Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Unsworn statements and comment on failure to give sworn evidence - Comment - By judge - Other cases - Absence of direction about accused not having given evidence - Videotapes and transcripts of comprehensive police interviews in evidence - Whether miscarriage of justice.

Azzopardi v R (2001) 205 CLR 50; R v OGD (1997) 45 NSWLR 744; Richards (2002) 128 A Crim R 204, considered.

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Impeachment of credit and admissibility of evidence as to credit - Prior inconsistent statements - Evidence in contradiction - Leave to cross-examine.

Evidence Act 2001 (Tas), ss38(1)(c), 66, 192.

Esposito (1998) 105 A Crim R 27, approved.

Judgment ID Number: [2004] TASSC 95

1 Leave to appeal on ground 1 and first part of ground 5 refused.

1 The appellant was charged with murder. The indictment alleged that on 16 March 2002 at National Park he murdered Jeffrey Dransfield by kicking him to the head and neck. At the trial the jury found him guilty and he was sentenced to 19 years' imprisonment. It was ordered that he not be eligible for parole for 11 years.

2 He appealed against the conviction and so far as it might be necessary, sought leave to appeal against the conviction. He also sought leave to appeal against the sentence. He did not require leave to do so, for the Criminal Code, s401(1)(c), gave him a right to appeal against the sentence without leave. In any event, he abandoned the sentencing aspect of the appeal.

"There is evidence available which relates to the cause of death of the deceased and establishes that it is unlikely that the death was caused by the deceased being kicked when he was on the ground."

4 The case for the Crown, as alleged in the indictment, was that the appellant killed the deceased by kicking him in the head and neck. Its case was opened by counsel and continued throughout the trial, upon the basis that while the deceased was lying on the ground and powerless to defend himself, the appellant repeatedly kicked him in the head and neck, and that one of the kicks was so forceful that it caused the head to rotate with a resulting rupture of the right vertebral artery in the neck, as a consequence of which there was an extensive subarachnoid haemorrhage over the surface of the brain and death shortly thereafter.

5 Unchallenged evidence from a pathologist, Dr Kelsall, established that the cause of death was the subarachnoid haemorrhage and that it resulted from a rupture of the right vertebral artery. Dr Kelsall's evidence further established that external injuries to the deceased were predominantly to the right side of his neck and the top of the area of his right shoulder. It was likely that the deceased was kicked at least six times and probably seven times. Marks on him, giving rise to the conclusion that they were caused by kicks, had the appearance of having been caused by a boot. The appellant had been wearing boots. None of that evidence was challenged by the defence. It was not suggested at the trial that death was caused by anything other than a kick.

6 Evidence was given by the deceased's son, Brendan Dransfield, of scuffles that took place on a road between him and Craig Gittus and between the appellant and the deceased. He said that the deceased fell to the ground, but he did not see what caused him to do so. He then saw the appellant start to kick the deceased in the right side of the head. He described the appellant as kicking the deceased at least three or four times as hard as he could kick. The deceased's head was flying around, he said. Brendan Dransfield said that at that time he was being held by Craig Gittus. When he was let go he ran to the deceased, who was not moving. The appellant left the scene.

7 The appellant did not give evidence but he responded to questions asked of him by police in two video recorded interviews. He said that at first he and the deceased were standing up. The deceased was throwing punches and he thought he punched the deceased twice, which did not render the deceased unconscious. Brendan Dransfield was also involved in the scuffle. He continued that "we was just all wrestling around there was so many of us there and just pushing and shoving and yeah we just all went down in big heap in the middle of the road". The appellant said that he was unable to get up because the deceased was on his legs. Brendan Dransfield was the first to get up onto his feet. "And I couldn't get up 'cos Jeff was on me legs, and the young fella started kickin' me and umm I got me mate Craig [Gittus] to get him off", the appellant said. He supposed that the reason Brendan Dransfield was kicking him was because he had punched his father. He claimed not to be able to remember kicking the deceased at all, but asserted that when the deceased was lying on his legs he was kicking, trying to get the deceased off him. He was not aware that his kicks connected with the deceased but on being asked whether it was possible it happened he said "maybe yes ... I just I can't remember". According to the appellant he stood back up and "everyone was just saying like stop it stop it". The last thing he could remember was hearing a car coming and because the deceased was lying on the road, he dragged him off the road, a distance of about a metre. Asked whether his two punches to the face of the deceased knocked him to the ground or whether they fell together, he responded "no we all falled to the ground together ... the three of us". He said "I dunno if he hit his head goin' down on the road like when we fell on the road he may have hit his head I'm not sure umm when I was kicking him off I might have kicked him in the head then but I honestly cannot remember standing up and kicking Jeffrey".

8 Evidence was given by Craig Gittus that Brendan Dransfield challenged the appellant to have a go at him. As a result, the appellant started running towards Brendan Dransfield, whereupon the deceased stood in front of his son and said: "What's your problem with my boy?" The appellant said: "I was wondering why your boy's got a problem with me." Mr Gittus then described pushing and shoving between the deceased and the appellant and they both fell to the ground. He said that the appellant was lying on the ground and the deceased was kneeling over him, holding him by the wrists to the ground, whereupon Brendan Dransfield started kicking the appellant at a time when he was flat on his back. Mr Gittus said that Brendan Dransfield probably kicked the appellant three or four times, possibly more, in the left side. The appellant was still being held by the deceased and called out to Mr Gittus for help. Mr Gittus said that he grabbed hold of Brendan Dransfield and took him away up the road, trying to calm him down. As he did so, he did not see whether the deceased still had hold of the appellant. It was some time before he headed back to the scene of the fight, at which time the deceased was simply lying on the road and the appellant was standing a couple of metres away from him. It was Mr Gittus' evidence that he did not see the appellant kick the deceased. However, evidence was given by Detective Constable Ryan, who arrived at the scene shortly after the incident, that he was told by Mr Gittus that "he attempted to stop the accused who brushed him aside and assaulted the deceased by kicking him in the head repeatedly".

9 The case for the defence at the trial was that the appellant did not kick the deceased and that the fatal blow may well have been a kick delivered by Brendan Dransfield, although it may have been intended for the appellant and not the deceased, while the appellant and the deceased were fighting and rolling on the ground. For example, in his closing address counsel for the appellant said:

"We don't suggest that Brendan intended to kill his dad, what we say is it's such a reasonable possibility, given the proximity of Andrew and Jeffrey and Brendan kicking, it's such a reasonable possibility that Brendan kicked his dad that you can't exclude it. ... Let me just wrap up. Unless you can be satisfied beyond reasonable doubt that Brendan Dransfield wasn't present at the scene and kicking at Andrew Saunders, you can't be satisfied beyond reasonable doubt that it wasn't a kick from Brendan that accidentally killed his father. Now let me just repeat that because it's pretty important in this case. Unless you can be satisfied beyond reasonable doubt that Brendan Dransfield wasn't at the scene and kicking at Andrew Saunders, you can't be satisfied beyond reasonable doubt that it wasn't a kick from Brendan that accidentally killed his father. That's the state you're in - end of game! You got to come out and acquit my client entirely."

An alternative verdict of guilty of manslaughter was expressly not sought of the jury by the appellant's counsel.

10 The first ground of the appeal raises no error at the trial. It is based on the availability of new evidence from a pathologist, Dr Duflou, the effect of which was that if the deceased was punched to the side of the head or face and his head was made to rotate violently, and the deceased slumped to the ground, after being so punched, and thereafter was unconscious until he died, the most likely cause of the undoubted rupture of the right vertebral artery and consequent death was the punch, regardless of whether he was kicked while he was lying unconscious on the ground. Dr Duflou did not challenge the opinion of Dr Kelsall that the deceased appeared to have been kicked at least six and possibly seven times.

11 It was submitted by counsel for the appellant that although it was open to the jury to accept the evidence given by Dr Kelsall regarding the cause of death being a kick to the deceased, it cannot be said that the jury's verdict would inevitably have been the same if the jury had the benefit of the evidence of Dr Duflou. He submitted that the ordering of a new trial at which the evidence of Dr Duflou could be presented would remedy a miscarriage of justice. As the ground of appeal involves a question of fact, the leave of the Court to appeal upon the basis of it is required. Criminal Code, s401(1)(b)(i) and (ii).

12 The evidence of Dr Duflou is new evidence but not fresh evidence. A clear distinction must be drawn between the two categories of evidence. Fresh evidence is evidence which was not available to the accused at the time of the trial and which would not have been available if he had exercised reasonable diligence. The evidence of Dr Duflou which the appellant relies upon as the basis of this ground of the appeal, is not fresh evidence, but is merely new evidence, because it was at all material times available and could have been discovered if the appellant had used reasonable diligence.

13 The basis upon which fresh evidence may ground a successful appeal has been stated many times. If it is credible, or at least capable of belief, and if it raises a significant possibility that the jury, acting reasonably, would have acquitted if the fresh evidence had been before it at the trial, then a miscarriage of justice has occurred and the conviction should be set aside. Ratten v R [1974] HCA 35; (1974) 131 CLR 510; Gallagher v R [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259. See also Askeland v R (1983) 18 A Crim R 102; Farrell v R A36/1996; Williams v R [2002] TASSC 71; (2002) 133 A Crim R 317; R v O'Neill [1995] QCA 331; (1995) 81 A Crim R 458 at 564; R v Nguyen (1997) 99 A Crim R 151 at 158.

14 Where, as in this case, the evidence upon which reliance is based is not fresh evidence in the sense I have explained, but is merely new evidence because it was available to the appellant at the trial if he had exercised reasonable diligence, far more stringent rules apply. The effect of the new evidence must be to convince the Court that there has been a miscarriage of justice in the sense that the Court is satisfied that the innocence of the appellant has been established or that the new material raises such a doubt about guilt in the mind of the Court that the verdict should not be allowed to stand. Ratten v R (supra) at 517 - 520; Lawless v R [1979] HCA 49; (1979) 142 CLR 659 at 674 - 675; Georgiadis v R [2002] TASSC 58; (2002) 133 A Crim R 152 at 174 - 175; Mallard v R [2003] WASCA 296; (2003) 28 WAR 1 at 7. In that case, the verdict will normally be quashed without more and a new trial will not be ordered.

15 The reason for the strict rules that apply to evidence which is new but not fresh, was explained by Mason J (as he then was) in Lawless v R (supra) at 675 - 676:

"... it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand. After all, in a criminal appeal uncomplicated by the existence of newly adduced evidence it is not a ground for the setting aside of a conviction and the ordering of a new trial that the appellate court itself considers that it was unlikely on the evidence that the jury would have convicted. If there was evidence on which the jury could reasonably convict, the verdict must stand, for in such a case there is no miscarriage of justice. So it is when evidence not called at the trial, not being fresh evidence when considered with the evidence given at the trial, leads to the conclusion that the jury could reasonably convict, though it appears to the appellate court that it would be unlikely to do so. There is then no miscarriage of justice because the jury has arrived at a verdict which is unimpeachable and the new evidence produced on the appeal falls short of establishing that the accused should not have been convicted, it being the fault of the accused that the new evidence was unavailable at the trial."

16 The evidence of Dr Duflou gives rise to little more than a theory that the fatal blow may have been a punch struck by the appellant to the deceased at a time when the deceased was standing up and prior to the likely delivery of a number of kicks to the deceased at a subsequent time when he was lying on his back on the road. That theory is inconsistent with the appellant's version of the events to the police which included that his punching of the deceased did not render him unconscious. It is also inconsistent with his case at the trial that the cause of death was likely to have been a kick from Brendan Dransfield. The presentation of Dr Duflou's evidence gives rise to no entitlement to a new trial at which the appellant could conduct his defence on a new basis.

17 There was ample evidence at the trial justifying the jury's conclusion that the appellant was guilty of murder. It included evidence that the jury was entitled to accept, that the appellant kicked the deceased a number of times while the deceased was lying on the ground and that the cause of death was likely to have been a blow that left a mark on the deceased and that was consistent with him having been kicked by a boot worn by the appellant.

18 There is no merit in the ground and I would refuse leave to appeal on the basis of it.

"The directions given by the learned trial judge on the standard of proof were erroneous."

20 The learned judge directed the jury that it should reach its verdict based on the evidence from the witnesses and the exhibits and nothing else. It was instructed that at the commencement of the trial, the appellant was presumed to be innocent and that a verdict of not guilty should be returned unless the jury was satisfied that his guilt had been proved. The summing up continued:

"The next point is that because of the accused man being presumed innocent until proven guilty it follows that the Crown has the burden of proving guilt. That's a fairly simple proposition. If you allege something then you have the burden of proving it, so the burden of proving guilt lies fairly and squarely with the Crown, with the prosecution. An accused person doesn't have to prove his or her innocence. An accused person is entitled to remain completely silent throughout a criminal trial, he or she doesn't have to have a lawyer, ask questions, give evidence or call witnesses.

My next point is that the Crown not only has to bear the burden of proving guilt, it bears the burden of proving guilt beyond a reasonable doubt. It's dangerous for me to try to explain in any detail the concept of a reasonable doubt. It's for you to decide whether you've got a reasonable doubt. A reasonable doubt is something that you should be able to recognise, to feel, to know. If the evidence suggests that Mr Saunders might be guilty but you're not satisfied beyond a reasonable doubt that he's guilty then it's your duty to give him the benefit of that reasonable doubt and to find him not guilty. A verdict of not guilty isn't a verdict that anybody lied or that anybody invented evidence, a verdict of not guilty means only one thing, that you're not satisfied beyond a reasonable doubt of the guilt of the accused man.

Now whether you've got a reasonable doubt is something that each of you must consider as an individual. On the Thursday before last, the first day of the trial, each of you took an oath as an individual. ... The testing of any doubt lies within your own conscience, you're required by your oath as an individual to act in accordance with your own conscience, you have to decided in accordance with your own conscience whether the Crown has proved guilt beyond reasonable doubt. Now of course you have to base that on the evidence ...".

21 Counsel for the appellant submitted that the learned judge erred when he directed the jury that the finding of a reasonable doubt had to be based on the evidence. The submission is simply answered. No such direction was given to the jury. What the learned judge instructed the jury was that the determination of whether the Crown had proved guilt beyond reasonable doubt had to be based on the evidence. That was a proper and appropriate direction to give to the jury.

22 Objection was also made to the statement by the learned judge that "a reasonable doubt is something that you should be able to recognise, to feel, to know". It was submitted by counsel for the appellant that the statement contained a requirement that before a juror could have a reasonable doubt, he or she must be able to point to something tangible upon which the doubt was based and perhaps to be able to give a reasonable explanation for the doubt. I reject that submission. I think that counsel attempted to selectively use a few words from what was said by his Honour and failed to address the context in which they were uttered. The learned judge had explained to the jury that the Crown bore the burden of proving guilt beyond reasonable doubt and that it was dangerous for him to try to explain in detail the concept of a reasonable doubt. His Honour then made it clear to the jury that it was for the jury to decide whether it had a reasonable doubt, adding that a reasonable doubt was something that it "should be able to recognise, to feel, to know". The learned judge was merely explaining that whether the jury had a reasonable doubt was a matter for them and that he would not be giving them any assistance concerning what the expression meant. The direction was not contrary to what was stated by the High Court in Green v R [1971] HCA 55; (1971) 126 CLR 28 at 32 - 33. It left the meaning of proof beyond reasonable doubt for the jury to determine and was not an attempt to explain what the expression meant. The ground fails.

"The directions given by the learned trial judge on the manner in which the jury should use the fact that the appellant did not give evidence were inadequate."

24 The appellant did not give or adduce evidence at the trial. The relevant directions of the learned trial judge were given after the directions concerning the presumption of innocence. I cited them when dealing with the previous ground and I will repeat them:

"The next point is that because of the accused man being presumed innocent until proven guilty it follows that the Crown has the burden of proving guilt. That's a fairly simple proposition. If you allege something then you have the burden of proving it, so the burden of proving guilt lies fairly and squarely with the Crown, with the prosecution. An accused person doesn't have to prove his or her innocence. An accused person is entitled to remain completely silent throughout a criminal trial, he or she doesn't have to have a lawyer, ask questions, give evidence or call witnesses."

25 Nothing else was said by the learned judge at any time during the trial about the failure of the appellant to give or call evidence. The Evidence Act 2001, s20(2), permitted his Honour to comment on the failure of the appellant to give evidence, but by subs(3), his Honour was prohibited from suggesting that the appellant failed to give evidence because he was, or believed that he was, guilty of the crime that was charged. The direction did not contravene that prohibition.

26 The ground of appeal is not that there was a misdirection but that there was a failure to give a direction. Counsel for the appellant at the trial, who had considerable experience, did not seek the further direction and when the learned judge asked whether counsel had any submissions about the summing up, he replied that he had none.

27 The appellant relies on the following obiter dictum in the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v R (2001) 205 CLR 50 at 70:

"In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence."

28 It was submitted for the appellant that the direction to the jury was inadequate for not containing a warning that the appellant's failure to give evidence was not evidence against him, did not constitute an admission by the appellant, might not be used to fill gaps in the evidence tendered by the Crown and might not be used as a make-weight in assessing whether the Crown had proved its case beyond reasonable doubt, in accordance with that dictum.

29 What was said by the learned judges there was expressed as being almost always desirable. As was observed in Richards (2002) 128 A Crim R 204 at 211, by Levine J, with whom the other members of the Court of Criminal Appeal of New South Wales agreed, their Honours "cannot be taken to have ruled that in every case it is compulsory let alone desirable, in terms of the fundamental requirements of justice, for a direction of the kind now sought, to be given".

30 The appellant also relied on the statement by Gleeson CJ in the earlier case of R v OGD (1997) 45 NSWLR 744 at 751, that "it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent". Assuming that to be correct, nevertheless, as with the direction said in Azzopardi to be almost always desirable, there is no rule of law that in every case such a direction must be given. The majority in Azzopardi did not hold or suggest that such a direction, that is an OGD direction, should be given. And see R v Nguyen [2002] NSWCCA 342 at par51.

31 Because the ground of appeal raises a non-direction and not a mis-direction and because the giving of the directions to the jury was not compulsory, for the ground to succeed it is necessary that the Court be satisfied that there was a miscarriage of justice by reason of the failure to give the directions.

32 Although the appellant did not give evidence at the trial there was evidence of his version of the events in the form of two video recorded interviews by police officers. The first interview extended for a little over two hours. It commenced at 4.45pm in the afternoon following the events at National Park early that morning. It was played during the trial and the jury were able to watch it again during their deliberations. They also had an 89 page transcript of what was said in the course of the interview. The second interview extended for 12 minutes and was conducted six days later, on 22 March. It also was played during the trial and the jury were able to watch it again and to consider a transcript of it, during the course of their deliberations.

33 In the first interview the appellant provided in great detail what he said was his recollection of the relevant events. They were traversed more than once in the course of a great number of questions from the officers. He was told what had been stated by witnesses to the events including Craig Gittus, Brendan Dransfield and others, and he responded to what they had stated. At the conclusion of the interview he was told that it would be his last opportunity to speak to police about the matter and asked if there was anything else he wished to say. He had nothing to say, other than to make a general expression of regret.

34 The second interview was conducted for the purpose of explaining to the appellant that the pathologist, Dr Kelsall, had formed the opinion, that was not challenged at the trial, that bruises on the deceased were consistent with him having been killed by a kick from a boot and that the marks were consistent with having been caused by the boots worn by the appellant. Although the interview was relatively brief, he was carefully questioned about his response and as to the possibility that he kicked the deceased and inflicted those injuries. He maintained what he had said in the first interview, that the only time he may have kicked the deceased was when he was struggling to get up off the ground from underneath the deceased and that he definitely did not kick the deceased at a time when he was standing up and the deceased was lying on the ground, as was alleged by the Crown at the trial. At the end of the interview he was asked if there was anything else he wished to say. He responded:

"No I've been thinking about it and I just can't think anymore of it that like nothing, I've been here for seven days now ohh six days sorry and I've been racking my brain, racking my brain I get very upset in the cell and that and I just cannot think of anything more, no no more evidence no nothing else that went on that night, nothing. I told you sort of everything I know and you know I still sit in there thinking about I'm still trying umm but I just just can't get nothin' else into my head, there's nothin' else just will come up, nothin' else will pop up I just can't see anything."

35 Although what the appellant said in those interviews was not evidence given under oath or affirmation from the witness box, no point was made of that at the trial, including in the summing up. In essence it was treated as part of the evidence. An obvious advantage for the appellant was that the video recordings of his statements of his version of the events could be replayed by the jury and they could refer to the transcripts in the course of their deliberations. Similar material was not available for the jury with respect to the evidence of the witnesses that was given in the court room.

36 The defence case at the trial was that what he told the police should be accepted or at the very least it was a possibly true version of the events, and that the evidence of witnesses upon which the Crown relied should not be accepted for reasons concerning the quality of each of the witnesses' evidence and the possible motivations some of them may have had not to speak the truth. In his closing address, counsel for the appellant urged the jury to look at the video recorded interviews and make their own minds up concerning whether the appellant was lying, suggesting that the contrast was stark between the interviews and "the blatant lies" that they had heard from Brendan Dransfield.

37 It was not a case where the version of the events of the accused person was not before the jury for its consideration and that there was a risk that adverse to the accused, the jury might mis-use the fact that he failed to give evidence in the court room. The evidence of what he stated to the police was substantial and it was before the jury for their consideration together with all the other evidence presented at the trial. In the summing up, the learned judge made no direct reference to the fact that the appellant had not given evidence at the trial. However, his Honour made it abundantly clear that an accused person has no burden of proof and is entitled to remain silent throughout a trial and included in that, did not have to give evidence. With respect to the learned judge, a direction along the lines of the Azzopardi and OGD dicta might well have been desirable, but it was not sought by the appellant's counsel at the trial and I am not persuaded that a failure to give it resulted in a miscarriage of justice in the circumstances of the case.

"The trial proceedings miscarried through the learned Crown Prosecutor suggesting to the jury that counsel for the appellant at his trial believed that the appellant was guilty of the offence charged against him."

39 In his brief opening address to the jury at the commencement of the trial, counsel for the appellant referred to the likelihood that different versions of the events would emerge from the evidence of Brendan Dransfield and Craig Gittus and the statements made by the appellant to the police, and made the point that "it's not like pick-a-box ... we might just pick this version or that version". He urged the jury "don't treat it as pick-a-box, and pick whichever version sounds more plausible" and concluded that "you, we say, will be left in such confusion you can't possibly find my client guilty".

40 In his closing address to the jury, counsel for the Crown referred to those remarks and argued that "on the evidence, if you look at it objectively, you can only come to one conclusion that the accused is guilty of Mr Dransfield's murder". It was part of the defence case that what may have happened was that when the appellant was lying on the ground with the deceased on top of him, Brendan Dransfield was kicking at the appellant and may have accidentally kicked the deceased and killed him. Dr Kelsall expressed the opinion, that was not challenged, that the cause of death was one of the blows that left a mark on the deceased's neck and which was consistent with being caused by a boot. Under cross-examination from the appellant's counsel, Dr Kelsall said that the mark could have been inflicted by a kick from someone who was standing up, but if so, the deceased's head would have had to be on or very close to the ground.

41 Counsel for the Crown suggested to the jury that to counter the damaging effect of Dr Kelsall's evidence, counsel for the appellant "came [up] with a scenario where the deceased was somehow holding the accused but at the same time he'd have to be down by his side with his head on the ground, so to leave the possibility that Brendan Dransfield may have kicked his father". It was put to the jury that in his two hour video recorded interview the appellant had not suggested that to be the case; that in different versions of the events given by the appellant's best friend, Mr Gittus, or said to have been given by him, he did not suggest it; and that Brendan Dransfield did not suggest it. Counsel for the Crown continued:

"So ladies and gentlemen it's not the Crown asking you to pick a box we'll say, and I'll say in my Closing address, one version is much more likely than any other, but we'd say on every version given by the witnesses in the witness box or the accused in his video interview, when you tie all the evidence in Dr Kelsall's evidence, is the only conclusion you can reach is that the accused is guilty. Mr Avery [counsel for the appellant] I'd suggest knows that and I suggest he has developed this new theory that the accused, somehow being held by the deceased, on the ground, with the deceased's head on the ground because no other version given in the witness box is consistent with his client's innocence. So what he is saying reject all those versions, reject his client's version in the video interview, and pay regard to a version that there is absolutely not a skerrick of evidence of."

42 The fourth ground of appeal complains that there was a miscarriage of justice because in that passage counsel for the Crown suggested that counsel for the appellant knew that his client was guilty. However, I interpret what counsel was saying was that counsel for the appellant was aware that the evidence pointed to the appellant being guilty. It was undoubtedly an inappropriate comment to make, but it could not be categorised as bringing about a miscarriage of justice. It was rhetoric, and no doubt the jury would have regarded it as no more than that, and designed to make the point to the jury that the evidence did not support a possible version of facts that had been advanced for the appellant.

43 Counsel for the appellant took no point about the matter with the learned trial judge, but he directly attacked what had been said by counsel for the Crown in his closing address. Referring to Mr Coates, counsel for the Crown, he said:

"Now he started off last Friday afternoon and said to you that I knew that my client was guilty and I developed a theory, well apart from the outrageous nature of that assertion that's as silly as me saying that Mr Coates knows he has got a weak case here and he is now urging upon you, down an indirect guise, a manslaughter verdict. Let me make it clear at the outset we don't want on behalf of Andrew Saunders the soft option of you opting out and saying well we can't make up our minds but we'll pot him for something. I'm saying to you this man is not guilty of anything. What I might think or don't think has nothing to do with it, that's as silly as me saying Mr Coates knows he's on a loser and he has tried hard to get lost. Forget what we think."

44 The learned judge decided to say something about the matter in the summing up. After instructing the jury that the Crown had to prove guilt beyond reasonable doubt, his Honour continued:

"Now of course you have to base that on the evidence, you've heard speeches from counsel and you're hearing a speech from me and these speeches aren't the evidence. Counsel's speeches are summaries of their cases, their comments on the evidence. You should consider very carefully the submissions that they've made and give them whatever weight you consider appropriate but you're the judges of the facts and it's for you to decide what you think about the evidence.

If counsel have personal views they shouldn't be mentioned or considered, it's the role of the prosecutor to put forward the evidence that tends to establish guilt and to argue - to bring forward the arguments that tend to establish guilt, it's the role of defence counsel to challenge the prosecution evidence and to test it and to put forward arguments that tend towards innocence or the casting of a reasonable doubt, although of course the onus isn't on the defence to prove a reasonable doubt, the onus is on the Crown to prove guilt beyond a reasonable doubt.

I've said a little more than I normally would about the roles of counsel because of the suggestion that Mr Avery might have known that his client's guilty. That is a comment that shouldn't have been made and it ought to be disregarded. Really, what you have to do is use the arguments that counsel have put forward in order to reach your - to evaluate those arguments in order to reach your own decision as to whether this charge has been proved beyond a reasonable doubt."

45 It was made clear to the jury that their verdict had to be based on the evidence and that counsel's addresses were not part of the evidence. It is not reasonably possible that a miscarriage of justice resulted from the comment of counsel for the Crown.

46 Counsel for the appellant also submitted that the comment was in breach of the Evidence Act, s20(2), because it amounted to a prohibited comment by a prosecutor about the failure of the appellant to give evidence. There is no merit in the submission for it did not amount to such a comment. It was merely an observation about the absence of any evidence concerning a particular matter.

(b) secondly in the directions given as to the use which the jury could made of the evidence,

i statements made by Craig Gittus to Detective Constable Peter Robert Ryan.

ii statements made by Craig Gittus to the barrister Phillipa Jones.

iii statements made by Brendan Dransfield to Detective Constable Ryan.

iv statements made by Brendan Dransfield to Constable Jonathan Eastwood."

48 At the trial on 20 February 2003, evidence was given by Sergeant Fletcher that he and Constable Abrahams arrived at the scene at 1.30am. (On 24 February, evidence was given by Constable Eastwood that he and Constable Sly were the first police officers to arrive at the scene and that they did so at 1.25am.) Sergeant Fletcher saw the deceased on the ground being attended to by ambulance officers. He spoke to Constable Eastwood. At about 1.55am an ambulance officer advised that he intended to stop treating the deceased. Sergeant Fletcher, Constable Eastwood and another officer then cordoned off the scene with tape to protect it. Sergeant Fletcher said that just after the CIB arrived (on the basis of later evidence from Detective Constable Ryan it is likely that the event occurred at 2.15am), he spoke to Craig Gittus in the car park of a guest house virtually opposite the scene. "I asked him whether they'd had any dealings with what had happened across the road", Sergeant Fletcher said. On him being asked whether Mr Gittus replied, the learned judge intervened by asking counsel for the appellant whether he objected to the evidence. Counsel said that he did not do so. Counsel for the Crown said that it was admissible under the Evidence Act, s66, the learned judge responded that he supposed it was and the evidence was then led from Sergeant Fletcher, who said: "Yes, he told me that he was the bloke who tried to break them up." Sergeant Fletcher asked Mr Gittus who he had tried to break up and Mr Gittus told him it was "Andrew Saunders [the appellant] and the bloke on the ground over there" [the deceased]. Sergeant Fletcher requested Mr Gittus to accompany him to a location near the scene where he introduced him to Detective Constable Ryan, who was standing near a police car. In cross-examination, Sergeant Fletcher said that Mr Gittus had volunteered that he had tried to break up the appellant and the deceased and that when he introduced Mr Gittus, he told Detective Constable Ryan what Mr Gittus had just told him. He then left Mr Gittus with Detective Constable Ryan, observing that Mr Gittus was placed into the front seat of a police vehicle.

49 Craig Gittus was a good friend of the appellant. He gave evidence at the trial on 25 February 2003. I referred to some of his evidence when dealing with ground 1. It was in part that he did not see the appellant kick the deceased and could proffer no explanation for how the fatal blow was inflicted, and that when he took hold of Brendan Dransfield and led him away from the scene he did not see whether the deceased still had hold of the appellant. Counsel for the Crown applied under the Evidence Act, s38(1)(c), for leave to cross-examine Mr Gittus about prior statements made by him that were inconsistent with that evidence and harmful to the defence case that a kick from Brendan Dransfield may have killed the deceased.

50 Evidence was then given on the voir dire by Detective Constable Robert Ryan that he arrived at the crime scene, and at about 3.35am was introduced to Mr Gittus by Sergeant Fletcher. He was standing outside a car. Mr Gittus stated to him that the appellant was responsible for kicking the deceased and Brendan Dransfield also kicked the deceased on a number of occasions. Mr Gittus also stated that he stepped in to try and stop the appellant, but he brushed past him and kicked the deceased repeatedly. Detective Constable Ryan said that he immediately recorded a summary of Mr Gittus' statements in the running sheet he was keeping and asked Mr Gittus to accompany Constable Eastwood to make a statement in relation to the information he had provided.

51 Evidence was also given on the voir dire by Ms Phillipa Jones, a barrister employed by the Director of Public Prosecutions, that on 31 January 2003, she was present when Mr Gittus was interviewed by counsel for the Crown, Mr Coates, at which time Mr Gittus said that when he grabbed hold of Brendan Dransfield and led him away, the appellant was lying flat on the ground and the deceased was kneeling beside him and holding him. Ms Jones said that Mr Gittus demonstrated with his arms and described Brendan Dransfield kicking the appellant to the side, the appellant yelling out "come and get him off me", or words to that effect, and Mr Gittus going up and taking Brendan Dransfield away, at a time when the deceased was still conscious and kneeling over the appellant holding him. Later, on 13 February, Mr Gittus repeated that when he took Brendan Dransfield away, the deceased was kneeling beside the appellant and holding his arms, Ms Jones said.

52 On the voir dire, Mr Gittus agreed that he was a very close friend of the appellant and had been visiting him in prison. He denied making the statements attributed to him by Detective Constable Ryan. Concerning Ms Jones' evidence, he said "I can't quite remember" telling her and Mr Coates what she had attributed to him, adding that "if I did tell you, it must have been a mistake because I mustn't have read your question right".

53 Counsel for the Crown submitted that he should be given leave under s38(1)(c) to cross-examine Mr Gittus about the prior inconsistent statements, foreshadowing that he would seek to prove the making of the statements if they were denied by Mr Gittus and that the statements could become evidence of the truth of their contents as an exception to the hearsay rule. See s60. Counsel for the Crown made substantial submissions in support of the application for leave. While not consenting, counsel for the appellant conceded that he could not think of anything useful that he could put contrary to the assertions of counsel for the Crown, and made no submissions in opposition to the application.

54 Thereupon, the learned judge granted leave under s38 for the Crown to question Mr Gittus as though he was being cross-examined, about whether he made the prior inconsistent statements. Under s192(1), terms were imposed on the leave, that the cross-examination would be limited to: (a) the making of any such prior inconsistent statement; (b) the reason or reasons for denying their making; and (c) the motive for giving evidence inconsistent with them. Leave was granted on 25 February 2003. Three days later, on 28 February, the learned judge published written reasons for granting leave.

55 In the course of further evidence from Mr Gittus before the jury, including cross-examination by counsel for the Crown pursuant to the leave that had been given, he gave similar evidence, so far as is relevant to the appeal, to that given by him on the voir dire.

56 The trial continued. Detective Constable Ryan was then called to give evidence by the Crown. He said that he was called to the crime scene and arrived at about 2.15am. A number of police officers were already there. His duty was to take charge of the incident and secure the scene until the arrival of a major crime team of detectives and forensic services personnel. He commenced to make inquiries. He was briefed by Constable Eastwood and spoke with ambulance officers and a number of persons at a residence. He commenced to write a running sheet on paper on a clipboard. He explained that a running sheet was always kept in cases of major crime and that it was used to record in chronological order duties that had been performed or needed to be performed. He would record on it those to whom he had spoken, the personnel in attendance and "basically just anything in regards to evidence that may be sought in court at a later date", including what people told him. He related talking to a witness, Karl Coombes, at approximately 2.45am, and that he was told by Mr Coombes that he had witnessed an altercation between the appellant, Brendan Dransfield, the deceased and Craig Gittus, that he saw the deceased being punched to the head, that he left the area to obtain help because he felt that he was out-numbered, and that when he returned to the scene he saw the deceased lying on the gravel road. He next spoke to Brendan Dransfield who was quite upset and obviously agitated. Mr Dransfield told him that the appellant was responsible for assaulting the deceased and had kicked the deceased on a number of occasions to the head. Detective Constable Ryan gave evidence that he made a note on the running sheet of what Karl Coombes and Brendan Dransfield told him and after speaking to them he allocated to two police officers the task of obtaining statements from both men. He was not present when those statements were taken. Detective Constable Ryan continued with evidence that he attended the crime scene once again and secured it with crime scene tape. Shortly after doing so, a police photographer arrived. At approximately 3.35am he was introduced to Craig Gittus by Sergeant Fletcher. Craig Gittus told him that the appellant was responsible for kicking the deceased in the head, that Brendan Dransfield kicked him in the head as well and that he, Mr Gittus, attempted to stop the appellant who brushed him aside and assaulted the deceased by kicking him in the head repeatedly. Detective Constable Ryan made an entry in the running sheet summarising that conversation. He then notified Detective Inspector Lathey of what he had been told and sought advice about what needed to be done. As a result, Mr Gittus went with Constable Eastwood to make a statement. No objection was made by the appellant's counsel to any part of the evidence of Detective Constable Ryan.

57 The next witness for the Crown was Ms Jones. She said that on 31 January, 20 days before the commencement of the trial, she was present with Mr Coates when Mr Gittus was interviewed by them and she made detailed notes. Her evidence was that Mr Gittus said that at the point in time when he grabbed Brendan Dransfield, the appellant was lying flat on his back and the deceased was kneeling beside him holding the appellant's hands. Mr Gittus was asked about the matter a number of times and in a demonstration involving Mr Coates, Ms Jones and Mr Gittus, explained what he had said. She said that on 13 February, Mr Gittus was interviewed again and said exactly the same things. No objection was made by the appellant's counsel to any part of the evidence of Ms Jones.

58 On the previous day, 24 February, evidence was given by Constable Eastwood that he and Constable Sly were the first police officers to arrive at the scene. They did so at 1.25am. He observed that ambulance officers were attempting to resuscitate the deceased on the gravel edge of the road. Brendan Dransfield was present and appeared to be intoxicated and very agitated, "running around making a lot of noise". Dallas Higgins, who did not appear to be intoxicated, was attempting to calm Brendan Dransfield down. Constable Eastwood said that Brendan Dransfield told him that the person being attended to by the ambulance officers was his father, Jeffrey. His evidence continued that "he told me that his father had been kicked by two persons" and "he named one of those persons as Andrew Saunders, the accused". Constable Eastwood asked Brendan Dransfield to sit in the rear of a police vehicle, because he was very agitated and loud. The officer's primary objective was to preserve the scene and control persons in the vicinity. About 2½ hours later, at the request of Detective Constable Ryan, Constable Eastwood obtained a statement from Craig Gittus. No objection was made by the appellant's counsel to any part of the evidence of Constable Eastwood.

59 As argued, the ground of appeal raises as an issue whether the hearsay evidence of Detective Constable Ryan and Ms Jones about what was said to them by Craig Gittus and the hearsay evidence of Detective Constable Ryan and Const Eastwood about what was said to them by Brendan Dransfield, was admissible under the Evidence Act, s66. In the course of his reasons for giving leave to the Crown to cross-examine Mr Gittus, that were published on 28 February, the learned judge expressed the view that the evidence of Detective Constable Ryan as to what Mr Gittus told him was admissible under s66(2), as a representation made by a person who was available to give evidence, about facts which were fresh in that person's memory. One of his Honour's reasons for giving leave to cross-examine Mr Gittus about his making of the inconsistent statement, was that it would be inappropriate for Detective Constable Ryan to be cross-examined as to an alleged statement admissible under s66(2) without the jury having the benefit of any cross-examination of Mr Gittus as to what he said to Detective Constable Ryan. Although the point was not taken by the appellant at the trial, his counsel submitted on the appeal that s66(3) prevented the evidence from being admissible under the section. The material provisions of the section are:

"(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the previous representation that is given by -

(b) a person who saw, heard or otherwise perceived the representation being made -

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing."

60 The reference in subs(3) to the purpose of the making of a representation is clearly a reference to the purpose of the maker and not the purpose of whoever may have heard the representation. That was the view of Wood CJ at CL in Esposito (1998) 105 A Crim R 27 at 34. If a person makes a detailed statement to a police officer or legal practitioner that is recorded in the form of a proof of evidence, the statement will almost invariably be one made by the person for the purpose of indicating the evidence that the person will be able to give in any subsequent court proceedings. However, the case may not be so clear if immediately or shortly after an incident, a person at the scene makes a representation to a police officer who has just arrived at the scene and is trying to find out what has happened. In such a case, the purpose of the representation may only be to make a complaint or allegation or to provide information to the officer to assist the investigation of what took place. Giving evidence at prospective court proceedings might not form part of the representor's purpose. The representations allegedly made by Craig Gittus to Ms Jones and Mr Coates, were plainly excluded from admissibility under s66(2), for it may be inferred that his purpose in speaking to them was to communicate what evidence he could give at the forthcoming trial. I think it equally clear that the evidence of what Brendan Dransfield told Constable Eastwood and Detective Constable Ryan did not fall to be excluded by subs66(3), for there was no basis for concluding that his purpose was to indicate to either officer the evidence he would be able to give at subsequent court proceedings. The contrary would be the case so far as concerns the statement Brendan Dransfield apparently made, shortly afterwards, to another police officer to whom the task of obtaining his statement was allocated.

61 It is possible that the evidence of Detective Constable Ryan of what Craig Gittus told him, once they had been introduced by Sergeant Fletcher, might not have been admissible under s66(2) by reason of subs(3). However, the appellant did not take the point at the trial and, as a result, Craig Gittus' purpose in saying what he did to Detective Constable Ryan, if he did say it, was not properly investigated. There was no objection to the evidence and the excluding provisions of subs(3) were not raised by the appellant for consideration at the trial. In such circumstances, it is difficult to categorise what his Honour thought about the operation of s66(2) and his Honour's failure to consider s66(3), as erroneous. I will return later to the appellant's failure to raise the issue at the trial.

62 Another point that arose as an issue on the appeal, concerned the effect of the Evidence Act, s102, on s60. Section 102 contains the credibility rule in terms that: "Evidence that is relevant only to a witness's credibility is not admissible". A number of exceptions to that rule are contained in s106. They include evidence that tends to prove that a witness has made a prior inconsistent statement, if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence (s106(c)). It follows that the prohibition of s102 did not apply to the evidence of Detective Constable Ryan and Ms Jones about the representations made by Craig Gittus to them. He had given evidence denying the substance of what they said. As the evidence of his representations was admissible as relevant to his credit, the prohibition of hearsay evidence in s59 did not apply to it, because s60 excepts the application of the hearsay rule to evidence of representations admitted because they are relevant for a purpose other than proof of the facts intended to be asserted by the representations.

63 The first part of the ground of appeal involves a mixed question of fact and law. Da Costa v R [1968] HCA 51; (1968) 118 CLR 186. The leave of the Court to appeal upon the basis of it is required. Criminal Code, s401(1)(b)(ii). It attacks only the admission into evidence of the prior statements of Craig Gittus and Brendan Dransfield and not the granting of leave to counsel for the Crown to cross-examine Mr Gittus about the making of his prior statements. Nevertheless, counsel for the appellant submitted that leave to cross-examine should not have been granted and that if it had not, the evidence would not have been admissible. None of counsel's submissions were made to the learned trial judge, who was left to decide whether to grant leave to the Crown without opposition from the appellant. It may fairly be inferred that points made to the learned judge by Counsel for the Crown, in support of the application for leave to cross-examine, were conceded by counsel for the appellant.

64 The learned judge published detailed reasons for granting leave. He observed that the jury, if it heard and accepted the evidence of the making of the statements, would be entitled to use it as evidence not only in assessing the credibility of Mr Gittus, but also as evidence of the truth of what was said. Evidence Act, s60. His Honour thought, "in any event", that the evidence of Detective Constable Ryan as to what Mr Gittus had told him was admissible under the Act, s66(2). That conclusion cannot be faulted without an investigation, based on evidence, concerning Mr Gittus' likely purpose in making the statements, for the purposes of s66(3), a provision that was not invoked by the appellant at the trial.

65 In the course of considering whether to grant leave, the learned judge noted that he was obliged by s38(6) to take into account whether the Crown had given notice at the earliest opportunity of its intention to seek leave, and the matters on which, and the extent to which, Mr Gittus had been, or was likely to be, questioned by counsel for the appellant, and then took those matters into account. His Honour next considered each of the matters required by s192(2) to be taken into account whenever leave is sought under the Act. As to s192(2)(a), the learned judge determined that it was likely that giving leave would lengthen the hearing, but not unduly. As to s192(2)(b), his Honour determined that the granting of leave could not have been unfair to the appellant or Mr Gittus. As to s192(2)(d), the learned judge considered that in the case of a murder trial, leave under s38 ought to be given more readily than in a proceeding for a trivial offence. As to s192(2)(e), his Honour said that he proposed to direct the jury that they should bear in mind that the appellant was not present at the time of Mr Gittus' relevant conversations. Concerning s192(2)(c), the learned judge said:

"As to s192(2)(c), the evidence in relation to which leave was sought was very important. Detective Ryan's evidence, although first-hand hearsay, provides very strong support for the Crown case in my view. It is open to the Crown to argue that Gittus told Detective Ryan the truth, and later changed his story to protect the accused, who is his best friend. The effect of granting leave in relation to the conversations with Crown counsel is to enable the Crown to argue that the version of events said to have been given by Gittus to Crown counsel was inconsistent with the accused's contention that Brendan Dransfield may have inadvertently and fatally kicked the deceased when intending to kick the accused; and to argue that Gittus has changed his story to one which leaves open the possibility of that having occurred without him noticing. I decided that it was in the interests of justice for the jury to hear the evidence of Detective Ryan and Miss Jones, and for Gittus to be cross-examined as to the making of the alleged statements, his reasons for denying them, and his reasons for making later inconsistent statements, in order to assist the jury in determining whether they are satisfied beyond a reasonable doubt that the accused killed the deceased. In particular, I thought it would be inappropriate for Detective Ryan to be cross-examined as to the alleged statements admissible under s66(2) without the jury having the benefit of any cross-examination of Gittus as to what he had said to Detective Ryan."

66 It was pointed out by the learned judge that it had not been submitted that he should exclude any of the evidence under ss135 or 137, nor that he should limit the use of any evidence under s136. His Honour thought the evidence of Detective Constable Ryan and Ms Jones would have significant probative value and would not be unfairly prejudicial to the appellant in any way, nor would it be misleading or confusing, or result in any wasting of time.

67 On the hearing before this Court, the appellant sought for the first time to mount an argument that leave to cross-examine should not have been granted and that the evidence of the prior statements of Craig Gittus should not have been admitted. No explanation was given to the Court why the matters that have now been advanced were not raised at the trial. In the circumstances, leave to appeal should not be granted against the exercise of the discretion and the admission of the evidence. As a general rule, an accused person is bound by the way the trial is conducted by his or her counsel. R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 at 685; 392. The reasons for that rule were explained at length by Gleeson CJ in Crampton v R (2000) 206 CLR 161; 117 A Crim R 222 at 172 - 173; 226 - 227 and I will not repeat them. They were set out by Underwood J when a member of this Court in Marlow [2001] TASSC 146; (2001) 129 A Crim R 51 at 73. Criminal trials should be fair to both sides of the case. In the circumstances of what happened at the trial in this case, it would be manifestly unfair to the Crown to permit the appellant to have a new trial because he failed to take certain points at the trial for reasons that have not been explained. No miscarriage of justice has been demonstrated. It has not been established that if the matters that have been argued for the appellant before this Court had been raised with the learned judge, the decisions of his Honour are likely to have been different. I would refuse leave to appeal on the basis of the first part of the ground of appeal.

68 By the second part of the ground, the appellant seeks to argue that the learned judge erred in the directions he gave to the jury as to the use they could make of the hearsay evidence, namely the statements made by Craig Gittus to Detective Constable Ryan and Ms Jones respectively and the statements made by Brendan Dransfield to Detective Constable Ryan and Constable Eastwood respectively. In their closing addresses counsel dealt with the evidence at some length and the learned judge also referred to it in his summing up. After reminding the jury of Detective Constable Ryan's evidence of what Craig Gittus had stated to him and Mr Gittus' evidence denying that he made the statements, the learned judge pointed out to the jury that counsel for the appellant had been at a disadvantage when cross-examining Detective Constable Ryan and also Sergeant Fletcher, "because it's one thing to cross-examine about a conversation at which Mr Saunders [the appellant] was present, it's a more difficult thing to cross-examine about a conversation at which Mr Saunders wasn't present when Mr Saunders can't tell him at least first hand what went on".

69 In the course of the summing up, but at a time when the jury had been sworn out until the following morning, counsel for the Crown drew the attention of the learned judge to the Evidence Act, s165(1), par(a) of which refers (inter alia) to hearsay evidence. By subs(2) it is provided that if there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable; (b) inform the jury of matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. Counsel for the Crown suggested that the learned judge should provide the jury with a warning of the kind referred to in par(c), with regard to the hearsay evidence given by Detective Constable Ryan of what was said to him when the appellant was not present. Thereupon, the learned judge asked counsel for the appellant whether he had any submissions to the contrary, and the response was that he did not.

70 When the summing up resumed the following morning, the learned judge warned the jury that they should take care about using the evidence of what Brendan Dransfield and Craig Gittus said to others as tending to prove the truth of what they said. The learned judge pointed out that what they may have said was not on oath and that "a statement not on oath, all other things being equal, is less reliable than a statement that is on oath and when people give evidence on oath if they're making an effort to tell the truth then they will often be more accurate in what they say than in a hasty statement in the middle of the night". His Honour continued that "it's also significant that [counsel for the appellant] is handicapped when it comes to cross-examining anyone about a conversation at which his client wasn't present, so you should bear all those things in mind, but if you do accept that Mr Dransfield or Mr Gittus said any of the things attributed to them on the night then you can make such use of that as you think fit as tending to prove the truth of what was apparently said, and of course [counsel for the Crown] says that in relation to Mr Gittus that what he said to Detective Ryan is likely to be true and it's likely that he's moved further away from the truth as time has gone on. Well that's a contention that you ought to consider."

71 By this part of the ground of appeal, the appellant sought to rely on s165. His counsel submitted that the learned judge failed to give a warning that adequately complied with subs(2). However, his Honour was under no obligation to comply with the subsection in any way unless a party requested him to do so. The appellant made no request to the learned judge to say anything about the matter that was not said, and accordingly, there is no merit in the argument.

72 For the reasons I have given, I would refuse leave to appeal on ground 1 and the first part of ground 5, and I would dismiss the appeal on all other grounds, including the second part of ground 5.

73 I have had the advantage of reading the reasons for judgment of Crawford J and agree with both his reasons and conclusion that the appeal ought be dismissed.

74 The learned trial judge omitted to give a specific direction concerning the failure of the appellant to give evidence at trial. I do not accept that the failure vitiated the fair conduct of the trial or constituted a "miscarriage of justice".

75 The learned trial judge had given proper directions in relation to the requirement to prove the ingredients necessary to ground the verdict sought and had told the jury that:

"An accused person is entitled to remain completely silent throughout a criminal trial, he or she doesn't have to have a lawyer, ask questions, give evidence or call witnesses."

76 While the Evidence Act 2001, s20, permits a trial judge to comment on the failure to give evidence, the above general direction, without more, might have been insufficient to comply with the requirement that silence at trial cannot be used by a jury as indicative of acceptance of guilt or otherwise to the detriment of an accused. The need for a direction to ensure compliance was stated by Gaudron, Gummow, Kirby and Hayne JJ in their joint judgment in Azzopardi v R (2001) 205 CLR 50, in the following terms, at 70:

"In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence."

77 The giving of a direction here was not mandatory (Richards v R (2002) 128 A Crim R 204, see also R v Porter [2003] SASC 233; (2003) 138 A Crim R 581). But as the High Court pointed out, might have been desirable. However, failure does not constitute specific error and to succeed, the appellant must show that in the circumstances of this case, failure to direct amounted to a miscarriage of justice.

78 The evidence adduced by the prosecution included two videotaped records of interview conducted by police officers. The first interview extended over two hours and related to the course of events of, and surrounding, the homicide and included the recounting of statements of versions given to police by others present at the scene and an invitation, accepted by the appellant, to respond to those versions of events. The appellant made detailed answers to the questions asked by the officers. The second interview, conducted some six days later, canvassed the findings and opinions of the examining pathologist as to the injuries inflicted and the likely mechanism leading to death. The appellant responded to the questions by mentioning that he had not kicked the victim whilst he was lying on the ground, although he may have done so during the course of his struggle to regain his feet.

79 The questions of the mechanism whereby death was caused and the movements or physical acts of the appellant during the course of the struggle were central to the conduct of the trial. The appellant, through counsel, advanced a competing hypothesis on the basis of the evidence of the pathologist as to the likely cause of death, but did not assail the primary observations of the witness. The appellant's case, as put at trial, was that the version given during the interviews, accepted as being an accurate record, was a correct account of events and ought be preferred to any conflicting accounts given by witnesses present at the scene.

80 The answers given by the appellant during the course of the interviews was admissible at trial as an exception to the hearsay rule and as an admission. Here the answers comprised mixed statements containing matters both adverse and favourable to the appellant. Here it would have been unfair to have excised any portion which might have been regarded as "self-serving", as any editing would have created a wrong impression. On reception, the portions which were favourable to the appellant were as much evidence supportive of his case as any contrary inculpatory statements (Allied Interstate (Qld) Pty Ltd v Barnes [1968] HCA 76; (1968) 118 CLR 581; R v Curran and Torney [1983] VicRp 77; [1983] 2 VR 133; R v Cox [1986] 2 Qd R 55). It was open for the jury to accept the accuracy of the account provided during the interviews, or only portion thereof (Higgins v Dorries [1965] Qd R 389). That evidence, whilst unsworn, provided a comprehensive account of the version relied on at trial.

81 Counsel for the appellant made use of the evidence, both in cross-examination and his summation to the jury. He told the jury in relation to the account provided by the appellant in his interview:

"Now this is a young - well, mid-twenties fellow who works in the bush and he's been criticised for what he says a few hours after a mate's dead and that being picked over like a carcass by my learned friend twelve months later, pretty obvious you haven't got a Rhodes Scholar behind me, what do you expect, do you expect the blatant lies that you heard from Brendan Dransfield or do you expect a fellow doing his best and honestly giving you his version. Well you look at that video and make up your mind whether Andrew Saunders is trying to lie his way out of this or not, the contrast is stark. And I said a moment ago this just doesn't have the feel of a murder case about it. Let me read to you a comment that he made in that video interview when it was put to him that he, Saunders, didn't wish to cause any bodily harm to the deceased. Now this is the answer of this perhaps relatively poorly educated bush-man, but what does he say:-

'Definitely not, the thing that upsets me and I can't understand and it really annoys me I just cannot work out why we were fighting because we were talking in the pub, we had a bit of a joke and that, he'd been over home a couple of months previously, he sat on the verandah over there, he bought a carton of beer over, he bought that carton and we sat there drinking it with him'.

That's hardly the words a few hours later of someone who has murdered a friend. And I suggest you won't have too much difficulty in accepting this proposition that were it not for the tragedy of that event these fellows would've been back in that pub the next night slapping each other on the shoulder and laughing about what had happened."

In relation to the question of the onus of proof, he stated:

"... this case would pretty much rely on you remembering, during your deliberations tomorrow, the burden of proof that the Crown have the onus throughout the trial. Until you come out of that jury room tomorrow or the next day or whenever, the Crown have that burden of satisfying you Andrew Saunders is guilty, guilty of anything. He doesn't have to prove his innocence, he comes into this Court like you or I would innocent, and that's the way our system works and that's the way you would want it to work. That's a fairly high onus."

82 Counsel dealt with the contents of the record of interview in considerable detail and told the jury that that he would:

"... just tell you what I think is the relevant part of the record of interview because you'll have it and I'm urging you to look at it, play it. The transcript is cold and sterile. You look at that interview, it goes a couple of hours, you look and see whether I'm right when I'm putting to you as opposed to what my learned friend does, that the accused makes a pretty good fist of it. I don't suggest that many, if any of you, have ever undergone a police interview. I suspect there's very few who have undergone that fairly tortuous process. But let me say you might think that the accused in that process of over two hours by a skilled detective does fairly well. You see there are trick questions through out. 'How hard did you kick him in the head?' Was one. 'I didn't think I did kick him in the head', was the answer and goes on. Now, you make what you will of that interview but persistently throughout the accused maintains that he didn't stand up and kick to the head the deceased.

The clear indication in that interview is Andrew Saunders is saying 'I didn't kick him in the head when I was standing up at all', and what he says is 'Well look if I did kick him in the head it must have been while I was rolling around on the ground'. He doesn't assert that as a firm assertion does he? He says 'Well if he was kicked in the head and I did it it must have been when I was rolling around on the ground'. Now if you come to the view that's how it happened the man is not guilty of anything he is being restrained on the ground and he is kicking around to get off, now Dr Kelsall says it's pretty unlikely, but he doesn't say impossible, pretty unlikely in that type of scuffle the offending blow would be rained. But that's all Saunders says in his interview throughout, he persistently denies standing up and kicking to the head. But he is not right, he is not correct, and he is not dogmatic all through on his use of no import, so the contrast is stark, Brendan right on everything, Saunders thoughtful I suggest, and concerned, upset, here his mate of a few hours ago dead, he is in the Police custody being asked about whether he murdered him."

He requested the jury to watch the demeanour of the appellant as he was interviewed, saying that:

"He sat there over a tortuous two hours careful probing by skilled Policemen and I think I'd suggest to you came out looking okay."

He contrasted the demeanour of the appellant with "that smug evidence you got from Brendan" and told the jury that he was:

"... perfectly comfortable with the evidence that you get from my client's interview. You would be less than impressed I suggest if it came over in any other fashion. If his assertions had been stronger, more definite, you'd have had some cause for alarm, you'd have said this fellow is putting it on. They were thoughtful, considered, and in the circumstances very appropriate. ... You have stark contrast, don't you ..."

and concluded with a general summation of the case.

83 Counsel for the respondent challenged the accuracy of the version of events put forward during the interview and relied on what he regarded as contradictions or internal inconsistencies as strengthening the prosecution case. Both parties relied on and made use of the evidence as part of their substantive cases. At no time did anyone suggest other than that it constituted evidence of and by the appellant. Such is not uncommon in trials conducted within this jurisdiction. At no time did the prosecution suggest that the appellant had failed to other than advance to the jury his case.

84 The learned trial judge dealt with the evidence comprised in the recorded interview in like manner. His Honour stated:

"Now the other - another piece of evidence that is very significant in relation to this question of who inflicted the fatal kick is the police video, or the two police videos. I won't go into detail reminding you of the contents of the videos because you've got them, you'll have them in the jury room, you've got transcripts and you've seen them fairly recently, but certainly in the video Mr Saunders admits punching Mr Dransfield twice. He - as Mr Coates said, he doesn't make any outright denial of kicking Mr Dransfield but says that all that he remembers is kicking his legs to get him off his legs at some point, and that's at pages 47 and 48 of the transcript. However he does make at least one remark suggesting some consciousness of guilt for - but in somewhat vague terms. At the bottom of page 68 of your transcript you'll see the words:

The - another observation that I would make about the video interviews is that if you watch the whole of both videos you won't see any explanation as to how Mr Dransfield ended up dead, there's no explanation as to how it came to be that he ended up dead."

85 He then proceeded to deal with the contents of the interview in detail and correctly identified those passages which set out a version of events advanced by the defence. The learned trial judge then summarised the defence case by reference to the material comprised in the record of interview and then reminded the jury, correctly, as to the requirement from the prosecution to prove its case beyond reasonable doubt.

86 Azzopardi concerned two trials in which the appellants had not given evidence, but whose denials of the allegations had been placed before the jury in the evidence, adduced by the prosecution, of their answers given in an interview with police. The judgment of the majority considered the general principles stated in the earlier decisions of Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 and RPS v R [2000] HCA 3; (2000) 199 CLR 620, both of which dealt with the failure of an accused to advance either to investigators or at trial an explanation or account of events which were within his or her peculiar knowledge. In RPS, the directions given by the trial judge were found, in the words of the majority at 57 - 58, to contain:

"Five particular elements of this part of the charge ('the impugned directions') should be noted.

First, the trial judge told the jury that the appellant's election not to contradict the evidence given by the complainant's mother of what was said to be a partial admission, could be taken into account by the jury in 'judging the value of, the weight of' the prosecution's evidence about it (par (1)).

Secondly, he told the jury that in the absence of denial or contradiction of the evidence given of the partial admission they could 'more readily' discount any doubts about that evidence and 'more readily' accept the evidence (par (2)).

Thirdly, he told the jury that if it was reasonable, in the circumstances, to expect some denial or contradiction of the prosecution evidence, they were entitled to conclude that the appellant's evidence would not have assisted him in the trial and that the absence of denial or contradiction was a circumstance which could lead them more readily to accept the evidence given by the witnesses for the prosecution (pars (3) and (4)).

Fourthly, he said that the appellant's election not to give evidence could not fill any gaps in the prosecution case but could enable them to feel more confident in relying on the evidence tendered by the prosecution (par (6)).

Finally, he said that the absence of evidence from the accused meant that the version of events put in cross-examination of the witnesses for the prosecution was not supported by evidence (par (7))."

87 The consequence of the trial in Weissensteiner was that of the failure of the accused to give any account at all "to add to, or explain, or to vary, or contradict the evidence put ... by the prosecution" (see Weissensteiner at 224) and the inferences which might be made by a jury in such a circumstance. That is not the case here where the evidence of the appellant provided in his answers to police not only provided an account of events, but was used by the appellant as his case at trial.

88 In Azzopardi the trial judge had given a general direction as to "failure to give evidence" in unexceptionable terms. That direction was accompanied by another direction, impugned on appeal, which stated:

"However, members of the jury, when assessing the value of the evidence presented by the Crown, you are entitled to take into account the fact that the accused did not deny or contradict evidence about matters which were within his personal knowledge and of which he could have given direct evidence from his personal knowledge. This is because, members of the jury, you may think that it is logic and common-sense that, where only two persons are involved in some particular thing - the complainant and/or a witness and the accused - so that there are only two persons able to give evidence about the particular thing, and where the complainant's evidence or the witness's evidence is left undenied or uncontradicted by the accused, any doubt which may have been cast upon that witness's evidence may be more readily discounted and that witness's evidence may be more readily accepted as the truth."

89 In relation to that direction, the majority said, at pars72 - 73:

"The impugned passage of the judge's charge gave the jury instructions which cannot be reconciled with the earlier instructions given to them. The jury were told, correctly, that the appellant bore no burden, onus or obligation to prove anything. Yet, at the same time, by the impugned passage, the jury were invited to conclude, from the fact that the appellant did not give evidence, that 'any doubt which may have been cast upon [the prosecution evidence] may be more readily discounted and [that evidence] may be more readily accepted as the truth'. That would be so if, and only if, the circumstances were such as to require response by the appellant. Yet the judge had correctly told the jury that the law required no response from him.

This was not a direction of the kind contemplated by what was said in either of the joint majority judgments in Weissensteiner. In the present matter, the trial judge told the jury that they were entitled to take into account 'the fact that the accused did not deny or contradict evidence about matters which were within his personal knowledge'. As explained earlier, if this direction was based on what was said in Weissensteiner, it misstates the effect of that decision. All that could be said in this case is that the accused did not give evidence contradicting evidence which had been led. This was not a case where the accused did not take the opportunity to provide some additional factual material for consideration by the jury which would explain or contradict the case sought to be made by the prosecution. This was not a case in which the jury might properly use the absence of evidence of additional, exculpatory, material in considering inferences sought by the prosecution. The impugned passage invited the jury to engage in a false process of reasoning, at odds with the direction which had been given to them in the earlier part of the charge. It follows that even without regard to the operation of s 20 of the Evidence Act there was a misdirection."

90 The effect of that direction was concluded by the majority to suggest that "... the accused did not give evidence because he was, or believed he was, guilty of the offence charged", and that accordingly "It cannot be said ... that the misdirection did not deprive the appellant of a chance of acquittal".

91 In the concurrent decision of Davis v R (2001) 205 CLR 50, the impugned direction included the statement by the trial judge:

"Now the only effect that his failure to give evidence may have on you is this. His failure to give evidence here may affect the value or weight that you give to the evidence of some or all of the witnesses who have testified in the trial if you think the accused was in a position to himself give evidence about the matter. His failure cannot be treated as an admission. His failure to give evidence. But it may enable you to give, to help you to evaluate the weight of other evidence in the case, that he has not given evidence."

92 The majority concluded that no Weissensteiner direction ought to have been given since:

"If the complainant were accepted as a credible witness, the accused could not have given evidence of any additional fact that might have explained or contradicted her account." [Original emphasis.]

93 The "misdirection" was determined not "such as to deprive the applicant of a real chance of acquittal". The elements common to the decisions of Weissensteiner, RPS and Azzopardi are, the issue of reasoning and the drawing of inferences on the basis of "silence" or "failure". No such issue arises here. The jury was not invited to make use of any failure by the appellant in the giving of an account of providing information to the jury in its reasoning process. The position here is similar to that considered by the Court of Criminal Appeal in Richards (supra). As Levine J observed at 32:

"The silence of an accused in a criminal trial can be viewed objectively as a matter of some significance. The right to that silence is a fundamental one. Just as not every misdirection about the right to silence will be such a fundamental irregularity that no proper trial should be regarded as having taken place, it does not necessarily follow that every occasion where there is an absence of any direction as to that right to silence will amount to such a fundamental irregularity; Azzopardi cannot be read as authority for such a proposition." [Original emphasis.]

94 The answers given by the appellant were evidence of assertions of fact contained in them (R v Horton (1998) 45 NSWLR 426; R v Nguyen [2002] NSWCCA 342 at par43). Those answers were treated by both prosecution and defence as constituting the material advanced in support of the appellant's plea. It is not unusual in this jurisdiction for counsel in summation to remind the jury that the accused did not go into the witness box, but that there was no need to do so since the account was provided in the answers given during interview. It is not uncommon for the trial judge to repeat that statement. That, in effect, is what occurred here. Counsel for the appellant at trial did not seek any further directions from the trial judge not, if I may presume, because of oversight, but because all acted on the basis that the defence case had been fully advanced (Nguyen (supra)). The non-direction did not deprive the appellant of a chance of acquittal and, in my view, ground 3 is not sustained.

95 In my opinion, the appeal against conviction ought be dismissed.

96 I agree with Crawford J's reasons for dismissing this appeal.