New South Wales Court of Criminal Appeal CITATION : R v R Salama [1999] NSWCCA 105 FILE NUMBER(S) : CCA 60205/98 HEARING DATE(S) : 6 April 1999 JUDGMENT DATE : 10 May 1999 PARTIES : Regina Ray Salama JUDGMENT OF : Wood CJ at CL at 1; Ireland J at 2; Kirby J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Shillington DCJ COUNSEL : G Nicholson QC L M B Lamprati SOLICITORS : Ellis & Baxter S E O'Connor CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE; Inconsistent verdicts; Warning to Jury; Question by Jury unanswered prior to verdict Crimes Act 1900 ACTS CITED : Evidence Act 1995 s165 Jury Act 1977 s55E Peacock v R (1912) 13 CLR 619 Mackenzie v R (1996) 71 ALJR 91 at 100 R v Crisologo (CCA, unreported, 12/12/97) CASES CITED: Jones v R (1997) 191 CLR 439 at 453 Mourani v Jeldi Manufacturing Pty Ltd (1983) 53 ALJR 825Lee v R (1998) 72 ALJR 1484 at 1487 Ratten v R (1972) AC 378 Robinson v R (1991) 55 A Crim R 318 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL NO. 60205/98 WOOD CJ at CL IRELAND J DAVID KIRBY J Monday 10 May 1999 Regina v Ray SALAMA JUDGMENT 1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of David Kirby J. I agree with his reasons and the orders he proposes. ********** IN THE COURT OF CRIMINAL APPEAL 60205/98 WOOD CJ at CL IRELAND J DAVID KIRBY J Monday 10 May, 1999 REGINA -v- Ray SALAMA JUDGMENT 2 IRELAND J: I agree with the reasons for judgment of Kirby J. ********** IN THE COURT OF CRIMINAL APPEAL 60205/98 WOOD CJ at CL IRELAND J DAVID KIRBY J Monday 10 May 1999 REGINA v Ray SALAMA JUDGMENT 3 KIRBY J: On 19 September 1996, Mrs Alice Salama received a bullet wound to the head. The appellant, Dr Salama, was thereafter charged with two offences: · First, that he had maliciously discharged a firearm with intent to do grievous bodily harm (contrary to s 33A Crimes Act 1900). · Secondly, and in the alternative, that he had fired a firearm with disregard for the safety of Alice Salama (contrary to s 93G(1)(c) Crimes Act 1900). 4 After a trial before his Honour Judge Shillington QC and a jury, a verdict of not guilty was returned on the first count. The appellant was found guilty on the alternative count. He was sentenced to two years imprisonment to be served by way of periodic detention. Dr Salama appeals against that conviction. He also seeks leave to appeal against the sentence imposed. Background 5 Dr Salama was born in Egypt. He was educated at Cairo University, where he qualified as a medical practitioner. He then came to Australia. He underwent further training, and was admitted as a medical practitioner in this State. Dr Salama then returned to Egypt. He met his wife, and they married in 1971. He and his wife came back to Australia. He began practice at Mt Druitt, with his wife working as his receptionist. They had two children soon thereafter. 6 In 1980, or thereabouts, Dr Salama persuaded his wife to return to Egypt. He wished to settle there, rather than Australia. Once in Egypt, however, his wife wanted to return to Australia. They then divorced. One gathers that Mrs Salama and the children came back to Australia, and at some stage thereafter Dr Salama followed. Dr Salama resumed cohabitation with his wife. They were still living together in 1996, at the time of the incident. They lived at 1038 Pittwater Road, Collaroy, and had done so for many years. They occupied separate bedrooms on different levels of a three storey house. Dr Salama's bedroom was on the middle level. There was an internal door, which was fitted with a deadlock. Dr Salama had the key to that lock. Mrs Alice Salama's bedroom was on the top level. There was a balcony attached to that bedroom, with access by means of a sliding door. 7 It is not entirely clear when these sleeping arrangements began. Dr Salama's son, who was attending university in Queensland, gave evidence that the physical separation into separate bedrooms occurred approximately one year before the incident. His father, however, occupied the top bedroom "on and off". 8 Mrs Alice Salama described her relationship with the appellant in these terms: "Q. Did you have dinner together? A. Yes. Q. Was that upstairs? A. No, upstairs. Q. Yes, upstairs on the dining room table? A. Yeah. Q. On the top level? A. Yes. Q. Where you normally have your meals with Ray and with your family? A. Yes. Q. And after dinner did you and Ray settle down to watch television and videos? A. Yes. Q. Together? A. Yes. Q. In the lounge room? A. Yes. Q. As you did most other nights? A. Yes." 9 Their son, Jean-Pierre Salama, gave the following description of his parents' relationship: "Q. You were asked a question about the relationship between your mother and your father. How would you describe that relationship since 1990 up to date? A. Since 1990, the same as it's always been. How do you describe a relationship? I mean we're a pretty close family, and that's it." 10 Their daughter provided a similar account. She said her parents' relationship was "just normal and friendly". There was no evidence which suggested any disharmony between Dr Salama and his wife. 11 In late 1996, or early 1997, Dr Salama joined the Wakehurst Park Clay Pigeon Shooting Club. He underwent training. Shotguns were used to fire at clay targets. The appellant obtained a shooter's licence. He thereafter attended a gun shop in Horsley Park, and purchased a .22 rifle. He said this: "Q. Doctor, you didn't purchase that rifle at all to shoot clay targets, did you? A. I did. I did fall in for the low price, it was on special, and I thought it might do the job." 12 The gun was cheap ($150). He was quoted $4000 for a shotgun. He said this: "Q. You'd used it? A. I did use it once, trying it in the clay target, they just - everybody went: 'Oh, sorry mate, this is not the right thing', and that was the first shot." 13 Dr Salama said that he then placed the gun in his cupboard at home. He intended to change it for one which was appropriate. At no stage did he discuss his new interest with Mrs Alice Salama, nor any member of his family. Nor did he show his family the gun. 14 Mr Alice Salama could recall nothing unusual about the evening before the incident. She had a meal with the appellant. They watched television. She retired to bed at approximately midnight. Dr Salama went to his bedroom perhaps one hour later. 15 The time of the incident can be fixed by reference to the ambulance records. The call to the emergency number was recorded as having been made at 2.53 am. Evidence of Intruders 16 Before describing the incident, I should deal with evidence given by members of the family concerning a matter said to be prominent in Dr Salama's mind at the time of the incident. 17 In the late 1970's, when Dr Salama and his wife were living at Mt Druitt, two men wearing balaclavas entered their bedroom. They demanded drugs. Mrs Salama was pregnant at the time. She jumped from the first floor window. 18 The family later moved to an adjacent suburb, Shelvey. Late one night a number of people endeavoured to push the front door open. They ultimately ran away. 19 In 1980, or thereabouts, the family moved to Collaroy. During daylight hours an intruder entered the premises. Mrs Salama was home alone. The intruder had a knife. She ran onto the street. As it happened, there were police nearby, attending to a road accident. The intruder then fled. 20 Finally, in the weeks before the incident, someone broke into a car which was parked at the premises. 21 Mrs Salama gave evidence that, as a consequence of these incidents, she was very frightened of intruders. She regularly discussed her fears with the appellant. The appellant and his children each gave evidence alone similar lines. The Incident 22 At some time shortly before 2.53 am on 19 September 1996, Dr Salama claimed that he was woken by a noise. The noise was like "sliding doors, sliding windows forced open". He got out of bed. He went to the wardrobe where he kept the rifle. 23 The house was in darkness. He ran up the stairs carrying the rifle. The rifle was loaded. He went straight to his wife's bedroom, since "she was the main concern". His wife was asleep. He entered the bedroom. In darkness, he circumnavigated the double bed in which his wife lay sleeping. He claimed that he was carrying the rifle at waist level, and that it was more or less horizontal. When on the opposite side of the bed to the doorway through which he had entered the bedroom, he said that he tripped. He fell forward towards the bed. His fingers were not on the trigger. They were on the trigger guard. Nonetheless, the gun discharged. 24 Mrs Salama immediately felt a burning sensation to the head. She called out "Ray, Ray" (being the appellant's first name). The room was still in darkness. The appellant, according to Mrs Salama, responded by saying: "Don't worry, I think I hurt you … by mistake." 25 The appellant acknowledged the accuracy of this account. His reference to "mistake" was another way of saying that he had hurt his wife by accident. 26 Dr Salama turned on the light. His wife was bleeding profusely from the forehead. She had been grazed by a bullet in the temple region. He obtained a towel from downstairs, and summoned an ambulance. Conversations After the Incident 27 The case for the Crown substantially depended upon statements said to have been made by the appellant shortly after the incident. 28 In a tape-recorded conversation with the ambulance authorities, at the time the emergency number was called, Dr Salama disclosed that his wife had a "gunshot wound". The conversation included: "How has it happened? By mistake. By mistake? Yes." 29 Shortly thereafter, the following exchange took place: "OK. Who, was it a shotgun or a pistol? I, I don't know but I noticed blood." 30 The appellant plainly knew that the wound had been inflicted by a rifle. Later, the telephone operator posed the following question: "Did you do the, did you accidentally do it? No. You didn't? No." 31 The police attended the premises at approximately 3.00 am. They saw the appellant downstairs waving to them. Const Curry said this: "I saw a male, Ray Salama, standing in the driveway of number 1038 waving at us. I then ran up to Ray Salama. I said, 'What has happened?' He said, 'She's up there, I don't know, she lives upstairs and I live downstairs. She came and wake me up." 32 That account was plainly untruthful, as was the account later given to Snr Const Mackie, who also attended the premises. Const Mackie addressed the following questions to Dr Salama: "I then walked out of the room and said to the male person, 'Where were you when it happened?' He said 'In my bedroom.' I said 'Where is your bedroom?' He said 'Downstairs.' I then went downstairs to the first floor and himself and other police followed. I said to him 'Can you tell me what happened?' He said 'I was in bed when she came down and came to my door. She was calling my name and I got up and I saw the blood.' I said 'Can you please sit down here for me?' I then pointed to a blue chair and he sat down on it. He said 'Then I went upstairs to her bedroom and I saw the blood and I called the ambulance.'" 33 Swabs were taken from the appellant's hands. No gunshot residue was evident. However, a shirt which the appellant was wearing revealed one particle of residue. The Ballistics Evidence 34 An examination was made of the bedroom by Snr Sgt Hoffman, a police ballistics expert. There was blood on the bed covers and pillows. The handset of a telephone on a bedside table had been damaged. A fragment of lead was removed. There was also damage to the northern and western walls, being the walls nearest the doorway which gave access to the bedroom. The damage was approximately 74 cms above the floor level. 35 Sgt Hoffman concluded that one bullet had been fired. He gave the following evidence: "With the assistance of Forbes and another officer I utilised a string line to show the connection of the damage previously described in that room. This damage included the tear to the top of the bottom pillow, the damage to the handset of the telephone, the separate damage to both the northern wall and western wall. All of this damage is consistent with being caused by the passage of the same small calibre projectile which had been discharged from a firearm." 36 The string line was photographed. It suggested that the rifle had been held sloping downwards, with the butt higher than the end of the barrel. 37 Relying upon that evidence, the Crown Prosecutor opened to the jury with a demonstration, using the rifle. The angle of the rifle was consistent with Dr Salama taking aim at his wife. 38 Counsel for Dr Salama drew Sgt Hoffman's attention to the metal fragments which had been removed from the temple region of Mrs Salama. Sgt Hoffman then acknowledged that, contrary to his original assumption, the "overwhelming probability" was that the projectile had fragmented upon impact with Mrs Salama. One fragment had been propelled in the direction of the telephone. Two others had travelled in the direction of the northern and western walls. The premise upon which the string line test had been constructed, therefore, could not be supported. Counsel for Dr Salama asked the following: "Q. Now on the basis that the projectile fragmented in the wound, it would not be necessary to draw the line from that height down towards the telephone would it? A. Draw the line from … Q. The string line from that height down towards the telephone, rather you'd be drawing a string line across the top of the head? A. Oh yes, I agree. Q. And that would in effect drop the angle down to virtually horizontal … A. Yes it would." 39 The examination continued: "Q. Sir, on the basis of the further information you've acquired since the string lines were done we now have the scenario where the most likely line of flight is in fact parallel with the top of the bed? A. Oh yes, I agree." 40 Sgt Hoffman then made the following concessions: "Q. And is the line of fire as now revealed by a reconsidered ballistics position consistent with - I don't say only with, but consistent with - a weapon being fired from the general direction or position of that corridor? A. Oh yes, it's a possibility. Q. Indeed, it's a high probability, isn't it? A. Yes. Q. It's a most probably scenario, because of the flat angle parallel with the bed? A. Yes. Q. Almost at 90 degrees to the wall? A. Yes. Q. And across, skimming the surface of the scalp and hitting the wall opposite? A. Yes. Q. Consistent with a weapon then being at 90 degrees to the bed, with the butt in the direction of the wall, the weapon virtually parallel with the bed, and discharging across in the direction of the other wall, grazing the scalp? A. Yes, that's a possibility. Q. And indeed, a high probability? A. Yes." 41 When questioned further, Sgt Hoffman retreated, to some extent, from this position. The suggestion that the rifle was parallel with the bed was "a possibility". In re-examination, Sgt Hoffman said this: "Q. You've no idea of the angle at which she was struck? A. No, I don't. Q. So that the range of possibilities are limitless as to where, from what angle, the gun was being held when she was shot, is that so? A. Yes." 42 The Crown relied upon a circumstantial case. It was obliged, therefore, to exclude any reasonable hypothesis consistent with Dr Salama's innocence (Peacock v R (1912) 13 CLR 619). It therefore probably does not matter much, from the viewpoint of the appellant, whether Sgt Hoffman's ultimate position was expressed as a probability or a possibility. The Evidence of the Accused 43 The appellant gave evidence. He acknowledged that he was holding the gun in his wife's bedroom when it discharged. He pointed to a set of bathroom scales at the side of the bed (as shown in photo 55; Ex 1). He tripped on the scales. He explained his untruthful account to the ambulance service and the police officers upon the basis that he did not want to talk, and to answer questions. He gave answers designed to deflect further questioning. He said this: "Well like I said again I knew that there would be legal problems added to the health problems. I did not want to talk." 44 The cross examination of the appellant culminated in the following: "Q. And fired your gun into the bed where she was sleeping. What do you say about that? A. I said your forensic expert ruled against that. Q. And I suggest that you fired that gun with the intention, knowing it was loaded with the intention of inflicting very serious harm to your wife sir. What do you say about that? A. No sir. Q. I suggest to you sir that this question, statement of yours that you went in there looking for an intruder is a fabrication, something you've made up what do you say about that? A. I say no it isn't. Q. I suggest to you that the evidence that you've given that you tripped and the gun accidentally went off is also wrong, what do you say about that? A. I say you are wrong sir, sorry." The Notice of Appeal 45 There were a number of grounds of appeal. Three matters appear to me to have substance. They are: · First, the verdicts were said to be inconsistent (Ground 1). · Second, it was asserted that "his Honour had misdirected the jury by suggesting that evidence given by the accused may be unreliable" (Ground 2). · Third, it was also asserted that "his Honour erred in failing to put a question raised by the jury to the jury prior to them reaching their verdict" (Ground 8). 46 It is convenient to deal with the first and third issues together. Were the Verdicts Inconsistent? 47 The first count, that the appellant maliciously discharged a firearm with intent to do grievous bodily harm to Alice Salama, required the Crown to prove the following elements: · That Dr Salama had acted maliciously (as defined). · That he had deliberately discharged the firearm. · That he had done so with the intention of causing grievous bodily harm to his wife, Alice Salama. 48 The alternative count obliged the Crown to prove: · That the accused deliberately fired the rifle. · That he did so with disregard for the safety of his wife, in that he understood that his wife was in the room, and appreciated the possibility of harm to her, and yet went ahead and fired the rifle. 49 His Honour so instructed the jury. 50 The defence to both counts was the same. The discharge of the weapon was an accident. The accused acknowledged his negligence. He breached basic safety procedures which he had been recently taught. He carried a loaded gun (one infers) with the safety catch released. He did so in darkness. The rifle was held with the barrel pointing straight ahead, instead of at the floor. However, the charge was not negligence. It was that he had deliberately discharged or fired the rifle. Dr Salama denied that charge. Far from intending harm to his wife, his mission was to keep her safe from harm. 51 A number of matters suggested the shooting may have been an accident. First, there was no motive. All evidence, including that from the victim, suggested a close family relationship. It is significant that when the incident occurred the victim called out "Ray, Ray", seeking the appellant's help. 52 Secondly, the ballistics evidence did not suggest unequivocally that the rifle had been deliberately aimed. Indeed, it was possible, even probable, that the rifle was held by Dr Salama at waist level, parallel to the bed, at the time of its discharge. 53 Thirdly, there was some support for Dr Salama's claim that he had tripped. There were bathroom scales alongside the bed. They had been knocked off centre. Their location was consistent with the point of discharge of the rifle. 54 Fourthly, if Dr Salama had wished harm to his wife, it is hard to see why he needed to circumnavigate the bed in darkness. The shot could have been fired from near the doorway. 55 The onus of establishing that the verdicts are inconsistent is upon the appellant. The test is one of logic and reasonableness (Mackenzie v R (1996) 71 ALJR 91 at 100). In that case, Gaudron, Gummow and Kirby JJ said this: (at 101/102) "Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty (R v Irvine [1976] 1 NZLR 96 at 99 …). More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law (R v Zundel (1987) 35 DLR (4d) 338 at 401-402 …). It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside (R v Drury (1971) 56 Cr App R 104 at 105)." 56 In R v Crisologo (CCA, unreported, 12 December 1997) Simpson J (with whom Hunt CJ at CL and James J agreed) helpfully identified three possible explanations for apparently irreconcilable verdicts. The outcome on appeal will differ, depending upon the explanation. 57 The first explanation was described by Simpson J in these terms: (at 9) "… the jury must be taken to have experienced a reasonable doubt in relation to the count or counts upon which they acquitted, and no rational distinction can be drawn as to the acceptability of the evidence on that count and the acceptability of the evidence on the counts on which they convicted." 58 In such a case, the accused must be acquitted upon any count logically indistinguishable from the count upon which he was acquitted. 59 The second explanation is that the jury has exercised its right to return a "merciful verdict", even where the result may not withstand strict legal analysis. In such a case, an appellate court will not interfere. 60 The third possibility is that of compromise. None of the verdicts represents the unanimous view of the jury. Rather, they signify that a compromise has been reached. 61 The appellant urged that the case fell within the first of these categories. An illustration of such a case is provided by Jones v R (1997) 191 CLR 439. In that case the accused was charged with three counts of sexual assault upon a young girl. The alleged offences arose from separate incidents, widely separated in time. The jury convicted the accused on the first and third counts. He was acquitted on the second count. Gaudron, McHugh and Gummow JJ said this: (at 453) "The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count." 62 Here, there was no question that Dr Salama held the gun when it discharged. A rifle, by its nature, is obviously capable of inflicting grievous bodily harm, and jeopardising the safety of those nearby. On both counts, the only issue was whether the actions of Dr Salama were deliberate. Was it possible, as he asserted, that the rifle had discharged accidentally? That was his defence in respect of each count. 63 Although his Honour instructed the jury in respect of the separate elements of each charge, as he was obliged to do, he did not seek to differentiate between the separate counts. The evidence was the same for each count. His Honour, appropriately, instructed the jury that, if they accepted the possibility of accident, they were obliged to acquit on both counts. 64 The Crown answered the suggestion that the verdicts were inconsistent by pointing two possibilities. The jury may not have been satisfied beyond reasonable doubt that the accused intended to cause grievous bodily harm. He may only have intended to scare his former wife. Alternatively, the jury may have decided upon a merciful verdict, and convicted on the lesser charge. 65 Dealing with the first possibility, why should Dr Salama seek to scare his former wife in such a bizarre and dangerous manner? Why should he do so in a position at the side of the bed furthest from the door? Nothing was put to Mrs Salama which might justify such an inference. Nothing was put to the appellant. I do not believe that such a possibility was open. 66 The suggestion that the jury has been merciful has some support in the evidence. Dr Salama, before this incident, was a person described by the Crown as "of impeccable character". His family remained united around him. He still lived in the same house with his former wife, the victim of this incident. Conviction on the second count may be punishment enough. 67 Before dealing with that argument, it is convenient to move to the matter which I have identified as the third issue in this appeal. The appellant complains that his Honour failed to answer a question which the jury had posed before it delivered its verdict. Simpson J in Crisologo referred to the insight that might be provided by "external indicators of compromise" (at 7). There may also be external indicators of confusion. Here, there was an episode which, arguably, suggested confusion, at least on the part of some members of the jury. The jury, having retired, later sent a note which posed a question in these terms: "In regard to the second or alternative charge your instruction to us was to have pulled the trigger deliberately with disregard for Alice Salama. The charge on the indictment states 'Did fire a firearm with disregard for safety of Alice Salama'. Does this include accidentally?" 68 Whilst the question was being debated with counsel, a second note was sent by the jury a short time later. The jury returned to the courtroom. The transcript recorded what then occurred: "HIS HONOUR: Thank you members of the Jury. Members of the Jury I have your note which I have in fact read to counsel, and I now have a later note which indicates 'Your Honour, we have reached a verdict. Please disregard the question previously sent in.' I think in the circumstances I will ask my associate to take that verdict from you before proceeding. NICHOLSON: I would ask the question be first answered. HIS HONOUR: No, I am going to deal with it this way, Mr Nicholson. JURY RETURNED WITH A VERDICT OF NOT GUILTY TO THE FIRST CHARGE AT 3.34 PM. JURY RETURNED WITH A VERDICT OF GUILTY TO ALTERNATIVE CHARGE AT 3.34 PM. HIS HONOUR: I think in the circumstances members of the Jury, before accept(ing) this verdict from you I should deal with the questions which you have put to me, and I will read those two questions." 69 His Honour then read the questions. He repeated the instructions he had given as to the elements of the second count, including that the firing must be deliberate. He did not answer the question as such. There was no reference to "accident". 70 The jury was sent out again at 3.36 pm. It returned at 3.42 pm with the same verdict, namely, guilty on the alternative charge. 71 The first note, on its face, betrayed confusion. The confusion went to the heart of the charge. Notwithstanding the jury's apparent resolution of the issue to their own satisfaction, it was important that the question be answered. It was also important that they should then deliberate further in the light of that answer. Once the verdict was delivered, the opportunity to answer the question, and instruct the jury, was lost. After verdict, the obligation was to immediately discharge the jury (s 55E Jury Act 1977). It was not open to the judge to interrogate the jury as to the grounds for its decision (Mourani v Jeldi Manufacturing Pty Ltd (1983) 53 ALJR 825: Mackenzie v R supra, at 100). 72 Although what occurred was irregular, it is apparent that an issue arose in his Honour's mind as to whether the jury had understood the directions which had been given. Hence, the directions were given for a second time. Failure to answer the question before the verdict was, in my view, an error justifying a new trial. 73 Returning to the issue of whether the verdicts were inconsistent, I do not believe that the conviction on the lesser charge can be explained upon the basis that the jury was being merciful to the accused. Nor do I believe the jury reached a compromise. The most likely explanation was confusion. I am persuaded that the case falls within what has been termed "the first category". There is no rational basis upon which, having found the appellant not guilty on the first count, the jury could then find him guilty on the second. The jury must have misunderstood the clear directions which his Honour gave. I therefore believe the verdict should be set aside. The conviction should be quashed, and a verdict of acquittal entered. The Warning Given to the Jury 74 On two occasions, within a short time of the incident, the appellant asserted that the shot was a mistake. His Honour, in his summing up, reminded the jury of this evidence. He said this: "She called out, she said, 'Ray, Ray'. She said that he said, 'Don't worry, I think I hurt you by mistake'. Members of the jury, it is also the fact that when the accused was speaking on the telephone having rung 000 he said words to the same effect, that it was a mistake." 75 His Honour then gave the jury the following warning: "Members of the jury, you are entitled to take those statements into account on the question of the accused's guilt, the law provides that you may do so. Mr Nicholson has urged that you would have regard to those statements as supporting the case put forward by the accused, that what happened was accidental. I must tell you members of the jury, however, the law is that such statements made in this case by the accused, may be unreliable. They are unreliable, you might think, for the possible reason that they are simply self-serving statements made by the accused shortly after these events. Members of the jury, I should warn you that when you consider as to what reliance you would place on those statements by the accused that they may be unreliable for the reason which I have outlined to you." 76 The summing up was spread over two days. Counsel for the accused made a number of complaints at the end of the first day, including a complaint in respect of the warning. The next day his Honour revisited the issue. He said this: "When I dealt with the way in which you could deal with what was said by the accused, first of all to his wife, 'Don't worry, I think I hurt you by mistake' and what he said to the ambulance officer when he reported the call over triple 0, that he thought it was a mistake, that it was a mistake, I did say to you, members of the jury, that that was something which you are entitled to take into account and treat as evidence of that as being the fact because the accused had said it. I think I made it quite clear to you, members of the jury, that that was a permissible course; if I had not done so I certainly emphasise that now, but with the proviso, of course, that evidence given in this case by the accused may be unreliable because it could be regarded as purely a self-serving statement, something said at the time to distract attention from any possible involvement that he may have in any criminal activity." 77 A number of complaints are made in respect of these directions. First, his Honour regarded himself as bound to give the jury a warning by virtue of s 165 Evidence Act 1995. The appellant asserted that there was no such obligation. 78 Secondly, and more fundamentally, such a warning placed the accused in a special category of witness, where what he said about the incident may be unreliable because he was not disinterested. 79 The appellant raised other matters besides. 80 The words which attracted the warning were, in each case, out of Court statements by the accused. They contained assertions of fact, namely that the shooting was a mistake (ie: an accident). They were not tendered by the accused for the purpose of proving the facts asserted (cf Lee v R (1998) 72 ALJR 1484 at 1487 (para 22)). Their inclusion in the evidence came about because they were incidental to the narrative, in the case of the evidence of the victim, and formed part of a document upon which the Crown relied, in the case of the ambulance transcript. Section 165(1) is, relevantly, in these terms: "165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;" 81 The Crown asserted that the statements by the accused to his wife, and the ambulance service, came within both Part 3.2 (hearsay evidence) and 3.4 (admissions). However, the statements to Alice Salama were plainly not adverse to the accused. It was not an admission by the appellant. It may well be part of the res gestae (Ratten v R (1972) AC 378). There are admissions within the ambulance transcript. However, the statement by Dr Salama that the shooting occurred by mistake cannot be so regarded. 82 Part 3.2, dealing with hearsay, includes the following exception: "66(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. 66(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made the occurrence of the asserted fact was fresh in the memory of the person who made the representation." 83 His Honour, in giving the warning, may have had that section in mind, and the comments by Simpson J (with whom Hunt CJ at CL and James J agreed) in Crisologo v R. That case involved charges of sexual assault. At a time when the facts were fresh in the accused's memory, he made statements concerning his involvement with the complainant to his wife and his mother. The statements were the counterpart of a complaint by an alleged victim in a sexual case. Simpson J said this: (at 18/19) "The Act draws no distinction between the admissibility of out of court statements made by a complainant, and statements of a similar kind made by a person accused of crime. The principles applicable to the admission of evidence of complaint apply equally to the admission of evidence of relevant out of court statements by an accused person at a time when the events the subject of the statement are fresh in his/her memory and when he/she has been or is to be called to give evidence. Such evidence is, like evidence of complaint, now admitted as evidence of the truth of what was said: R v Hall (unreported, CCA, 28 February 1997), R v BD (unreported, CCA, 28 July 1997)." 84 Her Honour added: (at 20/21) "Before leaving this topic it is worth finally observing that, where evidence of this kind is admitted, it will also be necessary for the judge to give consideration to the provisions of s 165 and, if requested by a party (including the Crown) to do so, to warn the jury of the potential unreliability of the evidence and the reasons for that unreliability." 85 However, there were important differences between Crisologo and the charges involving Dr Salama. I have referred to some of them already. First, in the case against Dr Salama (unlike Crisologo), the evidence was tendered in the Crown case. At the time of its tender, s 66 had no application. Dr Salama, at that time, could not be regarded as a person who had been called, or was to be called, to give evidence. 86 Secondly, s 165(2) provides that, where there is a jury, and a party so requests, the judge may warn the jury that the evidence may be unreliable. Here there was no request. The Crown had not sought a warning. Simpson J, in Crisologo, clearly contemplated a request, as provided by s 165(2). Although s 165 does not exhaustively catalogue the circumstances in which a warning may be appropriate, a judge should hesitate to give a warning adverse to the accused where there has been no request by the Crown. 87 Thirdly, even had the Crown asked for a warning, there is a discretion to refrain from giving it "if there are good reasons for not doing so" (s 165(3)). Here, it may be thought that there were a number of good reasons why such a warning should not be given (quite apart from the absence of request from the Crown). The warning was, unquestionably, adverse to the accused. The evidence, as mentioned, had been tendered by the Crown, not the accused. The Crown had sought to obtain the benefit of admissions made in the course of the material which it tendered. It may be thought unfair, in such circumstances, that it should, in addition, be given the bonus of having the jury told that those matters which may be favourable to the accused, within such material, may be regarded by the jury as unreliable, because the accused had an interest. 88 Moving to the second complaint by the appellant, it was asserted that the warning signalled to the jury, inappropriately, that any statements by the accused concerning the incident may be unreliable. He had an interest to serve. Statements by him, therefore, must be scrutinised with great care. 89 In Robinson v R (1991) 55 A Crim R 318, the High Court (Mason CJ, Brennan, Deane, Toohey and McHugh JJ) considered a direction given in a trial for rape. The direction included the following concerning credibility: (at 319) "Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness's evidence closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely." 90 The Court, commenting upon this direction, said this: (at 320) "… it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused." 91 The direction had the effect of branding the accused a suspect witness, in the same way as an accomplice, or a young child. The Court added: (at 321) "Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person." 92 Here the direction related to statements made soon after the incident by Dr Salama, not the evidence given in court. I believe, nonetheless, that the signal to the jury was the same. His interest made suspect his account of what had occurred. The jury could not fail to see the relevance of that warning to the evidence which he had given, where he repeated the same account. 93 I believe, therefore, that the warnings should not have been given, and a new trial is justified upon that ground. It was open to the trial Judge, nonetheless, to alert the jury, in general terms, to matters which may influence or colour the evidence of witnesses. In Robinson the High Court said this: (at 321) "Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence of the Crown." 94 If a warning was thought appropriate in the circumstances identified in Crisologo, the trial Judge would need to frame that warning in general terms. The jury must not be warned that the accused's account is suspect because he has an interest. Orders 95 The orders I propose are as follows: 1. The verdict in respect of the alternative count should be set aside. 2. The conviction should be quashed. 3. A verdict of acquittal should be entered. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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