Reported Decision : 110 A Crim R 180 New South Wales Court of Criminal Appeal CITATION : REGINA v GIBSON [1999] NSWCCA 370 FILE NUMBER(S) : CCA 60369/98 HEARING DATE(S) : 25 June 1999 JUDGMENT DATE : 26 November 1999 PARTIES : Scott Anthony Gibson Regina JUDGMENT OF : Spigelman CJ at 1; Studdert J at 2; Adams J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/61/0090 LOWER COURT JUDICIAL OFFICER : Knight DCJ COUNSEL : P J D Hamill (Appellant) L M B Lamprati (Crown) SOLICITORS : T A Murphy (Appellant) C K Smith (Crown) CATCHWORDS : Bias of juror - knowledge of witness - questioned by judge - whether appropriate - direction to jury on discharge of a juror - witness - whether doubtful - s165 Evidence Act 1995 - whether unfavourable - s38 Evidence Act 1995 ACTS CITED : Evidence Act 1995 Criminal Appeal Act 1912 Livesey v New South Wales Bar Association (1983) 151 CLR 228 at 293 Webb & Hay v The Queen (1994) 181 CLR 41 Pitkin v The Queen (1995) 69 ALJR 612 Regina v Paul Darryl Meier (unreported, NSWCCA 28 May 1996) CASES CITED: Regina v GAC (unreported, NSWCCA 1 April 1997) R v Shepherd (1990) 170 CLR 576 Fleming v The Queen [1998] HCA 68 (11 November 1998) M v The Queen (1994) 184 CLR 487 at 493 Jones v The Queen (1997) 191 CLR 439 at 450-2 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60369/98 SPIGELMAN CJ STUDDERT J ADAMS J Friday 26 November 1999 REGINA v SCOTT ANTHONY GIBSON JUDGMENT 1 SPIGELMAN CJ: I agree with Adams J. 2 STUDDERT J: I agree with Adams J. 3 ADAMS J: The appellant, Scott Anthony Gibson, was charged jointly with Grahame David Butler and Michael John Whitney of robbery with violence allegedly committed on one Shane Robert Hardy on 28 October 1994 at Parkes. After a trial lasting about two weeks, all three were convicted on 25 June 1998. It was alleged that Mr Hardy was robbed of a ring, a wallet, personal papers and about $50 cash. The first ground of appeal is in the following terms: "The trial miscarried by virtue of the failure of the learned trial judge to discharge the jury when it emerged that one of the jurors was acquainted with certain witnesses, held views in relation to the character of those witnesses and had communicated with some of her fellow jurors in relation to her knowledge." 4 On day five of the trial, his Honour raised the following matter in open court - "This morning at approximately ten past ten, the Crown Prosecutor and counsel for each of the accused waited on me in my private chambers. They informed me that a person had indicated to them yesterday that one of the jurors ... had lived next door to this informant and that the two accused, Grahame David Butler and Michael John Whitney, had visited the [juror's] home, I think the phrase was used, "all the time". I am further informed that the accused, Michael John Whitney, has indicated that the juror ... is a friend of his mother and goes regularly to the club with his mother and that the [juror] lives next door to the accused Grahame David Butler's mother." It will be noted that the appellant was not alleged to have visited the juror's home. His Honour decided with the consent of all counsel to question the juror who was brought into court for that purpose. When she was asked whether she knew Butler or Whitney she said that she did not know them but did know some of the witnesses who had given evidence. Whitney's mother was one Narelle Townswell (or Tanswell). The juror said that she lived about four houses down from the Townswell family, 15 or perhaps 23 years previously but "never got involved with them" although she "knew the children". Although the juror had earlier mentioned knowing some of the witnesses, she identified only one, a Ms Debbie Kelly, whom she knew "just to say hello to", her brother living across the road from the juror's house, though he had never visited there nor had the juror visited Ms Kelly. The juror also knew another witness, Leanne Jones, with whom one of the juror's daughters had been friendly six or seven years before. Ms Jones never came to the juror's home and she told her daughter that she was not to associate with Leanne because "she was a bad influence". The juror also informed his Honour, when asked about her, that she knew a Sandra Butler who was Butler's mother who worked at the local service station and "comes out and serves us". The juror said that this was the full extent of her knowledge of Butler's mother. 5 Ms Jones, who was a cousin of Butler, resided at 363 Clarinda Street Parkes where, it was alleged by the Crown, the robbery took place. Ms Jones's evidence was that on the evening of 27 October 1994 in the company of Alison McKenzie had been out and then returned after midnight to Clarinda Street when, at a later time, a number of persons arrived. They were Debbie Kelly, Sue Thorpe, Cherie Butler and the three accused together with the victim of the attack. All came inside except, possibly, Hardy who she saw on the front verandah but not inside, so far as she could recall. Ms Jones said that she heard noises outside the house like "something hitting on the wall". The appellant later came into the house saying "he was a hard cunt to get down". Ms Jones noted blood on the appellant's lip. Music was playing but she could not recall how loudly. The appellant left with his girlfriend, Ms Thorpe, in the morning. Ms Jones had not seen the complainant after observing him on the front verandah. Counsel for Butler and Whitney elicited in cross-examination that at the time she heard the noise at the side of the house, Whitney was in front of the entrance to the house and Butler was sitting on the lounge. She was cross-examined by counsel for the appellant to suggest that her recollection of the events of the night in question were in error, that she had exaggerated her embarrassment at repeating the language used by the appellant, that she had not told the police on the first occasion when she was able to do so about what the appellant had said, that she was a cousin of Ms Butler, who was Whitney's girlfriend, and generally attacked on the truthfulness of her evidence concerning the appellant, in particular that she and the other accused had agreed to blame the appellant for the crime. Ms Kelly was also living at 363 Clarinda Street on the date of the offence. In summary, her evidence was that she had gone to a hotel in the company of the Butler, his sister Cherie Butler and Whitney. At the time she was Butler's girlfriend. She left the hotel in the early hours of 28 October in the company of Whitney and Ms Butler, later meeting Ms Thorpe and the appellant who were in a motor vehicle, with whom they drove back to Clarinda Street. Amongst others present in the house when she arrived was the accused Butler and the victim. She went into the kitchen with Ms Butler and Ms Thorpe to make sandwiches. She noticed Butler and Whitney standing at the front door, giving them a likely, though not certain, alibi for the robbery. The appellant came into the kitchen with a wallet and a ring which were consistent with the description given by the victim of the items stolen from him. She was present when the police executed a search warrant at the Clarinda Street house in the morning a few hours after the robbery. She was told that the police were looking for a wallet and a ring but said nothing at that time about earlier seeing the appellant with such items. Her statement was not made until 3 November 1994. As I understand the sequence of events this was after the alleged conversation with Ms Thorpe in the lounge room to which Ms Jones deposed. Not surprisingly perhaps, counsel for Whitney and Butler did not seek to cross-examine Ms Kelly. Counsel for the appellant cross-examined Ms Kelly extensively, in the end suggesting to her that she had falsely attempted to implicate the appellant and exonerate Butler. Butler's mother did not give evidence. 6 The juror denied discussing anything about her knowledge of Leanne Jones with any other juror. She did say to the other jurors that she knew Ms Kelly. 7 The Crown sought discharge of the juror because, it was submitted, she did not like Ms Kelly or approve of Ms Jones. (I note that there is nothing in what the juror said, as I read it, which justified the submission that she disliked Ms Kelly.) Counsel for Butler and Whitney submitted that the whole jury should be discharged. Since Ms Kelly and Ms Jones gave evidence which in substance assisted her clients, it may have been prejudicial to them if the jury had understood that the two women were, perhaps, of doubtful character. Counsel for the appellant sought a discharge of the jury on the basis that the juror had not made it clear when the witnesses names were called out that she knew the women in question. (However, his Honour asked for this to be done only if the potential juror was acquainted with, or a relative of, any of the witnesses or the accused.) In essence, counsel's submission was that although the juror's views might be adverse about the two witnesses who were in the camp of the appellant's co-accused, he was concerned about unknown comments which may have been made to the other jurors. Following submissions from counsel, his Honour adjourned the matter and then recalled the juror. In substance the juror told his Honour that although she had told other jurors that she knew Ms Kelly she did not inform them how she knew her or express any views about her whilst, so far as Ms Jones was concerned, she had not told them anything about her. She said that she had not raised this matter when the witnesses names were called because she was not very good with names and did not recognise the two witnesses until she saw them in the witness box. After further submissions, his Honour discharged the juror and, when the remaining members of the jury were brought in said - "I'm sorry you've been kept waiting, but as you can probably see you have one less juror at the present time. That juror ... has been discharged. The reason why she has been discharged is that it transpired that she had some acquaintance with Leanne Jones and Deborah Kelly, both of whom you will recall have given evidence on behalf of the Crown in relation to this matter. And I therefore discharged her and she will take no further part in this trial. I want to, with all the strength I can, urge you to put out of your minds completely, totally, and absolutely, anything that [the juror] may have said to you concerning her knowledge of Deborah Kelly, or Leanne Jones. I equally instruct you to put out of your minds totally, completely and absolutely any comments that ... [the juror] may have said to you concerning the evidence of Leanne Jones, or Deborah Kelly. It is very important that, not only must justice be done, it must manifestly be seen to be done. And it follows that it would be extremely wrong of you to take into account any comments that ... [the discharged juror] may, at any stage have said to you, concerning the evidence of either of those two witnesses. So will you please completely, absolutely, put out of your minds any comments that she may have made. Now, I have also been invited by counsel to take this course, which is unusual and which I am going to do, and that is this; in view of what has transpired is there any member of the jury that feels that they could not bring an impartial mind to bear in hearing the rest of this trial? If any of you feel that you could not bring an impartial mind to bear please now tell me. Is there anyone in that situation? No. Very well. Now, the law provides for the trial to continue with just the eleven, and so we will continue just as if there were 12 jurors, alright." 8 His Honour delivered a judgment on the application to discharge the jury. His Honour briefly set out the evidence which had been given by the juror which he accepted as truthful. His Honour pointed out, quite correctly in my view, that the information which was given to him at the outset and which led to the inquiry was "wildly inaccurate". His Honour referred to the well-known principle stated by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 that "a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it", considering, correctly in my view, that this principle applied also to a jury. His Honour pointed out that this test had been applied to an allegation of jury bias by the High Court of Australia in Webb & Hay v The Queen (1994) 181 CLR 41. In that case following a trial lasting many weeks and involving the gruesome murder of a young man, a juror who had brought some flowers to court with the intention to give them to another juror whose wife was in hospital, spontaneously decided to give one bunch to the mother of the deceased, who was not a witness. Mason CJ and McHugh J said (at 46 & 47) - "In our opinion, the test that his Honour [the trial judge] should have applied was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror". The trial judge considered that the appropriate test was whether there was a real danger that the position of the accused had been or might have been prejudiced by the conduct of the juror. In rejecting this test, Mason CJ and McHugh J pointed out (at 52) that - "...where the conduct of a juror is in issue, it will often be difficult to determine objectively whether the incident has affected or might affect the impartiality of the juror and whether directions to the jury were or will be adequate to protect the parties from the effect of the irregular incident. To place confidence in a test based on the assumption that an investigation will reveal all the facts of the incident may lead to a miscarriage of justice. In our experience the investigation of such incidents during the course of a trial is not exhaustive. Ordinarily, the judge simply asks the juror for an explanation. However, a juror involved in an irregular incident may feel defensive about his or her role. Understandably, the juror may seek to put the best light on the matter. Seldom, if ever, is there a detailed cross-examination of the juror by counsel or by the judge in such a case. … One can never be certain, therefore, whether all the circumstances have been elicited by the trial judge. If real danger or bias was the governing criterion, the judge might reach a conclusion opposite to that which he or she might have reached if all the facts were known. The reasonable apprehension test, on the other hand, allows a margin for error in evaluating the facts as elicited. It concentrates not on whether there is a danger of bias as an objective fact, but whether a fair-minded and informed person might apprehend or suspect that bias existed." The appellant relies on this passage to argue that, although the learned trial judge applied the "reasonable apprehension test" he did not "allow a margin for error" in relation to the facts which gave rise to the exercise of the discretion rather, making specific findings of fact based on an acceptance of the juror's testimony. It is submitted that there was no public ventilation of the matter which, with an appropriate warning, might have allayed the reasonable apprehensions of a fair-minded and objective member of the public that the jury might be biased against the accused, pointing out that the only inquiry, without cross-examination, was of the juror who was actually discharged. The appellant submitted that a number of questions were left unanswered by his Honour's findings and assayed some examples, which I do not think it necessary to set out. I think it sufficient to say that in my view, his Honour was entitled to accept what the juror said about the nature of her knowledge of the persons she mentioned and, in particular, what she had, or rather had not, communicated to the other jurors. I am of the view that any fair-minded and informed observer would have come to the same conclusions as his Honour. In Webb & Hay , Mason CJ and McHugh J (181 CLR at 55) said - "But a finding that the incident gave rise to a reasonable apprehension of bias is not the end of the matter. The fair-minded and informed observer would also consider the effect of the judge's warning on the juror and the judge's assessment of the character of the juror. We have already set out the passage where the learned judge said that he thought that, even if there was a risk of bias or prejudice, the case could be met with an appropriate warning. That was an opinion that a fair-minded person would not likely reject. Further, the learned judge made findings concerning the juror and gave a warning which a fair-minded and informed person was bound to consider." These remarks are apt to the present case. It is also relevant to note that although the credibility of the two female witnesses with whom the juror had some acquaintance and in respect of one an adverse opinion, was sought to be controverted by the appellant, there were was nothing that could suggest to any reasonable an objective observer that the juror might have preferred their evidence to that of the appellant, quite the contrary. Nevertheless, there was some risk of an irrelevant factor capable of affecting, even if only slightly, the juror's consideration of the relative credibility of the witnesses and the appellant so that it was appropriate that the juror should have been discharged by his Honour. I cannot see any basis upon which there should or could be in the mind of a reasonable and objective observer any apprehension that the other members of the jury may have been tainted. Still less is this so having regard to what the juror said about the matter, his Honour's findings and the directions which he gave to the remaining jurors. Accordingly, this ground of appeal must be rejected. 9 Ground 2.1 is no longer pressed and it is unnecessary to consider it. 10 Before dealing with the other grounds of appeal it is convenient to set out briefly the other evidence in the trial. 11 On the day before the offence, a payday for pensioners, the victim, who suffered from spina bifida, had gone to a hotel in Parkes. He was by himself. He stayed there for a few hours and was eventually approached by the accused Butler. Butler suggested to the victim that he should come to his place and have a couple of beers although he had never been to Butler's home on any previous occasion. The victim agreed, and the two left the hotel and started to walk up Clarinda Street. Shortly afterwards the two men saw a motor car containing Ms Thorpe, the appellant and Whitney. Butler and the victim joined them in the car and were driven to 363 Clarinda Street. The victim said that he went inside the house and saw Leanne Jones and another woman whose identity he did not know. The victim said that Butler gave him a small bottle of beer on the front verandah. Shortly afterwards, Butler invited him to come around the side of the house where there was a chair put out for him. The victim accepted this invitation and sat in the chair. So far as he knew, he was alone. However, a few minutes later a bag or something like it was place over his head and he was dragged off the chair onto the ground. He struggled and said, "Don't kill me". Someone said, "If you go to the police I'll kill you". He felt something like a knife on his temple and someone said, "We're going to kill you". He did not know who spoke. One or two hard punches struck his face and he asked to be left alone. He heard someone say, "I'm going to kill you". The victim said that this "sounded like Scott Gibson". The next thing that happened was that he was moved onto his stomach and his wallet which was in his back pocket was taken, together with his silver ring. He was then dragged out into a laneway at the back of the premises. He thought that he had been attacked by about three or four people. He heard a male voice speak whilst he was on the ground being held down but he could not recognise it. He said that when his attackers left him he took off the item that had been placed over his head and glimpsed three people walking through a gate. The victim walked up to the nearest phone box and telephoned the police. He identified four men as having been his attackers together with one Joey Gray. The victim said that he had known Scott Gibson at school but had only seen him rarely after that. He did not know Whitney at all and had not named him to the police. It is clear that his belief that the accused and Gray had attacked him was a surmise based upon his knowledge of those in whose company he had been very shortly before the attack. The victim conceded that he had known Gibson only when a teenager at school for perhaps a couple of years and that he had scarcely any contact with him in the intervening nine or ten years up to the date of the offence. Whilst he thought the person who said that he was going to kill him sounded like Gibson, he was unsure as to whether it was Gibson or not. He said that he had no recollection of seeing Whitney, Ms Kelly or Ms Butler arriving at and entering 363 Clarinda Street. 12 It is convenient at this point to deal with the grounds of appeal arising from the admission of the evidence of the victim that the voice of one of his assailants "sounded like" the appellant. These grounds of appeal are in the following terms - "3.1 The trial miscarried in that evidence that the voice of one of the assailants 'sounded like' the appellant was erroneously admitted. 3.2 Alternatively, the learned trial judge failed adequately to direct the jury in relation to this evidence. 4 The trial miscarried in that the jury were not given sufficient or any warning under s 165 Evidence Act of the potential unreliability of: 4.1 voice identification evidence." I should point out that the evidence in question was given without objection. The learned trial judge did not comment on this evidence but, whilst giving the jury a brief narration of the victim's evidence said - "One of them said, 'I'm going to kill you'. He said initially that it sounded like Scott Gibson. Later in cross-examination he said he was unsure whether it was Scott Gibson's voice or not." This was a fair summary of the evidence on the point. To my mind this question was in substance left to the jury as a matter to which they would give only a little, if any, weight in their considerations. It was clearly not evidence of identification of the appellant and no suggestion was made by the learned trial judge that it was capable of being so used. In my view, this sufficies to distinguish this case from Pitkin v The Queen (1995) 69 ALJR 612. It is clear that in some circumstances a trial judge should intervene and raise for the consideration of counsel the question whether particular evidence should be excluded in the exercise of the judge's discretion: Regina v Paul Darryl Meier (unreported, NSWCCA 28 May 1996). However, I do not consider that in the circumstances of this case there was a duty to do so. When first given, the evidence was capable of being a circumstantial fact, albeit slight. The cross-examination in effect administered the coup de grace. I do not consider that this evidence was unfairly prejudicial to the appellant in the sense that the jury might have been tempted to make more of it than it was worth. The mere fact that an ensuing explanation for a piece of evidence, whether given in chief or in cross-examination, shows the evidence to be of little cogency, does not, in my opinion, mean that it should be ruled to be inadmissible. In the end, the question is whether there is a risk that the jury might not assign to it its true weight. I do not consider that any such risk applied to the evidence in question. Accordingly, I would reject the grounds of appeal relating to this matter. 13 I have mentioned that the victim gave evidence of naming the accused together with one Gray as those who had attacked him. This evidence was given without objection. As I have said, this was clearly only a surmise. The accused readily conceded in cross-examination that he did not really know who had attacked and robbed him and that he named the accused and Gray because they were 'around' at the time of his attack. As it happened, the victim did not actually name Whitney to the police, so that his evidence in chief in this respect was incorrect. It was not disputed that the victim was in the company of the accused shortly before his attack and that they were in the near vicinity at that time. Having regard to the form of the question which elicited the fact that the victim had named the accused to the police, it seems to me unlikely that it was elicited for the purpose of establishing that those persons were in fact the offenders but rather simply as part of the narrative of events, in particular, to explain the cause of the police investigation which was relevant to an appreciation of the case against the appellant. It was of marginal relevance and having regard to the way in which it was left following cross-examination I do not think that there was any risk that the jury might have given this evidence any weight so far as identifying the offenders was concerned. Although the learned trial judge referred to the fact that the accused except Whitney had been named by the victim to the police, his Honour also pointed out that he had said, "He does not really know who attacked and robbed him". This concession which was made by the victim himself and brought to the jury's attention in the summing up was as dismissive as the circumstances required. No application was made by counsel, in particular for the appellant, for a direction under s 165 of the Evidence Act 1995 (the Act). I do not think that any warning was called for. Accordingly, this ground of appeal fails. 14 I resume my summary of the evidence. Ms Jones said she was in the company of Allison McKenzie on the evening of Thursday 27 October 1994. They had gone to a hotel and then later returned to 363 Clarinda Street sometime after midnight. No one was there at the time and they played cards. Later on, Ms Kelly, the appellant, Ms Thorpe and Ms Butler arrived together with the victim. She was not sure whether the victim entered the house. Following an unsuccessful attempt by the Crown prosecutor to lead evidence of something that was said by one of the accused (as it happens, the appellant) he applied under s 32 of the Act for leave for Ms Jones to refresh her memory from a statement made by her on 11 November 1994. Following argument leave was given. Having read parts of the statement pointed out to her, Ms Jones said that her memory was refreshed as to the events of the night in question. She said that, whilst she was playing cards in the lounge room, the appellant came in and made a remark which she said she did not wish to repeat because of embarrassment but was prepared to write it down. The words were "hard cunt to get down". She noticed that the appellant at this time had a little blood on his lip although whether it was on his upper or lower lip, she was unable to say. The appellant approached Ms Thorpe who, as I have mentioned, was his girlfriend but Ms Jones was unable to say what then occurred until she again refreshed her memory from her statement. She said that the appellant handed some money to Ms Thorpe. Before the appellant had come into the room she noted the sound of something hitting the outside wall. She said that she had seen neither a wallet nor a ring inside the house nor had she seen blood on any clothing or on anything like a bag or pillow case. At the time that she heard the noise, Ms Jones said that she could see Whitney in the front entrance of the house and Butler was in the lounge room both then and when the appellant entered it. In the room at the time, she said, were Ms Thorpe, Ms McKenzie, Ms Butler (whose evidence differed as to this) and Butler. 15 Ms Jones was cross-examined on her evidence at committal and her prior statements to the police but to my mind this was, by and large, inconsequential. Legitimate criticisms could be made of her credibility on these grounds but they were all of a character which the jury were well able to evaluate. It transpired that Ms Jones was a cousin of Butler and his sister, Cherie (who was, at the time, the accused Whitney's girlfriend). Much was made, and rightly so, of Ms Jones's dishonest concealment in her first statement to police on 28 October 1994 of the fact that Hardy had come to the house on the night in question, let alone anything about the remark which she attributed to the appellant. He and Joey Gray were, she thought, on the front verandah. The point was also made with some emphasis that neither Ms Jones nor the other persons present in the room when the appellant came in and made his remark reacted to it which, on the face of it, seems rather unlikely. Ms Jones said that she thought that after the remark the appellant went into the kitchen. All in all, Ms Jones exhibited some confusion about the course of events that night. She had earlier said that at the time of Gibson's comment, he passed a $20 note to Ms Thorpe but she was not sure of this when she gave evidence in the trial. I should interpolate here that, although the words attributed to him were denied, the appellant's case was that he had in fact handed some money to his girlfriend, saying something like, "Here, before I forget, is your money". When Ms Jones gave evidence at an earlier trial (which aborted) she said the hitting noise was against the front wall of the house, not the side wall. 16 Ms McKenzie supported most of Ms Jones's account of the events of that night. In weighing her evidence it is relevant to note that she did not make a statement about the events until 13 March 1997. Her recollection was that the victim had come into the lounge room where she spoke to him and he then went outside. She recalls that the appellant came into the house and handed Ms Thorpe some money. He had blood, she thought from his nose, on his upper lip and said to Ms Thorpe, "Fuck, he was a hard cunt to put down [or get down]". Music was playing loudly at the time. She was unsure about his clothing but thought he might have been wearing a guernsey on which she noticed a smear of blood. She said that the victim was outside at this time whilst she, Ms Jones, Ms Thorpe and the appellant were inside, although she was not quite sure that no one else was there. She thought that Butler was not there at the time and was certain at first that the accused Whitney was not, conceding on further cross-examination, that he might have been there. 17 Ms McKenzie gave a verbal account to investigating police in the morning of the day of the offence, describing generally the movements of herself and the other persons on the night before but not mentioning the matters which incriminated the appellant. Furthermore, when she gave evidence in chief in the earlier trial on 17 March 1997, she omitted to mention the incriminating comment, saying that all he said was, "That's all I got" as he handed Ms Thorpe some money. The witness did not recall the arrival at the premises of the appellant, Ms Thorpe, Ms Kelly, the accused Whitney and Ms Butler, nor whether they went into the kitchen to make some food. The first reference by the witness in the earlier trial to the appellant's remark about being hard to get him down was when then counsel for the appellant put it to her that she had not heard anything like it and she then said that she had heard something of the kind being said. Ms McKenzie said that she had given all the relevant information to the police but it is clear that she did not. It seems that she suffered also from a nervous condition that caused acute anxiety and her evidence was interrupted several times to enable her to recover her composure. 18 The cross-examination of Ms McKenzie exposed significant problems with her evidence and the jury may well have doubted the reliability of her recollection as to what the appellant actually said when he handed the money to Ms Thorpe. At the same time, so far as one can judge from the transcript, she appeared to be guileless and the jury may have thought it right to give her evidence some weight having regard to the way in which it unfolded and her demeanour. Even so, I do not think that they could have been confident of its accuracy despite she and Ms Jones giving mutually supportive evidence. It is fair to comment also that it is, at least, somewhat odd that, on their accounts, neither of these witnesses made any response or inquiry when she heard the appellant's remark and saw the blood on him. 19 As a result, no doubt, of being (mistakenly) named by the victim, the elder brother of the accused Butler, Anthony Butler (Anthony), was spoken to by police on the morning of the offence. Mr Butler's then girlfriend, Tania Thorpe was Ms Thorpe's aunt. Anthony said that, shortly after the police left his home, (he could not say whether this was before or after lunch) the appellant arrived and Anthony told him that the police had been looking for him. He later denied any actual recollection of this sequence of events. Anthony claimed to be unable to remember what the appellant had said to him except that he told him about "a lot of things, what the boys had been doing and stuff". He had made a statement about these matters on 3 November 1994 but it was apparent that he was reluctant to acknowledge what he had there said. Even on reading his statement he suggested (although this answer is somewhat ambiguous) that he would still not be in a position to depose as to what the appellant said and what he did when he said it. 20 The prosecutor sought leave to cross-examine Anthony under s38 of the Act upon the basis that he was untruthfully professing to have no memory of the matter which he had previously disclosed to police shortly after the events in question and was thus an unfavourable witness, relying on Regina v GAC (unreported, NSWCCA 1 April 1997). This course was objected to upon the ground that the witness's evidence was ambiguous and that a professed failure of memory made effective cross-examination difficult. It appeared that Anthony had given evidence in the previous trial which, in general terms, accorded with the substance of the most significant part at least of the statement which the Crown sought to adduce from him. His Honour concluded, as he was entitled to, that the witnesses was not making a genuine attempt to give truthful evidence and that his motive for so doing was because it reflected adversely on his brother, amongst others. It is not submitted before us that this ruling was in error. Under cross-examination Anthony conceded that the police had questioned him at his home on the morning following the offence to ask, amongst other things, about the appellant. Anthony agreed that he probably told the appellant that the police were looking for him and "supposed" that he then seemed to become somewhat agitated. He conceded that his statement described the appellant as becoming fidgety and beginning to swear, following him into a bedroom and with his hands indicating holding someone down while he punched him saying, "He was a hard little cunt to knock out". Anthony denied having any recollection of these events. He conceded also that he had stated to police that he said to the appellant "You're all idiots. One bloke could have done it, let alone four of youse" and that the appellant responded, "The boys just went too far". Again, he denied having any memory of this exchange. Anthony also agreed that his statement contained the assertion that Ms Jones walked in and accused the appellant of being "in on it", adding, "You were hitting him" and that the appellant replied, "Yeah, but only when the thing was on his head; I don't know how he knew it was me". (If this had been imparted to Anthony by the police, which was not suggested, it must have come from someone involved in or aware of the circumstances of the attack.) Again, Butler denied any memory of this conversation, asserting "I have put it behind me". He was shown the statement from which he was being cross-examined but said, when it was put to him that he had stated the truth in it, "I don't know, it's so many years ago, I don't know". Anthony conceded, however, that he had retained a detailed memory of the night before the alleged conversation with the appellant and being questioned by the police earlier that morning. He conceded that when he gave evidence in March 1997 at the earlier proceedings he testified, generally speaking, in accordance with what was contained in the statement that he had made on 3 November 1994. He attributed his failure of memory to his being an alcoholic. In the end, he conceded that his statement was probably correct although it was made a long time ago. He was asked by his Honour to read the first paragraph of the statement which, in accordance with the usual form, is to the effect that if the statement is false the witness may be liable to prosecution although the terms of that paragraph were not before the jury. When this paragraph was brought to his attention he was asked - "Q You're now able to say that what you said in that statement on 3 November 1994 was correct, aren't you? A Well, it must have been if I had said it, if I wrote that, if I said it and I've signed, it must have, yes." 21 The statement of the witness was admitted upon the basis that it had been cross-examined on but his Honour directed that it should not go before the jury. To my mind, that was a proper course to take although, conventionally, it would simply have been marked for identification. Anthony maintained in cross-examination that he could not recollect any of the relevant conversation or even whether he had made up some part of his statement, a position that he maintained throughout and which, perhaps, may be best exemplified by the following - "Q And I'm suggesting that any conversation that you've given to police on 3 November 1994 alleging things about Scott Gibson is a complete fairytale. What do you say about that? A I don't know. Haven't a clue." 22 In his summing up, the learned trial judge pointed out to the jury the circumstances in which the evidence implicating the appellant had come before them and stated - "It is a matter for you whether you accept that he could not remember or whether you think that he really did not want to say what he could remember, but you should bear in mind the way in which the evidence came out." 23 The statement of 3 November 1994 was read to the jury. It contained the additional information that it was "about lunchtime" that the appellant entered Anthony's residence. This time was significant because it was Gibson's defence, amongst other things, that he had gone to Canberra on 28 October 1994 and was not and could not have been in Parkes at midday on that day. He claimed he had not gone to Anthony's house either at lunchtime or, indeed, at any other time that day. 24 As I understand it, the appellant submits in this Court that the evidence extracted from Anthony by reference to his statement to the police was hearsay, should have been the subject of a warning to the jury under s165 of the Act and was, at all events, worthless. 25 I do not agree that the evidence was hearsay. It seems to me that the substance of Anthony's evidence was that he accepted that what he had told the police was truthful although he could, he asserted, remember anything about the particular events or what he had said. However, even if it were not hearsay, it was clearly admissible in cross-examination and was therefore under s60 of the Act, not subject to the hearsay rule. No application was made for the learned trial judge to limit the purpose for which the evidence was adduced and, at all events, I consider that having regard to the evidence as a whole it was appropriate to allow the jury to consider the material adduced as evidence of the truth and not merely as evidence of what the witness had earlier said. While undoubtedly the witness was not candid and hence it was necessary to approach what he said with a degree of scepticism, I am of the view that it was sufficiently probative to warrant its admission without any imposition of a discretionary limitation. Nor do I agree that the evidence was worthless. The witness had given it without the requirement of cross-examination at the earlier proceedings and was probably just reluctant to give evidence which implicated accused persons with whom his brother, for whom he obviously had considerable affection, was associated. His girlfriend at the time he made his statement implicating the appellant in the crime was, as I have mentioned, the aunt of the appellant's girlfriend, Ms Thorpe. The value of this evidence was very much a jury question and it was open to them to give it some weight. 26 It is submitted in this Court that, so far as Ms Kelly, Ms Jones and Ms McKenzie were concerned, as they were present at the house at the time when the victim was attacked, they "might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings" within the meaning of s165(1) of the Act. I do not accept this submission. It was never suggested to any of these witnesses that they were involved in the attack and there was no reason to suppose that they might have been so involved. No submission along these lines was made to the learned trial judge and no request was made under s165(2) of the Act. Leave is required under rule 4 of the Criminal Appeal Rules to raise this ground of appeal. It has no merit and leave should be refused. 27 Ground of appeal 5 is as follows - "The trial miscarried in that his Honour failed to direct the jury in relation to circumstantial evidence." 28 It is obvious from the evidence which I have set out above that the case against the appellant was, in part, circumstantial. However, an important element of the prosecution case was the statements that he made in the house to Ms Jones and Ms McKenzie which were certainly enough to convict him in light of the evidence of opportunity. If the jury were minded to accept it, the evidence of what the appellant told Anthony was also highly incriminating and sufficient, if the jury accepted it, to convict him. The circumstantial aspects of the evidence were the presence of the appellant and his co-accused together with Joey Gray at the premises on the occasion of the attack, the evidence of the victim that he was attacked by about three or four men, a threat to kill expressed by a man whose voice was, at least, consistent with that of the appellant's, and the victim's quick look after he removed the cover from his head to see three people going through the gate of the premises. According to the accused, (tho whose evidence I shall return) after he had had enough to drink on the night in question, he, the accused Butler, the victim and Gray were driven to the house in Clarinda Street by Ms Thorpe. The other three were left at the premises and he and Ms Thorpe drove back down the street to pick up the accused Whitney, Ms Butler and Ms Kelly and brought them to the house. The appellant went into the kitchen of the house and said that he did not see, at that time, the victim, Butler or Gray. He and Ms Thorpe left the premises to go to the house of a friend for about 15 or 20 minutes and then returned. He saw there Butler and Whitney, Gray, Ms Kelly, Ms Butler, Ms McKenzie and Ms Jones standing out the front of the house. He did not see the victim. 29 In my view, the case against the appellant was not of a kind such as to require a circumstantial evidence direction to be given, let alone the so-called Chamberlain direction (Chamberlain v The Queen (No 2)), as explained in R v Shepherd (1990) 170 CLR 576. There is no invariable rule of practice or law that a circumstantial evidence direction must be given in every case that involves circumstantial evidence: Shepherd v The Queen (1990) 170 CLR per Dawson J at 578. Nor is it, in my view, necessary in every case to give the jury directions as to the drawing of inferences. Such directions will often be helpful but whether they are essential will depend on the case. In my view, this was not such a case. The appellant submits that the learned trial judge erred in giving the jury no direction as to the finding of intermediate facts. This is presumably a reference to the judgment of Dawson J in Shepherd (1990) 170 CLR at 579. I do not see, in the circumstances of this case, any facts that should have been identified as intermediate facts in the sense referred to by Dawson J. Accordingly, the appellant's submission in this respect should be rejected. 30 In the course of his summing up to the jury, his Honour said - "Now in this case, that [ie, the direction as to finding a joint criminal enterprise] is important and the reason is this. It will not have escaped your knowledge that Shane Robert Hardy said that he was held down by three or four people. You remember he said his legs were held, his chest was held, and his hands were held. He was not cross-examined about that. He was not cross-examined to suggest it was only one man or two men, so you may think there is no issue about that, but three or four men held him down. Now you know that there were only four men in the house that night. The three accused and Joey Gray. So when you are considering, as you have to, the case against each individual accused, you will remember that. You have to look at the case against each particular accused and consider whether he is guilty of the particular offence, but it is perfectly obvious that someone attacked Shane Robert Hardy that night, someone robbed him and someone badly beat him. He was not cross-examined to suggest that all the things he suggest did not occur. Indeed, the photos amply demonstrate that he sustained a very bad beating. He said three or four people held him down, and you will remember the evidence also that when he finally got the cover off his head he saw three men walking away. You will also recall that he said that the voices were male, not female. We know there were four men at the house that night and only four men. So you may come to the conclusion that at least two of the men in the dock had to be involved. The question is which two. It may be that all three are involved. It may be that only two of them are involved. They are matters for you. It is your decision on the facts, but you have to consider the case against each one, and if you come to the conclusion that you cannot be satisfied beyond reasonable doubt that a particular accused participated, even though you are satisfied that collectively there was a joint criminal enterprise, if you cannot be satisfied that a particular accused participated in it and you cannot be satisfied that that particular accused did all the elements of the particular offence, then you have to find him not guilty. And when I say 'satisfied' you understand I mean satisfied beyond reasonable doubt." 31 The learned judge's observation that the victim was not cross-examined to suggest that he was attacked by only one man or two men so that the jury could consider there was no issue about that matter was, to my mind, misleading. Since the case of each of the accused was that he was not there, whilst it was reasonable that counsel should test the witness, if so minded, about this matter, in my view nothing could be inferred from the omission to do so. It was implicit in Mr Hardy's description of events that it was possible that he was attacked by only two men, although his description of the attack and sighting of three men leaving the scene immediately afterwards rendered this possibility somewhat unlikely. I am of the view, nevertheless, that having regard to his Honour's summing up as a whole in this regard, which I have set out above, no miscarriage of justice was caused by his Honour's reference to the failure to cross-examine. His Honour clearly raised for the jury the possibilities which were, as I have said, at all events inherent in the victim's account of the attack. 32 It is submitted that the learned trial judge's reference to four men, by excluding the possibility that one of the persons holding the accused down was female, was wrong. Having regard to the conduct of the trial on behalf of the accused, I do not consider that it would have been appropriate for his Honour to have raised the possibility that one of the attackers was female, especially considering the omission by counsel for any of the accused but especially for the appellant to suggest to any of the females present at the time that they were involved. Ms Butler was not called to give evidence but her presence at the crucial time inside the house was accounted for by the other two female witnesses. 33 The sixth ground of appeal is that the verdict is unsafe and unsatisfactory, that is to say that, in terms of s6(1) of the Criminal Appeal Act 1912, the verdict was unreasonable or not supportable having regard to the evidence: Fleming v The Queen [1998] HCA 68 (11 November 1998). In support of this ground of appeal the appellant submits, in essence, that the evidence which I have set out above from the witnesses at the scene and Anthony ought to have left the jury with a reasonable doubt as to his guilt. The brief summary of the evidence of these witnesses set out above mentions what appear to me to be the significant points indicating why the jury might not have accepted their truthfulness or reliability. 34 It is apparent that the witnesses had by way of relationship or friendship a motive for, at least, excluding Butler from involvement in the offence. On one view of their evidence, certainly, the women exculpated not only Butler but Whitney. It is less clear, however, why - as was the case made by counsel for the defence and relied on in this Court - the witnesses would dishonestly seek to incriminate the appellant. I should add the point that, as all three accused were convicted that the jury did not accept as truthful, or, at least, reliable the evidence of the three females that had the effect of exculpating Whitney and Butler. 35 The appellant gave evidence and called Ms Thorpe and his mother to support certain aspects of it. His case may be summarised as follows. On 27 October 1994, the appellant and Ms Thorpe went to a hotel in her vehicle, arriving at about 8pm. Amongst others, they there saw Butler and Whitney. During the night the appellant took Ms Thorpe's automatic teller card and withdrew $60 which he obtained from an automatic teller across the street from the hotel. The defence tendered a statement of account from the St George Bank which gave support to this aspect of the appellant's evidence although only as to the date, the time not being specified. The appellant said that he then returned to the hotel, lent the accused Whitney $20 and bought himself a drink, leaving him with $37 and a silver coin. It was this money which the appellant said he handed to Ms Thorpe at Clarinda Street as described by Ms McKenzie and that it had not been taken from the victim. Perhaps another $20 had been spent on drinks before he and his girlfriend left the hotel. The appellant's account of arriving at Clarinda Street broadly speaking reflected that which had been given in the Crown case. However, he said that after he entered the gate he went straight to the kitchen, noticing Ms Jones and Ms McKenzie in the lounge room playing cards. He said that he did not see the victim at that time nor Mr Gray and he thought that he did not see Butler either. It is unnecessary for present purposes to describe in detail the appellant's account of events. It is sufficient to say that he stayed in the kitchen with his girlfriend and Ms Kelly and possibly Ms Butler and went to the toilet, returning to the kitchen shortly after, that he did not have a wallet or ring in his hands or on his finger and that he left with Ms Thorpe immediately afterwards to go to a friend's house some distance away. They spent some time at those premises whilst he talked to his friend and returned about 15 or 20 minutes later to 363 Clarinda Street. When he returned he saw Butler and Whitney, Gray, MsKelly, Ms Butler and Ms McKenzie but not the victim. He said that he got out of the car but stood nearby and did not go inside the house. He and Ms Thorpe then decided to go home and they gave the accused Whitney and Ms Butler a lift to their home. He awoke at about 8am and took a hire car into Parkes where, after some short errands, he hitchhiked to Canberra to visit his mother. He thought that it would have been around 8.45am as he commenced hitchhiking and after about 20 minutes got a lift to Cowra and then on to Canberra. He arrived in Canberra about 3pm or 4pm. This evidence was important since, if true, it was capable of contradicting Anthony's` assertion that he had arrived at the latter's house at about lunchtime and thus that he had made the admissions contained in Butler's statement to the police. Ms Thorpe's evidence, in substance, corroborated that of the appellant. The appellant's mother confirmed that, when she arrived home shortly before 4pm on 28 October 1994, her son was at home and told her that he had been there for a couple of hours. It seems to be uncontroversial that to travel by car from Canberra to Parkes would take approximately 3 ½ hours if the driver complied with the speed restrictions. In light of this and Anthony Butler's placing the time of the appellant's visit at "about lunchtime", it is obvious that the jury could quite reasonably have concluded that the appellant had arrived at his mother's house in Canberra some time shortly before 4pm, that the time referred to by Anthony was a mere approximation and he had left Parkes between 11am and 12 noon or even somewhat later. If so, there was no contradiction of Anthony's evidence arising out of the arrival of the appellant in Canberra on the afternoon of 29 October. 36 The appellant's attack on the prosecution case had essentially two strands: the first was his evidence and that of Ms Thorpe that he took no part in any attack on the victim; and the second (relying on the same evidence) was that he had never used any words which suggested that he did, pointing to the inconsistencies which tainted the evidence adduced against him on this aspect and claiming that he was the victim of a conspiracy by those friendly to or relations of the other accused to blame him for the attack and exonerate them. In support of this latter argument, the appellant pointed to the opportunity which the witnesses had to agree on what they might allege against him. In this respect, however, the jury were entitled to have regard also to the extent to which their various accounts varied or were inconsistent and thus not reflective of a conspiracy. My brief summary of the evidence above mentions most of these areas of controversy. 37 I consider that the learned trial judge's direction to the jury dealt fairly with the evidence in the trial and the various contentions urged by the appellant, although the somewhat discursive narrative form adopted by his Honour was not, with respect, ideal. At the end of the day, however, the jury were not left in any doubt as to the salient points of the evidence, the arguments of counsel and the applicable principles of law, including especially the onus and standard of proof. Indeed, no substantial criticisms were directed to his Honour's summing up except for those referred to in the grounds of appeal, which I have already dealt with. 38 The attack mounted by the appellant on the propriety of the verdict essentially rested on the quite reasonable criticisms levelled at the reliability of the evidence of the principal Crown witnesses insofar as it incriminated him. 39 It is submitted by the appellant that "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence": s6(1) of the Criminal Appeal Act 1912. The relevant test to be applied to this ground is whether the court is of the view that upon the whole of the evidence it was "open to the jury" to be satisfied beyond reasonable doubt of the appellant's guilt. This test, articulated by the majority in M v The Queen (1994) 184 CLR 487 at 493 is still applicable, notwithstanding the abandonment of the phrase "unsafe and unsatisfactory" which had hitherto been commonly used in this context (Fleming v The Queen [1998] HCA 68): see Jones v The Queen (1997) 191 CLR 439 per Gaudron, McHugh and Gummow JJ at 450-2. 40 In M, the majority said (181 CLR at 493) - "...in answering that question 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 these considerations." The application of the test was explained as follows (181 CLR at 494) - "In most cases, a doubt experienced by an appellate court will be doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." In Jones, Gaudron, McHugh and Gummow JJ point out (191 CLR at 452) that the "open to the jury" test is significantly different to that implied by asking whether the jury must have had a reasonable doubt or whether the evidence for the prosecution was so weak or flawed as to make it wrong for the jury to accept it, which was the formulation applied in the judgments under appeal. These latter tests were described by their Honours as a misapprehension of and "much stricter" than the test formulated by the majority in M (191 CLR at 452, 453). 41 As I have already mentioned, I accept that there were reasonable grounds for declining to consider that the witnesses who incriminated the appellant were sufficiently reliable to justify convicting him. However, my reading of the transcript has led me to conclude that the advantage enjoyed by the jury in all the circumstances of this case in observing the Crown witnesses as well as the appellant and his witnesses was very substantial indeed and that, considered as a whole, it was open to them to convict the appellant despite the weaknesses to which I have referred. 42 Accordingly, I propose that this ground of appeal should be rejected. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.