Williams v The Queen

The appellant's case at trial 13 It was suggested on behalf of the appellant that Mr Kirchner had committed the robbery with a sawn-off shotgun, which he later secreted at his mother's house in Adelaide. The appellant claimed that, after the robbery, Mr Kirchner had given him a significant amount of the proceeds with which to purchase illicit drugs. The appellant had then decided to "rort" Mr Kirchner, telling him that he had been cheated of the money by a drug supplier. What the appellant had said to Mr Stewart was consistent with this. The appellant had an innocent explanation for having worn the overalls found at Mr Stewart's house and for having burned something there. He said he knew nothing of the buried firearm found there. The supposed admission to his uncle was denied: the appellant claimed to have told his family, only that money he had was the proceeds of a bank robbery, and not that he had committed it.

Refusal to discharge jury 14 Counsel for the appellant first argued that the primary judge had fallen into error by failing to discharge the jury in the following circumstances. The trial was held between 11 February 1999 and 23 February 1999. On Tuesday 16 February 1999, the fourth day of the trial, the trial judge was informed that a member of the jury had, through a third party, approached defence counsel and advised him that he, the juror, had before the weekend overheard a court official, within the precincts of the court, saying that the appellant had previously been convicted of armed robbery. The trial judge identified the juror and, with the agreement of counsel, questioned him. The juror responded that the information would affect his impartiality, but that he had not discussed the matter with any other juror. The trial judge indicated that he would discharge the juror and this was ultimately done. 15 However the judge refused an application by counsel for the defence to discharge the entire jury. Defence counsel acknowledged the unlikelihood that a court official had been indiscreet in the way suggested, and pointed to the possibility that the juror had the information from some other uniformed person. The following exchange occurred between the appellant's trial counsel, Mr Adams, and the trial judge. "Mr Adams: …the way in which that could have happened, your Honour, is - as your Honour knows, there is the most unsatisfactory situation of where jurors enter through the front entrance of this building before court in the mornings, there are police officers and other individuals standing around, witnesses, that sort of thing. It is not beyond contemplation that jurors will, from time to time, or can from time to time, overhear things that are said and that maybe - and we are in the role of speculation, I appreciate that, your Honour, but certainly as recently as this morning, I observed two jurors to walk past - a juror, to walk past my learned friend and I as we were making our way to your Honour's Chambers. His Honour: The defects in this building just make accidents all the more likely to happen. Mr Adams: Yes, your Honour. His Honour: I agree with you, Mr Adams. Mr Adams: …that leaves open the very real possibility that Mr X [the discharged juror] being truthful with your Honour says he comes by this information from some other source and that could well be the circumstances that I have described, your Honour, as a result of the defects in the building. So, in my submission your Honour, could not be satisfied that the rest of the jury have not in some way been tainted by this information." His Honour dealt with these submissions as follows: "Thank you. Well, I think that if I give the jury some direction now about deciding the matter on the evidence they hear in this courtroom, it may have some - it should have some effect in lessening the risk, which we all recognise, so I am going to refuse your application Mr Adams." 16 The trial judge then directed the jury in the following terms: "I discharged him because I thought that to have him continue as a member of your jury, might taint the system; taint our judicial system, our criminal justice system… You do not bring to your jury deliberations, anything you might have heard outside this court room. So, if you have heard something about the accused, about his previous - you know he has been in prison - but if you have heard anything about that, I am telling you to put it completely out of your mind… [A]n accused person is entitled to have his guilt or otherwise, determined on the evidence against him. Not on what some member of the jury might have heard about him outside the court room… [H]opefully, the system has not been tainted at all by the knowledge of the previous juror." A further direction was given before the jury retired to deliberate: "But we do not know what [the accused] was in gaol for. There is no evidence of what he was in gaol for and all I am cautioning you about is that do not jump to the conclusion that simply because he has been in gaol for something that we do not know about he is a person that has a propensity to commit crime and therefore it is all the easier to find him guilty of these crimes. That would be the wrong approach." 17 Counsel for the appellant points out that the trial judge had not sought to ascertain whether other jurors had overheard the same or similar comments. It is fair to say, however, that this may well have been, practically speaking, impossible to do without worsening the appellant's situation. It was argued that, in the absence of any evidence to the contrary, the fact that one juror overheard the comments gives rise to a reasonable apprehension or suspicion in the view of a fair minded observer that other members of the jury may have been similarly tainted: see Webb v The Queen (1994) 181 CLR 41. 18 The DPP submitted that there was no reason to disbelieve the juror's assertion that he had not discussed the matter with any other jury member. In the circumstances, it was said, the questioning of the juror undertaken by the trial judge would have elicited any information that the juror may have had about any other juror having learned about the appellant's criminal record. 19 A high degree of necessity is required before a jury ought to be discharged (see Winsor v The Queen (1866) LR1 QB390 at 394 as explained in R v Vaitos (1981) 4 A Crim R 238 at 240-5) and the Court should be slow to interfere with a trial judge's discretionary decision to discharge a jury (see R v Munday (1984) 14 A Crim R 456 at 457, R v Sumner (1985) 19 A Crim R 210 at 214). As an exercise of discretion, that decision should only be interfered with if the nature of the discretion was misconceived, the judge failed to consider relevant considerations or took into account irrelevant issues: House v The King (1936) 55 CLR 499. Even if a fellow juror had overheard the same comments, this would only give rise to an apprehension of bias if it were also established that any tendency to bias had not been overcome by a direction to the jury. 20 The DPP relied upon the comments of Mason CJ and McHugh J in Webb at 53: "It follows that the test … is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the … jury has not discharged or will not discharge its task impartially." The DPP also relied upon Crofts v The Queen (1996) 186 CLR 427 in which, at 441, it was said that it should be assumed that a jury is capable of accepting a judicial direction in relation to prejudice that may arise in the course of a trial. 21 We accept that these principles are correct and applicable. 22 We note also the observations of Gibbs ACJ (as he then was) in Maric v The Queen (1978) 52 ALJR 631 at 634-5 where his Honour said: "However in my opinion it must be remembered that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction…I cannot see any justification for deciding appeals in such cases on any different principle from that which applies in relation to criminal appeals generally …" 23 It follows that an appellant who seeks to appeal against conviction upon the ground that the trial judge's discretion miscarried when he failed to discharge the jury will only succeed if he can show that there has been a miscarriage of justice. 24 His Honour seems to have treated the matter as if all that was involved was a risk thought to be inevitable in the circumstances of the ACT Supreme Court's courthouse. But the case involved more than that. There was (1) proof that some indiscreet person of official mien had sufficiently clearly and loudly said something such that at least one passing juror had come to believe that the accused had a record of armed robbery; (2) an absence of any indication that there was no other juror in the vicinity; (3) an absence of proof that any other juror had not overhead the remark; and (4) an absence of proof that the indiscreet speaker had not uttered like remarks more than once while members of the jury may have been within earshot. This indicated that there was more than the usual risk that a juror had heard something untoward. Further, having regard to what the discharged juror had heard and to the nature of the case, including the appellant's defence, the risk of serious prejudice to the appellant was so great that there could be no confidence that any warning to the remaining jurors to disregard anything they might have heard would be effective. It follows that, in our opinion, the trial judge's discretion miscarried when he failed to discharge the jury. In the circumstances of this case, that failure to discharge the jury amounted to a miscarriage of justice. 25 It may be observed that, with conditions at the ACT Supreme Court courthouse being what they are, it may, with respect, be prudent for trial judges to give consideration to whether some appropriate preliminary remark at the outset of the case might be made to try to mitigate the particular risk of prejudice which apparently exists. We note that, in some form or other, the making of suitable preliminary remarks to jurors by trial judges is now a common and, in our view, a salutary practice. 26 The appellant also offered criticisms of his Honour's actual direction, set out above. It was argued that it may have indicated to the jury that there was something so abhorrent or adverse about the accused's past that, if they had knowledge of it, that would compromise their ability to fulfil their duties impartially. However, in view of our conclusion as to the inutility of any warning, we need not express any opinion about this.

Refusal to grant access or an adjournment - Letter to Legal Aid 27 On 22 February 1999, the seventh day of the trial, the appellant's counsel learned of a letter that had been written by Mr Kirchner to his solicitor, Mr Martin Hockridge of the ACT Legal Aid Commission, whilst he had been in gaol with the appellant. Although the appellant had personally been aware of the existence of this letter since the time of his bail application, he had not informed his solicitor or counsel of it until after Mr Kirchner had given evidence and the prosecution had closed its case. Upon learning of this letter, counsel for the appellant caused a subpoena to be issued to the Commission. However, upon Mr Kirchner's instruction, legal professional privilege was claimed over the letter. It was proposed that the letter over which privilege was claimed could be put to Mr Kirchner, and if acknowledged as his, then it could be admitted into evidence. The trial judge refused access to the letter and also refused an application for an adjournment for a period of one or two days to recall Mr Kirchner for him to prove the letter in further cross-examination.

Access to letter denied 28 Counsel for the appellant argued that the trial judge's refusal to grant access to the letter was an error of law. Section 123 of the Evidence Act 1995 (Cth) ("the Evidence Act") provides: "In a criminal proceeding, this Division [regarding client legal privilege] does not prevent a defendant from adducing evidence unless it is evidence of: (a) a confidential communication made between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person; or (b) the contents of a confidential document prepared by an associated defendant or by a lawyer acting for that person in connection with the prosecution of that person." 29 Section 92 of the Legal Aid Act 1977 (ACT) ("the ACT Legal Aid Act") provides: "(3) Subject to section 39B, a person to whom this section applies shall not be required to produce before a court any document relating to the affairs of another person of which he or she has the custody, or to which he or she has access, by virtue of his or her office or employment under or for the purposes of this Act or in the performance of a function under this Act, or to divulge or to communicate to any court any information concerning the affairs of another person obtained by him or her by reason of such an officer or employment or in the performance of such a function. (4) Subsection (3) does not apply if the court considers that it is necessary in the interests of justice that the document be produced or the information be divulged or communicated." 30 It must first be considered how the provisions of the Evidence Act and the ACT Legal Aid Act interrelate. Pursuant to s 4(1) of the Evidence Act, that Act applies to ACT courts. Section 8(4) thereof provides, so far as material, that the Act does not affect the operation of: "(a) provisions of the Evidence Act 1971 of the Australian Capital Territory that are specified in the regulations; (b) any other Act of the Australian Capital Territory;"

31 In Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 409, Finklestein J said of s 8(1), which may be regarded as in pari materia: "The scope of operation of s 8(1) is not clear. There will be no difficulty in applying the sub-section in the case where a provision of the Evidence Act is directly inconsistent with the provision of some other enactment. In that event the provision of that other enactment will prevail. But what if there is no direct inconsistency?" His Honour held that an inconsistency would arise where there was "in a general sense, an inconsistency between the two provisions". 32 However, in this case there is no inconsistency, express or implied, between the two Acts. Section 123 of the Evidence Act concerns only the adduction of evidence. The ACT Legal Aid Act provision deals with production of documents to the Court. There is no warrant to construe the Evidence Act so as to bring about symmetry as to tests for legal professional privilege between interlocutory and the substantive hearing stages of legal proceedings: see Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 168 ALR 123 and Mann v Carnell (1999) 168 ALR 86. Thus it is the ACT Act's provisions which govern the situation. 33 In any case, the distinction may not be of practical significance here. As defence counsel argued before his Honour, if Mr Kirchner had told his own solicitor that he believed the appellant to be innocent, this may have had a significant bearing on the jury's readiness to accept Mr Kirchner. From the tone of Mr Kirchner's letter seeking legal advice, which the appellant had obtained and to which the subject letter was a response, there was some reason to think that Mr Kirchner may have written some such thing. It was therefore "on the cards" (c.f. Alister v The Queen (1984) 154 CLR 405 per Gibbs CJ at 414) that the document would be relevant to the defence. In this sense, it was forensically relevant to the case and an appropriate time in the trial had arisen for counsel to ask to see it. A very serious criminal offence was involved. In our view, it was necessary in the interests of justice, subject to one matter, that the document be "produced" in the full meaning of that term, that is to say, including the documents being made available to counsel. 34 Our reservation concerns the fact that his Honour also refused the application for the adjournment. So far as we can see, given the advantages that his Honour had, this does not disclose appellable error. The processes of a criminal trial are designed, and judicial discretions should be exercised, to give an accused every reasonable chance to defend himself. No narrow view ought be taken of what is a reasonable chance. The law in this field is well settled. Attention was nevertheless drawn to several authorities. The appellant relied upon HG v The Queen (1999) 197 CLR 414, in which Hayne J said at 453 that: "If a witness whom the accused wishes to call to give evidence is not available and if … there was no suggestion that the accused is seeking simply to delay the trial, a trial judge would ordinarily not refuse the adjournment sought." 35 The appellant also relied upon R v McGill [1967] VR 683 at 685 - 686 and R v Greer (1992) 62 A Crim R 442 at 448 - 450. Counsel for the respondent again stressed that this is an appeal from a discretionary decision and thus the rule in House ought to apply. In R v Alexandoaia (1995) 81 A Crim R 286 at 289, the test was said to be: "Was there a reasonable possibility that material of substantial assistance to his case would be obtained if the trial were delayed … ?" 36 Nevertheless, there is a difference between being given every reasonable opportunity to defend oneself and every opportunity to do so. The appellant knew of the letter from the Legal Aid solicitor to Mr Kirchner a considerable time before the trial. His previous legal advisors had the text of it. The question of production of Mr Kirchner's letter could have been raised before or while Mr Kirchner was at the court. He had been returned to a NSW prison and it may have taken a couple of days to get him back. His Honour evidently took the view that whatever was in the letter was not likely to tip the balance as to whether the jury would, to the requisite degree, accept Mr Kirchner. His Honour had had the advantage of observing Mr Kirchner giving evidence. The case had taken some time and there had been some interruption of its progress. Though acknowledging that the letter "goes to the substance of the defence case", the trial judge did consider whether the adjournment would result in "a reasonable possibility that material of substantial assistance" would be forthcoming, but determined that it would not. We are not satisfied that his Honour fell into appellable error in that decision. 37 Returning then to the letter, defence counsel conceded that if Mr Kirchner were not recalled, there would be no use he could make of the document. It was not submitted to us by (different) counsel for the appellant that that concession was erroneous. Nor does it clearly appear to us to have been so. In any case, it is clear that, at the trial, the appellant's counsel conceded that he could make no use of the document, absent Mr Kirchner, and that, had counsel had it, he would have made no use of it. 38 Thus, despite the disquiet we have indicated about the actual decision to deny counsel access to Mr Kirchner's letter, it is quite clear that that decision did not affect what might have been put before the jury. It was the refusal of the adjournment application that was the crucial decision and, as we have indicated, we do not consider that appellable error has been shown in that regard. 39 We should add that, in addition, it was submitted by the DPP that it had not been an error to refuse the adjournment because the letter was not of sufficient significance to the appellant's case and that, for that same reason, any error that may have been made regarding the admissibility of the letter would not amount to a miscarriage of justice. However having regard to our conclusion, we need not explore this submission further.

Admission into evidence of statements of deceased Crown witness 40 On 26 November 1996, Mr Stewart had participated in a taped record of interview with the police, but on 31 October 1997, before the trial of the appellant, he died. In some respects the interview was merely consistent with the appellant's case. However, Mr Stewart also stated in the interview that he had been gardening on the Wednesday before the armed robbery, that he had been unaware of the sawn-off rifle buried in his yard until it was found by the police, and that on the morning of the robbery the appellant had told him that he "had done a rort" and asked him whether he had an incinerator. 41 The Crown sought to tender a transcript of the record of interview, as an exception to the hearsay rule pursuant to s 65 of the Evidence Act, which was opposed by counsel for the appellant. The trial judge admitted the transcript into evidence, stating in the course of argument: "when you look at all that Mr Stewart [says], it is highly probable that what he says is reliable, having regard to the other evidence, the nexus in time and in place and the … disposing of the bag. It all hangs together."

His Honour concluded:: "I find it highly probable that [the representations made in the transcript] are reliable". 42 Section 65(2) of the Evidence Act provides: "The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: … (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) made in circumstances that make it highly probable that the representation is reliable". It is not clear whether his Honour admitted the transcript under subs (2)(b) or (2)(c). However, the appellant argued that the interview was not admissible as an exception to the hearsay rule under either of these sections. Since his Honour dealt with this matter, the meaning of these provisions has been explained by a Full Court of this Court in Conway v The Queen (2000) 98 FCR 204.

"shortly after" 43 The appellant submitted that the interview was not admissible under s 65(2)(b) of the Evidence Act because, having been recorded five days after the armed robbery, it could not be said to have been made "shortly after" the events described in the interview. 44 In Conway the Full Court considered both limbs of s 65(2)(b). With regard to the phrase "shortly after", the Court said at paras [123] - [135]: "The word 'when' in s 65(2)(b) of the Act encompasses [the] notion of strict contemporaneity. The introduction of the expression 'shortly after' is, however, a significant departure from traditional doctrine. … The primary objective which underlies the requirement in s 65(2)(b) of the Act that the representation be made 'when' or 'shortly after' the asserted fact occurred seems to be to ensure that the matters conveyed are either strictly contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting that narrative. The expression 'shortly after' makes it clear that there need not be anything like the strict contemporaneity required at common law to render the evidence admissible as res gestae. In R v Mankotia [1998] NSWSC 295, Sperling J had occasion to deal with the meaning of the expression 'shortly after' in s 65(2)(b) of the Evidence Act 1995 (NSW). His Honour said: 'The phrase 'shortly after' is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to taken into account but - as in the case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase 'shortly after' must be the actual time that has elapsed and whether that fits the ordinary usage of the expression 'shortly after' in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.' These observations were later cited with approval by Levine J in R v Polkinghorne (1999) 108 A Crim R 189. We consider that both Sperling and Levine JJ were correct in their analysis of the meaning of the expression 'shortly after' in the context in which it appears." At paras [137] - [140] their Honours said: "The second condition which must be met before evidence may be led pursuant to s 65(2)(b) is that the representation must have been made in circumstances that 'make it unlikely that it is a fabrication'. … In Polkinghorne Levine J drew attention to the similarities between the language employed by the legislature in the second condition prescribed by s 65(2)(b), and what Lord Wilberforce had said in Ratten v The Queen at 388‑390. It is worth repeating what Lord Wilberforce had there said: … "…As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression 'res gestae' may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges' rulings.' In Polkinghorne Levine J observed that these passages from Lord Wilberforce's speech had been cited, and with apparent approval, by Barwick CJ in Vocisano. Levine J also observed that the rigidities of Bedingfield might now be regarded as obsolete. A spontaneous exclamation made within a short time of an incident to which it relates would ordinarily be 'unlikely to be a fabrication'. That is a proposition with which we would not disagree." 45 One must not "attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded": Papakosmas v The Queen (1999) 196 CLR 297 at 310, per Gleeson CJ and Hayne J. In the same case, McHugh J said (at 324) that: "The Act has made substantial changes to the law of evidence. Notwithstanding s 9, reference to pre-existing common law concepts will often be unhelpful." Nevertheless, it is apparent that s 65(2)(b) draws directly upon the case law preceding the passage of the Act. In such circumstances, it is appropriate to turn to the common law "to provide guidance on the issue" (see Papakosmas at 313, per Gaudron and Kirby JJ).

46 It seems that the exception set out in s 65(2)(b) was intended to restate and reform the common law res gestae exception to the hearsay rule, ensuring that an overly narrow approach adopted in cases such as R v Bedingfield (1879) 14 CoxCC 341 would be avoided. The terms of s 65(2)(b) indicate that the "approximate … contemporaneity" approach pre-figured in Ratten v The Queen [1972] AC 378is to be preferred to the exact contemporaneity apparently required by Vocisano v Vocisano (1974) 130 CLR 267, thus disposing of any ambiguity that may exist at common law. The Australian Law Reform Commission ("ALRC") proposal, which led to the provision, took the case law as a starting point for its considerations:

"The proposal includes an exception for representations made '[when] or shortly after' the events referred to in it. A formula is used which takes up the suggestions of the Privy Council in Ratten's case. It directs attention to the question of the likelihood of fabrication."

47 Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase "shortly after". As noted by Sperling J in R v Mankotia [1998] NSWSC 295 at 10, s 65(2)(b) ought not be regarded as simply importing a test of:

"reliability at large. It is a narrower test… [I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial."

48 For these reasons, it would be a mistake, in determining whether a statement has been made "shortly after", to over-emphasise such matters as whether the events in question were "fresh" in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during ("when") or under the proximate pressure of ("shortly after") the occurrence of the asserted fact. In Conway the statement in question was made by a murder victim who said, while observed to be looking "terrible", that she had been drugged and had been "off her face for about three or four hours". The comments of the Court in Conway regarding the meaning of "shortly after" should be understood accordingly. The approach taken in Conway to s 65(2)(b) as a whole is consistent with such a reading of that case.

49 In this case, the statements were not made during the events in question, and, we think, could not be said to have been made "shortly after". Despite being made within a time in which Mr Stewart may be considered to have retained a good recollection of events generally, the lapse of five days takes the representations outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximate pressure of, events. This time lapse, therefore, takes the representations outside the exception contained within s 65(2)(b). Indeed, it would seem to be an unusual case in which a representation made five days after the occurrence of the asserted fact might be regarded as having been made "soon after" it.

"in circumstances that make it unlikely that it is a fabrication" 50 The appellant also submitted that the trial judge misconceived the appropriate test to be applied pursuant to both s 65(2)(b) and s 65(2)(c) because, rather than looking to the surrounding "circumstances" in which the interview was recorded, the trial judge looked to what he considered to be the apparent accuracy of the representations contained therein. The short sections of transcript set out above indicate that his Honour appeared to pay regard to the internal consistency of the representations made in the interview and their consistency with the other available evidence in concluding that they were reliable. 51 In R v Polkinghorne [1999] NSWSC 704 Levine J said at para [33] that "one must look at the circumstances of the event being narrated rather than the narration itself", and in Mankotia Sperling J said at 10 that: "…it is not unlikelihood at large which is in question, but unlikelihood arising from the circumstances. I would construe 'circumstances' to mean the circumstances in which the representation was made, its factual setting at the time it was made. That construction has the effect of excluding from consideration, for the purposes of s 65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s 65(2)(c)." 52 This approach was not entirely followed in this Court in Conway. At para [145] the Full Court stated: "We think that it is legitimate for a trial judge to have regard to evidence of what the maker of the previous representation has said on other occasions, when determining whether or not it is highly probable that a particular statement was reliable." 53 It was said by Odgers in Uniform Evidence Law 4th ed. (2000) at 142 that: "It is suggested that the better view is that, while the question for the court is whether the circumstances in which the representation was made make it unlikely that the representation was a fabrication, the court should be permitted to consider any other events which are relevant to that issue." 54 The statutory test is not whether, in all the circumstances, there is a probability (s 65(2)(b)) or a high probability (s 65(2)(c)) of reliability, but whether the circumstances in which the representation "was … made" determine that there is such a probability. Following the Conway approach, the trial judge was entitled to consider other available relevant evidence as to all the circumstances in which the statement was made. Nevertheless, whilst it was open to his Honour to consider the consistency of what was said with other material in the Crown case, this is only part of the inquiry as to whether those circumstances make it probable or highly probable that the representation was reliable. His Honour appears not to have adequately addressed the concerns raised at the trial by counsel for the appellant that, at the time of the interview, Mr Stewart had been cautioned that he was suspected of having aided and abetted the appellant, and that a sawn-off rifle had been found in his back yard. In response to the submission that these factors made the circumstances such that the interview was far from reliable, his Honour said in the course of argument: "Putting aside the denial of any involvement … what is contained in the record of interview that affects the accused, is wholly reliable, is it not? … I would understand the aiding and abetting as being some suggestion that Mr Stewart gave refuge or provided a hiding place or provided the means of getting rid of the implements that were used. That would be aiding and abetting or an accessory after the fact. But so far as what the accused did, is concerned, and limiting what Mr Stewart said about what the accused did, what is unreliable about it?" 55 It appears from these comments and otherwise that his Honour addressed only the question of whether the evidence contained within the transcript of interview was reliable, rather than, as Conway would have it, all the circumstances as to the making of the statement. This was an erroneous approach to s 65(2)(c) or a mistaken application of the principle to admit the interview under that section. This is particularly so in light of the onerous requirements imposed by s 65(2)(c). In Conway the Court said at paras [146] - [147]: "The requirement in s 65(2)(c) of the Act that it be 'highly probable' that a representation be 'reliable' in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating 'reliability' alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule. It is true that in Pollitt v The Queen (1992) 174 CLR 558 Mason CJ favoured the development of an exception to the hearsay rule based solely upon 'reliability'. However, the High Court eschewed that approach in Bannon v The Queen (1995) 185 CLR 1, and there are plainly dangers associated with it." 56 Mr Stewart made the statements in the course of an interrogation of him by police. In Mr Stewart's home, the police had found, buried in the garden, a sawn-off shotgun. Mr Stewart had within the previous few days tended his garden. To possess such a weapon is a serious offence (s 5(1) Prohibited Weapons Act 1996 (ACT)). Mr Stewart was, on his own account, a man who would assist a friend who had "done a rort" by making equipment available for the destruction of evidence. He was apparently a drug addict living a fringe existence. He had a variety of reasons to tell the police what he perceived that they wanted to hear. It is very likely that he perceived that they wanted to hear matters that would implicate the appellant. 57 Further, Mr Stewart was a suspected accomplice of the appellant. Had he given evidence against the appellant (and been liable to cross-examination by the appellant's counsel) the trial judge would have been required to direct the jury that his evidence, if uncorroborated, should not be accepted unless scrutinised with particular care. That is because accomplices notoriously seek to lessen their own blameworthiness by enlarging that of their alleged co-offenders: see e.g. Webb per Toohey J at 92-93. 58 Although the resolution of this question of fact does not turn on any impression of any person's demeanour, real respect should be paid to the view of the learned trial judge. Nevertheless, we are unable to feel that his Honour's view was the correct one. There was not, in our view, any unlikelihood that Mr Stewart's statements were fabrications, still less any high probability that his representations were reliable. In our view, his Honour erred in admitting evidence of the statements.

Significance of the interview 59 It was argued by the DPP that the admission of the evidence could not have amounted to an injustice or a miscarriage of justice, since many of the facts recounted by Mr Stewart were nevertheless in accord with the account offered by the appellant (although the interpretation of these facts differed): he did attend Mr Stewart's premises; he did go to the toilet there; he did tell Mr Stewart he had committed a rort; he did use the barbecue to burn something; he did wear overalls that Mr Stewart had supplied to him. Accordingly, even if the transcript ought not have been admitted it would not have affected the result: see R v Duff (1979) 39 FLR 315 at 329. 60 However, the fact that Mr Stewart's account is largely in accord with that of the appellant does not diminish the significance of the areas of difference. Of particular significance was Mr Stewart's denial of any knowledge of the gun in his yard, Ms Feekin having similarly denied any knowledge of it. The clear inference that could be drawn from Mr Stewart's statements was that the rifle must have been put there by the appellant. This possible inference was not sufficiently negatived by the following dialogue that also formed part of the Stewart interview: "Q. Who do you believe would've had access to your back yard between … Wednesday when you dug it up and … today when we located it? A. Who's had access to the back yard. Oh, we've had a lot of visitors. Q. And people have been left there by themselves, unattended? A. Yeah." 61 The implication remained that a shotgun had been recently placed there and that the appellant had had the opportunity to do it. It was a powerful piece of circumstantial evidence in the context of the other evidence. Unfair prejudice pursuant to s 137 of the Evidence Act? 62 Section 137 provides: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 63 The evidence had significant but far from overwhelming probative value. The question was whether this was outweighed by the danger of unfair prejudice to the appellant. Evidence "may be unfairly prejudicial to a party if there is a real risk that the evidence will be misused by the jury in some unfair way" R v BD (1997) 94 A Crim R 131 at 151 and 139; Papakosmos per McHugh J at [91]. 64 A common way in which such a risk arises is where the jury may be thought likely to react emotionally to the evidence to a degree that distracts them from the real issues, or unfairly predisposes them to find the case proven more easily than would otherwise be required. These examples were given by the ALRC: ALRC 26, Vol 1 [644]. But those are not the only ways in which a jury might unfairly misuse the evidence. Here, there was an appreciable risk that the jury would misuse it by not examining it with the care demanded by the circumstances in which it came into existence. 65 The Evidence Act relevantly provides: "164(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge: (a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or (b) give a direction relating to the absence of corroboration. … 165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: … (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; … (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." 66 Mr Stewart's evidence having been admitted, in our opinion a strong warning was required, in the circumstances of this case, to stress that: (a) Mr Stewart's story was not given on oath; (b) If given on oath, it would have been subject to being tested by cross-examination; (c) If so given, absent reliable corroboration, there would be a need for caution, that it is to say, the evidence should only be accepted and relied upon after close and careful scrutiny; and (d) Mr Stewart might very well have been in a position where he had other reasons than his suspected implication in the aftermath of the crime, to unreliably tell the police things that would tend to incriminate the appellant. 67 No such direction was given although, when admissibility was debated, his Honour seemed to have been of a mind to give an "accomplice" direction. In fairness to his Honour, he was not reminded of it during breaks in or after his summing-up. It may be that counsel for the appellant felt that he had already raised the matter and that his Honour had changed an intention communicated in the course of argument. 68 In any case this was, in our view, a fundamental matter. Although the case against the accused was otherwise a strong one, upon analysis we think that it cannot be denied that the admission of the evidence coupled with the absence of a strong direction about the dangers attending its ready acceptance may have deprived the accused of a chance of acquittal that was fairly open to him. Appellable legal error has therefore been shown: see Wilde v The Queen (1987-1988) 164 CLR 365 at 371-372.

Unsafe and unsatisfactory jury verdict? 69 It was submitted by counsel for the appellant that the verdict of the jury was unsafe and unsatisfactory such that it ought to be set aside: Gipp v The Queen (1998) 194 CLR 106 at 114. See however Fleming v The Queen (1998) 197 CLR 250 and R v Giam (1999) 104 A Crim R 416 but c.f. s 24(1)(b) Federal Court of Australia Act 1976. To support this ground the appellant pointed to the following features of the evidence:

Gun type 70 First, the appellant claimed that doubt was cast upon the jury's verdict because of: the shotgun found at Mr Kirchner's mother's house in Adelaide; the weapons found in Mr Stewart's house were rifles; and the evidence of the eyewitnesses consistently identified the weapon used in the robbery as a sawn-off shotgun. 71 A range of descriptions of the gun used in the robbery were offered by the eyewitnesses, including: "a double barrelled type sawn-off shotgun"; "30 centimetres in length, I presume, wooden on the top and steel underneath … cut off"; "a small version of a shotgun … two barrels"; "a black gun"; "it was a sawn off shotgun and it had wooden bits and steel barrels … it didn't look like a hand-gun and so that's what I assume is a shotgun … I think it was just one [barrel]"; Mr Wywsik, who had served in the army, described the gun as a shotgun, but later indicated that he had described it as such because it had been shortened and said that it may have been a rifle; "a rifle but sawn off"; "it wasn't a rifle … the barrel was too short… I just automatically thought it was one of these … sawn off shotguns"; "a sawn-off single barrel shotgun [because of] the size of the barrel … larger that a 22"; "I believe it was a sawn-off shotgun because of the size of it and the bulk of it … could have been [double barrelled]". 72 The respondent pointed out that the term shotgun was not adopted by all witnesses. More importantly, although the term "shotgun" was used by many of the witnesses there was evidence that observers often describe a shortened weapon as a "sawn-off shotgun". It appears to us that there was ample evidence by observers, consistent with the Crown's case that a sawn off rifle had been used by the appellant in the robbery.

Mr Stewart's evidence 73 We have dealt with this above.

Mr Kirchner's confession 74 The fact that Mr Kirchner had confessed to the robbery and later recanted was said to make his evidence wholly unreliable, and it was the linchpin of the Crown case. It was well open to the jury, it seems to us, to accept Mr Kirchner and to disbelieve the appellant.

The identification 75 The eyewitnesses to the bank robber donning his balaclava were unable to provide a definite identification of the persons who carried out the robbery. Most of the witnesses only saw the offender wearing a balaclava, which was consistently described. However, the Crown only relied upon the similarity of the appellant and the offender as a piece of circumstantial evidence, and there was a good deal of other such evidence.

Other matters 76 It was also submitted by counsel for the appellant that: · Whilst the appellant had been in possession of a significant portion of the proceeds of the robbery, he also had an explanation for that possession which was not inherently implausible. On the contrary, in our view, it was perfectly open to the jury, as a matter of community experience, to see the appellant's explanation as quite far-fetched. · The Crown had sought to rely, amongst other things, on a conversation between the appellant and an aunt of his in which it was alleged he had used words indicating that he had performed the robbery. The witness said that "I think Guy said he robbed a bank", but later said that she was not sure. The fact that Ms Smith's evidence was not entirely clear did not diminish the strength otherwise of the Crown case. · The evidence of the DNA sample found on the overalls at Mr Stewart's house was ambiguous because it did not establish whether the appellant had worn the overalls and it was not established that the overalls were the ones worn in the robbery in any event. Although the evidence regarding the overalls was not in itself strong, it added slightly to, and did not detract from, the Crown's case. 77 Nor do these features, taken cumulatively, indicate that the jury's verdict was unsafe and unsatisfactory. In our view, the circumstantial case of the Crown, bolstered by the evidence of confessions to Mr Kirchner and the appellant's own uncle, was a strong one. The verdicts are in no sense unsafe and unsatisfactory.

Extension of time 78 As a preliminary matter, the appellant made an application, dated 28 October 1999, for leave to file and serve the notice of appeal out of time. Order 52 r 15 of the Federal Court Rules ("the Rules") provides: "(1) The notice of appeal shall be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; … (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." It is therefore necessary to consider whether there are "special reasons" to justify granting the appellant leave to appeal, approximately eight months after the pronouncement of judgment. 79 On 4 March 1999, the same day that he was sentenced, the appellant applied for legal aid funding to appeal. Funding was finally granted to him on 7 December 1999. The appellant claimed that it was because of this delay that he had been unable to prosecute his appeal within the time prescribed in the Rules. Counsel for the appellant argued that the fact that he was in prison and without resources constitutes "special reasons" for these purposes. It was also noted that the delay had not been caused by mere inadvertence or procrastination. 80 It was held in Jess v Scott (1986) 12 FCR 187 at 195 that a ground is a special reason if: "it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this." 81 The DPP submitted that there were four matters to be considered when determining an application for extension of time to appeal. First, the length of delay: in this case approximately seven months after the prescribed twenty one day limit. Second, the explanation for it: which was said to be inadequate since the appellant could have filed his notice of appeal without professional assistance. Third, any prejudice that might be suffered by the Crown: which was said to arise from the fact that, on any re-trial, the lapse of time would render the memory of witnesses less reliable. Fourth, the prospects of success which, the Crown claimed were weak. 82 It was said in argument that Jess had been overturned by the decisions in Gallo v Dawson (No 2) (1992) 109 ALR 319 and Halliday v High Performance Personnel (1993) 113 ALR 637. However, these cases do not overrule Jess. They deal only with the narrower point of the relevance of the prospects of success on appeal. 83 There is obvious substance in these submissions. If the prospects of success were not high, they might well tip the balance. There are good reasons for requiring that the Crown be notified at an early time that an appeal is to be or may be launched. 84 However, the prejudice to the Crown would appear to be less than in other cases since this case does not turn upon evidence to which memory seems to be especially critical, such as a crucial identification. Moreover, although the explanation for the failure to lodge a notice of appeal is somewhat unpersuasive, it does seem that the appellant always did wish to appeal and our view is that, if he is permitted to appeal, his appeal should succeed. Leave should be granted for the appellant to file and serve the notice of appeal out of time.

Disposition 85 For these reasons, leave is granted to the appellant to file and serve the notice of appeal, the appeal as to conviction is allowed, and the matter is remitted to the Supreme Court for a re-trial. 86 It follows that the appeal against sentence does not fall to be determined. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Madgwick & Weinberg.

Solicitor for the Appellant: Frank Wilson Solicitor

Solicitor for the Respondent: Director of Public Prosecutions (ACT)