inability to address the jury upon the question, that itself is capable of being a most significant area of prejudice: R v RTB [2002] NSWCCA 104 at paragraphs 55-61; Meher at paragraphs 113-116, 130; Carr at 285 [49]. 147 A miscarriage of justice may arise where the Crown elects to confine the basis for conviction to acceptance of critical Crown witnesses with no alternative and inconsistent factual scenario being advanced by the Crown. In such circumstances, defence counsel will address the jury to answer the Crown's case theory advanced in the closing address. If then, for the first time, the trial judge advances an alternative factual scenario based upon rejection of significant parts of critical Crown witnesses, the conduct of the trial may have altered. The Crown has been saved from the need to advance bases for conviction which are inconsistent. The defence counsel is deprived of the opportunity of addressing the jury upon the basis that the Crown is advancing inconsistent bases for conviction. The participants in the trial, including the Crown, the accused and the jury will hear, for the first time, the alternative basis for conviction being advanced by the trial judge in the summing up. Unfairness of this type leading to a miscarriage of justice was found to exist in Carr at 285 [49]. 148 Fifthly, where the trial judge raises in the summing up a basis for conviction which was not relied upon by the Crown, there is the added difficulty that the direction carries particular force because it is coming from the judge and not the Crown: RTB at paragraphs 57, 60. It may produce positive mischief if the judge raises arguments which could have been, but which were not put or requested by counsel: R v Heuston (1995) 81 A Crim R 387 at 393. 149 Sixthly, the question to be considered by the Court of Criminal Appeal is whether there has been an unfairness to the accused which gives rise to a miscarriage of justice by reason of the conduct of the trial and which requires the Court's intervention: Solomon at 328, 336; R v King at 187; Carr at 285 [49].

[272]

Application of Principles to this Appeal 150 It is necessary to apply these principles to the present appeal. 151 The course of relevant events at the trial are set out, in some detail, earlier in this judgment. It is apparent that the Crown Prosecutor had made a clear and conscious decision to confine the Crown approach to the trial to one where the jury were told that they ought be satisfied beyond reasonable doubt that the Appellant and Mr Brazel had entered the deceased's cell and attacked the deceased and beaten him to death. The principal Crown eye witnesses, Mr Digby and Mr Soonius, were to give evidence to this effect. It may be inferred that the Crown Prosecutor had given careful consideration to the relevance of the video tape and the forensic use which the defence would seek to make of it at the trial. This was a retrial and the defence had relied upon the video tape to challenge the evidence of Mr Digby and Mr Soonius in the first trial. Against this background, it ought be concluded that the Crown determined to rely upon one factual scenario only at the trial, namely that two persons entered the cell and attacked the deceased and that those persons were the Appellant and Mr Brazel. Such an approach had the consequence that the Crown did not need to advance an alternative scenario based upon partial rejection of the eyewitness evidence of Mr Digby and Mr Soonius, but relying heavily upon evidence of what were alleged to be admissions by the Appellant. The tactical and forensic considerations for not presenting the Crown case in this way were understandable. However, using the words in Tran, the Crown Prosecutor had "nailed the Crown's colours to one version of events in opening" and, indeed, in closing to the jury. 152 Although it was possible for a conviction to follow from the acceptance by the jury, beyond reasonable doubt, of both the fact and the truth of the admissions allegedly made by the Appellant to Mr Soonius and Mr Van Hofwegan, coupled with partial acceptance of the eye witness evidence of Mr Digby and Mr Soonius, the Crown had not advanced such a case in its opening or closing addresses. 153 An examination of the transcript of the trial reveals that the Crown maintained consistently a single factual scenario which it contended ought lead to conviction of the Appellant. This was so even though defence counsel opened in some detail to the jury and relied expressly upon the video tape and the accompanying submission that the jury, relying on the video tape, would not believe the evidence of Mr Digby and Mr Soonius that two persons had entered the cell of the deceased. 154 Although there was some discussion between the trial judge, the Crown and defence counsel concerning aspects of the case and issues arising for inclusion in the summing up, it does not appear from the trial transcript that the trial judge foreshadowed prior to the commencement of the summing up the giving of directions to the jury involving an alternative factual scenario that the accused alone had entered the deceased's cell. Accordingly, the Appellant is correct in submitting that the alternative scenario was raised for the first time in the summing up. 155 For such a scenario to be advanced, for the first time, by the trial judge in the summing up had a real and substantial tendency to cause unfairness to the Appellant. The jury had not heard the Crown advance these various (and inconsistent scenarios) in its opening or closing addresses. Trial Counsel for the Appellant did not have the opportunity to address the jury upon the basis that the Crown was advancing different and fundamentally inconsistent scenarios in support of its case. The scenarios emerged for the first time through the trial judge in summing up with the added weight and authority attaching to this intervention by a judicial officer. 156 Defence counsel at trial did object to the trial judge leaving the alternative factual scenario to the jury when it had not been relied upon by the Crown. The Appellant himself asserted that a miscarriage of justice had occurred (see paragraph 119 above). The contemporaneous objection to the course taken by the trial judge points to a perception on the part of the Appellant and his counsel, in the atmosphere of the trial, that he had been prejudiced and that unfairness had resulted from his Honour's directions. There was an objective foundation for this perception. 157 As the authorities referred to above make clear, the capacity of the trial judge to direct the jury with respect to matters not advanced by the Crown or defence is an incident of the function of the trial judge to ensure a fair trial. To advance a factual basis for conviction which had not been relied upon by the Crown did not operate fairly towards the accused in this case. Although it is difficult to see that the Appellant's trial counsel could have cross-examined Crown witnesses or adduced evidence in the defence case to meet the scenario advanced for the first time in the summing up, there was significant forensic unfairness to the Appellant arising from his counsel's inability to address the jury on this question and the added authority of this scenario being advanced by the trial judge. 158 The Appellant has demonstrated unfairness in the conduct of the trial and that a miscarriage of justice occurred in this case. The first ground of appeal ought be upheld. 159 This conclusion is not inconsistent with the observations of this Court in R v Robinson [2003] NSWCCA 188 at paragraphs 166-167 which are set out in paragraph 135 of this judgment. Indeed, those paragraphs point to the difficulty which the video tape posed for the Crown case where reliance was placed upon a single scenario involving complete acceptance of the evidence of Mr Digby and Mr Soonius. The conviction giving rise to the present appeal followed a trial where the Crown advanced the same case as at the earlier trial, involving a single factual scenario, and the defence sought to meet that case. However, the new feature in the present appeal is that the trial judge advanced, for the first time in the summing up, a second and alternative scenario which could lead to conviction.

[273]

Ground 4 - The Prison Informer Warning 160 Given the conclusion reached with respect to the first ground, it is not essential to determine Ground 4. However, as the matter was fully argued, it is appropriate to refer briefly to the submissions made and conclusions reached. A further reason for confining consideration of this ground in this appeal is that, following the hearing of the matter, this Court delivered judgment in Kanaan and Ors v Regina [2006] NSWCCA 109, a decision to which the Crown has drawn the present Court's attention since judgment was reserved. At any retrial, the formulation of directions to be given to the jury will involve consideration of the decision in Kanaan and the application of relevant principles to the circumstances of this case. 161 Mr Game SC submitted that the directions to the jury concerning reliance upon prisoner evidence did not comply with s.165 Evidence Act 1995. It was submitted that the proper construction of that section, in the context of prison informer witnesses, must have regard to statements in pre-Evidence Act cases such as R v Clough. Reliance was placed upon the decision of the High Court of Australia in Jenkins v The Queen at 123 [30] where, in an appeal from Victoria, the Full Court emphasised the practical application, in the circumstances of the particular case, of a warning about the danger of convicting upon the evidence of an accomplice unless it is corroborated. It was submitted for the Appellant that a "dangerous to convict" direction was required in the circumstances of the present case, even though the provisions of the Evidence Act 1995 contain no such requirement. 162 The Crown submitted that his Honour gave extensive warnings to the jury in accordance with s.165, concerning reliance upon the evidence of the Crown witnesses, Mr Digby, Mr Roach, Mr Soonius and Mr Van Hofwegan. His Honour gave the jury repeated directions that it was necessary to look carefully at the evidence of these witnesses and to examine that evidence with great caution. The jury was directed that there may be particular reasons for the evidence of these witnesses to be unreliable and that there was a capacity on the part of such persons to concoct evidence and falsely accuse. The directions extended to a motive to secure benefit for the witnesses and the possibility of Mr Soonius and Mr Van Hofwegan putting their heads together. Express reference was made to the pressures of the prison environment. Directions of this type were given on more than one occasion with respect to the prisoner witnesses. 163 The Crown submitted that a "dangerous to convict" warning was not required under the Evidence Act 1995 and that no error was demonstrated by his Honour's refusal to give such a direction. 164 In Kanaan, the Court (Hunt AJA, Buddin and Hoeben JJ) considered s.165 in the context of an accomplice warning and said at paragraph 217: "The judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but the judge is never under a duty to do so." 165 This statement from Kanaan supports the Crown submission in this case. His Honour gave extensive warnings to the jury concerning the prisoner witnesses. His Honour was not under a duty to give a "dangerous to convict" direction in the present case and no error has been demonstrated in his Honour's failure to do so. Ground 4 is rejected. 166 Since preparing this judgment, I have had the advantage of reading the additional observations of the Chief Justice with respect to Ground 4. I agree with the Chief Justice's observations.

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