Ground 2
55 Prejudicial evidence relating to the appellant's character was wrongly admitted. Mr Hanley objected to the admission of material in Masson's record of interview that raised the appellant's character "things he allegedly told Masson about being in gaol, armed robberies, association with bikie gangs". In his later notes of argument the appellant urged that to suggest the jury would put what the co-accused said in his statement out of their mind when deciding their verdict for the appellant was impossible. The appellant also complained about the evidence of Tristan Robson. He asserted that this evidence was misleading and unduly influenced by the police. It displayed a high degree of impressionability. He claimed that it should have been rejected and criticised his counsel for not objecting to it.
56 Howie J dealt with the admissibility of such evidence in his judgment of 27 April 2001 refusing the appellant's application for a separate trial. In that judgment, Howie J said:
"5 The material which has now been brought to my attention is statements made by Masson in recorded interviews he made with the police, which, it is said, raises the bad character of Symss and which Symss would not be in a position to rebut. The submission is that the prejudice arising from allegations made by Masson as to the bad character of the accused Symss is so great that directions that I might give to the jury, for example that material in Masson's records of interview could not be used in the case against Symss, would be of no avail.
6 This is the quintessential cut-throat defence case in which each of the accused has given versions of the incident giving rise to the charge to police which implicate the co-offender and exculpate himself. In the course of his statements to the police, Masson asserted that it was Symss who had killed the deceased and that this was conduct by Symss which was unexpected by Masson and unintended by him.
7 One of the difficulties for Masson in persuading the police that he was in no way responsible for the death of the deceased was perhaps seen by him as being that he remained with Symss from the time that Symss allegedly killed the deceased until both of them were arrested some days later in Broken Hill. The police questioned Masson as to why it was that he did not seek to escape from Symss, why he continued to accompany Symss, notwithstanding that he knew that he had murdered the deceased and especially why he did not take the opportunity, when both Symss and he were in the company of a police officer, to reveal the conduct of Symss in killing the deceased.
8 In order to explain this conduct, Masson told the police on a number of occasions that Symss had said to him that he had committed armed robbery offences and that in other ways he was associated with people of a violent disposition who would not hesitate in punishing Masson if he revealed Symss' involvement in the murder or if Masson sought to leave Symss' company.
9 It is this material which Mr Hanley says is so prejudicial to his client that a separate trial ought to be granted.
10 There will be no evidence placed before the jury to suggest that anything Mr Masson said in regard to Mr Symss' character or his associates is true. In fact the Crown will be alleging that most of what Mr Masson said in his statements to the police is false. In particular, of course, the Crown will be alleging that Masson either killed the deceased or was involved in her death in a preconceived plan with Symss.
11 Further, all that Masson is asserting is that the accused told him various things, including that he had convictions for armed robbery. There is no assertion from Masson that he knew independently that anything that the accused said to him was true. There will be no evidence in the Crown case, apart from Masson's interviews with police, that either Symss did make statements about his criminal record or associates to Masson or that what Symss said in those statements was true.
12 The jury would be directed that the only relevance of that material is that Masson says that this is what he was told by Symss, whether it be true or not, and that it was the belief that these matters might possibly be true which caused him to remain with Symss and to accompany him to Broken Hill, notwithstanding that he knew that Symss had murdered the deceased.
13 In the particular circumstances of this case it seems to me that a jury would not be so prejudiced by this material that they would use it to convict Symss of the murder of the deceased or to find as a fact that he was involved in her death regardless of directions that they might [have received]."
57 No evidence was led by the Crown about the truth of Masson's allegations. In summing up to the jury, Howie J said that they must bear in mind throughout their deliberations "what I have said repeatedly through this trial, that you cannot take into account in any way, when considering the Crown case against one accused, what the other said to the police, either in his recorded interview or otherwise." His Honour continued:
"There is also evidence that Mr Symss said that he had been in gaol before, that he had connections with bikie gangs and that he committed some robbery offences. Most of that material is contained in the interview between the police and Mr Masson, although of course, there is some evidence from Mr Robson about those sort of statements being made by Mr Symss. In fact, there is no evidence that Mr Symss had been in gaol before, or that he had any sort of criminal record, or that he did have any connection with bikie gangs. The relevance of that material to Mr Masson's case is that this is what Symss said to him, both before they went to the house during the course of the robbery and thereafter and that, Mr Masson says, gave rise to a concern for his personal safety and explains, so Mr Molomby [Counsel for the co-accused] put to you, why he would remain in Symss' company after the robbery and before their arrest and why he never made any real effort to contact police about Mr Symss killing the deceased, even when he was in the company of a police officer and even when he might have had use of a telephone.
…
But there is no suggestion other than what comes from Mr Symss himself, if you accept he said these things either to Mr Masson or to Mr Robson, that he had any sort of criminal record, or that he planned to do any armed robberies, or anything of that sort.
This evidence is concerned only with a person's beliefs, that is a person's state of mind, and not whether that material on which the state of mind or belief is based is in fact true. As I said to you, I think during the course of the trial, you know from your own experience that people say things that are not true or that they don't intend to have taken literally. You know that people can form views based on misinformation. They can form views about matters that they believe to be true, which are not true, either because somebody has told them something which is false or they have misheard it or misunderstood it.
So all of that material that is presented in this case concerning Mr Symss' past is relevant as it might affect Mr Masson's state of mind and belief as part of this explanation that he gives for not having done anything either to assist Ms Marino, or to report Mr Symss' activity.
You will also take into account, I suppose, evidence which might suggest that Mr Symss was a big noter, at least that is how Mr Robson viewed him. That he was prone to some at least extravagant statements in efforts, it appears, to impress others, and especially, it seems, when he has had a few drinks behind him. You might think that Mr Robson wasn't much impressed with Mr Symss.
As I have already said to you, there is actually little or no evidence to indicate that Mr Symss was a violent person, or that he had unsavoury connections, or that in any way he was a person of bad character before this particular day.
The important matter, and this you must pay heed to, is that you cannot use that material in any way to prejudice Mr Symss by thinking that Mr Symss, because he is of bad character in some way based upon this material, therefore might have been involved in the robbery of Ms Marino, or that he was more likely to be involved in her killing. Now that would not follow logically, it does not follow legally, and that is not why that evidence was placed before you."
58 Tristan Robson gave evidence that the appellant spoke about an uncle who ran a bikie gang during a conversation between himself, the appellant, Masson and another man at the Black Lion Inn in Broken Hill on 27 April 1999. Again the Crown led no evidence of the truth of the statement. The evidence is of the same nature. It was a threat or warning in the mind of the co-accused Masson. The Crown submitted that no impermissible prejudice was occasioned to the appellant as a result of Mr Robson's evidence. Alternatively, it was submitted that rule 4 of the Criminal Appeal Rules, which provides that no direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground of appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing, applied. Counsel for the appellant did not object to the evidence. The appellant was bound by the conduct of his counsel; R v Birks (1990) 19 NSWLR 677 at 683 and 685. Counsel for the appellant cross-examined Mr Robson on his evidence that the appellant was big noting himself by talking about bikie gangs and by claiming that he had been taught martial arts by Jackie Chan. Clearly counsel's forensic purpose was to undermine the weight that the jury might otherwise give to the appellant's critical alleged confession to Robson that "we knocked this cunt and took their car". The appellant used the term "knocked" to mean "they're dead".
59 Evidence was admitted that the appellant planned or sought to steal from other properties on the day of the victim's death. In his interview of 28 July 1999 he mentioned attempting to break into a football club. On 19 October 1999 he referred to a plan, which he said Masson suggested, to steal from Masson's parents. This evidence was relevant to Masson and the appellant's shortage of money at the time they went to the victim's house. His Honour summed up to the jury on the appropriate use they could make of this evidence:
"Again those matters are put before you for a specific purpose and have no other relevance. The Crown says in its case against Mr Symss that they indicate that before he and Masson went to Ms Marino's home, Mr Symss had been involved in attempts to obtain money illegally. The Crown asks you to accept that this is a relevant consideration in determining the reason why Mr Symss went to Ms Marino's home, or what happened at her home for whatever reason he went there initially. The Crown says that these attempts to obtain money are part of a series of connected events or a course of conduct by Mr Symss that ended up eventually with the death of Ms Marino. They are not before you as evidence of Mr Symss general bad character, or to suggest that he was in the practice of being a thief. They are simply there as part of the history the Crown asks you to take into account of the lead up to what happened at Ms Marino's home.
As Mr Hanley said to you, what they might suggest to you is that Mr Symss was in fact being frank with the police, and that he was telling them the truth about what had happened on this particular day. Otherwise there was no reason for him to volunteer this information. Mr Hanley says also that at least you can accept from that material that he was not looking to try and rob somebody in the street, or to go to a house where a person was present. Quite the opposite. He was at that point trying to obtain money without attacking anybody.
60 In my opinion, the summing up adequately protected the appellant from any misuse of the evidence about the appellant's character. In Gilbert v The Queen (2000) 201 CLR 414 at 425-6, McHugh J spoke of the assumption fundamental to the criminal jury trial that jurors are true to their oath, hearken to the evidence and obey the trial judge's directions. His Honour said that if that assumption was rejected or disregarded
"no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. … Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."
61 At 426 McHugh J quoted what Pidgeon J said in Spratt (1982) 8 A Crim R 361 at 372: "an appellate court must proceed on the basis that the jury have understood and applied the law in reaching a true verdict."
62 I am satisfied that the ground raised under this second head of appeal fails.