Walford v R

Court of Criminal Appeal (NSW)|2016-11-22|Before: Hoeben CJ, Bellew J, Hidden AJ

Judgment

HOEBEN CJ at CL: I agree with Bellew J and the order which he proposes.
BELLEW J: On 8 October 2013 Dayna Irene Walford ("the applicant") was arraigned jointly with Trudy Anne Sheldon ("the co-offender") and pleaded not guilty to an indictment containing the following counts: 1. Between 3 October 2009 and 6 October 2009 at Heckenberg in the State of NSW being in the company of each other, Steven Mackie and a person unknown did rob Colin Hayne of property, namely a sum of money and jewellery items, the property of Colin Hayne and at the time of the robbery did wound Colin Hayne: Crimes Act 1900 (NSW) s. 98; and 2. Between 3 October 2009 and 6 October 2009 at Heckenberg in the State of NSW did detain Colin Hayne without his consent with the intention of obtaining an advantage, namely, the facilitation of obtaining property from Colin Hayne and in circumstances of aggravation in that at the time of the detention, actual bodily harm was occasioned to Colin Hayne and in circumstances of special aggravation in that at the time of the detention they were in the company of each other, Steven Mackie and a person unknown: Crimes Act 1900 (NSW) s. 86(3).
Following a trial before his Honour Judge Bozic SC and a jury both the applicant and her co-accused were found guilty. On 17 February 2014 the applicant was sentenced to a non-parole period of 3 years imprisonment with an additional term of 3 years and 6 months.
The applicant now seeks an extension of time in which to appeal against her conviction, on the grounds set out below. Two affidavits of the applicant's current solicitor, Jason Hanna, sworn on 12 August and 18 November 2016 were read in support of the application for an extension.
The discretionary power of this Court to extend the time limit is a legislative recognition that the interests of justice may, in a particular case, favour permitting an appeal, or application for leave to appeal, to be heard, notwithstanding that it was not brought within time. The principle of finality does not provide a discrete reason for refusing to exercise the power. Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33].

AN OVERVIEW OF THE CROWN CASE

Colin Hayne ("the victim") is a disabled man who, at the time of the alleged offending, resided at 22 North Liverpool Road, Heckenberg. He had been involved in a serious motor vehicle accident in 2000 which left him with a number of injuries, including permanent brain damage.
It was the Crown case at trial that on 4 October 2009 the victim was attacked by four people in his home. In respect of the first count in the indictment, the Crown alleged that the assailants hit the victim on the head with beer bottles, and robbed him of a quantity of jewellery and cash. In respect of the second count, the Crown alleged that the assailants "hog-tied" the victim in the lounge room of his premises before leaving him there. The victim's father found him in the premises the following day.
Three people were arrested in relation to incident: 1. the applicant; 2. the co-offender; and 3. Steven Mackie ("Mackie").
Mackie pleaded guilty to two charges of robbery in company causing wounding, and one charge of especially aggravated kidnapping arising out of the incident. He was called by the Crown to give evidence at the trial of the applicant and the co-offender. His evidence implicated the co-offender but not the applicant. When called to give evidence, Mackie was cross-examined by the Crown Prosecutor pursuant to a grant of leave under s. 38 of the Evidence Act 1995 (NSW) ('the Act').
It was the applicant's case at trial that she was not a participant in the offending, and indeed was not at the victim's premises at the time. The principal issue for the jury was the victim's identification of the applicant as one of the assailants.

The evidence of the victim's father

The victim's father, Harry Hayne, gave evidence (commencing at T62 L15) that he visited the victim's home on the morning of 5 October 2009 (i.e. the day following the incident) for the purposes of wishing him a happy birthday. He said (T62 L22-23) that prior to attending the victim's premises he had tried to telephone him but he had not responded. He said that when he arrived at the premises they were unlocked, which he regarded as unusual (T62 L36-40). He said that when he walked into the premises he noticed that the victim "was tied up and the phone was pulled off the wall" (T62 L24-25).
Commencing at T63 L6 the applicant's father was asked to expand upon what he saw when he walked in: Q: What did you see when you walked in? A: Well Colin was, Colin was well there was bottles - broken bottles and whatever all - scattered all over the place and Colin was, Colin was tied up his leg - his hands were - his legs and his hands were tied up and they were that tight they were cutting into him. Q: Did you see what they were tied up with his legs and his hands? A: Well it looked like a, looked like a cable from the phone was tied around his hands or his legs one of the other and a belt was tied around legs or his hands one or the other but they were joined up together there was no way in the world he could move and he was just laying there and, I said, I said to him "Well no wonder you didn't the answer the phone you poor bugger". Q: And when you say his hands and his legs were tied up together - - A: Yeah Q: - - can you describe how that was? A: Well his hands were tied, and his hands were tied and his legs were tied and they were tied together. Q: So his hands were tied to his feet as well that's the case - - A: That's correct, that's correct. Q: Like being hog-tied. A: Yeah.
The victim's father explained (commencing at T63 L32) that he obtained a knife to cut the ties on the victim. He said that he noticed at that time that the victim was bleeding from the head and described him as being in a "terrible condition". He said (T64 L1) that the victim was laying on a bloodstained quilt. He described (T64 L15-18) the state of the premises as a "mess' compared to their usual presentation. He referred, in particular, to the presence of broken bottles, ashes and "everything all over the place" (T64 L20-23).
Mr Hayne was then asked the following (commencing at T64 L25): Q: Did you have a further conversation with Colin then once he smoked a cigarette and he'd been released? A: He sat on the lounge and he smoked his cigarette and I called the police and the ambulance and the ambulance came and took him to hospital. Q: Did you have a conversation which you asked him what happened that morning? A: Well I did, I asked him well what happened and he said that he was sitting on the lounge with two women having a drink and two blokes burst through the door, and started to bash him. Q: Do you recall anything else about what he said about what happened? A: Pardon. Q: Do you recall anything else about what he said about what had happened? A: No.
At that stage of Mr Hayne's evidence, an application was made that he be permitted to refresh his memory from a statement that he had made to the police. That application was refused.
In cross-examination Mr Hayne agreed (at T73 L16-18) that the victim was "childlike in his behaviour" before giving the following further evidence (commencing at T73 L20): Q: And I think you told the police at one stage, and I don't know whether you - that he was like a ten year old child? A: Well at times he is. At times he's not. Q: But he's open to suggestions isn't he? A: Pardon? Q: He's very suggestible? A: Yeah true Q: And I mean your daughter Karen has said that people take advantage of him and come to his house and drink his beer? A: Yeah true. Yeah. Q: And you, when you spoke to him on the day, after you released him, you asked him about what had happened didn't you? A: Yeah. Q: He didn't give you any names? A: No.

The triple 0 call

Evidence of a call made by the victim's father to triple 0 on the morning of 5 October was before the jury. Having informed the emergency operator of the prevailing circumstances, the following exchanges took place in the course of that call between the operator, the victim and the victim's father: Operator: Right. Ok. Now you said that that happened to Colin. Is this at number 22? Victims' father: That's correct. Operator: Alright. Does he know who it was that did this to him? Victim's father: I don't know. Do you know who it was Col? Do you know who it was that robbed you? Victim: Yeah. Victim's father: Yeah, he knows it was. Operator: Who was it? Victim's father: Oh, I don't know. Operator: Can you, can you put Colin on the phone please? Victim: … Victim's father: Who? Operator: Put Colin on the phone, please? Victim: … Victim's father: A was a girl with … doesn't know who it was. Operator: Can you, can you put Colin on the phone? Victim's father: Can I put him on the phone? Operator: Yes Victim's father: Yeah, righto. Here. Victim: How you goin', mate? Operator: Colin? Victim's father: It's a girl. Operator: Colin? Victim: … Operator: Colin, were you injured? Victim: Yeah, no, injured … Operator: Pardon? Victim: Injured badly. Operator: Okay. Do you need an ambulance? Victim: No.
The exchange between the operator and the victim then turned to the question of whether or not an ambulance was required, before the following was said: Operator: Okay. Um, how did you meet up with this girl? Did she just come into your house or what happened? Victim: She just come in here and then … and that was how I met her. Operator: Um, now, how old would you say this woman was? Victim: What? Operator: How old is this girl? Victim: She's old. Operator: Yeah, how old mate? Victim: 35. Operator: 35. What nationality? Victim: Australian. Operator: And did I hear your Dad say that she has red hair? Victim: Yeah. Operator: What was she wearing last night? Victim: Jeans and a T-shirt.

The evidence of the victim's sister

The victim's sister, Karen Hayne, gave evidence that she had acted as the victim's carer since 2009. She described him as having suffered "50 percent brain damage" as a result of a motor vehicle accident in 2000 (T46 L34-39). Ms Hayne gave evidence (commencing at T47 L46) that on the morning of 4 October 2009 (i.e. the morning of the incident) she had attended the victim's premises, bathed and dressed him, cleaned his house, prepared a meal, and purchased some beer for him, before leaving at about lunch time. That was the last occasion on which she saw the victim on that day.
At about 10am the following day, 5 October 2009, Ms Hayne went to the victim's premises in the company of two of her grandchildren to wish the victim a happy birthday. When asked what she observed upon her arrival she said (T48 L32): When I arrived there and pulled up my Dad walked out the front door and walked towards me and had this blank look on his face, he looked like he'd been crying and he just said "I've just untied your brother".
Ms Hayne gave evidence (commencing at T48 L37) that she walked inside and saw the victim sitting on the lounge. She said that when the victim saw her he started crying. She saw blood dripping down the side of his head and observed that his head was "quite swollen" and that he had a black eye (T48 L37-45). She said (T49 L1-4) that his right arm was "swollen about three times the normal size" and that "his legs were really red and swollen". She said (T49 L18-21) that when she walked over to cuddle the victim she observed "two like bigger cuts on the top of his head". Ms Hayne was then asked (commencing at T49 L23): Q: Did you speak with Colin at that stage? A: Yeah I was just cuddling him and he was just crying and saying that "They hit me over the head with beer bottles, they bashed me, they robbed me." And he said they had balaclavas on and then he kept going on saying this lady's name Gayna or Dayna or - I said "How would you know who they were if they were if they had balaclavas on?" He said "I seen her hair, her red coloured hair. Q: And did you have any other conversation with him at that time? A: Not about that no. Q: Are you able to recall whether you spoke with your brother beyond that conversation or had any further conversation with him at that time? A: What? Was it conversation with him like in the hospital after it happened or - - Q: At his house when you walked in? A: No he just kept going on about Dayna and Gayna.
In the absence of any objection, Ms Hayne was given leave to refresh her recollection from a statement that she had made to the police. She then gave the following evidence (commencing at T50 L19): Q: And by reference to paragraph 10 did you - are you assisted as to whether you had a further conversation with Colin at that time? A: Yeah he was saying he was drinking beer with girls yeah and two boys come in and started bashing him yeah. Q: Okay by reference to your statement did he say to you at that time "I was drinking beer with girls, two boys came in and started bashing me while the two girls were ransacking the house". That you said to him "why did you let them in?" A: Hmm. Q: And he said "they just walked in". And then you said "They're not people you've been abusing in the street are they? And that Colin said "No"? A: Mm that's right yep. Q: In relation to - did you make any observations about the condition of the house that day? A: Oh well the house was a wreck yeah, there was glass everywhere, there was beer everywhere, it was trashed yeah. I started picking up the broken pieces of glass which was all over his chair and all over the table and the doona, there was a doona that was on the floor next to where Colin was laying. I actually picked that up and dragged it outside and threw it out near the verandah. And then I realised I shouldn't have been pulling things and touching things and putting things in the bin so I stopped. Q: Were there any other unusual items or implements that you saw in the house on that morning? A: The phone was ripped out the wall. Q: You referred - - A: There was tape that - duct tape there was heaps of that all over the floor obviously where Dad had got the knife and cut it off his legs and arms, that was all over the floor. Yeah there was broken bottles everywhere like I said in the lounge room, the kitchen, up the hallway. Q: Did you see any blood in the house that morning? A: Well where Colin had been laying on the lounge room floor the doona was covered in blood and there was all a big round where his head had been laying there all night there was a big pool of blood and there was blood all over the lounge room floor. Spots of blood on the lounge room floor.
When cross-examined by counsel for the applicant at trial, Ms Hayne agreed that she had made no reference in her statement to the police to the victim having named, or otherwise identified, his assailants (commencing at T53 L22): Q: Ms Hayne you made this statement for (sic) years and two days ago? A: Yes. Q: The one that you were shown? A: Yes. Q: And in that statement you didn't mention Colin naming anybody? A: In the statement? Q: In the statement made four years, two days ago? A: Yeah. Q: You didn't mention the name, mention that he said Dayna or Gayna? A: Hmm. Q: Do you say that he said, he said Dayna or Gayna or is that your memory that it was Dayna or Gayna? A: No he said. Q: He said? A: Yeah Q: You see you made a statement to the police? A: Hm. Q: I'm not being critical of you but if he'd said a name - - A: Hmm. Q: - - four years ago when your brother was injured and you wanted the culprits to be found didn't you? A: Of course. Q: Well wouldn't it have been logical to tell in your statement that there was a woman maybe Gayna or Dayna involved? A: When he told me at the time I ignored it because I thought well how could he see somebody when they have balaclavas on - - Q: And that's - - A: - - is what I saw. Q: And that's what you remember him telling you that they were all wearing balaclavas and when you told him "how do you know it was this particular woman" - - A: Hmm. Q: - - he said "I knew it because of her hair colour"? A: Mm. Q: So he was telling you that he was making identification on the basis of a person with a full face mask on and some hair sticking out? A: Mm hmm. Q: And that was your understanding - - HIS HONOUR Q: You'll just have to say yes or no because it is being recorded and one needs - - A: Sorry yes. ADAMS Q: Is that the situation as I put it to you? A: Yes. Q: Colin had an earlier car accident in 1985 you knew about that didn't you? A: Yes. Q: And he some brain damage in that? A: He just had swelling of the brain yep. Q: And then in this 2000 you were told by doctors presumably that he'd lost - - that he had damaged to 50 percent of his brain? A: Yes Q: And a lot of it is frontal - - A: Frontal yes. Q: When Colin said to you - sorry when you said to Colin "who bashed you" Colin said "I don't know but I know one girl"? A: Mm. Q: You said to him "you're not just saying that are you Colin" Do you remember that? A: Mm - hmm - yeah. Q: Is that because Colin wasn't terribly reliable - I am not suggesting that he's lying to you or anything but he was just not terribly reliable about details and things was he? A: Yeah that's right.
Ms Hayne was then cross-examined about the possibility that the victim had not mentioned the name "Dayna" or "Gayna" until some later time (commencing at T55 L43): Q: Did Colin sometimes tell you things that you weren't sure that they were accurate? A: Yes. Q: You were worried because people use to … (not transcribable) .. themselves and get into his house and drink his beer and you were worried that they might take advantage of him? A: Yes. Q: Can I suggest to you that he may be mistaken, that he said Gaynor or Dayna until after he was at the hospital? A: Did he say it after he was in hospital? Q: Yes, for the first time I am putting to you? A; Oh the first time. Q: The first time that he said to you Dayna or Gaynor? A: It's possible. Q: It's possible that it was at the hospital? A: Yes. Q: And it's possible that you weren't the first person to visit him at the hospital? A: Yes.

The evidence of nearby residents

Residents of premises near to those of the victim were called by the Crown to give evidence.
Abraham Hamidan gave evidence (commencing at T86 L23) that on 4 October 2009 he saw "two boys and two girls" in the vicinity of the victim's premises. He said that he was not able to see their faces but remembered that "one of them had blonde hair one of them had red hair and the two guys were wearing hats" (at T87 L2-3). He said that those persons with blonde and red hair respectively were female. He said he thought that he had seen these persons between about 4:00 and 4:30pm that afternoon (at T87 L30-32). When cross-examined he agreed that in his statement he had nominated the time at which he had seen them as being between 11:00am and 1:00pm (T88 L20-32).
Ross Cassone, the victim's next door neighbour, said (commencing at T78 L18) that he had been waiting outside his premises at about 3.45 pm on 4 October 2009 and noticed that the shutters on the victims' premises were down, that there were no lights on and that there was no noise coming from the premises, all of which he found unusual. His wife, Natalie Cassone, gave evidence (commencing at T82 L46) of similar observations.

The evidence of investigating police

Detective Senior Constable Kneipp attended the victim's premises at about 11:30am on the morning of 5 October 2009. At the time of his arrival, there were other police already present (T92 L18-22). He described what he saw upon arrival (commencing at T92 L41): "I saw a doona which was blood stained. Blue material cord, electrical cord, some silver gaffer tape, also some black tape and electrical cord from a mobile phone, a red towel and a black leather strap. That was as I recall it was located on the landing up near the front door before you walk inside the house.
Officer Kneipp then went to the hospital and spoke with the victim. His evidence of that conversation (commencing at T93 L42) was as follows: Q: And with the Court's leave and if there is no objection could you tell us what that information relayed to you by Colin Hayne was when you spoke to him on the Monday afternoon at the hospital? A: Okay as indicated in my notebook here on page 9 I've recorded here as 1:00om on the afternoon of 4 October 09. "Friends inside house" and quote "robbed me". "Two persons of interest both female". Q: I'll just stop you there. Person of interest, you've used an acronym to describe that? A: That's my acronym yes. Q: Yes and that's your word? A: Yes that is. Q: Is it rather than something Mr - - A: Exactly. Q: - - Colin Hayne said to you? A: Yep. Q: Continue with your notes? A: "So you don't know the names?" "Only know for a couple of months. One called Jenna". He then went to explain what this person looked like "had long red hair, Australian in appearance, 45 years of age and lives next door to a mate's place, Dennis Jones, the house next door to Jones on same side of the street in Minto". Q: Further reference? A: Yep on page 10 "female number two was never seen before although he recalled her having long black hair, Australian in decent, small frame and possibly 28 years of age. It then went on further to two males. It was also noted, also came into the premises and never seen them before. One male wore a balaclava, black clothing, spoke with Australian accent. The second male was clean cut, shaven, short curly blonde hair, Australian decent 28 to 30 years of age. Dark blue Adidas jacket and dark blue tracksuit pants". Q: Is there a further description relayed to you by Mr Colin Hayne as to what occurred at the premises on the night before? A: Yes, yes. He said the females were at the house an hour or so before the males came to the premises. He went on to say that Jenna had been to the house about four times, visited only and drank alcohol. Q: Continue with your further notes of what was said to you by Mr Colin Hayne? A: Yeah they drank a few hours yesterday but they weren't drunk. Q: Was there a reference to the type of drinks that were consume? A: Yes the drinks were Reschs and I think its (sic) Pilsener - that's how to pronounce it. He said further on, that's on page 11 "Male wearing a balaclava" said 'give us dope, give us money". He was tied up after being rowdy as he puts it. The man with the balaclava assaults him with empty bottle of Reschs and punched and kicked him. Q: With the empty bottle of Reschs? A: Yes. Q: Punched and kicked him? A: He also indicated that they took a gold ring from him which is a lion's head, it had a diamond in the mouth with an 8 point diamond ruby for eyes and about $750 from his wallet. On page 12 he stated that the people left at 4am in the morning and all walked off together.
When cross-examined by counsel for the applicant at trial, Officer Kneipp confirmed that the name given to him by the victim as being the name of one of his assailants was "Jenna" (T10 - T17).
As noted in [29] above, the victim identified "Jenna" to Officer Kneipp partly by reference to the fact that "Jenna" had previously lived next door to his (i.e. the victim's) friend, Dennis Jones, at Minto. As set out in [34] below, the victim confirmed this information when later interviewed by the police (at Q.98 - 105) stating (inter alia) that Mr Jones had lived at Murphy Way, Minto. Det. Senior Constable Adams (who was the officer in charge of the investigation) gave evidence (commencing at T226 L49) that police enquiries confirmed that Mr Jones was previously connected with the premises at 3 Murphy Way, Minto, and the applicant was previously connected with premises at 5 Murphy Way, Minto.

The evidence of the victim

Officer Adams was one of the police who attended the victim's premises on the morning of 5 October 2009. The victim was hospitalised for some days following the incident. After the victim's release from hospital, and specifically between 20 October 2009 and 22 October 2009, officer Adams made a number of attempts to have the victim provide a statement. On 22 October 2009 the victim participated in an electronically recorded interview with police. On account of his vulnerability, the recording of that interview constituted the victim's evidence in chief at the trial.
Commencing at Q. 12 the victim was asked what had occurred on 5 October 2009: Q12 Yeah. Can you tell me what happened on Sunday? A Sunday and the day Dayna and Bon come round here Bon Bon and she knock on the door and asked could she come in. I said, "No." I said, "No" to them because they had the computer on his back. The little one had the computer on his back they … were goin' to rob me. I knew that. Q13 You, you said, was it Bon Bon? A Bon. Q14 Bon. A Yeah, blonde hair. Q15 Blonde hair. A Yeah, she's beautiful. Q16 And do you know her name? A Yeah, I don't know, 17 she is. Q17 She is 17. A Yeah. Q18 And how do you know that? A I know her mother, I know the mother, the redhead one. Q19 So who came here with the blonde-hair girl? A No one. The Lebanese bloke. Q20 Yeah, but you said that beforehand - A Lebanese bloke was with her. Q21 Yeah. And who, who else was here at the time? A No one. Q22 Yeah. A I was here on my own. Q23 Yeah. So the blonde-haired girl did she come here by herself? A No, she had a Lebanese with her. Q24 Yeah. And have you seen them before? A No. Q25 Yeah. And with the blonde girl, you, do you know her name? A No. Q26 No. What's her mum's name. A Dayna or somethin' like that. Q27 What was that? A Dayna. Q28 Dayna. Yeah. And was she here? A No, next day she come. Q29 Yeah. A Had come with Sarah's place. Q30 O.K. So the day that we are talking about - A Yeah. Q30 - is the day before - A Yeah. Q30 - you went to hospital. A The day before. Q31 Yeah. And what time did the blonde girl come here? A 1 o'clock. Ah, no, it was 2 o'clock, 11 o'clock. Q32 And - - - A They were … right through the wall they did, and they're goin' to Q33 Yeah. And so the blonde girl came with - A The Lebanese bloke. Q34 Yeah. And it was just one bloke. A Yeah. Q35 Can you describe him? A Little, it was little and, and, and no teeth in his head. Q36 And, and what did they do when they came here, the blonde girl and the Lebanese bloke? A Yeah, asked could they come in. I went, "Fuck off." "Fuck off' I said to them. Q37 Yeap. A Yeap. Q38 And did they hang around or did they leave? A They left. Q39 Yeah. A Then they throwed a fuckin' spear through the wall Q40 Yeah. And so they have, they have gone. A And then the mum had come back. Q41 And what time did the mother come back? A Next day. Q42 The next day. A Yeah. Q43 Do you remember what day that was? A The 5th. Q44 The 5th. A Yeah. Q45 And that was the Monday. A Yeah. Q46 Yeah. And what time did she come? A Would have been now. Oh, about 12.00, 1 o'clock it was. Q47 You were found on, your dad found you - A On the floor. Q48 Yeah. On the Monday and that was the 5th. A Yeah. Q49 Are you referring to the 4th when the mother came? A Yeah. Q50 Yeah. A Yeah. Q51 So the mother, what was her name? A Domen, Domen, somethin' like that. Q52 Yeah. And what did she do when she came here? A Just grabbed a beer and sat down and introduced me to her girlfriend, and she had black hair, her girlfriend. Q53 Yeah. And she, so she came in. Did you invite her in? A Yeah. Q54 Yep. And she had a beer. A Yeah. Q55 Do you remember what sort of beer she was drinking? A Reschs Pilsner. Q56 And, and what was she doing here when she was drinking a beer? A Sitting down and drink, drinking beside me she was … well, I mean there was nothin' goin' on. Q57 Yeah. And, and then what happened? A Then there was a knock at the door. I got the door and there was a bloke standin' there with a knife fuckin' pointed at him. There was a knife pointed at him. Q58 Was it pointed at you? A No, at him. Oh, no, or was it me? It was at me. Q59 Yeah. A And just went and fuckin' opened the door. I said, "Yeah, no worries." Opened the door silly cunt. Q60 And then what happened? A He just said, "All right. This is a hold-up." Q61 Yeah. A Yeah. Q62 And then, then what happened? A I said, "There's nothin' here, mate, nothin'. Now you, you can take it, mate." Q63 And then what happened? A Then another bloke come up and, and had, had a mask on he did. And he caused the damage, mate, on the … yeah. Q64 And then, and then what happened? A Then they kicked the fuck out of me, mate. Q65 Yeah. Were you sitting down or were you standing at the door or - A Sitting up, sitting down there I was. Q66 Yep. A Right there, where mum is now. Q67 Yeah. And who kicked you? A The bloke with the mask on. Q68 Yeah. And what did the others do? A Nothin', just run, runnin' rampant they were. Q69 Yeah. And when you say they were running rampant - - - A And they were upstairs. Q69 - what they were doing? A Upstairs, downstairs, anywhere. Q70 Yeah. Do you know what they were doing? A Just, like, terrorisn' the joint. Q71 Yeah. And then what happened? A (NO AUDIBLE REPLY) Q72 Then what happened? They are, they are kicking you, all right. A Yeah. Q73 And then what happened. A They had a bottle smashed on my head, everything. Q74 They did what? A Smashed bottles on my head. Q75 Yeah. And then what happened? A Oh, then I was just tryin' to get out of the tie I was in. Q76 Yeah. And what, what part of the, what part did they tie you up? A As soon as they walked in Q77 Yeah. So were they kicking you and then tied you up, or did they tie you up and then kicked? A Tied me up and then kicked me. Q78 Yeah. And why were they kicking you? A Don't know why. Q79 Yeah. Were you trying to fight them? A Yeah. Q80 Yeah. And what did they tie you up with? A A plastic … oh … oh, well, of cord or somewhere, of somethin'. Q81 Yeah. Did they bring that with them or did they get a cord from here? A They were, got it from here. Q82 And then, and then what happened? A They just kicked the fuck out of me. Q83 Yeah. And did they take anything? A No. Q84 Did they take any jewellery? A Yeah, they did, my gold watch. Oh, my gold ring and my watch and necklace. Q85 Yeah. And once they have taken that, that ring off your hand - - - A Yeah. Q85 - and the necklace - A Yeah. Q85 - - - what did they do? A Nothin'. Q86 Yeah. How long were they - A Kept bashin' the, kept bashin me. Q87 Yeah. And how long were they here for? A An hour, two. Q88 Yeah. And how do you know how long they were here for? A I was watchin' the clock. Q89 Yeah. And what time did they start? A 1 o'clock. Q90 Yeah. And what time did they leave? A 2.30. Q91 And did they leave you tied up? A Yeah… Q92 Yeah. And how did they leave the house? A Just left the door open and they walked out the front door. Q93 And how long were you tied up for you were … A Oh … ah, overnight
Commencing at Q. 98, the victim was asked about "Dayna": Q98 Eight days. Now, in regards to you said the blonde's mum was Dayna, how long have you known her for? A I've known her for years used to be Denis next-door neighbour. Q99 Pardon? A She used to be an old mate of my next-door neighbour. Q100 Yeah. Next-door neighbour here? A No, at, at Minto. Q101 Do you remember the address at Minto? A No, Murphy Way. Q102 What was it? A Murphy Way. Q103 Murphy Way. A Yeah, number I don't know. Q104 That's all right. And how long ago did you live there? A Ten years ago. Q105 And was she a neighbour there? A Yeah. Q106 Yeah. And how would you describe your friendship with her? A No, no friendship, mate, no. Q107 But before the incident where you were tied up - A Oh, she was cool. Q107 - were you good friends or, or not really good friends. A No, not really good friends. Q108 How often would you see her? A Once a month. Q109 And did you always see her here? A (NO AUDIBLE REPLY) Q110 And do you know her last name? A No. Q111 Do you know her daughter's name? A No … she got. Q112 Yeah. Does she, does she live around here now? A Anderson Avenue. Q113 What was that? A Anderson Avenue. Q114 Anderson Avenue. Do you know what number? A Ashcroft, no. Q115 No. Is it within walking distance of here? A Yeah. Q116 Yeah. And can you describe her? A She got long, red hair. Q117 Long, red hair. A Yeah. Q118 How tall would she be? A About up to there on me. Q119 Yeah. Do you know how tall you are? A I'm five ten. Q120 Yeah. Is she shorter than you? A Yeah, shorter than me. Q121 Yeah. And is she skinny or big or - A Skinny. Q122 Yeah. A Real skinny. Q123 And how old would you say she would be? A She'd be 44. Q124 44. And can you tell me what she actually did you to you? A No, kicked me in the ribs, mate she's a cunt. Q125 Yeah. Did, did she assist tying you up or did, was that someone else? A No, that was the bloke with the mask. Q126 Yeah. And did he need any assistance to tie you up or did he do it himself? A Done it himself. Q127 Yeah. Were you fighting him? A No. Q128 Yeah. And why, why didn't you fight him back? A I did, but that was at the start. Q129 Yeah. A Then I thought fuck it. Q130 And what did the, the red-headed girl do while she was here? A She was runnin' around the house, fuckin' run, runnin' amok she was. Q131 Yeah. A Lookin' for money. Q132 Looking for money. A Yeah. Q133 Yeah. And how was she doing that? A She was lookin' through everything she was. Q134 So she was looking through everything. Yeah. Do you think that she would have got anything? A Seven hundred friggin' dollars she got. Q135 And how do you know that? A I give it to her. Q136 You gave to her. And why did you give it to her? A 'Cause I knew that's what they wanted, my money. Q137 Yeah. And did you give it to her before you were punched and kicked? A No, no, after. Q138 Were you tied up when you gave her the money? A Yeah. Q139 And how did you give her the money? A Just give it to her? Q140 Did you tell her where your wallet was or did you - A Yeah. Q140 - hand her your wallet? A I handed my wallet to her. Q141 Yeah. And what else was in your wallet? A Medicare card, keycard, wallet, every, usual stuff that you have in your wallet. Q142 Yeah. And what did the blonde girl do when she was here? A Nothin', she just went when I told her to fuck off, she did. Q143 Yeah. And was that at the beginning? A Yeah, that was the beginning. The next day the mother come down and the, that's a different story. Q144 Yeah. But when the mother came, we are just talking about when, I think it's Dayna you said, when she was here, she was having a beer and she was here for about an hour - A Yeah. Q144 - and then the other people came. A Yeah. Q145 Now, was Dayna here by herself at the beginning? A No, she was with a black-headed girlfriend. Q146 Yeah. Do you know her name? A No. Q147 Have you seen her before? A No, she's - Q148 Can you describe her? A Oh, thin, thin. Q149 Yeah. How old would you say she would be? A 18,19. Q150 18 or 19. And what sort of appearance is she? A Pretty. Q151 Yeah. Is she Australian? Is she - A Yeah. Q151 - Chinese or - A No, Australian. Q152 Yeah. And how tall would you say she would be? A Taller, shorter than me. Q153 Yeah. And what did she do when she was here? A Ran, ran amok, she did, fuckin' ran amok. Tipped fuckin' chocolate out of my chocolate … Q154 Yeah. And then, so Dayna and the black-haired girl - A Yeah. Q154 - were here drinking - A Yeah. Q154 - and they were here for about an hour. A Yeah.
In cross-examination the victim was asked the following (commencing at T25 L21): Q: Right but while you were in hospital your family came to visit you? A: Yeah, yep. Q: And they talked about what had happened to you didn't they? A: Yeah. Q: And they told you - did they tell you that they got some information that it was Dayna Walward (as said)? A: Yeah. Q: They told you that didn't they? A: Yeah. Q: Right - - A: I knew it was her. Q: You see when you're father came and untied you? A: Yeah he did didn't he? Q: Yeah? A: They'd…(not transcribable) Q: He made a triple 0 call? A: Yeah that's right he didn't he? Q: Did he - - A: Yeah Q: - - Do you remember that? A: Yeah. Q: And you spoke on the phone to the - - A: Yeah. Q: - - Operator too? A: Yeah, yep. Q: And you didn't tell anybody's name at that stage? A: No - yeah. Q: And then later you went - the police spoke to you? A: Yeah. Q: When they came they spoke to you at your home do you remember? A: Yep. Q: And you told them that the woman was Jenna? A: What? Q: You said the woman's name was Jenna? A: Dayna that's her name - Dayna. Q: But you told the police it was Jenna? A: Oh bullshit. Q: You see on 22 October when that recording was made you used the word Dayna didn't you? A: Yeah, that's cause she's the woman was coming around - - Q: That was after your family had told you that they believed that Dayna Walward (as said) was involved? A: Yeah. That's right. She was involved wasn't she? Q: Well what I'm going to suggest to you is that you only used that name after you were told it by other people? A: Oh bullshit. Q: You see you knew Dayna Walford didn't you, you knew Dayna Walford before this happened? A: Yeah. Q: You'd met her and she came over to your place a few times? A: Yeah. Q. And she did messages for you? A: Yeah. Q: Bought you beer and cigarettes - - A: Yeah. Q: - - for which you paid her? A: Yep. Q: That's correct isn't it? A: Yeah.
The cross-examination then continued (commencing at T27 L31): Q: You see I suggest to you that Dayna had not been to your house for some time before 4 October 2009? A: Bullshit. Q: Right and I suggest to you that she wasn't there on 4 October 2009 what do you say to that? A: Otherwise she liar, she's a liar. No worries about that. She's a liar.

The victim's identification of the applicant

On 19 August 2010 the victim participated in a process of photo identification. In the course of that process he identified the person in photograph 5 as one of those responsible for assaulting him. The applicant was the person depicted in that photograph (T6 L1-35).

Expert evidence of the victim's state of health

The Crown read a report dated 21 May 2001 of Rebecca Bowen, Neuropsychologist to the jury, which sets out the injuries sustained by the victim in the accident in 2000, and the sequelae arising from those injuries (commencing at T260): Brian Injury Rehabilitation Unit, Liverpool Health Service. Neuropsychological report in the name of Colin Hayne. Date of birth, fifth of the tenth 1964. History: Mr Colin Hayne is a 36-year-old man who on 13 December 2000 collided with a truck whilst riding his motorcycle. An initial CT scan revealed a left frontal intracerebral hematoma with evidence of diffuse axonal injury. He also sustained a compound fracture of his tibia and fibula, a degloving injury to his right foot and fractured ribs. PTA lasted 128 days. At the time of testing he had significant right-sided hemiparesis. His file notes reveal that Mr Hayne previously sustained a closed head injury in another motorcycle accident in December 1985. He lost consciousness for five minutes after the accident. A CT scan taken soon after revealed a small contusion in the right parietal lobe. Mr Hayne presented to the Liverpool Brain Injury Community Service in 1996 regarding the 1985 accident. At that time he reported experiencing problems with concentration and attention, memory, impulse control and anger management, as well as severe headaches. In response to specific questioning he stated that he has had trouble learning new information since the previous accident and that his memory has gotten worse again since the most recent accident. Mr Hayne reported that he has been unable to work since the accident in 1985 but prior to that he worked as a labourer. He completed school in year 10 and stated that he was an average student. Mr Hayne's file notes reveal that he has a history of binge drinking and that until five years of age he experienced epileptic fits. At the time of the most recent accident Mr Hayne was living with his defacto partner and their young son. He mentioned that he is looking forward to returning home to live with them. Mr Hayne's progress notes reveal that he has been having anger outbursts on the ward. Mr Hayne reported that his temper is about the same as before the accident. The assessment Mr Hayne was seen over a number of half hour sessions due to his difficulty in concentrating for longer periods of time. He was reluctant to participate and refused to attend two sessions. During the assessment sessions he did not spontaneously make conversation but responded appropriately to questions. He was generally cooperative during the first 20 to 25 minutes of testing but would become agitated at the end of sessions asking, "What is the point of doing this?" or swearing. Mr Hayne was oriented to person and place but reported that it was 5 February, on tests of routine mental operations that he made a large number of errors and had difficulty following instructions. On formal assessment of his intellectual functioning, his verbal and non-verbal abilities were found, on average, to be at a borderline level. His auditory attention span was impaired. His inability to understand more complex instructions meant that his working memory span could not be formally assessed. He was, however, able to mentally manipulate simple mathematical information but required instructions to be repeated. His fund of general knowledge was also found to be impaired and his verbal reasoning skills were at a borderline level. Within the non-verbal domain, his use of logical deduction to find the missing part of a picture was at a low-average level. However, on tasks requiring visualised spatial construction or sequencing, he performed in the borderline to impaired range. He demonstrated psychomotor slowing on time tasks. Mr Haynes (sic) free recall of verbal information was at an impaired level, whether tested immediately or after a half hour delay and his learning was not aided by repetition. He did not utilise available strategies to aid his recall and he also made a large number of intrusive errors during free recall. When tested using a recognition format he correctly recognised much of the previously presented material but incorrectly endorsed novel material as having been previously presented. His free recall of visual information, simple and complex designs, was also impaired. Again, he was able to recognise previously presented material but also incorrectly endorsed novel material. He also had difficulty recognising whether he had previously seen faces. Mr Hayne demonstrated extreme difficulty on test that tap executive functions of the frontal lobes. His verbal generativity was reduced and he made a number of rule-breaking errors. He was unable to extract the general principles involved on a very simple characterisation task. His copy of a complex figure demonstrated extremely poor planning and organisational skills. Summary and Recommendations Mr Hayne is a 36-year-old man who was involved in a motorcycle accident on 13 December 2000. He sustained multiple injuries as a result and a CT scan revealed a left frontal intracerebral hematoma with evidence of diffuse axonal injury. He was in PTA for 128 days, indicative of the extremely severe head injury. He experienced a previous head injury in 1985 which results in a right parietal contusion. The findings of the current assessment are consistent with the accumulative effect of his two head injuries and binge drinking. Using his educational and occupational history as indicated, it is estimated that Mr Hayne's premorbid intellectual functioning would be within the low-average range. The current assessment revealed that Mr Hayne now has difficulties in a number of areas. He demonstrated a reduced immediate attention span and slowed processing speed. He had difficulty on verbal reasoning tasks and also on visual spatial constructional sequencing tasks. Marked deficits were also revealed in new learning and memory for both verbal and visual material. Deficits in executive functions were also observed, with Mr Hayne demonstrating a concrete thinking style, reduced verbal generativity, impulsivity, poor planning and organisational skills. Mr Hayne has retained a couple of strengths. He is able to mentally compute simple arithmetic problems and also showed some logical deduction skills when tested using visual information. In practical terms, Mr Hayne would be expected to benefit from the use of simple strategies to aid his memory, for example, using a diary or check list. With regard to his aggressive behaviour, Mr Hayne's reduced reasoning abilities, combined with his impulsivity, make it difficult for him to control his behaviour. However, he may benefit from the use of strict behaviour rule management techniques by those with whom he regularly interacts.
The applicant was arrested by police on 11 January 2012 and was interviewed on two separate occasions on that day. In the first of those interviews (at Q21 and following) the applicant agreed that she knew the victim and that she had "met him through a bloke from the pub". She was then asked: Q51: O.K. In regards to the offence that I'm investigating what can you tell me about it? A: Absolutely nothing only what youse (sic) have told me.
The applicant was subsequently informed by police (at Q129-130) that the victim had identified her in a photograph. She replied: "Of course he'd pick me he knows me".
Subsequently the applicant was asked the following questions (commencing at Q132): Q132: And he's, he's identified you as being the person that was involved in the offence against him - - - A: But well how was that? Q132: - - in which he was assaulted - - - A: Why is that so, I, I'd go there but I wouldn't go without you guys. You know what I mean … Q133: He's, he's identified you as being one of a number of people - - - A: Cause he knows me and I couldn't him see him why, why I would identify for that I would, I would not know. Q134: And he, he alleges that whilst you were in him premises having drinks with him you and three others have assaulted him, tied him up and stolen a number of items from his house. A: No way, as I'd said I'd go there with youse. Q135: Those items being a necklace and a ring - - - A: Cause why would I go there after he said what had to happen. He's not the full quid you know what I mean? Q136: Yeah he does have a brain injury which is quite clear. A: He had that before anything happened to that's what I'm saying. Q137: That's right. A: Well I wouldn't know why he'd say I'd done something like that to him he, he knew that, it would have to be me to do it for him to say it was me. Q138: What was that? A: I didn't do it, I would have to be me and I'm telling you now I did not do it. Q139: Yeah, and - - - A: I was not involved, I wouldn't know anyone that would do something like that, or get them to do that either.
Subsequently commencing Q145 the applicant was asked: Q145: - - - I'll just detail his injuries to you. He's sustained a number of injuries being black eyes, grazes to his forehead, lacerations ranging in length from fifteen centimetres to two centimetres and a fracture of the nose as well as bruising and swelling to his wrists and feet where he was bound. A: Yeah, as I said - - - Q146: Can you tell me anything about those? A: No, I couldn't. And could you really picture me doing anything like that to a bloke with anyone beside me really? Q147: The allegation is that, that he alleges that you were with three other people. A: No way.

GROUND 1 - The trial judge erred in not complying with s. 165(2)(c) of the Evidence Act 1995 (NSW).

The directions given by the trial judge

Prior to the commencement of the summing up, the trial judge raised with counsel the directions to be given in the summing up to the jury. Counsel then appearing for the applicant (commencing at T2 L36 on 17 October 2013) sought a warning under s. 165 of the Act in respect of the victim's evidence "both as to ID and for the mental illness". There followed a lengthy discussion between the trial Judge and counsel which was directed (as the trial judge put it) towards identifying "the content of the warning".
At T3 L25 and following the trial judge enquired of counsel as to what particular matters were said to give rise to the unreliability of the victim's evidence so as to justify such a warning. Having identified the fact that the victim suffered from "a significant brain injury", counsel for the applicant said (commencing at T3 L36 and following): "Well your Honour that he nominated Jenna and that he's given a photo ID and he recognises somebody he knows. There's 18 days between the crime and the photo ID and he admits that he discussed it with people who had been given an anonymous tip that it was Dayna and therefor (sic) it could be.
Subsequently (commencing at T4 L39) counsel made reference to the evidence given by the applicant's father and sister to the effect that the applicant was "highly suggestible". Counsel also pointed to the evidence given by the victim's sister of the victim having given what counsel described as "a different version of the whole thing" to his sister. It was submitted that all of these considerations supported the giving of a warning under s. 165.
Having commenced the summing up, the trial judge adjourned briefly and in the absence of the jury, returned to the issue of the content of the warning to be given to the jury under s. 165 of the Act. In doing so he said (commencing at SU7): I was proposing to give a direction that its potential unreliability arises because of the brain injury obviously and then to give a direction about the potential unreliability of recognition/identification evidence, but is it recognition evidence or is it identification evidence or is it both and, if so, because it seems to contain elements of both.
Counsel for the applicant generally agreed with the proposition that the victim's evidence contained "elements of both". After further discussion, the following exchange took place (commencing at SU9): CROWN PROSECUTOR Could I just summarise it, your Honour, in a way hopefully that assists? Firstly, because of his brain injury and the - - - HIS HONOUR Well, they'll certainly be given a direction about that. CROWN PROSECUTOR Secondly, because he expresses himself with a high degree of certainty when he does the photo board and there's a warning about that and, thirdly, there's the risk that Dayna has been - that he's selected Dayna or come up with Dayna because of information he's obtained from elsewhere that doesn't originate from him and that's supplanted his original memory or perception. That would seem to be the three aspects broadly. HIS HONOUR It's probably right, the suggestibility.
Counsel for the applicant took no issue with these observations.
Upon resumption, his Honour directed the jury in the following terms (commencing at SU11): Can I just remind you of what I said at the time and that is that in cases such as this it is entirely normal practice for the evidence of someone such as Mr Hayne to be given in that way and it is normal practice for someone such as Mr Hayne to have a support person with him and because it is normal practice you should not draw any adverse inference against either of the accused because Mr Hayne gave his evidence in that way and nor should you treat the evidence as having any greater weight because it was given in that way or any lesser weight because it was given in that way. In relation to the evidence itself that was given by Mr Hayne, it will be necessary for you to examine his evidence very carefully and you will need to do that, ladies and gentlemen, because there are a number of matters which may cause his evidence to be unreliable. In giving you these directions about the potential unreliability of Mr Hayne's evidence, please do not think that I am giving you any indication of what I personally think about his reliability or his unreliability and as I told you before the break that is not my task. My task is not to make a decision or an assessment about any particular witnesses' reliability. My task in giving you these directions is to ensure that you consider everything that is relevant to a witnesses' reliability and the reason I am going to draw to your attention some matters which may affect his reliability is that judges have an experience with witnesses that members of the community may not necessarily have and judges recognise certain categories of evidence in which unreliability may arise. Now there are two aspects of Mr Hayne's evidence that I should draw to your attention. The first matter which may affect his reliability is that he suffered a serious brain injury in a motor bike accident and in that regard I want to remind you of the reports of a neuropsychologist, Rebecca Bowen, that was read out to you by the crown prosecutor. At page 262 of the transcript a summary is given by Ms Bowen of Mr Hayne's condition and the impact of that condition upon his functioning. At page 262 the report of Ms Bowen states that Mr Hayne is a 36 year old man who was involved in a motor cycle accident in December 2000. He suffered multiple injuries as a result. CT scan revealed a left frontal intracerebral hematoma with evidence of diffuse axonal injury. He was in PTA for 128 days, indicative of the extremely severe head injury. He experienced a pervious head injury in 1985 which results in a right parietal contusion. The findings of the current assessment are consistent with the accumulative effect of his two head injuries and binge drinking. Using his educational and occupational history as indicated, it is estimated that Mr Hayne's premorbid intellectual functioning would be within the low average range. Ms Bowen then went on to say this: "The current assessment reveals that Mr Hayne now has difficulties in a number of areas. He demonstrated a reduced immediate attention span and slow processing speed. He had difficulty on verbal reasoning tasks and also on visual spatial constructional sequencing tasks. Marked deficits were also revealed in new learning and memory for both verbal and visual material. Deficits in executive functions were also observed with Mr Hayne demonstrating a concrete thinking style, reduced verbal generativity, impulsivity, poor planning and organisational skills. Mr Hayne has retained a couple of strengths. He is able to mentally compute simple arithmetic problems and also showed some logical deduction skills when tested using visual information. In practical terms Mr Hayne would be expected to benefit from the use of simple strategies to aid his memory. For example, using a diary or check list." So ladies and gentlemen in considering Mr Hayne's evidence and the reliability of his evidence you will need to give consideration to the fact that he has suffered a severe head injury, the nature of that, and whether that impacts upon the reliability of the evidence he gave before you.
His Honour then directed the jury in respect of what he referred to as "the second aspect" of the victim's evidence to which the jury were required to give special consideration (commencing at SU13): There is a second aspect of Mr Hayne's evidence which you need to give careful consideration to in assessing his reliability. Mr Hayne gave what is sometimes referred to as "recognition evidence", that is, that he recognised the person or one of the people who was at the house on 4 October. That is, that he recognised Ms Walford as being someone he had seen before. Now, it will be necessary to pay very careful attention to the descriptions given by Mr Hayne on the six occasions that he has given observations or descriptions and you will recall the six occasions are; 1) the triple-0 phone call, 2) the description given to his sister, 3) the description given to Detective Neath, 4) what he said in his interview with police, 5) the photo-board identification, and 6) the descriptions that he gave in his evidence before you. Now the evidence that he has given must be scrutinised by you very carefully before you can accept it as being reliable. The directions that I am giving you about this aspect of his evidence concern his reliability. They do not concern his honesty. The point is that a witness maybe honest but that does not mean that they will necessarily be reliable. Because a witness gives evidence that they have recognised somebody that evidence can be impressive, it can be persuasive, it can sound direct and compelling. Even though you think Mr Hayne is being honest you must nevertheless, in these circumstances, approach the reliability of that evidence with a degree of caution and ladies and gentlemen, the reason for that is that errors have occurred in the past in cases where people have purported to recognise someone. Mistakes have been made by people known to be friends or even relatives of the person doing the identifying and so it is necessary to bear that in mind, namely that in cases of recognition, there remains the possibility of error. Because it is necessary to scrutinize the evidence with care you will need to examine precisely what it is, in each of those six occasions that I have identified, that Mr Hayne is actually saying.
His Honour then directed the jury specifically in relation to the victim's identification of the applicant from a photograph (commencing at SU14): A particular aspect that you will have to exercise caution with is his photo identification. Again, that is an aspect of evidence which can seem direct and very persuasive. What it is necessary to look at in assessing the reliability of Mr Hayne's evidence is the chronology of description given over the occasions that I have identified and it has been suggested to you by the defence, by Mr Adams who appears for Ms Walford, that in fact what you have is a witness in Mr Hayne who is identifying someone with red hair. At some point he has purported to identify Ms Walford, whether that has been an impression that has been given to him or reinforced by conversations with his family, is a matter that has been raised. It is a matter that you need to take into account in assessing the reliability of his identification of the photo-board. Now, in pointing out to you the need for special caution in coming to your decision as to whether you accept the evidence of Mr Hayne as being reliable insofar as it identifies Ms Walford, and I have indicated to you the reasons why special caution is required and you need to take those matters into account in assessing his reliability, but I do repeat that I am not expressing any personal views whatsoever about Mr Hayne's evidence and I am certainly not trying to give you any hint one way or the other as to how you should approach his evidence. My task is to give you legal directions about the matters that are relevant to an assessment of his reliability.
Against a background of these directions, the trial judge then summarised the respective submissions of the parties as to the issue of the victim's reliability (commencing at SU15): The submissions that have been made to you about his reliability are very different. The Crown says to you when you look at those six occasions and you take that evidence together, what you have is a clear identification at the end of the day of Ms Walford, an identification of someone who he recognised. The defence case is that when you look at that evidence you really do not find anything more than an identification of someone with red hair, an identification which is reinforced as it goes along and in particular there are inconsistencies and you will have to have regard to those inconsistencies. You will have to have regard to the fact that he has referred on occasions to different names to different people and Mr Adams says to you that at the end of the day, when you look at those particular matters and you have regard to what is said and the inconsistencies, he is a person who is unreliable and who you could not rely on to satisfy yourself beyond reasonable doubt.
In the context of giving the jury directions specifically in relation to the applicant's case, the trial judge again reminded the jury about the necessity to approach the evidence of the victim with caution (commencing at SU19): Now can I turn, ladies and gentlemen, to give you some directions that relate to the case concerning Ms Walford. In her case the evidence against her depends almost entirely on the evidence of Mr Hayne. I have given you some directions about his evidence but it is important, ladies and gentlemen, to emphasize that in this case the Crown case against Ms Walford depends almost exclusively on his evidence and in such a case it is important for a trial judge to emphasize to a jury again the need to exercise caution. That is what I am going to tell you again. You have to exercise caution when you come to consider the two counts in relation to Ms Walford because the Crown case depends on you accepting the reliability of Mr Hayne. Now, that being the case, unless you are satisfied beyond reasonable doubt that Mr Hayne is not only an honest witness but an accurate witness, a reliable witness, in the account that he has given you concerning Ms Walford and the identity of Ms Walford as being one of the individuals at the house, you cannot find her guilty. Before you can convict Ms Walford you must examine the evidence that I have identified for you very carefully and you need to do that, ladies and gentlemen, because you need to satisfy yourselves that you can safely act upon his evidence to the high standard that is required in a criminal trial. Again can I stress in giving you the direction about the need for caution this is not a direction I am giving you because of a personal view that I have taken about Mr Hayne. I told you at the outset I am not expressing any personal views about the evidence. It would be wrong of me to do so. That is not my task. But the fact is that in a criminal trial where the Crown case relies so substantially upon the evidence of one witness to prove the case against Ms Walford, a jury must be told that they should approach the evidence with particular caution because of the onus and the standard of proof that is on the Crown in a criminal trial. Now, just to emphasize the point, ladies and gentlemen, I am certainly not suggesting to you that you are not entitled to convict Ms Walford upon the evidence of Mr Hayne. You are clearly entitled to do so. But you are only entitled to do so after you have carefully examined his evidence and you are satisfied that it is reliable beyond reasonable doubt. In considering his evidence and whether it does satisfy you of Ms Walford's guilt, you can of course look to see whether it is supported by any other evidence in the case.
It is to be emphasised that trial counsel took no issue with these directions and importantly, sought no further direction(s) in relation to the victim's evidence.

Submissions of the applicant

Counsel for the applicant before this Court (who did not appear for the applicant at trial) expressly acknowledged that the failure of trial counsel to take issue with his Honour's directions engaged rule 4 of the Criminal Appeal Rules. However he submitted that leave should be grated to argue ground 1 because the ground was not being utilised as a basis to seek an order for a new trial by reference to a new set of issues which could or should have been raised at the trial, but were not so raised. He further submitted that this was not a case in which the failure of trial counsel to raise any issue was explicable by the fact that counsel's failure was deliberate, with a view to gaining some later advantage.
Counsel expressly conceded that the directions of the trial judge complied with s. 165(2)(a) and (b) of the Act. However, he submitted that there had been a failure on the part of the trial judge to comply with s. 165(2)(c) because there had been no reference in the summing up to "the need for caution in terms of determining whether to accept the (victim's) evidence, and the weight to be given to it". He submitted that although the trial judge had directed the jury that the victim's evidence may be unreliable, he did not specifically direct them that such unreliability gave rise to the need for caution.
Counsel submitted that as a consequence of that omission the applicant had lost a real chance, or at least some chance, which was fairly open to him, of being acquitted. Counsel submitted that the impact of the victim's brain injury was a significant issue in the trial and that because the jury were not informed of the need for caution in determining whether to accept his evidence in that context, a real chance of acquittal had been lost.

Submissions of the Crown

The Crown pointed out that in the course of giving extensive directions concerning the evidence of the victim, the trial judge had: 1. explained the reason that he was drawing the jury's attention to particularly matters concerning the victim's evidence; 2. explained that such matters may affect the victim's reliability; and 3. identified two particular aspects of the victim's evidence, namely his brain injury and his evidence of identification of the applicant, which the jury were required to approach with particular caution.
The Crown also emphasised that it in the course of his directions, the trial judge had specifically pointed out to the jury, by reference to Ms Bowen's report, the various cognitive deficits from which the victim suffered. The Crown also pointed out that the trial judge had directed the jury of the necessity to exercise caution because of the fact that the Crown case against the applicant depended almost exclusively on the victim's evidence. Finally, the Crown pointed to the fact that in summing up the defence case, the trial judge had made reference to the submission by trial counsel to the jury that they could not be satisfied of the applicant's guilt beyond reasonable doubt because satisfaction to that standard would require them to rely on the evidence of a person who had a significant brain injury.
It was submitted that in all of these circumstances, there had been no failure to comply with s. 165(2)(c) of the Act.

CONSIDERATION

Section 165 of the Act is in the following terms: 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person-evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (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. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A (2) and (3).
As I have already noted, counsel for the applicant before this Court expressly conceded that the directions given by the trial judge complied with sub-paras (a) and (b) of subs-sec (2). The essence of his submission was that the directions did not comply with sub-para. (c).
A consideration of the competing positions of the parties in respect of this ground must necessarily commence with a reference to what preceded the directions being given to the jury. The proposed direction under s. 165 was the subject of lengthy discussions between the trial judge, the Crown, and trial counsel both before and during the summing up. Further, after the directions set out at [49]-[53] above had been given, trial counsel appearing for the applicant took no issue with them. As counsel for the applicant before this Court properly conceded, those circumstances attract the application of Rule 4 of the Criminal Appeal Rules which is in the following terms: 4 Exclusion of certain matters as grounds for appeal etc 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 for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
The requirements of Rule 4 are not mere technicalities: ARS v R [2011] NSWCCA 266 at [148]. In my view, the fact that trial counsel took no objection to his Honour's directions, and sought no further direction(s) is entirely unsurprising.
When his Honour's directions are viewed in their totality, the jury could not possibly have been left in any doubt as to: 1. the reasons why the evidence of the victim might be unreliable; and 2. the need for caution in determining whether to accept the evidence, and any weight to be given to it.
A warning under s. 165 is to be given in terms which are appropriate to the particular case, rather than in the form of a standardised direction which slavishly adheres to the terms of the section: R v LAH [2005] NSWCCA 400 at [26] per Sully J. In R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462 Wood CJ at CL said at [297]: "Warnings are not to be approached as mere matters of ritual. What needs to be said to a jury, in order to ensure that they bring a full appreciation to the case, not only of those matters that might be obvious to them as members of the community, but also those matters which are likely to be better known or understood by judges, will depend on the individual case.
In the present case his Honour properly identified the matters which might have caused the victim's evidence to be unreliable. No issue is taken on behalf of the applicant with that aspect of his Honour's directions. In the course of doing so, and within those passages of his Honour's summing up which are extracted above, his Honour: 1. directed the jury of the necessity to examine the evidence of the victim very carefully because of the existence of a number of matters which might cause it to be unreliable (at SU11); 2. explained to the jury that the first matter which might affect the reliability of the victim's evidence was his brain injury, and then reminded them of particular aspects of the report of Ms Bowen (at SU12-13); 3. identified, as the second matter which might affect the reliability of the victim's evidence, his "recognition evidence" concerning the applicant (at SU13); 4. identified, as a further matter which might cause the victim's evidence to be unreliable, his identification of the victim from a photograph (at SU14); 5. reminded the jury of the need to exercise "special caution" in assessing the victim's evidence (at SU15); 6. directed the jury that before they could return a verdict of guilty in the applicant's case, it was necessary for them to examine those identified aspects of the victim's evidence "very carefully" in order to satisfy themselves that it could be acted upon to the "high standard that is required in a criminal trial" (at SU20); 7. directed the jury that in circumstances where the Crown case relied substantially upon the evidence of the victim to prove the case against an accused, such evidence needed to be approached with particular caution (at SU20); and 8. directed the jury that whilst they were entitled to convict the applicant, they were only entitled to do so after they had carefully examined the victim's evidence, and were satisfied that it was reliable beyond reasonable doubt (at SU20).
The overwhelming effect of his Honour's directions was that, for the reasons identified, it was necessary for the jury to approach the evidence of the victim with caution in determining whether to accept it and, if so, in determining the weight which was to be given to it. The proposition that his Honour's directions failed to comply with s. 165(2)(c) is, in my view, completely untenable. The proposition advanced by counsel for the applicant before this Court that the jury were not informed of the need for caution in determining whether to accept the victim's evidence on account of his brain injury is completely at odds with the directions which were given. It is particularly at odds with the fact that in the passages of the summing up I have set out above, not only did his Honour specifically identify the victim's brain injury as a factor which might render his evidence unreliable, he reminded the jury, at some length, of the nature and extent of that injury by reference to the report of Ms Bowen.
The directions of the trial judge were, on any view, comprehensive. The jury could not possibly have been left in any doubt that there was a need for caution in terms of determining whether to accept the victim's evidence, and if it was accepted, in determining the weight which was to be given to it.
This ground has no merit.

GROUND 2 - The verdict of the jury was unreasonable and cannot be supported having regard to the evidence

Submissions of the applicant

Counsel for applicant emphasised that in order to convict the applicant, it was necessary for the jury to be satisfied beyond reasonable doubt that the victim was not only an honest witness, but an accurate and reliable one as well. Counsel for the applicant cited the various sequelae to the applicant's brain injury, all of which, it was submitted, were such as to affect the accuracy and reliability of any evidence that he gave.
In written submissions, counsel for the applicant argued that the evidence of the victim was neither accurate nor reliable because: 1. there was an inconsistency in his evidence as to when the incident happened; 2. the victim had denied that he had told Officer Kneipp that the offender was named "Jenna", in circumstances where this was Officer Kneipp's unchallenged evidence; 3. the evidence of the victim's sister was inconsistent with the evidence of the victim because the victim had told her that: a. all of the offenders were wearing balaclavas; and b. he knew that the applicant was one of the assailants because of her hair colour; 1. the victim's father gave evidence that the victim did not provide the name(s) of any person(s) to him when he first spoke with him on the morning of the incident; 2. the victim did not mention the alleged involvement of the applicant in the course of the triple 0 call; and 3. the evidence of the victim's sister was that the victim had told her at the hospital that the name of one of the female assailants was "Dayna" or "Gaynor", this being a time when the victim had been provided with this information from his family.
It was further submitted that the evidence of the victim's identification of the applicant from a photo did not advance the Crown case because of the fact that the victim had said that he had known the applicant "for years" and would see her "once a month".
In oral argument before this Court, counsel for the applicant paid particular attention to the evidence of the victim's sister. Counsel emphasised that part of her evidence (set out at [23] above) in which she said that the victim had told her that the offenders were wearing balaclavas. It was submitted that in circumstances where the victim's sister was a reliable and honest witness, the only conclusion which could be reached was that this is what she had in fact been told by the victim. Accepting that to be the case, counsel submitted that it would obviously have been impossible for the applicant to have been in a position to identify the applicant in circumstances where she was wearing a balaclava.
In summary, counsel for the applicant submitted that the victim's brain injury necessarily affected his reliability as a witness and that there were "grave inconsistencies" in the evidence that he gave before the jury. It was submitted, in particular, that the evidence was consistent with a reasonable possibility that in circumstances where he had known the applicant previously, he had simply assumed that the applicant was involved in the offence, based on her hair colour.
It was submitted that although the jury had the advantage of seeing and hearing all of the witnesses, there was no contention concerning their credibility and reliability, other than the credibility and reliability of the victim. In these circumstances, it was submitted that the convictions should be quashed, and the verdicts of acquittal entered.

Submissions of the Crown

The Crown submitted that if the evidence of the victim was accepted (that being a matter entirely for the jury) it was open to convict the applicant of both charges. The Crown pointed out that the victim had adopted his interview on oath, and had identified the applicant from a photo array.
The Crown further submitted that victim's evidence at trial was supported by the fact that (inter alia): 1. when he was first interviewed by police, he was clear that one of the assailants was a red headed woman who used to live next door to his friend Dennis Jones at Murphy Way, Minto; 2. the applicant is a red headed woman; 3. the applicant used to live at 5 Murphy Way Minto; 4. Dennis Jones used to live at 3 Murphy Way Minto; 5. the victim had told his sister that he knew the red headed female and that her name was "Dayna or Gayna"; and 6. the applicant's first name is Dayna.
The Crown submitted that the jury were entitled to reject the hypothesis that the victim had made an assumption as to the red haired female assailant being the applicant. The Crown pointed out that the victim had ample opportunity to observe the female assailants, given his evidence that he had invited them into his home prior to being attacked, at a time when he was not under threat. It was submitted that the jury were entitled to infer that the victim invited the females into his home because he knew at least one of them.
The Crown acknowledged that there were inconsistencies in the evidence of the victim, both as to the time at which the incident is said to have occurred, as well as in respect of the evidence of his conversation with Officer Kneipp. However, the Crown submitted that the jury were entitled to consider that those inconsistencies were of limited significance, and were explicable on the basis of the victim's limited verbal skills and his difficulty in recalling names. It was submitted that the jury's assessment of the victim's demeanour was critical in the present case, not because the jury was in a better position to assess how certain the victim appeared to be, but because the jury were in the best position to assess whether the inconsistencies arose because of defects in his memory, or as a result of his having misunderstood questions asked of him.
In summary, the Crown submitted that: 1. the victim was adamant that the applicant was one of the assailants; 2. it was open to the jury to consider that the victim had invited the applicant into his home because he knew her; 3. the victim had made an immediate complaint to his sister and to police, in which he stated that he knew one of the female offenders; 4. the information provided by the victim to his sister and to police, namely that the offender had red hair, was called "Dayna or Gaynor", and used to live next door to a friend of his in Minto, indicated that even before the photo array, he recognised the applicant as one of those responsible for assaulting him; 5. there was no credible evidence to support a conclusion that the victim's memory had been contaminated; and 6. there was a confirmed sighting of 4 people, one of whom was a red headed girl, in the vicinity of the victim's premises on the afternoon of the day of the offending.
In these circumstances it was submitted that the jury's verdict was well open and not unreasonable.

CONSIDERATION

Before considering the competing submissions of the parties, it is appropriate to set out the principles which apply to the court's function in considering and determining this ground. Those principles may be summarised as follows: 1. in considering whether a verdict of a jury is unreasonable, an appellate court must make its own independent assessment as to the sufficiency and quality of the evidence. The issue is whether, notwithstanding there is evidence upon which a jury might convict, it would nonetheless be dangerous, in all of the circumstances to allow the verdict of guilty to stand: M v R (1994) 181 CLR 487; [1994] HCA 63; R v Nguyen (2010) 242 CLR 491; [2010] HCA 38; SKA v R (2011) 243 CLR 400; [2011] HCA 13; Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 13; 2. the question for this Court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must (as distinct from might) have entertained a doubt the applicant's guilt: Libke v R (2007) 230 CLR 559; [2007] HCA 30; 3. it is important that an appellate court does not disregard or discount the fact that the jury is the body entrusted with the primary responsibility of determining guilt, and that the jurors have the benefit of having seen and heard the witnesses. The appellate court's function is to be performed in the context of a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of an accused in a serious criminal trial: M v R (supra); MFA v R (2002) 213 CLR 606 at 624; [2002] HCA 53; Parkinson v R [2016] NSWCCA 49; 4. the assessment of credibility and reliability of evidence of witnesses is quintessentially one for a jury to determine: Atai v R [2014] NSWCCA 210; 5. the burden of persuasion that appellate interference is required rests with the person who seeks to impugn the verdict: MacKenzie v R (1996) 190 CLR 348.
As I have indicated, considerable emphasis was placed by counsel for the applicant in oral argument on the evidence of the victim's sister. It was submitted that her evidence of her conversation with the victim was demonstrative of the fundamental lack of reliability of the victim's evidence generally, and of his evidence which purported to identify the applicant in particular.
In my view, on a proper analysis, the significance which counsel sought to attach to the evidence of the victim's sister was misconceived. It is clear that the evidence given by the victim's sister about the assailants wearing balaclavas amounted to her understanding of what the victim told her, not what the victim actually said. So much is clear from that part of the evidence of the victim's sister extracted at [23] above. Further, the suggestion that the victim told his sister that all of the assailants were wearing balaclavas is fundamentally inconsistent with his unchallenged evidence (at Q144 - 145 of his interview) that upon her arrival at his premises, and at a time prior to the incident giving rise to the offending, "Dayna" and he were drinking in each other's company. It would seem most unlikely for this to have taken place whilst "Dayna" was wearing a balaclava. It is also important to emphasise that the evidence of the victim's sister was only part of the evidence in the Crown case.
There were inconsistencies between some aspects of the victim's evidence. The resolution of those inconsistencies was a matter for the jury. Moreover, whilst there was a potential, for the reasons articulated by the trial Judge, for the victim's evidence to be unreliable, this does not lead to the conclusion that any unreliability was such that the jury were precluded from returning a verdict of guilty. The task of assessing the evidence was one for the jury, to be carried out in accordance with the comprehensive directions of the trial Judge.
The evidence of the matters set out at [78] and [81] above, along with the fact that the victim identified the applicant from a photograph, provided a clear evidentiary basis upon which it was open to the jury to find the applicant guilty. In all of these circumstances, I am unable to come to the conclusion that the jury must have entertained a doubt about the applicant's guilt.
Accordingly, ground 2 is not made out.

ORDERS

As noted at [5] above, the prospect of success of a proposed appeal, should an extension of time be granted, is relevant to the determination of whether the interests of justice favour such an extension.
For the reasons that I have outlined neither ground is made out. In these circumstances I propose the following order: 1. The application for an extension of time is refused.
HIDDEN AJ: I agree with Bellew J that the application for extension of time should be refused, for the reasons his Honour has given.
As to ground 2, there is no doubt that there were inconsistencies in the evidence of the victim which the jury had to assess, bearing in mind the effects of his brain damage. The factors emphasised by the Crown Prosecutor in this Court, summarised in his Honour's judgment at [78], were of crucial importance. In the light of those factors, it cannot be said that the jury must have had a reasonable doubt.

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