New South Wales Court of Criminal Appeal CITATION : Regina v Galea; Regina v Yeo [2001] NSWCCA 270 FILE NUMBER(S) : CCA 60249/00 (Galea); 60031/00 (Yeo) HEARING DATE(S) : 4 April 2001 (Subsequent written submissions closing 15 June 2001) JUDGMENT DATE : 17 July 2001 PARTIES : Regina v Raymond Galea Regina v Keng Hwee (Kathy) Yeo JUDGMENT OF : Stein JA at 1; Wood CJ at CL at 92; Studdert J at 93 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : SC 70048/98 LOWER COURT JUDICIAL Grove J OFFICER : Appellant (Galea) - T A Game SC/H K Dhanji COUNSEL : Appellant (Yeo) - P Byrne SC/G A Bashir Crown - R D Ellis Appellant (Galea) - D J Humphreys SOLICITORS : Appellant (Yeo) - Horowitz and Bilinsky Crown - S E O'Connor CATCHWORDS : CRIMINAL LAW - murder - accessory to murder - joint enterprise - EVIDENCE - criminal law - failure of accused to give evidence - whether Weissensteiner direction appropriate - EVIDENCE - criminal law - character evidence - cross-examination on material not in evidence - discretion to allow - s 192 Evidence Act 1995 - EVIDENCE - criminal law - balancing prejudice against probative value - ss 97, 101 Evidence Act 1995 - EVIDENCE - criminal law - credibility - whether Edwards or Zoneff direction necessary LEGISLATION CITED : Evidence Act 1995 Criminal Appeal Act 1912 Azzopardi v The Queen; Davis v The Queen [2001] HCA 25 BRS v The Queen (1997) 191 CLR 275 Edwards v The Queen (1993) 178 CLR 193 R v Bozzola (2001) NSWCCA 269 R v Dang (2000) NSWCCA 269 CASES CITED: R v Fowler (2000) NSWCCA 142 R v Mai (2000) NSWCCA 517 R v OGD (1997) 45 NSWLR 744 RPS v The Queen (2000) 199 CLR 620 Stanoevski v R (2001) 177 ALR 285 Weissensteiner v The Queen (1993) 178 CLR 217 Zoneff v The Queen (2000) 200 CLR 234 DECISION : Galea: 1) Appeal upheld 2) Conviction quashed 3) New trial ordered; Yeo: 1) Appeal upheld 2) Conviction quashed 3) New trial ordered IN THE COURT OF CRIMINAL APPEAL Nos. 60249/00; 60031/00 STEIN JA WOOD CJ at CL STUDDERT J Tuesday, 17 July 2001 Regina v Raymond GALEA Regina v Keng Hwee (Kathy) YEO JUDGMENT 1 STEIN JA: Introduction 2 Between 8 November 1999 and 4 January 2000 both appellants were tried on indictment for the murder of Christopher Mark Dorrian on or around 7 June 1997 at Lilyfield, New South Wales. They were also tried on the alternative count of accessory after the fact to murder. 3 On 4 January 2000 the jury returned a verdict by which the appellant Yeo was found guilty of murder, and the co-appellant Galea found guilty of being an accessory after the fact to murder. Galea was found not guilty of murder. On 12 April 2000 Grove J sentenced the appellant Yeo to 24 years imprisonment with a non-parole period of 18 years. The appellant Galea was sentenced to 8 years imprisonment with a non-parole period of 6 years. 4 The appeals were heard by the court on 4 April 2001. However, the hearing was not able to be completed on that day because of the then pending decisions in the High Court of Azzopardi and Davis. On 3 May 2001 the High Court published these decisions, Azzopardi v The Queen and Davis v The Queen [2001] HCA 25. 5 The balance of the hearing of the appeals was agreed to be dealt with by way of written submissions, the last of which was delivered to the court on 15 June 2001. Grounds of Appeal 6 Both appellants raise a number of grounds of appeal against conviction. Galea also appeals on sentence. For convenience, the grounds may be summarised as follows: Yeo (1) The verdict of the jury is unreasonable having regard to the evidence. Two separate contentions are raised with respect to this ground. First, that the verdicts are inconsistent with the presentation of the Crown case as a joint enterprise. Secondly, that there is insufficient evidence against Yeo to establish the charge of murder, either individually, or jointly. (2) His Honour erred in his directions on the use that the jury might make of the fact that Yeo did not give evidence at the trial. Galea The grounds of appeal with respect to conviction are: (1) His Honour erred in his ruling concerning the permitted scope of cross-examination by the Crown in the event that the appellant sought to raise his good character at trial. (1A) His Honour erred in admitting the evidence of Mr Glen Wood. (2) His Honour erred in admitting into evidence the Digital Audio Tape recordings of the product of listening devices, and the transcripts of those tapes. (3) His Honour erred in his directions to the jury concerning the use which could be made of expert evidence at the trial. (4) The trial judge failed to direct adequately, and erred in his directions concerning circumstantial evidence. (5) The verdict is unreasonable and cannot be supported having regard to the evidence. (6) The trial judge failed to adequately direct the jury concerning the separate cases against each accused in that he: (i) failed to sum up the evidence in the case against each accused; (ii) failed to identify separately in the case against Galea, the evidence establishing Yeo's criminal involvement; (iii) failed to adequately identify the Crown's case in respect of the alternative count, and the evidence admissible against the appellant Galea in respect of that count; and (iv) failed to identify how the jury might proceed to a finding of guilt on the alternative count. (7) The trial judge failed to adequately direct the jury concerning the use to which the material in Ex's GGG 3 and 4 might be put. The grounds of appeal by Galea with respect to sentence are: (1) That his Honour sentenced Galea on the basis that he had participated in the dismemberment and disposal of the body of the deceased, however, the Crown case was not ultimately put on this basis. The judge should not have sentenced on a more serious basis than the matter was left to the jury. (2) That both the sentence and non-parole period were excessive. Summary of trial 7 On 21 June 1997 a black sports bag and jacket were found on the banks of the Cooks River in Gough Whitlam Park, Undercliffe. It was found to contain a human head. Documents found with the remains identified the deceased as Christopher Mark Dorrian. Searches of the river did not reveal any further body parts. 8 The autopsy revealed that the deceased's head had been severed at the fifth vertebrate. There were five cuts in the neck caused by a large cutting instrument. Three .22 calibre bullets were found in the head. The estimate of time of death was two to four weeks prior to the remains being found. 9 Mrs Desiree Mills, the mother of the deceased, identified his remains. She gave evidence that she had spoken to her son on 30 May 1997, when he informed her that he was coming to collect his belongings as he had met a woman named Kathy and they were going to move in together. That same day he and the appellant Yeo arrived at Mrs Mills' home to collect his belongings. They were in contact over the next few days. However, the last time Mrs Mills spoke to the deceased was on 4 June 1997. 10 Yeo gave a statement to police on 23 June 1997, wherein she provided a background of her relationship with the deceased. She was a nurse at Palm Court, a drug and alcohol rehabilitation unit at Rozelle Hospital. The deceased had admitted himself to the unit on 12 April 1997 and discharged himself on 6 May 1997. Yeo told police that she spoke frequently with the deceased while he was at Palm Court. This was confirmed by staff who had noted that Yeo was having daily contact with the deceased, despite the fact that she was not his assigned carer. The Director of Nursing, Mr Rowley, gave evidence of allegations made by staff concerning the relationship between Yeo and the deceased, and a number of Yeo's colleagues outlined her contact with the deceased. At all times Yeo denied that there was any improper relationship. 11 Once he had discharged himself, the deceased contacted Yeo on 9 May 1997 and they arranged to meet for a coffee, at which time Yeo talked about her relationship with the appellant Galea. She said that she was not happy in the relationship and was looking for another. The deceased asked if she would have a relationship with him. They arranged to meet for dinner on the same day and, over the next few days, met at various locations. 12 In her statement to police Yeo said that the deceased telephoned her at work on 20 May 1997 and they discussed moving in together. On 23 May 1997 she moved out of the house at Marrickville, where she lived with the appellant Galea, and moved into the nurses quarters at Rozelle Hospital. On 26 May 1997 she signed a 6 month lease on a unit at Maida Street, Lilyfield, which she and the deceased moved into on 30 May 1997. On 1 June 1997 she went to Galea's Marrickville house and collected some of her belongings. 13 Late on 4 June 1997 (or very early on 5 June) the deceased and Yeo had an argument, which became a physical altercation. According to Yeo the deceased was intoxicated, and left the unit after the argument. Yeo telephoned Galea at 2.30 am on 5 June and asked him to pick her up. Prior to his arrival the deceased returned and another argument between he and Yeo ensued. Yeo then went to Galea's home and stayed the balance of the night. 14 Galea drove Yeo to her music lesson at around 8 am on 5 June 1997. Whilst she was at her lesson Galea went to the Lilyfield unit and confronted the deceased about the argument he had had with Yeo. Galea, in an interview with police on 1 July 1997, described his conversation with the deceased that morning as amicable. He told Yeo that the deceased had discussed the difficulties in his relationship with Yeo and had stated that the relationship was over. 15 Later on 5 June 1997 Yeo returned to the Lilyfield unit and had a further argument with the deceased before he left for work. The deceased telephoned her at about 11.20 am and reiterated that their relationship was over. Yeo then went to work, returning at about 11 pm. Shortly thereafter, the deceased returned to the unit in an intoxicated state and told Yeo that she had ruined his life. 16 On 6 June 1997 Yeo went to work, however, she could not concentrate and returned to the unit after half an hour. She told the deceased that she was moving out and returning to Galea, who she had telephoned to ask for assistance in moving her belongings. Yeo and the deceased had a disagreement as to the payment of future rent, and she then returned to Galea's home. Yeo said that she telephoned the deceased at about 5.45 pm that day, and spent the evening with a friend, before returning to Galea's home. 17 Both appellants maintain that they went shopping on the morning of 7 June 1997, first in Marrickville and later in the CBD of Sydney. Upon returning, Yeo said that she repeatedly telephoned the deceased at the Lilyfield unit, without answer. The appellants stated that they went to the unit at around 5 pm that day to collect the remainder of Yeo's belongings. The deceased was not present at the unit and the appellants told police that the deceased's belongings had been removed. The appellants left the unit at approximately 8 pm. 18 On the morning of Sunday, 8 June 1997 the appellants returned to the unit to finish cleaning it. Yeo told police that they tidied the unit, cleaned the bathroom, toilet and kitchen, and vacuumed the carpet using a Black and Decker Dustbuster. While doing so Yeo claimed to have split a bucket of water and cleaning detergent on the carpet. They left the unit around lunchtime, went into the city and later stopped at Yeo's parents home, prior to going to Galea's home for the remainder of the evening. The deceased, who had been working at the Gotham Restaurant in Balmain since 8 May 1997, did not turn up for work on 8 June 1997 and no further contact was had from him. 19 The following day, 9 June 1997, Yeo went to work before both appellants returned to the unit to check it. Yeo stated that there were no signs that anyone had been there. On 10 June 1997 Yeo terminated the lease on the unit. The managing agent inspected the unit on 12 June 1997, describing it as being in a clean condition. 20 Galea is the holder of a Shooters Licence, as well as of a Pistol Licence. At trial he gave evidence of belonging to the army reserve, of establishing a pistol club in 1993 and being an editor of various magazines which dealt with guns. He was also employed as a consultant by the Shooters Party. Yeo told police that she was the holder of a current Pistol Licence and had joined the Special Forces Pistol Club in December 1994. She ceased attending in December 1996. She normally used Galea's .22 Calibre High Standard Citation. Galea told police that it was this pistol that Yeo was most proficient in. Galea gave evidence that he used this pistol for target shooting and for training new members of his club. 21 On 23 June 1997 police attended Galea's home where he surrendered the firearms from his safe. Four guns, three rifles and one shot gun were seized. The bullets found in the deceased's head were shown to have been fired from the appellant Galea's .22 calibre high standard pistol, which was found by police in the locked safe at Galea's home. 22 Police attended the Lilyfield unit on 25 June 1997 to conduct a forensic examination. Photographs were taken of blood stains found in the bathroom, on the floor and doors, in the bath tub, in the kitchen area and under the stove, and on and underneath the carpet. Hair and tissue were found in the bath. The DNA from swabs taken during the forsenic examination were found to match that of the deceased. 23 A listening device warrant for Galea's home, and three telephone intercepts were applied for by police on 26 June 1997. These were granted on 30 June 1997 and installed from approximately 1 July 1997 until 25 July 1997. A total of 22 tapes were recorded. They were of poor sound quality and there was a need for the voices recorded to be enhanced. The process of reviewing the tapes and preparing transcripts took a number of months. At trial Dr Joanne Tibbetts, an electrical engineer whose thesis was on the use of digital signalling processing technique to improve the intelligibility of speech for the hearing impaired, was satisfied that she was able to come up with a firm view as to precisely what was said in the 29 extracts from the Digital Audio Tape recordings she was asked to look at. 24 On 30 June 1997 Galea telephoned Detective Senior Constable Wyllie. He stated that he had returned home to find the spare key to his safe, in which his firearms were kept, in the lock of the safe. Galea indicated that he found this strange as the key was normally hidden. Police attended his Marrickville home on 1 July 1997 and executed a search warrant. They removed a Dustbuster and a bucket during that search. 25 Yeo told the police in an electronic recorded interview on 1 July 1997 that on 1 June 1997 she had returned to Galea the keys to his home. She said that she did not have a key to the safe, however there was a spare key to it which was normally kept in Galea's trophy cupboard. Only she and Galea knew where the spare key was kept. She mentioned the incident where they discovered the spare key in the safe, and said that there had been no signs of forced entry and that nothing had been missing from the home. She also told police that she had mentioned to the deceased that there were guns in Galea's home. She denied that she had told the deceased the location of the spare key to the safe. 26 In his ERISP, also of 1 July 1997, Galea said that as a result of his concerns that someone had been having access to his home, he changed the locks to the house. At trial, Galea gave evidence that Yeo had access to the safe, as she knew where the spare key was kept and that she had had access to the guns on a number of occasions when she had assisted him in preparing to go pistol shooting. He also said that a number of his friends, associates, business associates and members of the Shooters Party would know that he kept guns at home. 27 The .22 calibre high standard pistol, the pistol magazine and camouflage pouch were examined for fingerprints. Apart from police prints, it contained no others. The only fingerprints found on the bathroom wall in the Lilyfield unit were identified as those of the deceased. A fingerprint found on the lid of the silver trophy was identified as being Galea's. 28 Ms Janet Roberts, who visited another unit in the Lilyfield block every weekend, gave evidence of being woken at approximately midnight on 6 June 1997 by heavy thumping sounds. She said they lasted for about 10 minutes, during which time she also heard a male voice. She identified the noise as coming from the northern end of the building, the unit on the other side of the neighbouring unit. 29 Mr Glen Wood lived at Unit 9 and would park his car in bay 17, which was reserved for his unit. On 1 June 1997 he noticed that his front and rear passenger tyres were flat. The next morning he found his windscreen smashed. The tyres had been slashed. 30 Mr Peter Helmerand, a former patient at Palm Court, gave evidence that Yeo had questioned him as to how to make a body disappear. He extracted some documents from the internet on the topic and gave them to her. 31 At the trial, Galea gave evidence in which he denied any involvement in the deceased's death or disposal of his body. He said that he did not know who had removed the .22 calibre high standard pistol, which was identified as having been used to kill the deceased, from his safe. He mentioned that he and Yeo attended a photographic shoot at Gough Whitlam Park on 14 June 1997, but at that time were unaware that Mr Dorrian's head was in the river. The appeal of Yeo Directions on the use the jury might make of the fact that Yeo did not give evidence 32 During the course of the trial, counsel for Yeo, Mr Ramage QC, raised with his Honour what directions might be given in the event of his client not giving evidence. In particular, he asked whether a direction would be given in accordance with Weissensteiner v The Queen (1993) 178 CLR 217. At the time the submission was made, the High Court had not published its decision in RPS v The Queen (2000) 199 CLR 620. Further, Azzopardi and Davis were then pending before the High Court. On 29 November 1999 his Honour indicated that he would give a conventional direction in terms of the majority judgment in Weissensteiner. Counsel for Yeo complained, seeking inter alia that particular emphasis be put on the explanations made by Yeo in her ERISP tape. 33 In summing-up on 23 December 1999, after observing the difference in approach by the two accused, Galea giving evidence and Yeo not, his Honour said: The final observation I should make in this context is this; that where the evidence of Crown witnesses is left undenied or uncontradicted by an accused, any doubts which may otherwise have been cast upon the evidence of the Crown witnesses may be more readily discounted and the evidence of that Crown witness may be more readily accepted if it is left uncontradicted and that is an approach which you are entitled to take. 34 It is submitted by Mr Byrne QC, appearing on behalf of Yeo, that the direction was in error as either misstating the proper use to be made of a failure of an accused to give evidence or as constituting a breach of s20(2) of the Evidence Act 1995. 35 After the jury had returned its verdict, the High Court published its decision in RPS on 3 February 2001. A very similar direction to that given by his Honour had been given in RPS (see para 16). The joint judgment of Gaudron ACJ, Gummow, Kirby and Hayne JJ (at para 40) held that the direction should not have been given. 36 Their Honours said: To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case. Had the judge's instructions about the significance of the appellant not giving evidence stopped at pointing out that he was not bound to do so, that there may have been many reasons why he did not do so (and the jury should not speculate about those reasons), that it was for the prosecution to prove its case beyond reasonable doubt, and that the jury should draw no inference from the appellant not having given evidence, no complaint could be made. … [at 637 - 638] 37 It is submitted by Mr Byrne QC, on behalf of Yeo, that his Honour's direction went further than the limits set by the majority in RPS. In particular, it is submitted that it was a misdirection to tell the jury that: (a) any doubts which they may have about the Crown case may be 'more readily discarded' because the accused failed to give evidence. (b) the evidence of any Crown witness 'may be more readily accepted' because it is not contradicted by the accused. (c) (by implication) the failure of an accused to give evidence means that there is no denial or contradiction of the evidence presented against the accused. 38 It was also submitted that there was a failure to comply with s20(2) of the Evidence Act. Counsel submitted that a further direction given by his Honour on 23 December 1999, making brief reference to Yeo's ERISP, did not bring to the jury's attention with sufficient emphasis the importance of the material in the ERISP to her defence, or perhaps to qualify his earlier Weissensteiner direction. 39 The Crown submitted that, as the present case was a circumstantial case, it fitted within the narrow field of cases where a Weissensteiner direction was appropriate. It argued that the direction did not contravene any of the five elements identified in RPS which should not have been given. It was a neutral and not adverse comment, doing no more than stating the obvious. 40 Since RPS this court has retreated from the position it took in R v OGD (1997) 45 NSWLR 744. For example, in R v Fowler (2000) NSWCCA 142 Wood CJ at CL said that a Weissensteiner type direction must, since RPS, be confined to an exceptional case of the kind there involved. See also R v Dang (2000) NSWCCA 269, R v Mai (2000) NSWCCA 517 and R v Bozzola (2001) NSWCCA 8. 41 In Azzopardi the majority judgment (Gaudron, Gummow, Kirby and Hayne JJ) drew attention to the unusual circumstances of Weissensteiner, which were in sharp distinction to the not uncommon case of sexual assault in which the prosecution case largely, if not entirely, relied on the evidence of the victim. In this type of case, there is no basis for concluding that there is any additional fact known only by the accused, and therefore not the subject of evidence at trial if the accused remained silent, which would explain or contradict the victim's evidence. 42 The joint judgment referred to the fact that the plea of not guilty stands as a denial. Their Honours noted that Weissensteiner was decided before s20(2) of the Evidence Act was enacted, which provision enables comment to be made but prohibits suggestions that the accused failed to given evidence because he believed he was guilty. 43 Their Honours continued (at para 64): There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. [Emphasis in original] 44 The joint judgment makes it plain that a judge may comment but not give directions with respect to evidence. If a comment is permitted with respect to the failure of an accused to offer an explanation, it must be made clear that it is one which the jury is free to ignore. If a comment is made, it must be placed in context. This requires identifying the facts said to call for an explanation, adequate directions being given on the onus of proof, reference to the absence of any obligation to give evidence and a direction that not giving evidence is not an admission, nor does it fill any gaps in the Crown case. (para 67) 45 Finally, their Honours said: It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. (para 68) 46 In a separate judgment, Callinan J agreed with the conclusion of the majority. 47 The Crown relies on two aspects of the trial to justify the direction which was given by his Honour, the trial judge. 48 First, the Crown referred to the DNA evidence which established that the deceased's blood was found in the unit at Lilyfield. The Crown relied on this evidence to infer that the deceased was killed and dismembered there. It was said to be peculiarly within the knowledge of Yeo to provide additional evidence, if it existed at all, to explain the DNA evidence or rebut the inference. 49 Secondly, it was submitted to be peculiarly within the knowledge of Yeo to explain what she meant when she said 'sorry' to Galea (twice) after their arrest and charge. 50 However, it was the Crown case that Yeo and Galea dismembered the body of the deceased together. The knowledge of the blood of the deceased being in the unit was, on the Crown hypothesis, knowledge of more than one person - Yeo and Galea. It cannot be said that it was a matter peculiarly within Yeo's knowledge. Similarly, it was within the knowledge of Galea, who gave evidence at the trial, as to what was meant by Yeo saying 'sorry' to him after arrest and charging. It was not peculiarly within the knowledge of Yeo to provide additional evidence to explain the DNA evidence or what she meant when she said 'sorry'. In any event, there may be many explanations for saying 'sorry' including many non-incriminating ones. For example, sorry for you, for myself, sorry that we are here etc. It is difficult to see that it has much, if any, probative force. 51 It is my opinion that what his Honour said in the impugned direction must, with the benefit of the hindsight of RPS and Azzopardi, be seen as erroneous. It cannot survive what must now be acknowledged as the limited ambit for a Weissensteiner direction. It is not one of those rare and exceptional cases left to permit such a comment to be made to the jury. In any event, what was said by his Honour far exceeded what the majority judgment in Azzopardi requires, even if a comment may be permitted to be made, see para 67. 52 That leaves only the question of the application of the proviso. The Crown argues that its case against Yeo was a very strong circumstantial one. In the unusual circumstances of the case, it is submitted that the appellant was not deprived of a real chance of acquittal. It is said that his Honour's comment did no more than state what may have been obvious to the jury anyway. 53 On the other hand, the appellant Yeo submits that the jury may have been affected in their assessment of the case against her by considerations deriving from her failure to give evidence. 54 In my view, the case against Yeo was not so overwhelming that it could be said that the verdict of the jury against her was inevitable. Moreover, the misdirection was fundamental, see RPS at 630 and Azzopardi at para 58. 55 While the prosecution case against Yeo was not by any means a weak one, it is not to be categorised as an overwhelmingly strong one. I am unable to conclude that Yeo has not lost a real chance of acquittal by reason of the defective summing-up, see BRS v The Queen (1997) 191 CLR 275. The appellant has simply not been tried according to law. This is accordingly not a case in which the proviso to s6 of the Criminal Appeal Act 1912 should be applied. 56 On this ground the appeal of Yeo should be upheld, the conviction quashed and a new trial ordered. 57 Given my conclusion on this ground it is unnecessary to consider the remaining ground in Yeo's appeal of the jury verdict being unreasonable. Since there will be a retrial, it is preferable to make no further comment. Indeed, the retrial must be different given the acquittal of Galea on the charge of murder and perhaps for other reasons associated with how the Crown may decide to present its case. The appeal of Galea 58 As enumerated earlier, the appellant Galea relies on a number of grounds of appeal. Because, as I will shortly explain, I have concluded that the appeal should be upheld on grounds 1, 1A and 7, the remaining grounds have not been addressed. Since a new trial will be required, the way in which the Crown runs its case may change and discussion of these grounds may be of no utility. Ground 1 - ruling on cross-examination if character raised 59 Relatively early in the trial counsel for Galea sought a ruling as to whether the Crown would be permitted to cross-examine on certain material should his client raise good character. The material included entries in a diary belonging to Yeo asserting assaults by Galea and the evidence of Mr Wood concerning the vandalising of his car on the night of 31 May - 1 June 1997. 60 The diary was not in evidence and the Crown conceded that it could not establish the assaults unless either Galea or Yeo gave evidence of them. That is, if Galea admitted them or if Yeo did the same, or asserted that her diary entries were true. 61 In the submission made on behalf of Galea it was said that neither the Crown or the court had any way of knowing what might occur. On 18 November 1999 his Honour ruled that he would allow cross-examination on these topics but not on others. At that time his Honour did not look at the diary entries. No consideration was given to s192 of the Evidence Act. 62 Subsequently, and over objection, Mr Wood was permitted to give evidence that his tyres had been slashed and windscreen damaged. This is the subject of ground 1A discussed below, which argues that his evidence should not have been admitted. 63 Immediately prior to Galea giving evidence on 8 December 1999, counsel sought a further ruling on whether cross-examination would be allowed on Yeo's diaries. The trial judge looked at the diaries and confirmed his earlier view that the Crown would be permitted to cross-examine Galea on the material emerging from the entries. Again, no mention was made of s192, although reference was made by his Honour to s137 of the Act. Galea was called to give evidence and his counsel determined not to raise good character. 64 Acknowledging that no reference was made by Grove J to s192, the Crown nonetheless submits that there is considerable overlap between it and s137, see for example s192(2)(b) (c) and (d). 65 Section 192 provides as follows: (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 66 On 8 February 2001 the High Court published the decision of Stanoevski v R (2001) 177 ALR 285. In this case, the appellant was charged with conspiracy to cheat and defraud an insurance company. Counsel informed the trial judge that he would be leading evidence of good character. The prosecutor foreshadowed that he would rely on a report of an investigation by the Law Society alleging a forgery of a client's signature by the appellant. The judge ruled that if the defence adduced evidence of good character, cross-examination would be permitted on the report. Section 192(2) of the Evidence Act was not considered in the ruling. Leave was needed to cross-examine under s112 of the Act. The appellant was cross-examined on the report and subsequently convicted. 67 The joint judgment of Gaudron, Kirby and Callinan JJ (at para 93) held that the cross-examination raised a very grave possibility of unfairness within the meaning of s192(2)(b). The trial judge fell into error in not taking into account matters of the kind to which s192(2) provided. In separate judgments, McHugh J and Hayne J came to the same conclusion. 68 The joint judgment concluded (at para 47): It follows that matters of the kind which s 192(2) provides should be considered were of relevance to this case and to the trial judge's decision to permit the prosecutor to cross-examine as he did. In not taking properly these, and matters of weight and relevance into account, and in not therefore exercising his discretion in accordance with s 192 of the Act, the trial judge fell into error. 69 McHugh J said (at para 55): Section 192 of the Act directed the judge to have regard to certain matters in determining whether leave to cross-examine should be granted. However, his Honour, over the objection of the appellant's counsel, gave leave without considering these matters - indeed without being referred to them. Because that is so, the appellant was cross-examined in breach of the Act. Her trial was flawed by a "wrong decision of any question of law" within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW). Her conviction cannot stand unless the prosecution can establish that her conviction has not resulted in a miscarriage of justice. 70 Reverting to the subject trial, what is plain is that the diary could not be put before the jury. Yeo was not a compellable witness against Galea and it was a matter of speculation as to whether she would give evidence. The Crown had no means of knowing whether the details in Yeo's diary were true. Indeed, it was the Crown case that she was not to be believed. If the Crown had, pursuant to leave, been able to cross-examine Galea, the likely situation would be that highly prejudicial allegations of assault would be put to and most likely denied by Galea. The jury would hear these allegations (from the prosecutor's questions) and assume that they came from somewhere. The diary entries, however, could not be put before the jury. 71 The application to cross-examine required the leave of the court under s112 of the Act. Stanoevski makes it plain that, on such an application, the relevance of s192(2) must be considered. It is submitted by the Crown that his Honour's reference to s137 of the Act was a sufficient consideration. 72 I am unable to accept this submission, especially in light of Stanoevski. While there will likely be an overlap between considerations arising under s137 and some of the sub-paras of 192(2), it is clear that s192 involves a broader discretion and wider range of issues than arises under s137. 73 It appears that his Honour did not consider the fundamental issues raised by the application for leave to cross-examine and the relevance of s192(2) to such an application. Consideration had to be given to the relevant sub-paras of s192(2). Such consideration as was given to s137 did not extend sufficiently to all the relevant criteria in s192(2). The discretion required to be exercised miscarried or was not properly exercised. As a result, Galea could not adduce evidence of good character. This was a miscarriage of justice and one which ought not attract the application of the proviso. It cannot be said that the appellant Galea did not, as a result of the error, lose a real chance of acquittal. Ground 1A - the evidence of Mr Glen Wood 74 The evidence of Mr Glen Wood was admitted over objection and against Galea only. It is the submission of Mr Game SC on behalf of the appellant Galea, that it was a matter of speculation only that Galea had damaged Mr Wood's vehicle. Even if the evidence was relevantly probative, it could only have been admissible as propensity evidence which demonstrated a tendency for Galea to behave in a violent manner towards the deceased. As such, it did not overcome the requirements of ss97 and 101 of the Evidence Act. 75 The damage to Mr Wood's car took place over the night of 31 May to 1 June. There was no direct evidence that Galea was at the block of units during the time when the car was vandalised. Galea denied in evidence that he was there that night. It was the Crown contention that Galea was responsible for the damage to Mr Wood's car because, and I quote from its written submissions: · his very recent break up with Ms Yeo; · that this break up was in a different category to her previous dallying - she said she was in love, moved out and set up a new home; · his knowledge as to where they were to live; · that he lied about not being present on either the morning of Saturday 31 May or Sunday 1 June - thus his denials re attending at other times were significantly discredited; · if he was present on the morning of 1 June he had opportunity; · the logic of an understandable mistake, by someone not familiar with the parking arrangement, of associating parking bay 17 with Unit 17; · the ease of assuming at night that a late model (as it was in 1997) maroon Toyota Camry could fall within the general category a red Japanese sports car (and perhaps allowing for some exaggeration from the appellant Yeo); · the lack of evidence of any person with a motive to slash Mr. Wood's tyres - not just vandalism as no other car was damaged; and · that the appellant Galea was inferentially one of the few people who knew that the deceased and Yeo had just moved into Unit 17. 76 The Crown submits that once the jury had reached the conclusion that Galea vandalised Wood's car, they were entitled to use the incident as evidence of Galea's anger towards the deceased, the man who had effectively stolen his de facto wife. This anger was put forward as relevant to motive and to the charges against Galea. 77 According to Mr Ellis, who appeared on behalf of the Crown at the appeal but not at trial, it was put to the jury by the Crown that, on the basis that Galea was responsible for the vandalism, thinking that it was the vehicle of the deceased, it indicated an example of his anger at what had happened between Yeo and the deceased. The Crown address was not transcribed so it is impossible for this court to know precisely how the matter was put to the jury. 78 In my opinion, the evidence of Mr Wood should never have been admitted. It never rose above mere speculation. There was no evidence to connect Galea with the vandalising of the vehicle. Wood's evidence had no probative value against Galea. Even if it did, it could only have been admitted as tendency evidence. In that event, it is extremely difficult to see how it would have been admitted under ss97 and 101 of the Evidence Act. The evidence was not relevant to the motive of the appellant Galea. 79 In my view, the receipt of the evidence of Mr Wood and the Crown's reliance on it in its address, had the capacity to divert the jury and was potentially highly prejudicial to Galea. This ground of appeal should be upheld. Ground 7 - failure to adequately direct jury concerning use to which certain material might be put 80 This concerns the use to be made by the jury of Exs GGG3 and 4, being particular tapes of listening devices known as DAT 3 and 4. 81 The Crown had alleged that the recordings revealed conniving or coaching by Galea to mislead the police and the jury. 82 The Crown cross-examined Galea on the issue of coaching, suggesting in effect that he and Yeo had put their heads together, and that there was conniving and cramming for the purpose of giving a dishonest account to the jury. It was never very clear on what basis the cross-examination proceeded and what use might be made of the material. If it was to go to the credibility of Mr Galea, as is now submitted by the Crown in its written submissions, then Mr Game submits that the jury should have been so directed. 83 If on the other hand, it was relied on as evidence of consciousness of guilt, then the jury should have been given appropriate directions. No direction was given to the jury on either of these bases but his Honour did direct the jury as follows: … I don't propose to repeat the Crown's submissions to you about what he described as coaching and about what he described as, in effect, pretences for the benefit of those known or suspected to be listening. By the same token, I remind you that the accused bear no onus of proving anything in this trial, and it was submitted to you on their behalf that you will find from the material captured in the listening device tapes that not only is there nothing to inculpate either of them, but in fact it is demonstrative of their innocence. The Crown invites you to look at this material and says it is available to you as part of all the circumstances which, it claims, when added together will bring you to a finding that there is no reasonable conclusion available from the evidence other than the guilt of each accused. 84 However, as mentioned earlier, the Crown address was not recorded and therefore we do not know with any precision what the Crown put to the jury. Was it said that there was a pretence about the listening device because of a consciousness of guilt (not contended for by the Crown on appeal) or was it confined to lies, or even credibility? Judging by what his Honour said in the summing-up, set forth above, it does not seem to be have been on the basis of credit. In either event, lies or consciousness of guilt, the question arises as to whether his Honour should have given a direction in accordance with Edwards v The Queen (1993) 178 CLR 193. 85 In the majority judgment of Deane, Dawson and Gaudron JJ it was said at 211: … And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas ( Ruth ) [1981] QB 720, because of "a realization of guilt and a fear of the truth". Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. 86 In my view, since the Crown had identified the 'coaching' and 'pretence' as a plank in its case against Galea, the jury was required to be properly instructed in terms of Edwards. They were not so instructed. 87 If, on the other hand, the basis was confined to credibility, which is by no means clear given what his Honour said in the summing-up referred to earlier, then consideration must be given to Zoneff v The Queen (2000) 200 CLR 234. This is yet another High Court authority which post-dated the trial, the reasons for judgment being published on 25 May 2000. 88 In Zoneff an Edwards direction had been given. The majority judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ held that since the Crown did not put to the jury that there was any material capable of being regarded as a lie stemming from a consciousness of guilt, the direction should not have been given. (para 21) 89 Their Honours continued: 22 The trial judge was evidently concerned that, having regard to some of the cross-examination, there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to the matter of lies. Unfortunately, his response was to give a direction which, as Olsson J observed, raised the topic and then left it largely up in the air. 23 A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: "You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt". 24 A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence. 90 No such direction as envisaged by para 23 in Zoneff was given by the learned trial judge. This ground of appeal should, in my opinion, be upheld. 91 The success of these grounds in combination, or ground 1 by itself, must lead to a retrial. Accordingly, the conviction of the appellant Galea on the charge of accessory after the fact to murder should be quashed and a new trial ordered. 92 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Stein JA. I agree with his reasons and the orders he proposes. 93 STUDDERT J: I agree with Stein JA. oOo 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.