WILLIAMS, Daniel Lee v REGINA

Court of Criminal Appeal (NSW)|2006-01-23|Before: McClellan CJ, Howie J, Latham J, Clellan CJ

CITATION: WILLIAMS, Daniel Lee v REGINA [2006] NSWCCA 26

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 69; Latham J at 70

CATCHWORDS: CRIMINAL LAW - appeal against conviction - maliciously inflicting grievous bodily harm with intent - kidnapping and attempted kidnapping - directions to jury - claim of right - fact of an acquittal on one count in considering verdicts on others - unreasonable verdicts on the evidence - regard to be had to jury's benefit in seeing and hearing witnesses at trial

M v The Queen (1994) 181 CLR 487 R v Fuge (2001) 123 A Crim R 310 CASES CITED: R v John Tinkler (1859) 1F.4F.513; 175 ER 832 R v Markuleski (2001) 52 NSWLR 82 Walden v Hensler (1987) 163 CLR 561

PARTIES: Daniel Lee Williams (Appl) The Crown

COUNSEL: G Rowling (Crown) P Byrne SC (Appl)

SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2005/2197

McCLELLAN CJ at CL HOWIE J LATHAM J

FRIDAY, 17 FEBRUARY 2006 WILLIAMS, Daniel Lee v REGINA Judgment 1 McCLELLAN CJ at CL: The appellant was indicted upon four counts as follows:

Count One - Kidnapping That on 9 May 2001 at Kurri Kurri in the State of New South Wales did detain John William Summerville with intent to hold John William Summerville for advantage.

Count Two - Kidnapping That on or about 20 May 2001 at Hamilton in the State of New South Wales did take away John William Summerville with intent to hold John William Summerville for advantage.

Count Three - Attempted Kidnapping That on 13 June 2001 at Kurri Kurri in the State of New South Wales he did attempt to take away John William Summerville with intent to hold John William Summerville for advantage.

Count Four - Maliciously inflicting grievous bodily harm with intent

That on 13 June 2001 at Kurri Kurri in the State of New South Wales he did maliciously inflict grievous bodily harm upon John William Summerville with intent thereby to do grievous bodily harm to him. 2 In relation to count one the appellant was charged along with two of his brothers. All the accused were acquitted on that count. 3 With respect to the second count the appellant was charged with his brothers and three other persons. The appellant and Daniel Klopfer were convicted and the other four accused were acquitted. The appellant was convicted on the third and fourth counts. 4 The first three counts were brought pursuant to s 90A of the Crimes Act 1900 (since repealed) and the fourth count pursuant to s 33 of the Crimes Act 1900. 5 The appellant was sentenced on count two to imprisonment for six years with a non-parole period of three and half years. On count three the appellant was sentenced to three years imprisonment with a non-parole period of two years. On count four he was sentenced to eight years with a non-parole period of five and half years. The sentences were all to date from 13 June 2003 and were to be served concurrently. The effective term of imprisonment is accordingly eight years with a non-parole period of five and half years. 6 The appellant appeals his conviction. Although application was made for leave to appeal against sentence no submissions in support of that application have been made.

The Crown case Background 7 In the period of May and June 2001 Mr Summerville stayed from time to time with his partner, Lynelle Baker who lived at 72A Edward Street, Kurri Kurri. The appellant lived at his parents' house at 142 Rawson Street, Kurri Kurri. The other accused also lived in Kurri Kurri. 8 On 6 May 2001, Mr Summerville drove the appellant, whom he had known for three or four years, from Cessnock to his parents' house in Rawson Street, Kurri Kurri where the appellant's brothers, Jamie and Alan Williams were also present. During the drive to Kurri Kurri Mr Summerville asked the appellant for a half a pound of pot and the appellant told him the price was $2,000. Mr Summerville told the appellant that he could not immediately pay this sum but was waiting on a cheque for engineering work that he had performed, which he expected to receive in about 3 days. The appellant said "no worries". Mr Summerville was expecting a cheque for between $18,000 and $20,000. At the appellant's house, and in the presence of his brothers, the appellant handed Mr Summerville eight glad bags each containing one ounce of marijuana and Mr Summerville handed him a cheque for $2,000. The appellant asked for interest on the money at $500 per week if payment by Mr Summerville was delayed. On this occasion the appellant showed Mr Summerville some weapons and ammunition rounds. 9 Although Mr Summerville had given the appellant the cheque for $2,000 it was anticipated that the appellant would not present it until the money he was expecting had been received.

The evidence relating to the first count 10 Some days later on 9 May 2001 the appellant telephoned Mr Summerville, who was in Maitland. He asked him to call around and see him. A friend drove Mr Summerville to Lynelle Baker's house and Mr Summerville walked from there to the appellant's parents' house in Rawson Street. When he arrived there, the appellant and his brothers were present. The appellant asked him "you got the money? You got the money?" Mr Summerville said he had not - "it hasn't come through" - and the appellant said to him "well, come out here and have a look at this" and he, his brother Allan and Mr Summerville walked out to the back shed, the appellant leading and Allan following. Jamie Williams was holding a rifle in a gun bag and the appellant said to him "shoot anyone that comes to the door". In the shed the appellant pulled out, from under his shirt pocket, a small silver pistol that he had shown to Mr Summerville on 6 May 2001. He held it with both hands pointed at Mr Summerville's head and said to him "get on the fucking ground." Mr Summerville lay face down on the ground. The appellant said to his brother Allan, "Allan, put them cable ties on him". A cable tie was placed around Mr Summerville's wrists while he was lying face down on the concrete. 11 The appellant said to Mr Summerville, "if you move I'll shoot you in the head and then we'll set off some crackers to make it look like it was fire works." They picked Mr Summerville up by his arms, threw a blanket over his head and tied something over his shoulders. They took him out of the shed into the yard and the appellant said "we're going fishing" and threw him into a fishing boat that was at the back of the yard. Mr Summerville understood the appellant to be saying that he would be used as bait or burly. 12 Mr Summerville then told the men that if they gave him a car he would get the appellant his money, at which the appellant took the blanket off him and cut the cable tie with a knife. When the blanket was removed from his head, Mr Summerville saw Jamie Williams was holding the rifle. The appellant gave Mr Summerville the key to his car and Mr Summerville drove off in it. Mr Summerville had been in the shed for less than five minutes. 13 Mr Summerville drove to a friend's house to try to borrow money from him but he was not at home. He then drove to the house of Lynelle Baker's sister, Julie, but there was no one there. He went to Kearsley and then to Edward Street, Kurri Kurri and said to Lynelle Baker "I am in a bit of trouble. Daniel thinks I've ripped him off. I don't think we're safe." 14 About two days later the appellant telephoned Mr Summerville on his mobile telephone and asked him where he was. Mr Summerville said that he was in Maitland and the car had broken down. The appellant told Mr Summerville that he would send someone to help fix it and although he said he would wait, Mr Summerville parked the car, put the keys on the console, went to Maitland train station, and caught a train to Hamilton where he went to 142 Lawson Street. This was the house of Jade English and her child. Thereafter, Mr Summerville received numerous threatening messages from the appellant on his mobile telephone, to which he did not respond. Later, the appellant telephoned Lynelle Baker and told her that he knew where Mr Summerville was staying in Hamilton and that he was on his way to get him. 15 In respect of count one there was no evidence at the trial capable of corroborating the evidence of Mr Summerville. An essential element of the charge was that Mr Summerville had been detained by the appellant. The appellant and the two other men accused of this offence were all acquitted.

The evidence relating to the second count 16 At about 7 pm or 8 pm on 20 May 2001, while Mr Summerville was watching television and Jade English was doing housework, the appellant, Scott Green and Troy Carberry came in through the back door of the house. The appellant pulled out one of the guns he had shown Mr Summerville and, holding it with both hands, pointed it at his head saying "didn't think I'd find you, did you?" Jade English took her child to the kitchen. 17 The appellant took Mr Summerville's mobile telephone and escorted him out of the house to a path beside the house and then to the road. Ms English thought Mr Summerville was not happy. On the road Allan Williams gave Mr Summerville a "smack" in the mouth. Jamie Williams was present as was Daniel Klopfer who was in the driver's seat of a station wagon. They put Mr Summerville in the back seat and Klopfer drove them to the appellant's parents' house in Rawson Street, Kurri Kurri, with the appellant in the front passenger seat. The appellant said to Carberry "if he moves, Carbs, shoot him" and said to Mr Summerville over and over again "where's me money?" and "we're going back to Kurri. You're staying with us until we get the money. We've got a suicide note written in your handwriting and we're going to take you out the bush and hang ya." According to the Crown case, Mr Summerville had not written a suicide note. 18 When they arrived at the appellant's parents' house at 142 Rawson Street, Kurri Kurri, they drove into the yard and the appellant got cable ties from the shed. The appellant and others took Mr Summerville to Lynelle Baker's place at Edward Street, Kurri Kurri, which was empty. The appellant said "I'm going in to get all your paperwork" and climbed in through a broken window. The appellant came out through the backdoor and they took Mr Summerville in through the backdoor and collected all his paperwork for his business and put it in a brown paper bag with rope handles. 19 They then took Mr Summerville to 53 Mulbring Street, Kurri Kurri which was empty. He was taken inside and when the appellant told him to pawn a generator that he had for his business, he telephoned a loan office and left a message. Mr Summerville was taken into his shed and, with others standing around, the appellant said that he was staying with them until they got their money. Mr Summerville sat on the ground and they tied cable ties around his ankles, knees and hands and Green taped him with sticky tape from his ankles to his knees and from his wrists to his elbows and around his mouth and nose. He was lying on the ground on his side. The appellant told Allan Williams that he was looking after Mr Summerville for the night. They left and shut the door. Mr Summerville stayed on the floor for close to 12 hours with Allan Williams checking on him roughly every half hour. In the morning he chewed through a cable tie and pulled the tape off his eyes and escaped. 20 Both Jade English and Lynelle Baker gave evidence. They supported Mr Summerville's evidence in significant respects. Jade English said that when Mr Summerville was staying at her home in Hamilton, two men had come inside and one said "you're coming with us." They stayed for ten minutes but there was no further conversation. She said that she did not observe them holding anything in their hands and although Mr Summerville left with them he "wasn't happy at all." 21 Lynelle Baker, who, as I have indicated, was the girlfriend of Mr Summerville, gave evidence that the appellant had telephoned her and said that he knew Mr Summerville was staying in Hamilton and that he was going to "get him." She saw Mr Summerville the next morning. He was crying and upset, holding the children and later told her that "they've had me tied up all night." He pulled his sleeves up and showed her marks all the way around his wrists, reddish grazes and indents which she said were "not very big." There was a big lump over his temple and lumps and bumps all over his head. She stated that the appellant rang her the next morning and stated "he's escaped" and asked her if she had seen Mr Summerville. She gave evidence of having received numerous calls from the appellant looking for Mr Summerville.

The evidence relating to the third and fourth counts 22 At about 9 or 10 o'clock on 13 June 2001 while Mr Summerville was in the bath and Lynelle Baker was hanging clothes on the line, the appellant jumped over the back fence, asked her to move her children out of the way and entered her house. Mr Summerville stood up and started to dry himself when the appellant pulled out a gun and pointed it at his head saying "you're coming with me". Mr Summerville put on some clothes and started to walk out of the front door with him. Outside there was a car with its engine running and a man in the driver's seat. Mr Summerville broke free of the appellant's grip and ran barefoot until he slipped and fell over at the corner of Edward and Allworth Streets. The appellant chased him saying "you're coming with me. You're coming with me. I'll shoot you in the legs if you don't come." When he tried to get up the appellant grabbed him and started throwing punches leaving cuts all over his head. 23 When the motor vehicle was driven up, the appellant said to the driver "get the mallet" and the driver brought a mallet to the appellant who was punching Mr Summerville in the head. After a struggle and while Mr Summerville had his hands held behind his back, the appellant ran at him and struck him in the face with the mallet holding it at the end of the handle. Mr Summerville blacked out and when he looked up the appellant and the driver were getting into the appellant's parents' car which was parked on Allworth Street, Kurri Kurri. Lynelle Baker heard a noise from across the road and telephoned the police. Mr Summerville ran into 14 Allworth Street and asked a man to ring an ambulance or the police. Mr Summerville washed his face with a hose and vomited. He was taken to Kurri Hospital and then Maitland Hospital by ambulance until a bed became available at John Hunter Hospital where he was taken. 24 Mr Summerville's blood was found in the yard of 14 Allworth Street, Kurri Kurri. In telephone calls on 13 June 2001, the appellant asked Lynelle Baker if the law was there. He asked her not to say anything or make a statement to the police. He also asked her "How is his face from falling over on the road?" thereby suggesting that he had not been responsible for Mr Summerville's injuries. The appellant later abandoned this suggestion and admitted that he had hit the appellant, although he said the blow was delivered with his fist. 25 Mr Summerville was in hospital for 13 days altogether and underwent operations to repair comminuted fractures of the nasal bones and the nasal septum. His teeth did not line up and he could not chew, eat or swallow. He could not see properly and his nose was swollen so he could not smell or taste anything. At the time of the trial he still had trouble in both tasting and smelling food and his eyes started watering in sunlight. In the opinion of Dr Hapangama the injuries suffered by Mr Summerville were possibly consistent with him being struck a single blow with a rubber mallet. 26 On 19 June 2001 in the execution of a search warrant at the house of Allan Williams, one of the appellant's brothers, at 55 Mulbring Street, Kurri Kurri, cable ties, which he owned, were found by police officers. Earlier, on 16 June 2001, when searching the house of the appellant's parents at 142 Rawson Street, Kurri Kurri, police officers found Mr Summerville's mobile telephone, a document bearing the telephone number of Jade English and certain documents of Mr Summerville in a paper bag.

The appellant's case 27 The appellant gave evidence at the trial. He said that he had never detained Mr Summerville and that any contact he had with him had been voluntary on Mr Summerville's behalf and was solely in order to sort out the payment of the sum of $4,600 owed by Mr Summerville to the appellant as a debt relating to the sale of a car to Mr Summerville. The appellant claimed that Mr Summerville had agreed to purchase the car from him, had taken possession of it, but subsequently caused damage to the car, which required extensive repairs. 28 The appellant stated that Mr Summerville had given him a cheque as security for payment for the car, which, although it could not be met immediately, he assured him would be bankable in the near future. He stated that Mr Summerville claimed that he was owed money by Energy Australia for work that he had done for that organisation. This money was to be paid into the account on which the cheque was written. 29 It was the appellant's case that after the damage was done to the car, Mr Summerville told the appellant he did not want it anymore but would pay for the repairs. These amounted to a total of $2,000. The appellant denied causing any injury to Mr Summerville until the altercation between them on 13 June 2001. On that date, the appellant stated that he had attended the home of Mr Summerville, and after Mr Summerville threw the first punch, there had been a fight in the course of which the appellant had punched Mr Summerville in the face. He said that he had not struck Mr Summerville with a rubber mallet or any other implement. The appellant said that he had not intended to hit Mr Summerville as hard as he did. 30 In his evidence the appellant stated that the cheque Mr Summerville had given him on 7 May 2001 for $4,600 had been banked on 14 May 2001 but was dishonoured on 17 May 2001. The bank indicated that the reason for dishonour was that there was no existing account. Further enquiries revealed that the account had been closed on 9 May 2001. 31 The appellant gave evidence that it was on 21 May that he went to Hamilton, not 20 May 2001. He said he went there with Daniel Klopfer in Klopfer's car, without anyone else and with no gun. Mr Summerville went with them from Hamilton to Allan Williams' house. The appellant said that it had been Mr Summerville's idea to do so. 32 He said that Allan Williams let the appellant in and went back to bed. Mr Summerville then made a few calls on the house phone resulting in a bag of marijuana being delivered in payment for the repairs to the appellant's car. This was the marijuana that was recovered by the police at the appellant's home. Klopfer later gave Mr Summerville's phone to the appellant and told him that Mr Summerville had left it in Klopfer's car. The appellant kept the phone. Klopfer gave evidence to the same effect as the appellant. The appellant agreed that he had made numerous calls to Mr Summerville but most went unanswered. 33 In relation to the second count it is submitted by the appellant that the evidence of Mr Summerville as to what occurred at the Hamilton unit was distinctly different from that of Ms English. It is submitted that the evidence of Ms English does not provide support for the allegation that the appellant had taken Mr Summerville away with intent to hold him for advantage. Although the appellant and Klopfer had admitted their presence at the unit, they claimed that Mr Summerville had left voluntarily with them and remained with them to make phone calls and organise some form of payment to the appellant. 34 With respect to counts three and four, the appellant accepts that there was evidence supporting Mr Summerville's account. This was the evidence of Lynelle Baker who stated that on 13 June the appellant had called over the back fence of their home while Mr Summerville was inside in the bath. The appellant asked if he was there (meaning Mr Summerville), jumped the back fence, told Ms Baker to take the children outside and went inside and closed the door. Ms Baker said that she did not see any firearms. She initially heard banging noises and then a huge bang and then rang 000. Prior to the police arriving, the appellant rang her and asked whether "the law" was there and told her not to make a statement and to be a "good girl." 35 The appellant's account was that he had attended the home of Mr Summerville with the intention of confronting him. He jumped the back fence and entered through the back door. He stated that he exited through the front door and that, when Mr Summerville came outside, an argument commenced. Mr Summerville pushed the appellant and ran off. The appellant chased him and a fight commenced. The appellant gave evidence that he and Mr Summerville were throwing punches but that the appellant ended up getting "the better" of the fight.

The appeal 36 There are three grounds of appeal advanced by the appellant.

Ground One - The trial judge erred in refusing to direct the jury that the appellant could rely on the defence that he had a "claim of right". 37 Under this ground the appellant submits that the qualification that was provided in s 90A permits of a defence that when a person is owed money they may detain the debtor against his or her will until the money is repaid. The argument was raised at the trial and was dismissed by the judge who ruled that the proviso had no application and was limited to "a disputed custody case or something of that kind." His Honour said: "It's a right to the possession of the person that is the - I believe the fundamental words, not the right to the possession of the advantage which you were seeking by holding that person. Anyhow I have said this deliberately so that you are well protected by it. Makes an interesting case." 38 The submission in this appeal extends beyond the terms of the proviso to s 90A. It is submitted that the decision of this Court in R v Fuge (2001) 123 A Crim R 310 provides support for the proposition that if an accused person believed, in good faith, that he or she was entitled to take away or detain a person in order to secure the advantage in question a defence founded on a claim of right is available. 39 In my opinion, the submission must be rejected. Fuge was concerned with the availability of a defence of claim of right to a charge of robbery. Although Heydon JA expressed reservations in the matter, this Court left open the question of whether or not a person could be charged with robbing another in circumstances where that person claimed a right to the property, which he or she was alleged to have unlawfully taken. In the course of his reasons, Heydon JA said at [2]: "The first ground of appeal rested on the proposition that a person who claims to be owed arrears of wages after being dismissed by an employer has a defence to a charge of robbing the employer of cash not exceeding the claimed arrears. By the light of nature that is an astonishing proposition. There are, however, statements in other intermediate courts of appeal which justify it. Those statements call for reconsideration by this Court in a suitable case, there being no High Court decision preventing that course. It is not necessary for the decision of this case to give them reconsideration on this occasion." 40 Whatever be the position in relation to a claim of right to the possession of money or other goods there is no authority that would justify restraining a person against their will in order to secure from that person the claimed money or property. The act of restraining another is of a wholly different character to the taking of money or goods. The liberty of an individual is protected in most circumstances in our society. It is only the relationship of a parent or guardian, or where there has been a breach of the law or other particular situations which may give rise to a "right" to lawfully restrain another person. 41 Counsel for the appellant referred to the decision of Cockburn CJ in R v John Tinkler (1859) 1F.4F.513; 175 ER 832. The case concerned the abduction of a girl under the age of 16, where it was held that an offence would not be established where the accused person honestly believed that he had a right to the custody of the child, even if there was no legal justification for that belief. In that case, the jury was directed that the accused person had no right to act as he had done in taking the child out of the custody of her lawful guardian, but, because he acted without improper motive and believed that he was acting within the law when he took the child away, a "defence" was available. 42 Reference was made to the decision in Tinkler in the judgment of Dawson J in Walden v Hensler (1987) 163 CLR 561. At 591, where his Honour referred to relevant provisions of the Criminal Code 1899 (QLD), and said: "I have set out ss 22 and 24 because they both concern the law dealing with the effect of mistake upon criminal responsibility. In Thomas v The King (1937) 59 CLR 279 at 305-306, Dixon J expressed the view that the two sections state the common law "with complete accuracy". However, it has been suggested that at common law an honest claim of right may constitute a defence in some cases which do not relate to property: see Reg. v Tinkler (1859) 1F & F 513 [175 ER 832]; Anderson v Nystrom [1941] St.R Qd 56 at 69-70; Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 at 592-593. It may be doubted whether the defence in such cases, although based upon mistaken belief going to intent, should be classified as a claim of right. Be that as it may, claim of right as a defence at common law has its origin and at least its primary application in cases relating to property and in that application has a settled meaning.

… It is, of course, always necessary for the prosecution to prove the intent which forms an ingredient of a particular crime and any honestly held belief, whether reasonable or not, which is inconsistent with the existence of that intent will afford a defence. But in addition, there is the wider principle that the existence of any state of mind, however limited, which is an element of a crime, may be negated by an honest and reasonable belief in the existence of circumstances which, if true, would make the impugned act [at 592] innocent: Reg v Tolson (1889) 23 QBD 168." 43 As Dawson J makes plain, a claim of right may provide a defence in cases relating to property and may, as Heydon JA acknowledged, be relevant in relation to a charge of robbery. It may also be relevant, as the qualification to s 90A contemplated, to an offence where a person is able to provide a basis for detaining another based upon a right to the custody of that person. However, I am not aware of any right in a person to detain another for the purpose of extracting the payment of a debt. Such a proposition would be offensive to assumptions as to the liberty of persons which are fundamental to our society.

Ground Two - The directions to the jury, on the manner in which they may use the fact of an acquittal of the appellant on any one count in considering their verdicts on the other counts, were inadequate. 44 In relation to this ground, the appellant accepts that the trial judge made clear in his directions to the jury that the Crown case depended upon the evidence of Mr Summerville. It is also acknowledged that the trial judge was careful to specify the matters in respect of which Mr Summerville's evidence may be unreliable. 45 His Honour summarised the position by saying: "If you do not accept Mr Summerville the case is over. It pivots on him, you know that. I will say more about that later." 46 Later, his Honour said: "… You must realise that the whole case turns on Mr Summerville." 47 At another point in the summing up the jury were cautioned not to allow a finding of guilt in relation to one count to inappropriately influence their consideration of another count. It must be remembered that there were eleven separate counts in relation to the various accused for the jury to consider. The trial judge said: "It is a temptation that does arise in cases where there are multiple counts and multiple accused, that you do not allow, if you reach a finding of guilt on any count against any accused, if you do that, and I do not know how you will finish up, but if you do that, you do not allow what I call the 'overflow factor' to work. Do not let a finding on one count overflow into another count or a finding in relation to one accused overflow into another accused." 48 Although the appellant acknowledges that his Honour was careful to remind the jury to approach each count separately, the essence of the complaint is that the trial judge failed to warn the jury that they may consider that their finding as to the credibility of the complainant in relation to one count might legitimately affect their assessment of his credibility on other counts. 49 It is submitted that the jury should have been told that if they were unable to accept Mr Summerville on any count this may legitimately be considered when assessing the credibility of his evidence on any other count. 50 This Court considered this matter in R v Markuleski (2001) 52 NSWLR 82 where the Chief Justice said at 122: "It may appear to be obvious that a reasonable doubt about one aspect of a complainant's evidence ought to be taken into account when assessing that witness's evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so. In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count. Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and in R v Davies 'as a general rule'." 51 Notwithstanding these remarks, the Chief Justice pointed out that a failure to give such a direction would not necessarily be fatal and no specific words were required. 52 The major difficulty that the submission must face in the present case is that, although count one was effectively a "word against word" case, this was not the position in relation to the other counts. For this reason the jury's acquittal of the appellant on the first count can be explained by the jury concluding that the evidence did not reach the requisite standard. This does not carry with it a finding that the complainant's credit was seriously flawed, but merely a finding that the jury could not be satisfied beyond reasonable doubt. However, in relation to the other counts, as I have indicated, there was corroborating evidence of varying degrees, which the jury was entitled to accept and which could provide a basis for the conviction irrespective of the view which the jury may have formed as to the state of the evidence, including that of Mr Summerville, in relation to count one. Of course, if the jury did not believe Mr Summerville's account on these other matters the prosecution would fail. In that sense, his Honour's direction was undoubtedly correct. However, because this was not a case where Mr Summerville's evidence stood alone on the other counts, although a direction may have been preferable, I do not believe the trial miscarried because a direction was not given (Markuleski at 102). 53 It must be remembered that the charges involved an alleged sequence of events which occurred over a matter of weeks, all relating to attempts by the appellant to retrieve the debt that he said was owed to him by the appellant. It is plain that the jury acted on the instructions to look at each charge separately. They acquitted on count 1, but commonsense dictates that they must have come to an overall assessment of Mr Summerville's credibility having regard to his evidence in relation to all of the counts. It could not be otherwise. 54 The acquittal on count 1 is adequately explained by the lack of corroborating evidence. Since no complaint was made in relation to his Honour's direction on this aspect at the trial, rule 4 applies. I would refuse leave in relation to this ground.

Ground Three - The verdicts of the jury in counts two, three and four are unreasonable having regard to the evidence s 6(1) Criminal Appeal Act 1912. 55 Under this ground of appeal the appellant emphasises, as I have already identified, that the case was left to the jury on the basis that the prosecution depended upon the credibility and reliability of Mr Summerville. It is submitted that there were a number of matters, each of which was raised by the trial judge in his summing up, which could be the basis for a finding that the evidence of Mr Summerville was unreliable. The appellant identifies the following matters: · His conviction for cultivating cannabis some ten years prior; · That he gave four statements to the police, each one making further allegations; · That he forgot very important elements in the first, second and third statements; · He gave evidence in chief which contradicted evidence he gave at the committal hearing; · His evidence was inconsistent; · He admitted that he told lies in significant respects. 56 His Honour's directions included the following discussion of these matters: "The first one I will mention is the first in point of time. About ten years ago, and I will get counsel to correct me if I am wrong, Mr Summerville himself was convicted of a crime which resulted in his being sentenced to a term of 12 months imprisonment. Now it was his first offence and it may occur to you that for someone to get 12 months imprisonment for his first offence, it was not an insignificant matter, because our common experience tells us that people often go on committing a number of offences before they ever get a prison sentence. They get fines and warnings and bonds and all sorts of things. The crimes in this case were crimes under the Drugs Misuse and Trafficking Act and they involved the cultivation of cannabis and the supply of cannabis. Otherwise he is a person with no convictions. And that was 10 years ago. So I want to balance this for you. I do not want to be partisan in this at all. But it was a crime of significance for the reasons I have mentioned. And as you know, the cultivation of cannabis is not something you do on the spur of the moment. I can go out on the street and get into a fight with someone and punch him and suddenly I have committed a crime. I have got a criminal record. You do not get that - and people can say, 'Look he is a good chap, he needs an anger management course, he's got a psychological problem' and so on and so forth and the courts can take that into account. But when you commit a crime involving the cultivation of cannabis, there is planning, there is getting the seed, there is finding a place to do it, a place to conceal it, the cultivation and the looking after the crop and so on. It is not a spur of the moment crime. It is not a crime of passion or a crime of anger. So you have to consider whether the fact that he has that conviction, perhaps coupled with other things that I may mention, affect his reliability as a witness. You have to consider that. I am not telling you that it does. I am saying you have to consider it when you are considering its reliability. In addition to that, there are matters which counsel has already brought to your attention in considerable detail. And it is not really possible for me, although the Act envisages, I will mention them in some way to you, but I think I can ask you to remember the very eloquent addresses of Mr King and Mr Kelly and I do not mean any disparagement to Mr Simpson, but he did not address that particular topic. That was not part of his function in the division of labour that was involved in counsels' addresses. But he said, it was put to you that he said that he had good recollection skills and good memory and so on and yet it took him, I think up to four statements, to get some of the important elements of the story across to the police. And it is suggested to you that that may indicate, and I emphasise the word may, it may indicate that he is not as reliable as he says he is when he is asked whether he has got a good memory and whether he is telling the truth. Because if he could forget such important things, at a time almost very soon after the events had occurred and some very important things that went into the second and third statements that were not in the first, or in the second, with relation to the third, then you may either say his memory is not as good as he says it is, or alternatively he has actually fabricated some things to prop up his story as time has gone along. Now that may not be the case. And again I emphasise, I am not saying it is, but I have to warn you to consider that when you are considering his reliability. There are quite a number of other things and I do not think counsel want me to go right through them. They have covered them in their addresses. I give you another example, I see one right in front of me here on notes that I have in front of me, that in examination in chief, that's in questions being asked by the Crown of Mr Summerville, he said that the motor of the brown Toyota station wagon was not running at the particular time that he was referring to it. At the committal proceeding he said it was running. Now that is a small thing. But what counsel is trying to do is suggest that because small those inconsistencies may be, that when the whole list of inconsistencies that counsel referred to are taken into account, they suggest an overall unreliability as to detail. There is another matter I think that I should mention. It sounds as though I am attacking him and I am not. I have to bring it to your attention. He did admit in the witness box himself, that he told lies. He told lies in significant respects, in particular I recall he said he told lies to his lady friend. She said that she did not think he ever told her lies and she would be very surprised if he did, but he did because he confessed to it here in court. Now the question you have to ask yourself is - I am not talking about little white lies that we all have to tell. You say to someone, 'You're looking very well today' and you know they look terrible, but you're not going to say, 'Gee you're looking terrible today', are you? So you have told a lie. A lie is not always bad. A lie might be good. You might have to say something to someone out of kindness that amounts to a lie. But when you tell a lie to gain an advantage, that is when a lie is bad and if a person, and if you think that Mr Summerville has lied from time to time to his girlfriend and other people, to gain some advantage for himself to get them to do something that he wants them to do or to curry favour in some way with them for some selfish reason, then you might ask yourself, might not that be the sort of person who, in such a serious situation as he found himself in and found himself in in this case, be prepared to lie again for the very same reason. Now I have given you that warning and all I ask you to do is to exercise caution in determining whether to accept his evidence and exercise caution in deciding what weight to give to it. That is all and I think you do that anyhow because you must realise that the whole case turns on Mr Summerville. As someone said, it is all right to point out that there are, in a sense, little corroborating features around the place that may make his evidence in some respects more likely than it might otherwise have been." 57 Although, as the appellant emphasises, the trial judge identified for the jury the significance of Mr Summerville's evidence, the Crown case was not confined to that evidence in relation to counts two, three and four. In relation to those counts, the Crown case was in various respects supported by the evidence of Lynelle Baker and Jade English; by the evidence of Dr Hapangama in respect of possible causes of Mr Summerville's injuries; by the finding of Mr Summerville's blood at 14 Allworth Street, Kurri Kurri; by the finding of Mr Summerville's papers bearing finger prints of the appellant in a room in the appellant's parents' house and the finding of his mobile telephone and of a paper bearing the telephone number of Jade English in the bedroom of the appellant at that house. I have previously referred to each of these matters. 58 The appellant points to a number of evidentiary difficulties in the Crown case. They include the failure to find the mallet allegedly used to strike Mr Summerville; the lack of evidence corroborating Mr Summerville's account that another person held him down when he was struck by the appellant; the fact that medical evidence was given that the injuries suffered by Mr Summerville could have been caused by a blow from the appellant's fist, being the version of events which the appellant gave at the trial. 59 The appellant also emphasises that, although Mr Summerville alleges he was threatened with a gun, there is no evidence to corroborate that allegation and no guns were ever recovered from the appellant. Furthermore, to answer the suggestion that any guns and the mallet may have been disposed of, the appellant emphasises that marijuana was located at his premises when they were searched by the police. It is said that if the appellant was "covering his tracks" the marijuana would also have been secreted. 60 The difficulty with the latter argument is that the appellant explained the marijuana as having been given to him by Mr Summerville as a payment for the damage to the car. Whether or not this was true, the story would be more believable if marijuana was in fact discovered at his premises. 61 It must also be remembered that Mr Summerville says that the original debt arose from a transaction where he purchased marijuana from the appellant. Given that he was accordingly confessing to a crime it would be somewhat surprising if it were not true. Furthermore, explanations, or at least explanations that did not involve confessing to a criminal act for the friction between them, would obviously have been available. 62 On this matter his Honour told the jury: "There is a section of the Evidence Act which requires me to give you this direction. I have to advise you - I have to direct you that the evidence of Mr Summerville may be unreliable because it is the evidence of a person who you may find on the evidence might reasonably be supposed to have been criminally concerned in the events giving rise to these proceedings. You know that Mr Summerville himself said this all started, he said, it all started, so it is his evidence, when he went to buy cannabis from Daniel Williams. Now that is a criminal activity. To buy half a pound of cannabis from someone is a criminal activity. Some of us might think it should not be, I am not suggesting I do, but some people in the community and some very reputable people think it should not be, but it is now against the law and it is a serious crime, punishable by imprisonment under the Drugs Misuse and Trafficking Act. So this all started with an involvement, if you accept the evidence, by Summerville and Daniel Williams together in a criminal enterprise, namely the buying and selling of cannabis. This section specifically relates to such a situation. I will just read it to you because the words are fairly clear. I have to warn you that the evidence of Summerville may be unreliable because it is the evidence of a witness who might reasonably be supposed, it is a matter for you, to have been criminally concerned in the events giving rise to the proceedings. And indeed I think this is one area where I can speak a bit more strongly. If you accept - if you do not accept Summerville the case is over. It pivots on him, you know that. I will say more about that later. But if you do accept him then you must accept that he was criminally involved in a criminal enterprise at the very threshold of this matter, in fact the very matter that gave rise to these events that give rise to this case. So I have given you that direction. I have given you the warning required by s 165 of the Evidence Act. The Act requires me to give you, on the request of counsel, a further warning and indeed it relates to the same witness. I am requested to warn you and I am required to warn you when the request is made, that the evidence of the complainant, that is to say Summerville, may be unreliable and I am to inform you what may cause it to be unreliable. And I am to warn you of the need for caution in determining whether to accept his evidence and what weight to give to that evidence. This is not to tell you you should not rely on his evidence, it is far from it. This is simply a caution that I am required to give you, a warning. It involves your looking very scrupulously and carefully at his evidence before you rely on it, if you are going to, that is all it requires. It is not to say I am telling you his evidence is unreliable so do not rely on it. I am not doing that I am saying it may be unreliable for the following reasons. You consider them. You might say those reasons do not affect us. We rely on him implicitly, or you may not. I do not know what you will find. But there are a number of things." 63 The appellant also draws attention to the evidence of Mr Summerville's banking activities. At about the relevant time, on 12 April 2001, he opened an account with a deposit of $5. The account was closed by the bank on 17 May 2001 by which stage cheques had been written on it for amounts, which the account could not meet. There was in evidence a cheque allegedly drawn on this account and said to be in Mr Summerville's handwriting in the sum of $4600. Mr Summerville denied drawing the cheque and says it is a forgery, although there was evidence from his wife that she recognised the handwriting as Mr Summerville's. 64 This matter raised issues of significance in relation to Mr Summerville's credit. The fact that Mr Summerville's wife indicated that the handwriting on the cheque was Mr Summerville's was a matter requiring careful evaluation by the jury. However, it was not central to the charges, which were in essence that a debt was owed to the appellant that he sought to recover by the use of force. To my mind, none of the matters complained of, even if resolved favourably to the appellant, would lead to a conclusion that the jury was not able to accept the Crown case. 65 The significance of the jury's role in a criminal trial has been emphasised on many occasions. Given the conflicts in some of the evidence, the benefit of seeing and hearing the witnesses would be considerable in this case. As was pointed out in M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson, Toohey JJ: "The court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 66 To my mind, each of the matters raised by the appellant were appropriately put before the jury for consideration. His Honour was careful to warn the jury about the matters which the defence said undermined Mr Summerville's credibility. With the benefit of seeing and hearing the witnesses, the jury returned guilty verdicts on counts 2, 3 and 4. In these circumstances I am not persuaded that there is any reason for this Court to intervene. 67 This ground of appeal fails. 68 In my opinion the appeal should be dismissed. 69 HOWIE J: I agree with McClellan CJ at CL. 70 LATHAM J: I agree with McClellan CJ at CL. **********

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