New South Wales Court of Criminal Appeal CITATION : R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520 FILE NUMBER(S) : CCA 60361/01; 60379/01; 60412/01; 60434/01; 60427/01 HEARING DATE(S) : 25/3/02, 26/3/02, 26/8/02, 20/9/02, 19/12/02 JUDGMENT DATE : 20 December 2002 Regina Barry James Yates PARTIES : Robert Owen Parry Dean Hyland Brad Powick JUDGMENT OF : Wood CJ at CL at 1; Hulme J at 1; Buddin J at 1 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70202/00; 70201/00; 70012/00; 70067/00 LOWER COURT JUDICIAL Ireland AJ OFFICER : R A Hulme (Crown) K G Horler QC with M Austin (Yates) COUNSEL : J W Conomos (Parry) G J Sundstrom (Hyland) D G Dalton (Powick) S E O'Connor John Bettens & Co (Yates) SOLICITORS : Kevin Solari (Parry) Braye Cragg (Hyland) Greg Murray (Powick) CATCHWORDS : CRIMINAL LAW - appeal against conviction and sentence - murder conviction - Analysis of DNA evidence - witness evidence after lapse of time - identification evidence - Chamberlain direction - whether verdicts unreasonable and supported by the evidence. Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Criminal Appeal Act 1912 Evidence Act 1995 Evidence (Audio and Visual Links) Act 1998 Adam v The Queen (2001) 207 CLR 96 Alexander v The Queen (1981) 145 CLR 395 Azzopardi v The Queen (2001) 205 CLR 50 Benecke v R (1999) 106 A Crim R 282 Domican v The Queen (1991-1992) 173 CLR 555 Edwards v The Queen (1993) 178 CLR 193 Festa v The Queen [2001] 185 ALR 394 Jones v The Queen (1998) 191 CLR 440 Lowe v The Queen (1984) 154 CLR 606 M v The Queen (1994) 181 CLR 487 Morris v The Queen (1987) 163 CLR 454 Mraz v The Queen (1955) 93 CLR 493 Papakosmas v The Queen (1999) 196 CLR 297 Pearce v The Queen (1998) 194 CLR 610 R v Barbaro & Rovere (2000) 112 A Crim R 551 R v Birks (1990) 19 NSWLR 677 R v Black [2001] NSWCCA 41 R v Clark [2001] NSWCCA 494 R v Clout (1995) 41 NSWLR 312 R v Coe [2002] NSWCCA 385 R v Cameron (2002) 187 ALR 65 R v Carusi (1997) 92 A Crim R 52 R v Clarke (1997) 97 A Crim R 414 R v Coe [2002] NSWCCA 385 at para 67 R v Doheny and Adams [1997] 1 Cr App R 369 R v Eldridge [2002] NSWCCA 205 CASES CITED: R v Fowler [2000] NSWCCA 142 R v Galli [2001] NSWCCA 504 R v Gee [2000] NSWCCA 198 R v GK (2001) 53 NSWLR 317 R v Henry (1999) 46 NSWLR 346 R v Hogan [2001] NSWCCA 292 R v Ignjatic (1993) 68 A Crim R 333 R v Keir [2002] 2 NSWCCA 30 See R v Lawrence [1980] 1 NSWLR 122 at 148 R v Ian Van Le [2002] NSWCCA 186 R v Leroy [2000] NSWCCA 302 R v Lisoff [1999] NSWCCA 364 R v Moussa [2001] NSWCCA 427 R v Nguyen [2002] NSWCCA 342 R v Richards [2002] NSWCCA 38 R v Roberts [2001] NSWCCA 163 R v Rose [2002] NSWCCA 455 R v Singh-Bal (1997) 92 A Crim R 397 R v Stone (1981) VR 737 R v Tevendale (1955) VLR 95 R v To [2002] NSWCCA 247 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Young [1999] NSWCCA 275 RPS v The Queen (2000) 199 CLR 620 Stanoevski v The Queen (2002) 202 CLR 115 State Rail Authority of New South Wales v Earthline Constructions Pty Limited (1999) 160 ALR 588 TKWJ v The Queen [2002] HCA 46 Wu v The Queen (1999) 199 CLR 99 DECISION : Robert Parry:; 1.Appeal against conviction dismissed; 2.Leave to appeal against sentence granted.; 3.Appeal dismissed.; Dean Hyland:; 1.Appeal against conviction dismissed.; 2.Leave to appeal against sentence granted.; 3.Appeal dismissed.; Barry Yates:; 1.Appeal against conviction dismissed.; Bradley Powick:; 1.Appeal against conviction dismissed.; 2.The robbery matter:; (i) Extension of time within which to apply for leave to appeal against sentence granted.; (ii) Leave to appeal against sentence granted.; (iii) Appeal against sentence allowed.; (iv) Sentence imposed in the District Court quashed. In lieu thereof the applicant is sentenced to imprisonment for a fixed term of three years, to commence on 10 March 1999 and to expire on 9 March 2002.; 3. The s 111(3) offence and the accessory after the fact offence: ; (i) Leave to appeal against sentence granted.; (ii) Appeal against sentence allowed.; (iii) Sentences imposed in the Supreme Court quashed. In lieu thereof the applicant is sentenced, in relation to the s 111(3) offence, to imprisonment for nine years to commence on 10 January 2001 and to expire on 9 January 2010. A non-parole period of five years and six months is fixed, to commence on 10 January 2001 and to expire on 9 July 2006 at which time he will be eligible for release to parole. The sentence imposed in respect of the offence of accessory after the fact to murder, of a fixed term of 3 years, is confirmed however it is now to commence on 10 January 2001. It is to be served wholly concurrently with that for the s 111(3) offence. - 124 - IN THE COURT OF CRIMINAL APPEAL 60361 of 2001 60379 of 2001 60412 of 2001 60247 of 2001 WOOD CJ AT CL HULME J BUDDIN J Friday 20 December 2002 R v Barry James YATES R v Robert Owen PARRY R v Dean HYLAND R v Bradley POWICK Judgment 1 THE COURT: The appellants Dean Hyland, Robert Parry and Barry Yates, were charged with, and convicted of, the murder of Alan Brown on 3 October 1998. They, as well as Bradley Powick, were also charged with, and convicted of, home invasion in circumstances of special aggravation, namely that they were armed and wounded two men, Paul Steengraver and Alan Brown. Powick was charged with, and convicted of, an additional count of being an accessory after the fact to murder, in that he had made false statements to police regarding his companions, in order to deflect attention away from those responsible for the murder. One further person, Darren Wall, was also presented for trial, in his case upon charges of being an accessory after the fact to murder, and of inciting Karen Sproule and Stephen Lester to provide a false alibi, with intent to pervert the course of justice. He was convicted of both offences but did not appeal against his convictions or seek leave to appeal against the sentences imposed upon him. 2 The trial was conducted at Newcastle before Ireland AJ and a jury, between 1 February 2001 and 11 April 2001. Sentences were passed on 7 June 2001. 3 Appeals have been lodged against the convictions, and leave has been sought to appeal in respect of the sentences imposed. Powick, additionally, seeks leave to appeal against an earlier sentence which had been imposed in the District Court, upon which the further sentences passed by Ireland AJ were to be served by way of an accumulation. Facts 4 The facts, which Ireland AJ accepted as having been established by the Crown, are conveniently set out in the reasons for the sentences which were imposed by his Honour, as follows: " On the afternoon of Friday 2 October 1998 the offender Wall and his de facto wife Renee Russell received a telephone call, in response to which they drove their Ford Falcon Sedan registered number NUR.593 to the home of one Paul Webb at 255 Pacific Highway, Belmont North. This motor vehicle was made available to the four offenders Hyland, Parry, Yates and Powick, who drove off in a southerly direction. The driver of the car was Powick. All four were wearing dark clothing. Prior to its departure the boot of the car was loaded with a revolving pistol, a shortened shotgun and a baseball bat. Shortly after midnight the Ford Falcon, driven by Powick with Hyland, Parry and Yates as passengers, was parked in the near vicinity of the dwelling house at 4 Levitt Street, Wyong. This residence had been owned by a Mr Brian Shearer, who was, on the evidence, a supplier of marijuana, and who had met his death in apparently unrelated events one week previously. The deceased victim Alan Brown and his brother David, who were nephews of Brian Shearer, were present with a number of others in the house that night. Two young men, Daniel Harrison and Derryn King, were outside the front of the house when accosted by Hyland, Parry and Yates. Mr Harrison, who was threatened and struck with a baseball bat, escaped, however, Derryn King, who had been tackled to the ground by the offender Hyland, was forced into the house. The offenders once inside the house were seen to be wearing dark clothing, and were disguised by wearing balaclavas. Nevertheless the evidence adduced from a number of witnesses, and certain distinctive features and clothing, make it plain to the relevant degree that the offender Parry was armed with the revolver, the offender Hyland was armed with the shortened shotgun, and the offender Yates was armed with the baseball bat. The offender Yates was observed to be wearing a distinctive black Metallica T-shirt bearing a large snake emblem and the words " Don't tread on me". He was wearing this T-shirt some hours later when spoken to by police (albeit then worn inside out), and surrendered this garment to the questioning police officers. The offender Parry wore his hair in a single long plait which extended down his back. The person so described was observed to be carrying the revolver. The offender Hyland is of stockier build (as described) than both the offenders Parry and Yates. He was armed with the shortened shotgun which he pointed at the head of Derryn King from a distance of some two metres, and ordered him inside the house. The events which transpired once the three offenders had forced their way into the house were horrific in the extreme. Some of the occupants were able to flee, leaving two women and three men at the mercy of the three offenders, who demanded to be told the whereabouts of $20,000 said to be owed by the late Brian Shearer. Mr Paul Steengraver, one of the occupants, was struck on the head and wounded by a blow from the shortened shotgun. The gun was put to his knees and he was told that he would never walk again if he did not disclose the whereabouts of the money, of which he and the others remaining in the house had no knowledge. The shortened shotgun was placed in Mr Steengraver's buttocks and also in his mouth in the course of the threats to which he was subjected. The baseball bat wielded by the offender Yates was used to administer blows to Mr Harrison, Mr King and Ms Coenradi on repeated occasions whilst they were at times under threat from the revolver held by the offender Parry, and at other times the shotgun held by the offender Hyland. The evidence of the forensic pathologist Dr Oettle makes it plain that Alan Brown had been subjected to beating with the baseball bat prior to him being shot at close range to the side of his neck behind the left ear, the shot severing his spinal cord in what has aptly been described by counsel as an "execution style killing". The offender Parry, together with the offender Yates, took Alan Brown into the main bedroom, where he was beaten and then shot. The only reasonable inference open on the evidence is that this brutal killing was carried out by the offender Parry in the presence of the offender Yates when the victim was unable to satisfy the demands of the offenders. The offender Parry entered the second bedroom where Mr King, Ms Williams and Ms Coenradi had been ordered to lie on the bed, and held them under threat with the revolver whilst the offender Yates struck Mr King and Ms Coenradi a number of times with the baseball bat whilst demands were made for money. The offender Parry placed the revolver under Mr King's chin, pulled him from the bed, and took him to the main bedroom where he exhibited the body of Alan Brown; asked him what it was and if he wanted to be "number two", in an effort to have Mr King tell him where "the money" was. The offender Parry at pistol point escorted Mr King back to the second bedroom, where he was again struck with the baseball bat by the offender Yates. A conversation took place between the offenders in which the question "what will we do with these (three people)" brought a response to the effect that they were to be shot, as one of the occupants had already been shot. Ms Williams, who with Ms Coenradi and Mr King had been ordered to lie on the bed, turned her face to the wall expecting to be fatally shot. The three offenders left the house, the offender Parry having pointed the revolver at Mr King, saying "we will be back". The three offenders entered the Ford Falcon in which the offender Powick was waiting, and left the scene of the home invasion and murder, heading north along the Pacific Highway. Mr Jody Kiriona, who lived nearby, and whose aid had been enlisted by one of the occupants who had fled from the house, followed the getaway car for some ten kilometres, pausing only to request a group of bystanders to call the police. In a location where the Pacific Highway passes through thick bushland near San Remo, Mr Kiriona flashed his headlights at the Ford Falcon, which pulled over to the side of the road. The three offenders Parry, Hyland and Yates decamped. Mr Kiriona detained the offender Powick, enlisting the aid of a passing taxi driver to direct police to the location . The apprehension of the offender Powick and the detention of the car were highly significant events. The car contained certain items, including two balaclavas, and bore a blood stain which, when combined with items discovered in the invaded house, furnished DNA evidence of great cogency, and virtually ensured the conviction of the offenders Parry, Hyland and Yates once their identity had been established. One cannot but commend in the highest terms the courageous actions of Mr Kiriona, without whose intervention, which resulted in the arrest of the offender Powick and the detention of the getaway car, the Crown case would have been gravely, perhaps fatally, impeded. The knowledge which the offender Powick had as to the purpose of the armed invasion by the balaclava-clad co-offenders, including the possible use of these arms to wound, together with his role as driver of the getaway car, was the basis of his conviction as a principal in the second degree on the charge of house invasion in circumstances of special aggravation. Following his arrest in the early hours of Saturday 3 October 1998 the offender Powick undertook an ERISP with Detective Sergeant Wrice (now Chief Inspector) and Senior Constable Bailey, in which he agreed to have his hands scientifically examined for gunshot residue but declined to answer questions about his involvement in events in the absence of legal representation. On 7 October 1998 the offender Powick undertook a second ERISP with the same police officers, on this occasion specifically declining legal representation. The ERISP comprised of some five hundred questions, the answers to which, on the evidence adduced in the trial, may properly be described as encompassing a tissue of lies, and deliberate misdescriptions of the co-offenders Hyland, Parry and Yates, their names, appearance, ages and background were clearly intended to assist those co-offenders by impeding, misleading and deflecting investigating police officers in their inquiries. Upon the basis of this assistance to the co-offenders the offender Powick was convicted of being an accessory, after the fact, to the murder of Alan Brown." 5 Evidence was led in support of the Crown case in relation to the following matters: (a) Persons observed at the Royal Hotel, Wyong on the evening of 2 October: 6 Three bar attendants (Shireen Lamont, Rhonda Alderice and Lindy Bills) and the assistant manager (John Anthony) from the Royal Hotel in Wyong, described seeing a group of men at the hotel during the evening of 2 October. They were dressed in black, and one of them had tattoos and hair, which was variously described as a "plait" or "pony tail", or "rat's tail". Photographs of the appellant Parry showed that he had a long pony tail as at 2 October. (b) Events at 4 Levitt Street on 2 & 3 October 7 Derryn King, who called in at 4 Levitt Street, with a friend Daniel Harrison, during the evening, in order to buy drugs, observed three men wearing black clothing and black balaclavas crouched beside the front fence of the neighbouring premises. He was tackled by one of the men whom he described as Caucasian, in his twenties or early thirties, about 6 foot 1 inch tall, of medium build, and who was carrying a sawn off shotgun. He saw Harrison being belted with a baseball bat, which he noticed was of an "Easton" brand. After King was forced inside and made to lie on the floor alongside two women, he saw a man, who was carrying a pistol. This man he described as tall, stocky, with tattoos on his arms and a rat's tail half way down his back. Demands were made for money. 8 He was made to move into a bedroom with the two women where they were covered by the man with the shotgun. Whilst there, he could hear yelling, followed by the sound of smashing and a gunshot. The other men came into the bedroom carrying, respectively, a pistol and a baseball bat. After being struck with the bat, King was taken to the main bedroom by the man with the pistol, where he was shown the body of Alan Brown and questioned in relation to the whereabouts of the money. He was taken back to the other bedroom, and hit again with the bat, before the man with the pistol said "we will be back". 9 Harrison supported King's version of events, but added that before reaching Levitt Street, he had seen three men get out of a light coloured Ford Falcon in Warner Street. He thought that there was a fourth man in the driver's seat. When he reached Levitt Street he saw three men crouched alongside the fence, one of whom confronted him. This man, he said, was 175-180 cm tall, with a broad build and a bushy dark beard. He was wearing black clothes, including a worn black Metallica T-shirt with the words "Don't tread on me" and a picture of a snake. He saw King being forced into the premises at 4 Levitt Street, and he was himself struck across the elbow by a man carrying a baseball bat, who instructed him to "fuck off" – an instruction with which, not surprisingly, he complied. 10 There was evidence that when the appellant Yates was later arrested, he was wearing a black Metallica T-shirt (Exhibit AR). When Harrison was shown this article by Detective Sergeant Allison, on 6 November 1998, he said that it was similar to the one which had been worn by the man who had confronted him. 11 Harrison could not, however, pick Yates from a folder of 14 photographs shown to him by police. 12 Nigel Wood, who had been inside the premises, took refuge behind an old motor vehicle in the back yard, when the men burst in. He described seeing a man with a black balaclava, and hearing banging and shouting from inside the premises including the words "I want the fucking money, I want it now". He elected for a greater place of safety by jumping over the adjoining fence and by crouching down behind the palings. While there he saw Paul Steengraver being led out into the yard, and he heard a gunshot. He went out the front and called out for someone to contact the police. He saw a "big Pacific Islander guy" approach the front door, armed with a piece of wood. One of the men who had invaded the premises came out to the porch and threatened this man. Soon afterwards he saw three men come out of the front door and walk away. A pair of latex surgical gloves was found by him next to the fence of 2 Levitt Street. 13 Nigel Cooper, who lived at 4 Levitt Street with his de facto partner, Alison Coeradi, confirmed that it had been the practice of the late Brian Shearer to sell marihuana from those premises, before his death. He indicated that it was he who had opened the door to the invaders, after hearing a dog barking. He said that, in the process of trying to repel them, he had been struck by a man in black clothing, who was wearing a black balaclava. He managed to escape out the front and ran to the premises of a neighbour to call for help. 14 David Brown, the brother of the deceased, who went to the front door with Cooper, after hearing a dog bark, confirmed seeing him being attacked. He was able to run out the back door, and then up the driveway to the front of the house, where he called out for someone to contact the police. He heard yelling and demands for money, as well as a gunshot. After throwing a brick through the front door, he ran down the other side of the house, from which position he heard someone ask, from inside a bedroom, "What should we do with them? Shall we kill them all?" He threw a cigarette lighter at the side window, breaking it, before returning to the front yard, where he was joined by a neighbour of Islander appearance, Jody Kiriona. 15 He saw three men come out from the premises, one with a baseball bat, one with a pistol, and one with a shotgun. The man with the pistol walked towards him and Mr Kiriona and inquired, "Do you want to be heroes?" He saw the men run up Levitt Street towards Warner Avenue, and enter a yellowy beige XB Falcon, which was then driven off. Mr Kiriona, he said, set off in pursuit of it. 16 Paul Steengraver, who was also inside the premises, and whose dog announced the arrival of the invaders by barking, said that he saw three men "flying through" the front door after it had been opened by Cooper and David Brown. They were dressed in black with balaclavas and dark gloves. He described one man, who was armed with a revolver, as about 6 feet tall, weighing 75 to 80 Kgs, and dressed in black. The second man, who was carrying a baseball bat, he said was about 5 foot 11 inches, slim, and had a black top with a heavy metal band logo. The third man, who was carrying a shotgun, he said, was about 5 foot 9 inches, weighing 80 to 85 Kgs, and wearing a black top and sandshoes. These men repeatedly demanded "where's the fucking money?". 17 The man with the shotgun, he said, struck him on the head, knocking him to the floor and opening a cut in his head. This man then pointed the weapon at his knees, saying : "Where is my twenty grand, cunt? Otherwise you will never walk again." He next placed the gun at his buttocks, repeating his demand for the money. 18 Steengraver said that if there was any money in the house, then it was likely to be in the bedroom. He was escorted to that room, with Annette Williams, where they frantically searched for money. None was found and the man with the shotgun then placed it in his (Steengraver's) mouth, after which he and Ms Williams were taken from the room. Following a distraction in the other bedroom, he was able to escape and to run to the Wyong police station, which was 800 to 900 metres away. 19 Ms Williams said that, upon hearing the commotion as the men arrived, she returned to Ms Coeradi's bedroom. Eventually they were instructed to go into the lounge room and to lie on the floor. They were told that Brian Shearer owed the men $20,000, and that they would be killed if they were not given the money. She accompanied Steengraver to the main bedroom and joined in a search there for money. She saw him being struck by a man with a bat. She was then taken back to the other bedroom, where she was joined by Ms Coeradi and King. While they were there, one of the offenders said "What will we do with these?", to which the reply was "shoot 'em". The men then said before leaving that they would be back in the morning. (c) The Departure and Pursuit of the Offenders 20 Petal Andrews, who had been driving along Warner Avenue, heard a male voice say "Go, Go, Go", after which she saw three men in black clothes and wearing balaclavas, run up the street and get into a golden or dark yellow sedan which then took off in the direction of the railway station. Timothy Burchan, who lived nearby, saw a brown gold Ford Falcon drive away from Warner Avenue. There was another vehicle following in apparent pursuit. 21 Jody Kiriona confirmed arriving in Levitt Street, where he lived, after midnight. He said that he heard yelling and screaming for help, and was asked for help by Brown, who said that there were men in the house with balaclavas and guns. He took up a Samoan cricket bat from his garage and went to the front porch of number 4 Levitt Street. Through a window he saw a man inside with a gun. The man came out, pointed the gun at him and asked, "if you want a piece of this?" whereupon he retreated. 22 From behind the wall of a block of units across the street, he saw three men run from the house and get into an orangey-brown Ford Sedan, which had been parked in Warner Avenue, and which had another person sitting in the driver's seat. It drove off, and he pursued it in his own vehicle. He caught up with it on the Pacific Highway at San Remo. He saw three men alight, two from the back seat, and one from the front passenger seat. They ran into the adjoining bushland. 23 Kiriona stopped his vehicle, and after a scuffle, in the course of which he seized a baseball bat from the Ford, he managed to restrain the driver, who, it is common ground, was the appellant Powick. The driver, who was dressed in black, said to him "Look man, I'm just the driver, and it's got nothing to do with me". He also indicated, however, that he had expected to get something out of the enterprise. 24 Shortly afterwards, Kiriona noticed another man on the side of the highway, who asked, "What's going on?" and who then asked for a light. This man, Kiriona described as having shoulder length sandy brown hair, 25 to 30 years old, five feet eight or nine inches tall, wearing a black Metallica T-shirt. He seemed to be sweating. Kiriona instructed him to get back to the other side of the road, to which he replied, "Yeah, man, I don't want any trouble." He explained that he had been partying all night, and was heading back to Newcastle. He had, however, approached the vehicle from the wrong direction, if it had been his intention to return to that city. 25 Kiriona flagged down a taxi, and asked its driver to call the police. The man got into it, and the taxi then drove off. However it stopped after travelling about 200 metres, at which point the man got out. 26 Warren Cook, the taxi driver who had been flagged down by Kiriona, confirmed that he had phoned the 000 number, and that another man had entered his cab and asked to be taken to Toronto. However, he was let out 200 metres down the road, when he admitted to not having any money. He then saw him walk down Goorama Avenue towards San Remo. He described the man as being about 5 foot 9 inches to 6 feet tall, of slim build, with a beard and dark clothing. 27 Senior Sergeant William Erickson drove to the location where it had been reported that Mr Kiriona had stopped a vehicle. He made a cursory inspection of that vehicle, registration NUR 593, and of the adjoining area. A folding knife was found in the bush land, about 30 metres from the road (Exhibit BU). A $10 bank note was also found in the bushland. 28 Senior Constable Irons, of the State Protection Group, Dog Unit, gave evidence in relation to the finding of this knife. It followed a search by police dog Laser of the Levitt Street premises, after which the dog had been taken to the vehicle on the Pacific Highway. Once there, the dog picked up a scent, and followed it to the location where the knife was found. In relation to this evidence, his Honour later gave a direction in accordance with Benecke v R (1999) 106 A Crim R 282. 29 Constable Mark Walsh, who responded to the 000 call, arrived at the Pacific Highway, where Mr Kiriona was detaining Powick, at about 1.25 am. He made a cursory inspection of the Ford Falcon NUR 593 and its contents and asked Powick what had happened. The reply given was "I don't know, I was only the driver. I didn't know what they were going to do." Powick was arrested and later taken to Wyong Police Station. He was wearing a Metallica T-shirt with "a master of puppets" banner, and a very different picture. 30 Detective Sergeant (now Inspector) Phillip Wrice, who became the officer in charge of the investigation, and who had initially attended the crime scene at about 1.30 am, went out to the location where Powick was detained. He said that he spoke to him at the Entrance Police Station, and that Powick agreed to provide blood and hair samples. On 7 October 1998, after speaking to him about the vehicle NUR 593, he conducted two electronically recorded interviews at Sutherland Police Station with Powick (Exhibits BG and BH) and prepared a statement for him to sign. 31 David Kinealy said that as he drove along Goorama Avenue, he was flagged down by a man, who was about five foot ten inches tall, of slight to medium build, with brown hair and dark clothing, and who asked where there was a telephone so that he could call for a taxi. 32 Kylee Ann Moss, who lived in Scribbly Gum Place, San Remo, said that between 1.00 and 1.30 am on 3 October 1998, she heard a knock at her front door. A man at the door asked if he could use the telephone to call an ambulance, as there had been an accident. He left when her husband said that he would make the call. The man, she said, was about five feet eight inches tall, of small to medium build, with fair hair and tattoos on his upper arm. 33 Malcolm Arvidson, who lived in Kallaroo Road, San Remo, said that he had been awoken by his wife, at about 1.30 am, who had said that she had heard someone coming up the stairs. He heard a conversation and noticed that the sensor light was on. The doorbell rang and he answered it. He saw a man standing outside, who was about five foot ten inches in height, of slim build, with dark hair and dark clothing. The man said that he had been involved in a slight accident and asked Mr Arvidson to call for a taxi or his parents. He gave his name as "Baz", and said that his parents were Barbara and Warren Yates, and that their phone number was 49 43 8562, which Mr Arvidson recorded on a whiteboard. Mr Yates Senior answered the call to his home, and Mr Arvidson said that he had Baz on the veranda, needing a lift home. He then told the man at the front door to go back to the highway and wait for his lift. 34 He noted that, throughout the conversation, the exterior sensor light remained on, although it was programmed to turn off if someone remained on the veranda, that is, in the absence of any movement to reactivate it. He also recalled hearing a subdued conversation downstairs, suggesting that there was more than one person in the area. 35 Senior Constable Sutherland, who had been patrolling the Pacific Highway in order to stop vehicles turning from Link Road Lake onto the highway said that, at 3.10 am a motorist, who gave his name as Warren Yates, had stopped and asked him, "What was going on?" This man said that he had received a telephone call between 1.30 and 2.00 am asking him to pick up Barry Yates. 36 At about 3.30 am that morning Constable Walsh spoke to the appellant Yates on the corner of Goorama Road and Callen Avenue. He noticed an empty knife pouch on Yates' belt and took possession of the pouch (Exhibit BE). Constable Hutchings corroborated the evidence which Constable Walsh gave. Yates gave as an explanation for having an empty pouch that the knife had been taken by police a couple of weeks earlier. In fact a knife had been taken from him by police, but that had occurred six weeks earlier, making it unlikely that Yates would have continued to carry an empty pouch on his belt. The knife (Exhibit BU) found in the bush was demonstrated to the jury by Mr Ross as fitting the pouch. 37 William Lusty, who was the owner and manager of a mixed business at San Remo, gave evidence of seeing a heavily tattooed man in his mid twenties, who was five and a half feet tall, of rough features, round face, with a solid build and short or shaven brown-blond hair and a little goatee or "bum fluffy bit" on his chin, walking towards him at about 6.30 am on 3 October. This man was wearing only shorts and seemed to have a number of cuts on his body, as well as an injury to his knee. He came into the shop, made some purchases and left, only to return a little while later. He asked Mr Lusty to call a cab to take him to Swansea. Upon phoning the taxi company Mr Lusty was informed, and told the man, that there would be a pre-set fare of $50 to $55. 38 Barry Riley, the taxi driver who responded to Mr Lusty's call, arrived at the shop at about 7.15 am. His attention was directed to a man, who was wearing shorts, was heavily tattooed, and who was sitting in the park reading a newspaper. This man asked Mr Riley if he could be taken to Charlestown for $65. Mr Riley agreed, and later dropped him off at the Mattara Hotel which is very close to Arnold Street where the appellant Hyland was said to live. He described the passenger as being about 175 cms tall, with a small frame, sandy short hair and a goatee beard. He had a graze on his knee, tattoos on his arms, and a tattoo on his leg. (d) Subsequent Investigations 39 There was evidence from Senior Constable Handley, who said that at 12.25 am on 3 October, Steengraver arrived at Wyong Police Station, announcing, "They've got sawn-off shotties and baseball bats and there's hostages, and you've got to get down there and take them out before someone is shot." She alerted other police to the incident, and while doing so she heard what appeared to be a single gunshot from a small calibre firearm. 40 Inspector Tamplin, who was also on duty, took initial control, set up a command post outside 4 Levitt Street, and organised for other Police to attend, before passing over command to Inspector Moseley at 6.15 am. 41 Detective Sergeant Hounslow, a crime scene officer, attended the premises at 2.30 am on 3 October. He noticed powder burning in the vicinity of the gunshot wound to Alan Brown, consistent with the muzzle of that weapon having been held in very close proximity to his skin. 42 Later that morning he took photographs of Yates (Exhibit O) and of Powick (Exhibit P), at Wyong and The Entrance Police Stations respectively. The scene at 4 Levitt Street was recorded by video (Exhibit Q) and a plan was made of the premises (Exhibit R). 43 Among the exhibits recovered from the premises were three pieces of blood stained glass from a broken panel in the front door, the top piece of a finger of a yellow latex glove, as well as swabs taken from the front and rear doors, and from a chest of drawers (Exhibits S to V and W). On 4 October, Detective Sergeant Hounslow examined a Ford Falcon sedan registration number NUR 593. 44 Photographs were taken of this vehicle and its contents (Exhibit AA). From the front passenger seat were removed a pair of latex surgical gloves, one of which was missing a piece of one finger, a black "Easton" brand baseball bat, a silver and green "Worth" brand baseball bat, a "Louisville Slugger" brand baseball bat, a black leather holster, a silver pocket knife, and two black balaclavas (Exhibits AB to AK). A glove of this kind was also found on the road beside the vehicle. 45 Subsequent examination of these articles by the Department of Analytical Laboratories showed that there was an identical match between the glove found in the vehicle and the finger tip of the glove taken from the premises. Additionally there was evidence from Detective Senior Constable Francine Poole, a crime scene examiner, that the fingertip piece found at 4 Levitt Street had once formed part of the glove with the missing finger piece found in vehicle NUR 593. 46 An Ericsson mobile phone was also found in the vehicle, and a smear of blood was found on the back of the front seat. The purchase records in connection with this phone showed that it had been acquired in the name of "Dean Harland" of 6-8 Arnold Street Carrington, the address of the parents of Hyland's de facto partner. The date of birth of the purchaser was the same as that of Hyland. 47 Detective Senior Constable Gregory Owen supported Detective Sergeant Hounslow's evidence in relation to the examination of vehicle NUR 593, and of its contents. He took further photographs (Exhibit CO). He dusted the vehicle and various items for fingerprints, and also attempted, although without success, to raise fingerprints of identifiable value from 4 Levitt Street, and from the knife and a $10 note found in the bushland near the Pacific Highway. 48 Subsequently fingerprints of Powick and of Yates were matched with prints found on the vehicle. 49 Detective Senior Constable Luke Wise, of the Forensic Ballistics Section, examined the body of the deceased Alan Brown on 3 October and was present during a post mortem examination carried out by Dr Thomas Oettle. He confirmed that the wound showed that the muzzle of the weapon had been in very close proximity to the deceased when discharged, and that the projectile taken from his body (Exhibit AP) was consistent with it having been fired from a weapon of .357 or .38 calibre. 50 Dr Oettle gave evidence to the effect that the deceased had died from a bullet wound behind the lower limit of the left ear, which was a contact wound. He noted other injuries to the head and body, which were consistent with the deceased having been subjected to a physical assault. 51 Senior Constable Ray Bailey said that on 21 December 1998, he participated in a search of drains and stormwater run-off areas at Blue Haven. About 50 metres south of Colorado Drive, he saw a pair of black tracksuit pants and a grey T-shirt. Another pair of tracksuit pants was located in bushland about 6 metres from the highway. These items were photographed in situ and taken into custody. 52 Blue Haven, it was established, is a suburb on the bushland side of the highway, in the vicinity of the area where vehicle NUR 593 was brought to a halt. 53 Joseph Sue gave evidence that, on 2 December 1998, he had found a shotgun (Exhibit CA) in a drain at Blue Haven, also near Colorado Drive. It was identified by Senior Constable Snow as a shortened, Italian manufactured, single barrel shotgun. 54 So far as the evidence shows, the firearm which was used to fire the fatal shot was not recovered or further identified. However, as appeared from a plan, Exhibit BB, the place where the vehicle was stopped, where the shotgun and clothing were found, where Mr Arvidson, Mr Ross, Mr Kinealy and Mr Lusty described seeing a man, were all in close proximity. As shown in the aerial photograph (Exhibit BS) the bushland was quite thick. (e) Vehicle NUR 593 55 It was common ground that this vehicle was registered in the name of Darren Wall (Exhibit BK). 56 It became a central part of the investigation, having regard to its confirmed presence at the crime scene, its contents, and the movements both of it, and its occupants, subsequent to the offence. In this regard the evidence of Ms Russell, which occupied a good deal of attention during the trial, and in the course of this appeal, had a direct relevance. To the substance of her evidence, and to the various versions, which she has given, we will return, when we come to consider the various grounds of appeal, which related to it. 57 There was evidence from Brian Milsom, a police communications officer, to the effect that he took a 000 call at 2.44 pm on Sunday 4 October from Wall, advising that the vehicle had been stolen. Being aware of the alleged involvement of the vehicle in the murder, Mr Milsom advised Wall to go to the Charlestown Police Station to confirm the report, and to fill out the necessary paperwork. He complied with this request and he was spoken to by Detective Sergeant (Inspector) Wrice that day. An electronically recorded interview was carried out (Exhibit BL) and a statement (Exhibit BM) was taken, in the course of which he claimed that his car had been stolen from the premises of Peter Wall at Belmont North, where he had left it, preparatory to going camping with Ms Russell and friends. 58 Karen Sproule said that, on 3 October 1998, she spoke to Wall, in the company of her boyfriend Steven Lester, at his request, near the Charlestown Water Tower. She said that he indicated that he was in trouble, that this car had been used in a murder, and that he had lent it to a person called "Boot". They offered to help him, and he suggested that they might go camping, and that he might report his car as having been stolen. 59 She said that following this she, Lester, Wall, Russell and their son went to Gloucester, arriving at the campsite during the night of 3 October and leaving the following morning. Wall, she said, made a phone call on the way back. He then directed her to the home of Yates, with whom he had a conversation. Upon his return to the car, he said to Lester, "You don't know nothing." 60 They then drove to Wall's home where he went inside to report the vehicle as having been stolen. Ms Sproule said that she then drove Wall and Ms Russell to Charlestown Police Station and waited in the car with the latter, while Wall made a formal report. 61 When Detective Sergeant (Inspector) Wrice asked her to provide a statement she agreed to do so, but filled it out untruthfully, insofar as she said that they had gone to Gloucester on 2 October, rather than 3 October. Lester, she said, made a similar statement. 62 Various members of Ms Sproule's family, who had also been at the campsite, all gave evidence that they had arrived there in the afternoon of 3 October, and that Wall, Ms Russell, Ms Sproule and Lester had arrived that night, after them, and had left on the following morning. 63 Two of the witnesses, namely Narelle McGuire, and Donald Sproule, acknowledged that they had earlier made statements in which they had said that they had gone camping on 2 October, but had later decided to tell the truth. 64 On 6 October, Detective Sergeant (Inspector) Wrice spoke to Powick at the Gosford Court complex in relation to the vehicle. Powick said that he had borrowed the vehicle from his friend Darren or "Wall-ey", and that he had been in it with a man named Bob, and two other men, whom he had not previously met, and who were only known to him as "Cob" and "Fang". He agreed that he knew Yates, but claimed not to have seen him for some time. On the following day he participated in the two electronically recorded interviews previously mentioned. (f) DNA Testing 65 Evidence was given by Robert Goetz, Suzanne Briese, and Christine Gill in relation to the DNA testing (using the Profiler Plus system) of samples taken from the appellants and from items taken variously from their premises, the crime scene, and vehicle NUR 593. In summary this was reported as showing: · neither the deceased nor Parry could be excluded as a source of DNA recovered from the piece of a finger of the glove found at the scene – the probability of a match by chance being calculated at 9300 to one; · the balaclava found in the glove box of vehicle NUR 593 (Exhibit AD) was found to have DNA material of the same profile as Yates – the probability of a match by chance was calculated at 10 billion to one; · DNA found on a balaclava taken from the floor of the car (Exhibit AG) had the same profile as Parry – the probability of a chance match being 620,000 to one; · DNA recovered from a blood smear in vehicle NUR 593 and from the broken glass in the front door matched that of Hyland – the probability of a chance match was said to be 10 billion to one. (h) Telephone calls 66 There was evidence from John Mackay of Telstra, Lindsay Alexander of Hutchinson Telecommunications Australia, and Marisa Wicks of Optus concerning some telephone calls which were made between 1 October and 3 October 1998, to the following effect: · Calls were made from a phone in Powick's name (494 554187) to a mobile in Wall's name (0413 122347) on 1 October 1998 (at 12.40 pm), and on 2 October 1998 (at 4.31 pm and 6.06 pm); and · 7 calls were made to the mobile in Wall's name between 6.44 pm and 10.01 pm on 2 October, which went through the Belmont Omni tower, the first of which came from the phone in Powick's name; and · 2 calls were made from the mobile phone in Wall's name at 12.54 am and 2.04 am on 3 October, to a mobile service in Yates' name (although they were not answered). 67 The Crown relied on the evidence concerning the telephone calls from Powick on 2 October as being the summons from Powick to Wall to go out to 255 Pacific Highway Belmont North, the home of Paul Webb (the Sergeant at arms of the Boolaroo chapter of the Life and Death Motorcycle Club), that being the address where it was submitted that Ms Russell had seen vehicle NUR 593, Yates and Hyland, whom she had already known, and the man she heard referred to as "Blood", whom she had not previously known. The phone of Powick was registered to this address. 68 It also relied on the 3 October calls as being consistent with Wall understanding that Yates was still using his car, and that he was concerned as to where it might be. (i) The Arrests Powick 69 As previously noted, he was arrested at about 1.30 am on 3 October on the Pacific Highway, near San Remo, where he had been detained by Mr Kiriona. Yates 70 On 3 October 1998, he was taken by Detective Senior Constable Milton to The Entrance Police Station, where he participated in an electronically recorded interview, conducted by that officer and by Detective Senior Constable Dooley (Exhibit BW). After the interview he removed and handed over to Police the black Metallica T-shirt, which he had been wearing inside out, when seen by police and arrested in the San Remo area. He agreed to provide a blood sample for analysis. In the course of his interview he acknowledged having driven over to Paul Webb's house at North Belmont on the afternoon of 2 October, from which address the Crown asserted the group had set off in Wall's motor vehicle. Hyland 71 Detective Senior Constable Burns gave evidence to the effect that Hyland was arrested on 2 March 1999 in relation to another matter. In the course of executing a search warrant at his premises, a number of items were taken into possession by police, including a wallet marked with the name "Deano", and clothing bearing the words "Life and Death Motorcycle Club". He was seen to have an injury to his knee. A piece of toilet paper used to soak up blood on it was later given to Detective Nichols. 72 He was charged with the murder of Alan Brown on 10 June 1999. Although he declined to be interviewed, he consented to providing a blood sample. His knees were examined and seen to be scarred. 73 Detective Nichols, who corroborated this evidence, added that, during the search of Hyland's premises, he took possession of cigarette butts, a toothbrush and a piece of bloodstained toilet paper. Parry 74 Sergeant Anthony Ferguson said that on 2 March 1999, a search warrant was executed at Parry's home, which was video recorded. In the course of it, police took possession of a self-rolled cigarette butt, a black balaclava, a pair of black gloves, and an "Easton" brand baseball bat. 75 Detective Constable Gerrard Powell, who assisted in the search, said that he observed Parry smoking the hand-rolled cigarette which was given to Sergeant Ferguson. He took possession of another butt from an ashtray. 76 Detective Sergeant Robert Allison arrested Parry on 10 June 1999. He agreed to provide a blood sample for analysis, although he declined to participate in an electronically recorded interview. 77 Detective Sergeant Vincent Lizdenis gave evidence that Parry participated voluntarily in an identification parade which was carried out, on 11 October 1999, and in the course of which Ms Russell identified him as one of the men who had got into vehicle NUR 593 on 2 October 1998, being the man whom she had heard being addressed as "Blood". The identification parade was videotaped (Exhibit CE). (j) Evidence concerning the Life and Death Motorcycle Club 78 Douglas Bates, a former member of the club, gave evidence that he knew Parry and Hyland as members, and said that their nicknames were "Blood" and "Deano". 79 Peter Brown, who described himself as an associate of members of the club and former employee of its President, similarly said that the nicknames of Parry and Hyland were "Blood" and "Deano". Powick he said was known as "Boots". 80 He said that he had attended the 25th Anniversary party of the Club at Ebenezer over the long weekend of 3 to 5 October 1998. He said that, before leaving for Ebenezer, he had called into the Clubhouse at Boolaroo. He saw a taxi arrive and he saw "Blood" walk into the club house and have a private conversation with a few men, including the Sergeant at Arms of the Boolaroo Chapter, Paul Webb. "Deano", he said, did not attend the anniversary party. 81 Ian Murray gave evidence that a vote was recorded in Parry's name, at Carrington Polling Booth (St Thomas Anglican Hall) on Saturday 3 October 1998, in the Federal election held that day. (k) The Defence 82 The evidence called by the defence was limited to five witnesses. None of the appellants gave evidence. The witnesses called included Professor Boettcher, who provided the usual and unexceptional explanation as to the limits of DNA evidence and as to the way in which probabilities as to a match should be understood. 83 Mr Yates Senior gave evidence to the effect that Wall had been a friend of his son and commonly travelled in his vehicle. He said that he had received a call from his son at about 12.20 or 12.25 am on 3 October 1998, rather than at around 1.30 am (as Mr Ardvidson had said). 84 Mark Morris, a dental surgeon, gave evidence of having examined Parry and of not finding any dental abnormality of the kind that had been attributed by one of the witnesses (Steengraver) to the offender who had the shotgun. However, it was never the Crown case that Parry had the shotgun; its case being that he had the handgun which fired the fatal shot. 85 Finally there was evidence from Anthony Salter and Peter Quinn in relation to the facility, available at the Boolaroo Life and Death Motorcycle Club clubhouse, for members and associates to borrow clothing, including jumpers, wet weather protection gear, beanies and balaclavas. 86 In relation to this aspect of the case, evidence had been led by the Crown to the effect that, when a search warrant was executed at the premises on 2 March 1999, no such items were found. 87 Before departing from the facts and turning to the multiple grounds of appeal which have been raised, we note that it was the Crown case that: (a) Parry ("Blood") was the man with the pony tail who had the handgun and who fired the fatal shot; (b) Powick ("Boot") was the driver of NUR 593; (c) Yates ("Bazza" or "Baz") was the man wearing the Metallica T-shirt, who had the baseball bat, and who got into the taxi which Mr Kiriona had flagged down, and who went to Mr Arvidson's home; (d) Hyland ("Deano") was the man who had the shotgun, who ended up cutting his knee on the front door of the premises, and who arrived at Mr Lusty's shop at about 6.30 to 6.45 am on the morning of 3 October. 88 In relation to matching the offenders with the physical descriptions given by the witnesses of the persons who went inside the house, the Crown pointed to the photographs taken by police which showed that: (a) Parry had ginger hair, a beard, and tattoos on his arms and the side of his neck, as well as a long pony tail (Exhibit BP); (b) Yates had a beard, dark hair which was long at the back, and dark clothes (Exhibit O) and a Metallica T-shirt with a skeletal snake and the words " Don't tread on me" ; (c) Hyland was short and stocky, had dark hair, was heavily tattooed, with big tattoos particularly on his legs (Exhibit BX). The photo of Hyland which appeared in the biker magazine of March 1999 (Exhibit DE) showed him to have a small goatee beard or whisper of hair on his chin. 89 We turn next to those grounds of appeal which were pursued when the matter came on for hearing, noting that a number of the grounds which were originally filed were not pursued. Since many of the grounds were raised by more than one appellant, we will deal with them together. DISCHARGE OF THE JURY 90 This ground was pursued by Yates alone and related to the circumstance that, approximately three and a half weeks into the trial, one of the jurors produced a medical certificate, and a report from a psychologist, stating that he was unable to continue as a juror, because the proceedings were affecting his mental health. The report suggested that he was suffering from paranoid delusions. This had followed upon an earlier incident in the trial, when one of the jurors had complained that a man, who seemed to be a supporter of the accused, had followed him part of the way home after Court, on the first day of the trial. Counsel was informed, but no application was made at that point. 91 An application was however made to the trial Judge, when the medical certificate was provided, to discharge not only the juror who was unwell, a course which had the agreement of all counsel, but also to discharge the entire jury. 92 This application was made by counsel for Hyland, and by counsel for Yates, and arose when his Honour gave separate consideration, as was required by the decision in Wu v The Queen (1999) 199 CLR 99, to whether the trial should continue with eleven jurors. 93 The reasons for the application were barely articulated, beyond the desire of the relevant appellants to be tried by a jury of twelve, and a submission, in very general terms, that "the nature of the medical injuries (sic) leads to a situation where it is now inappropriate for this jury to proceed any further in relation to dealing with my client [Yates]". This application was dismissed by his Honour, for the reason that the trial was in its fifth week of hearing and the factual evidence had almost concluded. 94 It is now submitted that it was impossible to be certain, in the events which had transpired, that the jury's deliberations were not carried out in a climate of suspicion towards the appellants. As we have observed, no such submission was made to his Honour, and we are unpersuaded that it has any attraction whatsoever in logic. The matter was one for a discretionary exercise of judgment by his Honour, and we are not persuaded that it miscarried. This ground has not been made good. THE METALLICA T-SHIRT 95 Next, it was submitted, by Yates and Powick, that the evidence from Mr Harrison to the effect that the T-shirt, which was taken from Yates, was "similar to" the T-shirt worn by the man who had the baseball bat, was inadmissible. 96 The T-shirt which Yates was wearing (see Exhibits AQ and AR) had elbow length sleeves and was black. The front contained a Metallica logo, above a skeletal snake, and the words "Don't tread on me". It had a similar logo on the arm and writing on the back, beneath a snake skin like pattern which also included some teeth. 97 The description, which Mr Harrison had given to police on 29 October 1998, of the shirt worn by the man who had bashed him, was as follows: " He was wearing…a black coloured 'Metallica' short sleeved shirt. On the front of the shirt there was a picture of a snake running through a skull in the middle of the shirt. There was a banner half way down the skull with the words 'DON'T TREAD ON ME', this was about 9 centimetres long and 1.5 to 2 centimetres high. The snake curled down through the eye and curled at the bottom and curled out again at the top . The shirt was worn faded, washed heaps, the picture started to fade. He also had another shirt under this which was black too with long sleeves." 98 On 6 November 1998, Mr Harrison was shown Yates' T-shirt (Exhibit AR) by police. No other shirts were shown to him. Mr Harrison said that it was 'similar' to the one worn by the man who had attacked him with a baseball bat. 99 It was put to him in cross-examination that in trying to describe the T-shirt now, it was difficult to differentiate between the shirt which the offender had worn, and the shirt which he had seen at the police station. He replied: " Well, you go and find me a Metallica T-shirt with a more similar design on it than the one I described. There's – I guarantee you, there's no Metallica shirt that's got a similar design to that." 100 Objection was taken to Mr Harrison's evidence upon the basis that counsel could not properly cross-examine him as to his "real memory" of the shirt because of the contamination, or displacement effect, which followed upon police showing him the shirt which became Exhibit AR. It was also contended that the description, which Mr Harrison had given in his statement, was significantly different from Exhibit AR in relation to the sleeve length, and in relation to the snake "running through a skull". 101 It was next submitted that the evidence had been further contaminated by questions asked of Mr Harrison by police, as recorded in a transcript, made at the time of his attendance at the police station on 6 November, as follows: " THOMAS: In your statement that you made on the 29th of October you make mention of the, of the skull and I, when I typed your statement I was of the belief that you meant a human skull is that what you meant in your statement or was it the skull of this snake? HARRISON: It was the skull of the snake. THOMAS: Yes so that is what you remember that skull HARRISON: That skull THOMAS: Of the snake there on that particular shirt? HARRISON: Yes" 102 Ireland AJ allowed the evidence to be given, ruling that cross-examination as to any discrepancies had not been impeded, and that the exchange with the police officer had been directed towards clarification rather than offering to the witness a possible explanation for any difference in his recollection concerning the skull. 103 It has long been recognised that there are difficulties in any "identification" procedure which involves showing a potential witness, for example, a single photograph of a suspect. As was explained in Alexander v The Queen (1981) 145 CLR 395, there is a danger that the witness will thereafter begin to identify the person depicted in the photograph as the offender. It is for that reason that a warning is normally required in such cases concerning not only the general danger attaching to identification but also a specific warning as to the possible displacement effect: R v Clout (1995) 41 NSWLR 312. 104 The present appeal was conducted upon the basis that the evidence of Mr Harrison should have been excluded in its entirety insofar as it related to the description which he gave of the T-shirt. No objection was taken to the adequacy of the summing up. 105 Had Mr Harrison not provided a description of the T-shirt shortly after the event, or had he done so only after sighting the shirt at the police station, there might have been some force in the objection to the tender of the evidence. 106 However, as was pointed out in R v Leroy [2000] NSWCCA 302: " Early descriptions are important because they enable the tribunal of fact to test the identification made with the description given shortly after the event, and defence counsel are able to cross-examine and address on, discrepancies which may appear." 107 In our view, while it may theoretically have been possible to assemble a "line up" of T-shirts, what was critical in this case was the witness's contemporary and earlier description of the colour of the shirt, of the Metallica logo, of the snake (which had a skeletal skull, and which curled at the top and bottom) and of the banner "Don't tread on me". In those circumstances, had an identification parade been arranged involving a variety of shirts, or even of black Metallica shirts (the one taken from Powick having had a "Master of Puppets" banner), Yates' shirt would have stood out in a way which would have itself tainted the exercise. 108 The so called differences in detail appear to us to be utterly insignificant, and we see no error in his Honour's conclusion that the exchange between Mr Harrison and the police officer was properly understood as a clarification rather than as an inappropriate suggestion. 109 We are satisfied that counsel were able to cross-examine the witness on the discrepancies, and that there was no error in the admission of the evidence. ELECTION OF APPELLANTS NOT TO GIVE EVIDENCE 110 It was submitted by Hyland and Powick that his Honour erred in the directions which were given concerning the fact that none of the appellants had given evidence in the trial. Initially, it was the position of all counsel, including the Crown Prosecutor, that no direction should be given in this respect. Later, however, the Crown Prosecutor submitted that a direction should be given along the lines of the draft which had earlier been prepared, and provided to counsel, in the event of there being a jury question on this topic. In making that submission, the Crown Prosecutor indicated that it was his belief that the decision of the High Court in RPS v The Queen (2000) 199 CLR 620 required this to be done so as to "protect the position of the accused." 111 His Honour accepted that submission and directed the jury as follows: " None of the accused has given evidence in this trial, and there are a number of important directions which I must give you in relation to that. An accused person may always give evidence in a trial, but there is no obligation upon him or her to do so. As I have already pointed out, the Crown bears the onus of satisfying beyond reasonable doubt that the accused in this trial are guilty of the offences charged. The accused bear no onus. Each accused is presumed to be innocent until you have been satisfied by the Crown in regard to each offence that he is guilty. Each accused is entitled to elect to say nothing, and require the Crown to prove its case against him. Because each of the accused has merely exercised the right which belongs to every citizen, you must not draw any inference at all adverse to any of the accused by reason of the fact that each of them has elected not to give evidence. There are many reasons why an accused may elect not to give evidence. An accused may fear that the [sic] will be confused by cross-examination; an accused may simply be content to rely upon any weaknesses which may be perceived to exist in the Crown case. There are no doubt other valid reasons. You must not speculate why each of the accused has not given evidence. Furthermore, you must not treat the election by each accused not to give evidence as being capable of filling any gaps in the Crown case that you may perceive to exist." 112 In our view there was nothing objectionable in this direction. It was entirely in accordance with the law, as declared three weeks later in Azzopardi v The Queen (2001) 205 CLR 50, where Gaudron, Gummow, Kirby and Hayne JJ said: " 51. In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt…" See also R v Richards [2002] NSWCCA 38 at para 23. 113 This ground is not made good. LIES - POWICK 114 In a late submission, Powick sought leave to raise an additional ground of appeal, to the effect that his Honour erred in not giving a direction, in accordance with Edwards v The Queen (1993) 178 CLR 193, concerning the lies which the Crown alleged Powick had told in his ERISP. 115 The difficulty with this submission, however, is that in asserting that Powick had lied, the Crown did not seek to rely on that fact as an element of a circumstantial case, so far as it displayed a consciousness of guilt on his part. Rather, the Crown submitted that the account which he had given, by way of defence to each count, should not be believed. Moreover, it was necessary for the Crown to prove, beyond reasonable doubt, that Powick had lied, so far as that was an essential element of the accessory after the fact count. 116 Clearly, this was how the matter was viewed by trial counsel, in that an Edwards direction was not sought. 117 We refuse leave under Rule 4 to raise this ground. PARRY DEFENCE CASE 118 This ground was pursued by Parry alone. In substance he submitted that evidence was available, and should have been led, to the effect that he had been at the 25th anniversary party of the Life and Death Motor Cycle Club at the time of the murder of Alan Brown; and that counsel should have called him to give evidence at his trial, both generally, and in relation to the alibi. 119 In support of this ground, various documents, including an affidavit sworn by Parry, and a statement taken from him by his counsel, were tendered. In summary, Parry said, in relation to his movements between 1 and 3 October 1998, that: · On 1 October he left his home in Carrington at approximately 5.00 pm to travel to Kurrajong for the purpose of helping next day with the arrangements for the 25th anniversary of the Life and Death Motorcycle Club, arriving there between 7.30 pm and 8.00 pm; · He stayed that night at the premises owned by Peter Leask; · On 2 October he travelled, with Leask, to a mushroom farm in the Windsor area where the party was to be held; · While there he saw various people whom he identified as "Spook", "Johnny" and "Badger", and helped set up the beer tent, the army tent and stage; · He remained at the site overnight, drinking around a fire with various persons including someone whom he identified as "Shorty" from the Windsor Chapter, and with "Spook," who was there until 11.00 pm; · On 3 October 1998, he awoke at the site at 6.30 am to 7.00 am, and remained there all day, helping at the bar and barbeque spit; · He remained there until Monday 5 October 1998; · He understood that Gregory Hall, the nephew of his de facto wife, voted on his behalf at Carrington; · A film company and reporters and photographers from a biker magazine were present at the site from about midday on 3 October; · At the time of his first meeting with trial counsel he was informed by counsel, "I don't want to know anything about the matter itself from you yet"; · In the interviews which preceded the committal, counsel did not ask him any direct questions about his version of events; · Three to four weeks before the trial he informed counsel that he had not been in the area when the murder happened, which led counsel to make some inquiries of other people (presumably those who might support an alibi); · He obtained statements from various persons but could not locate anyone who had been with him at the time of the killing; · When he took the statements to counsel, he was informed "We're not running alibi, we're using this for a back-up"; · At the trial he had wanted to give evidence, but his counsel, whose advice had changed on this matter from time to time, said at the close of the Crown case, "I don't think I'll put you on the stand". He took this advice. 120 A transcript of his examination before the Crime Commission was tendered, in the course of which he gave a similar account of his movements between Thursday and Monday, although in the course of his evidence he named a number of other persons whom he allegedly saw at the camp site, on 2 October, including "Dr Bob" (Kitchener) from the Windsor chapter; "Pete" from the Gateshead chapter, "Steptoe" from the Boolaroo chapter; as well as various persons who had allegedly arrived on the following morning. 121 An affidavit was sworn by the legal clerk for the solicitor who acted for Parry, in which she deposed that: · She had attended the various conferences, which were held pre trial; · She had endeavoured to obtain evidence in support of Parry's claimed alibi, including interviewing persons named by him, contacting biker magazines, and obtaining video footage of the anniversary party; · She had been unable to obtain any material to support an alibi defence; · On 8 February 2001, following discussions with counsel, Parry gave written and signed instructions not to pursue the alibi; · Both before, and during, the trial, the merits and dangers of Parry giving evidence were discussed with him; · At no stage did Parry say that he wished to give evidence; · Counsel said, after explaining the dangers, that it was a matter for him to decide; · Just prior to commencing the case for Parry the question of him giving evidence was specifically discussed, and he was asked to consider the position overnight. · On the following morning, he said that he did not wish to give evidence. 122 She also gave evidence before us, in which she contradicted much of Parry's account, and confirmed that the efforts which had been made to find witnesses who were able or prepared to support the alibi, had come to naught. 123 Two handwritten statements were tendered from Barry Evans and Peter Leask to the effect that they saw Parry during the weekend, but neither was specific or certain as to the times of such sightings. 124 Counsel who had appeared for the appellant at trial was called as a witness before us. He said that steps had been taken to research the claimed alibi, but that they came to nothing. He said that conferences had been held with various people nominated by Parry, that none of them could corroborate Parry, that he formed the view that none of them would have been credible witnesses, that he explained to Parry the risks of a false alibi, and that written instructions were obtained not to proceed with it. He also said that he had discussed with Parry the question of him giving evidence, explained the procedure to him and indicated that it was ultimately his decision. It was his understanding that Parry gave written instructions that he would not give evidence and that these instructions would be in the solicitor's file. 125 He took into account, in relation to his discussions concerning calling Parry, his impression of the way in which he thought he might perform under cross-examination, it being his somewhat stark assessment that the "Crown Prosecutor would crucify him". He also took into account the fact that none of the other accused was giving evidence, and the fact that he regarded the central issues in Parry's case as being Ms Russell's identification and the DNA evidence. In respect of each issue he thought the case had gone well. 126 It emerged in cross-examination that counsel who appeared for the appellant was an experienced trial counsel, who had formerly been a member of the Australian Federal Police. Counsel who appeared on the appeal accepted, in the course of his submissions to us, that trial counsel had conducted the cross-examination of the various witnesses in a competent and professional manner and confined his complaint, concerning his handling of the trial, to the two matters identified in this ground of appeal. 127 Evidence was placed before us from Parry's de facto wife concerning her attempts to obtain the relevant papers from counsel and the former solicitors. Such documents as were obtained were searched, but did not include any instructions from Parry in relation to his giving evidence. She also said that the question of raising an alibi and of giving evidence had been considered at various times during the trial. As to the former, she said that counsel had indicated that he had made up his mind about the alibi about three weeks into the trial and again at the end. As to the latter, she said that toward the end of the trial counsel said that there was no need to call Parry. 128 Parry was cross-examined in the course of the appeal and agreed that despite his inquiry, he had found no evidence to support his alibi for the night of 2/3 October. He denied, however, giving his lawyers instructions not to rely upon an alibi, or signing the document to that effect which was in evidence. He also denied that any advice was given to him by counsel as to the risks of raising a false alibi. He also denied that he was given advice by counsel in relation to the various matters that would have been relevant to his election to give, or not to give, evidence, suggesting that "we didn't really discuss it". 129 It was submitted, on behalf of Parry, that trial counsel was negligent in not pursuing the alibi, and in not calling the appellant as a witness. Reliance was placed upon the decision in R v Birks (1990) 19 NSWLR 677 where Gleeson CJ, with whom McInerney J agreed, said, at 685: " The relevant principles, may be summarised as follows: 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 130 Subsequently in R v Ignjatic (1993) 68 A Crim R 333, Hunt CJ at CL observed, at 336: " Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error was made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere." 131 In our view, the ground is absolutely lacking in merit. This is not a case where serious incompetence or error of the kind referred to in these decisions or in TKWJ v The Queen [2002] HCA 46 was established. On the contrary, counsel for Mr Parry appears to us to have conducted the matter competently and with skill. 132 To have presented an "alibi defence", Parry would necessarily have been called as a witness. He had no evidence whatsoever to support the alibi. Worse still, there was evidence from two witnesses placing him in the Newcastle district on the morning of 3 October. The dangers of a false alibi for the credibility of an accused are so well known, and so appreciated by trial counsel, as not to require elaboration. 133 The assessment of whether Parry would, or would not, have been a good witness, or would have been vulnerable to cross examination, was quintessentially a matter for trial counsel. We see no indication of misjudgment by counsel in this regard, or in the advice, which he gave to Parry, whose decision it ultimately was. Having seen and heard Parry give evidence before us, our assessment in this regard is only strengthened. He was far from impressive. We see no reason not to believe counsel wherever there is conflict between him and Parry, having regard in particular to the existence of written alibi instructions, and to the evidence of the legal clerk who had the carriage of the matter. 134 This ground is not made out. DNA EVIDENCE 135 A number of grounds of appeal were initially raised in relation to the DNA evidence, by Parry, Hyland and Yates, being the appellants in respect of whom such evidence was led. 136 The grounds of appeal, as filed, were as follows: Parry That his Honour erred in: (i) admitting into evidence the DNA analysis in respect of the finger piece of the glove found at Levitt Street; (ii) failing to direct the jury that, in considering the DNA concerning the finger piece, the analysis was based upon an unproven assumption that the blood had come from only two sources; (iii) directing the jury upon the assumption that the blood of the deceased was on the finger piece and that the DNA originated from only two individuals, that the result was that it was 9,300 times more likely to have originated from Brown and the appellant than from Brown and an unrelated individual; (iv) directing the jury that the DNA profile derived from the balaclava " covered a range of one in 390,000 to one in 970,000" ; (v) the direction given to the jury as to the use to which the DNA evidence could be put. 137 However, when the matter came on for hearing before us, none of these grounds was pressed. Yates 138 A single ground was initially advanced in the very general terms that his Honour failed to adequately or properly direct the jury, in regard to the effect and unreliability of the DNA evidence. 139 An additional ground was later foreshadowed to the effect that the analyst's certificate should not have been admitted since exhibit continuity had not been established. 140 However, like Parry, when the appeal came on for hearing before us, these grounds were not pursued. Hyland 141 The ground of appeal relied upon by this appellant was in similarly general terms to that raised by Yates, although as developed, it embraced the proposition that: (i) His Honour had given little regard, and no emphasis in the summing up, to the fact that the statistical figure expressed by the expert was " a mathematical calculation based on a hypothetical population and did not mention at all any of the issues of random breeding, unrelated populations or the absence of any such group from this world"; (ii) with the consequence that he did not emphasise to the jury that a match between a DNA sample and a suspect does not establish that the two are from one and the same person. 142 Hyland alone pursued the DNA question when the appeal came on for hearing. However, since his submission needs to be considered in the context of the summing up as a whole, we shall refer to what it was that his Honour said to the jury, of immediate relevance to this aspect of the case. 143 His Honour first dealt with DNA evidence in relation to Yates, at which point he gave a general direction concerning its effect as follows: " Members of the jury, it may be helpful if I give you my understanding of what the DNA profile, or as it sometimes referred to, the DNA fingerprinting, establishes and does not establish on the evidence given in this case, recognising of course that what you make of this evidence is a matter for you. The DNA profile of an individual relies upon identifying certain sequences referred to as short tandem repeats in the chain of DNA which is found in the cells of a living creature. In persons who are identical twins, this profile or DNA fingerprint is the same, that is to say identical, because those twins came from the splitting of a single cell, that is to say they share the same DNA profile. As between the rest of the community, the chain of DNA is so complex and so long, even in a single cell, that the chance of two people having the same DNA profile is extremely remote. Nevertheless, it is possible that by chance, no matter how remote that chance may be, that two people could have the same profile, and because of that chance, albeit extremely remote, the DNA scientists cannot and do not say that the DNA found on the object found, for example, at a crime scene, is that of a particular person, because of that remote chance that by coincidence two people have the same DNA profile. What they can calculate is the chance that there will be two people of the same profile in a hypothetical population based on a sample or database of 359 or so people. The odds calculated against the coincidence of two people having the same DNA profile are not taken past the 10 billion to one against, by the laboratory where Mr Goetz and Ms Gill work, but Professor Boettcher says they can be as high as 100 billion to one against that coincidence. So when the DNA scientists find a match, they say two things. One, the person in question cannot be excluded, and two, the chances of it being a coincidence are one in however many they calculated. That is what they have done in this case. What the DNA testing can positively establish is that when there is not a match between the DNA on an object and the DNA from a person, that person is positively excluded." 144 When dealing with Parry, his Honour repeated, while summarising the defence address: " … the weight which you give to expert evidence is a matter for you. It is common ground that the DNA evidence does not point conclusively to a particular individual. What it does provide is a calculation of the likelihood that the DNA came from other than the individual in question, and where the DNA originates from more than one person, the likelihood that it originates from other than two persons who can be not excluded from the sample in question." 145 When his Honour came to Hyland, he observed, in relation to the Crown case: " The thrust of the Crown case concerning Mr Hyland relates first of all to the broken glass from the panel in the door of 4 Levitt Street, which carried a blood stain, and on the Crown case caused a wound to the accused's knee, which produced the large smear of blood on the back of the seat of the car, both the blood from the back of the car seat and the blood from the glass producing an identical DNA profile to that of the accused Hyland. Nevertheless, the Crown submits to you that, strong as you may find that evidence to be, the evidence which placed the Crown case against Mr Hyland beyond any shadow of doubt is the DNA evidence derived from the blood on the glass from the door panel, consistent with the injury on the accused Hyland's knee, which places the accused in 4 Levitt Street, and the blood stain from the back of the seat, which together with the telephone places Mr Hyland in the car. The power of this evidence is to be seen in the complete matching of the DNA profile on p 3 of ex DL, Ms Gill's report of 22 June 1999, which gives a complete match of items, item 26 being the blood sample from Mr Hyland, item 7 the swab from the blood stain on the back of the car seat on the motor car NUR 593, item 11 the blood stain from the glass at 4 Levitt Street, and item 17 the tissue which was used to wipe the blood from Mr Hyland's knee when his premises were the subject of a police search. All of these profiles are identical, and they fall into the category where the profile is expected to be found in fewer than one in 10 billion individuals in the general population." 146 When his Honour came to the defence case, he said: " Mr Fitzgerald, on behalf of the accused Dean Hyland, says that he offers no challenge to the DNA science itself. He respects the fact that Mr Goetz, Ms Gill and Professor Boettcher are all advocates of the science itself. But the submission is made that whilst DNA is a formidable investigation tool, its degree of infallibility does not preclude it from making mistakes. Mr Fitzgerald said to you that he did not challenge the credentials of Ms Gill or Mr Goetz, and that the challenge to the credentials of Professor Boettcher by the Crown was in effect misdirected. He submitted to you that Professor Boettcher does not challenge findings in the DNA in Mr Hyland's case, only the way in which those findings are to be used. Professor Boettcher's credibility, Mr Fitzgerald submits to you, is obvious in his assessment that whilst the probability against coincidental match in Mr Hyland's case is 10 billion to one against, within the limits as set in the laboratory by Mr Goetz and Ms Gill, Professor Boettcher goes further and puts those probabilities at 100 billion to one against there being a coincidental match, and that this is the mark of a witness who came here to give frank evidence and openly discuss with you the use that can be made of DNA evidence. Mr Fitzgerald reminded you of some of the evidence of Professor Boettcher, including his question to the witness as to what assistance those sorts of figures were to a jury's consideration. Mr Fitzgerald cited to you the answer in which Professor Boettcher said: ' And so really that is simply a frequency of a specific profile in a theoretical population, and it does not give you any information on the guilt or innocence of any specific person.' Now, it is a matter for you, members of the jury, but I take that answer given by Professor Boettcher to mean what you have heard many times in this case, that DNA testing does not positively identify a sample of DNA found on an object as coming from a specific person, for the simple reason that it is possible that by mere chance, two people can have the same DNA profile. There is no issue in this trial, or with regard to DNA evidence generally, that when such astronomical figures are produced on the question of probabilities, that the world population is far exceeded, and it is necessary to calculate on the basis of a theoretical population far in excess of the world's population in order to accommodate the results that are achieved. However, Mr Fitzgerald submitted to you, 'It is a theoretical calculation of no assistance to you in your consideration of the facts beyond reasonable doubt.' That, members of the jury, with respect to Mr Fitzgerald, is what is sometimes referred to in the law as a bold submission. You may think, members of the jury, to say on the one hand, as did Mr Fitzgerald, that DNA evidence is a formidable investigation tool, and then to say to you that by establishing the incredibly high odds against matches of DNA profiles being coincidental, is of no assistance to you in your consideration of the facts beyond reasonable doubt, is, you may think, an obvious contradiction. It is a matter for you what weight you give to the evidence you have heard and to that submission by counsel. It is, with respect, not a theoretical calculation which the scientists have engaged in; they have undertaken a mathematical calculation based upon a theoretical population. You may think there is a marked distinction. You may think that the need for a theoretical population is simply dictated by the astronomical figures which the chances against there being a coincidental matching of DNA profiles produces, and that a theoretical population is necessary to accommodate the figure. It is a matter for you. Mr Fitzgerald went on to say that in Ms Gill's determination of Mr Hyland's DNA, the fact that Mr Hyland could not be excluded as the source of DNA in the blood samples from the glass door and from the back of the seat of the car, is of no assistance to you in assessing the charge beyond reasonable doubt, because it does not and cannot say that Mr Hyland is the contributor. Well, members of the jury, I am reluctant to go down that path again, but I would hope that it has been made plain to you that the fact that the person cannot be excluded is merely the first step in the DNA evidence. The second step is the calculation of the likelihood that the source might be other than the person whose DNA sample matches - .. his DNA profile matches completely with the two exhibited items." 147 Before completing the summing up, Ireland AJ invited counsel to draw to his attention any additional matters which they wished to raise. Counsel for Hyland did not seek any additional direction concerning the DNA evidence. Counsel for Parry and Yates did however seek additional directions which were then given in the terms sought. 148 The request made by counsel for Yates, is of immediate relevance to this ground of appeal. The transcript records that it was made in the following terms: " AUSTIN: When your Honour was referring in relation to submissions made by Mr Fitzgerald to the theoretical population that was being referred to in the evidence of both Mr Goetz and Ms Gill, your Honour told the jury that the reason for – and I paraphrase to this extent – the reason for a theoretical population, the reason why a theoretical population is necessary, is because of the astronomical figures involved. I'd ask your Honour to consider reminding the jury that in fact also in Mr Goetz's evidence was a statement that the population is described as theoretical because one of the assumptions is that there is a random breeding amongst an unrelated population, and his evidence was that on the planet there is not such a population. HIS HONOUR: What exactly do you want me to say? 'Mr Goetz said that –' AUSTIN: Mr Goetz also said that one of the reasons for its being a theoretical population was the there was an assumption of random breeding amongst an unrelated population. That is the only aspect of the evidence. The other matter was just something that came to mind when I raised it . HIS HONOUR: I will say that, Mr Austin." 149 His Honour directed the jury in relation to this request, as follows: "I will not detain you long, members of the jury. There are some matters that I have been asked to bring to your attention, to clear up. The first is that I mentioned to you the need for a theoretical population in order to accommodate the extrapolation of the arithmetical calculations, and that results in a theoretical population which far exceeds the population of the world. It was also brought to my attention, correctly, that one of the reasons that a theoretical population was referred to was that there was an assumption of random breeding amongst an unrelated population, and that also requires the calculation of a theoretical population." 150 Counsel for Hyland did not seek any additional direction or clarification of what was said. However, it is now submitted that the direction given did not sufficiently identify the problem or reflect the request which had been made, even though his Honour gave the precise direction which counsel for Yates had sought. 151 What was missing, so it is argued, was the reference to the fact that the need for a theoretical population arises from the circumstance that there is no unrelated population on the planet in which there is random breeding. As can be seen from the transcript, this proposition appears not to have had a basis in the evidence, being "something that just came to mind" when counsel raised it. 152 In advancing this submission, counsel submitted, in effect, that DNA evidence in general was of no value since the assumption, which underlies the selection of a theoretical population, does not exist. 153 We are quite unpersuaded that there is any basis in such a submission, or that the statistical model upon which DNA evidence has traditionally been given, is flawed in the way suggested. Its acceptance and the validity of the Profiler Plus system and the statistical basis employed, are now well established: R v To [2002] NSWCCA 247. Nor are we persuaded that the jury would have been assisted had his Honour added the comment suggested to the direction. 154 Quite independently it is unchallenged that his Honour made it crystal clear to the jury, in the several passages noted above, and elsewhere, that DNA evidence does not positively identify a sample of DNA as coming from any one specific person. 155 As we read the summing up, his Honour clearly and appropriately placed the DNA evidence into its proper context. Moreover, he did not direct the jury in the objectionable way known as the "prosecutor's fallacy", as identified in decisions such as R v GK (2001) 53 NSWLR 317, R v Doheny and Adams [1997] 1 Cr App R 369, R v Keir [2002] 2 NSWCCA 30 and R v Galli [2001] NSWCCA 504. 156 In the course of his submission, counsel also argued that the shorthand reference to the DNA profile as "DNA fingerprinting" tended to give it a significance which it did not have. It may be accepted that, while this expression is commonly used, it would be highly desirable for judges to avoid its use. Unlike DNA profiling, the science of dactylography is accepted as depending upon unique characteristics, although its value in any given case is determined by the number of points of identification which can be observed by an expert examiner, or more recently, upon certain more objective forensic tests. However, in the context of the explanation and caution given by his Honour, the use of this expression cannot reasonably be supposed to have been misleading. 157 This ground is totally without merit. GROUNDS CONCERNING THE EVIDENCE OF MS RUSSELL 158 A number of grounds of appeal relate to, or arise out of, the evidence given by Renee Russell. At the time of the offences she was in a de-facto relationship with Darren Wall. 159 Prior to being called in the trial, she had given evidence or accounts of what had occurred on a number of occasions. The first was on 4 October 1998. This took the form of a traditional police statement, the first paragraph of which included statements to the effect that the document accurately set out the evidence which the maker was prepared to give in court and that the maker was aware that, if the document was tendered, she would be liable to prosecution if it contained anything known to be false. 160 The document went on to assert that in the late afternoon of 2 October 1998 she, Darren Wall and named friends had gone camping at Gloucester returning to her home at 2.35 pm on the afternoon of 4 October. On their return they noticed that Mr Wall's car, registration number NUR-593 was missing from the driveway where it had been parked. 161 On 17 February 1999, Ms Russell gave evidence before the NSW Crime Commission. There she said that, on 2 October, Mr Wall had received a phone call summoning him to the home of Mr Webb. They drove there where, in effect, their car was appropriated by Barry Yates, a second man "Dean", a third man she knew as "Boot", and a fourth called "Blood". She said that she saw a black bag and a baseball bat put into the car. However, she did not see any guns, weapons or balaclavas. The car was then driven off and she and Mr Wall went home in another vehicle. 162 She added that later, and it might be inferred the next morning, Mr Webb called at their home and said that they were to report that their car had been stolen. They heard on the radio that a murder had been committed and concluded that they should arrange an alibi for themselves. It was then that they and their friends went camping. They returned on the Sunday and then reported the car stolen. Subsequently there was some conversation with Mr Yates: " … he came over and warned us not to say anything to anyone. He took us out into the backyard and he, all he said was, don't say nothing to no one at all, otherwise like, I think he said that he had been threatened that if anything got out that he was in trouble as well. " 163 Before the Crime Commission, Ms Russell volunteered that her first child had been born six weeks early and had suffered from cerebral palsy as a result of the stress which she had been under. She added that, at the time of the events referred to above, she had been within six or seven weeks of delivery of her second child and had been concerned for its welfare. 164 On 16 September 1999, Ms Russell made another statement to the police. The officer who took it was Detective Sergeant Wrice. This statement broadly accorded with the evidence Ms Russell had given to the Crime Commission although it contained appreciably more detail. She said that she and Mr Wall had arrived at Mr Webb's home "around dusk, about 6.30 to 7.00 pm". She identified Dean as Dean Hyland, and "Boot" as Brad. She also volunteered his place of work. So far as "Blood" was concerned she said: "… About three to five minutes after the car backed out I saw Webby and another man come from the back of the house to the bottom of the stairs at the back of the carport. I saw they both had drinks in their hands. They talked for about thirty seconds and then the man walked past me, smiled and said 'Hello'. Brett said to the man 'See ya Blood'. I then saw the man walk up to the car and get in on the passenger side, I am pretty sure it was the front seat. The car then drove off south along the Pacific Highway. I would describe Blood as looking like a normal bikie, dressed in black, a good build not little, browny gingery hair, short at the front with a long pony tail at the back. I am sure I would recognise him again. He looked around thirty to thirty five to me. All of the people who left in the car were wearing dark clothing. " 165 So far as weapons were concerned, the statement reads:- "While I was talking to Dean I saw that he was holding a black Jim Beam beer holder with a stubby of beer in it which he was drinking. I walked down to the car and took my baby seat and other property out of the car. While I was talking to Deano and taking my property out of the car Barry and Boot continued to load gear into the car. Most of it was being loaded into the boot. I can't remember who carried what but I saw a black carry bag with handles, a normal size baseball bat hanging out of the bag and also a small baseball bat in one of their hands. I would say it was about 60 to 70 cm long. After I removed the baby seat from the car I walked behind the car and looked into the open boot. I saw the black bag, a white bucket, and a big gun. I didn't know much about guns but it might have been a shotgun. It was about this long (Russell spaces hands indicating about 80 to 90 cm). I also saw a little pistol. Detective Sergeant Wrice showed me his gun today and the one I saw in the boot of my car was similar. I am pretty sure it had that round bit in the middle and had a rounded handle the same. It was about the same size." 166 The statement additionally recorded the receipt of a summons to appear before the Crime Commission and a further conversation with Mr Yates in the course of which she had said to him: "… I don't need this stress I'm sick of it. I don't want nothing to do with it. I am going to tell the whole story to the cops at the Crime Commission'. Barry said 'you had better not, you'll be gone if you do. You don't want to do it.' " 167 The statement also records that, on 17 November 1998, she had her second child to Mr Wall, that on 3 September 1999 she and Mr Wall separated, and that: " On 9 September 1999 when Darren and I went to court at Wyong I said to Darren, "I am going to tell the police the truth. You're going to get more charges from being with them two nights before." Darren said "Well don't tell them that bit. " 168 On 11 October 1999, an identification parade was held in the presence of Ms Russell. She identified Robert Parry as "Blood" and made a statement to that effect. In the statement she said:- " When number seven came closer the second time I saw a tattoo on the left side of his neck. I remembered from that afternoon that Blood had a tattoo on the left side of his neck. I only just remembered that tattoo when I saw number seven ." 169 Committal proceedings were held on 22 November 1999. Unsurprisingly Ms Russell was questioned at some length. She said, in chief, that the statement of 16 September 1999 had been true, but that the contents of her statement of 4 October 1998 had not been correct. She said that she had made that statement because Mr Wall had wanted and nagged her to do so. Taken in cross examination to numerous passages in that statement, one at a time, Ms Russell acknowledged that they were lies. 170 She also acknowledged that she might have told one or two lies (only) to the Crime Commission. She acknowledged that she had left out some matters incriminatory of Mr Wall and concerning another incident. 171 Other matters about which Ms Russell also gave evidence were that she had been a heavy user of marijuana for over five years prior to October 1998 and in consequence she had sometimes been confused about situations and incidents. She rejected the suggestion that this confusion extended to persons and plans. 172 She said that she had been released from hospital on the morning of 2 October. She had smoked several cones of marijuana and taken some pain medication that day. She said she had not been feeling too well and was still experiencing, and distracted by, some pain presumably from the kidney stone that, together with her pregnancy, had led to her going to hospital. 173 She acknowledged that at court on 9 September 1999 she had threatened Mr Wall. She said that she did not like him much anymore and did not care what happened to him or his friends. She said that some of the matters mentioned in her statement of 16 September 1999 (not relating to events of 2 October 1998) had been included in order to get Mr Wall into trouble. 174 Ms Russell also said that, in consequence of her statement of 4 October 1998, she had been charged and sentenced in respect of an offence of hindering a serious investigation. After appearing before the Crime Commission she and Mr Wall had discussed making a statement to the police. Ms Russell said that Mr Wall had not wished to do so, and no statement had then been made. 175 She also gave evidence to the effect that Mr Wall was the father of her two children. So far as "Blood" was concerned, Ms Russell said she had seen him side on and face on around 7.30 pm and it was getting onto, but not completely, dark. She agreed that her observation was "for a very short period of time". However, when "Blood" walked past her on 2 October, he had been about 4 metres away and his left side had been towards her. 176 When called, on Thursday 22 February 2001, in the trial before Ireland AJ and before she was sworn, Ms Russell said she did not wish to give evidence. She produced a medical certificate from Dr Vicki Newing. This was in the following terms:- "Renee Russell has been a patient of mine for six years. She is currently twenty-eight weeks pregnant. Renee has two young boys. The oldest was born six weeks prematurely and has severe cerebral palsy. Renee is extremely distressed about her upcoming court appearance and the effect it may have on her pregnancy. Although she will be required to give evidence it should be done in a way which will cause her as little stress as possible. " 177 After some discussion between Ireland AJ and counsel, Ms Russell was then sworn on the voir dire so that his Honour could determine whether to compel her to give evidence in the trial. In the course of that enquiry she said: " A. I don't wish to give evidence at all, as I made lies in both of my statements, and if there is a case against Darren for accessory after murder, there should be one against me for knowing exactly the same, and I am his de facto wife and I am having another child, we have already got two, and I am not well enough to give evidence. Q. So that basically is it, then, that you say that because you are the de facto wife of Mr Wall you should not be required to give evidence is that right? A. Yes…" 178 The Crown submitted that the evidence which Ms Russell could give as to the events of 2 October 1998, and concerning the identification parade of 11 October 1999 was of vital importance, adding that there was no alternative source known to the Crown for it. No counsel disagreed with this proposition. 179 Ireland AJ decided that Ms Russell should give evidence as to these matters but not, at least in chief, on a third topic, relevant to Mr Wall, viz the manufacture of a false alibi. His Honour also decided that the court should be closed during her evidence, and that it should be given by way of audiovisual link. He observed that he was satisfied "that the health of the witness was such that her evidence, in the interests of the administration of justice, should be taken" that way. It may be observed that there was no suggestion that her identity should be concealed from the accused, or that they should not be permitted to view the video screen. 180 Immediately after lunch, the Crown Prosecutor advised His Honour that it was Ms Russell's request that her evidence not be taken by audio visual link but rather from the witness box, a course in which His Honour acquiesced. There followed discussion and, we think, agreement that the Crown Prosecutor would not question her in respect of a number of matters referred to in her statement, and to which it is presently unnecessary to refer. 181 At about 2.30 pm on 22 February, Ms Russell was recalled to the stand. Her evidence, as recorded within the next two pages of the transcript can be briefly summarised. She said that she was the de-facto wife of the accused, Darren Wall. She acknowledged that she was aware that the Crown Prosecutor was going to ask her some questions concerning events leading up to and including 2 October 1998, and that as of that date she had been pregnant and had been admitted to the John Hunter Hospital. The subsequent questioning and answers included the following:- " Q. And were you discharged from the John Hunter just after lunch on 2 October 1998? A. I don't know the date, but yes. Q. … Do you recall … Darren coming and picking you up, I beg you pardon? A. Yes. Q. Did you go home from the hospital, did he drive you home? A. I can't remember. Q. Anyway you say that you don't remember where you went. Do you remember being taken somewhere and getting out of the car? A. Yeah, well, obviously I would have got out of the car. Q. And do you recall when you got out of the car some other people being there? A. No. Q. Don't remember that, right. Do you remember when you got out of the car, whether you heard a phone ringing. A. I don't wish to answer any more questions. Q. I will just ask you this though, do you remember the phone ringing? A. I don't wish to answer." 182 The jury then retired and the Crown Prosecutor made an application that "this witness be held to be adverse, and to that end that I be permitted to cross-examine." He indicated that the basis of the application was section 38(1)(b) of the Evidence Act 1995. During discussion, the Crown Prosecutor said that he would not be cross examining Ms Russell on any matters "not pertaining to her knowledge of 2 October 1998 and the later statement relating to her identification" (that is, of the appellant Parry). 183 Counsel for Mr Parry and Mr Yates agreed that the Crown was entitled to cross-examine Ms Russell in respect of where she had gone, who she had been with and what she had seen, but not in respect of other matters. Counsel for Mr Powick submitted that no order under s38 was appropriate at that stage of the proceedings. 184 His Honour granted the Crown leave to cross-examine on the whole of Ms Russell's statement of 16 September 1999. 185 The jury was then recalled. Ms Russell was shown a copy of her statement of 16 September 1999 and asked some questions concerning its contents. Over objection, she was asked whether she remembered the evidence which she had given at the committal proceedings to the effect that she had made the statement of 16 September, and signed it and had confirmed that the contents of it were true and correct. Her answers to that question and the following questions were: " A. Well, I must have answered wrong, and I don't want to answer any more questions. Charge me if you have to. Q. Maam, do you remember giving that answer to the Magistrate? A. No, I can't really remember. My baby is starting to get stressed out. Can you please – I am not answering no more. Charge me if you have to. I want to get off the stand." 186 A little later she reiterated, "I'm not answering nothing else". The jury again left the court. Ms Russell repeated that she would not answer any further questions. His Honour indicated that steps should be taken for her to be charged with contempt and that she should remain in custody until that time. 187 The Crown was not in a position to continue with other evidence and the trial was adjourned until 26 February. On 22 February, Ms Russell was in fact charged with contempt and remanded in custody until Monday 26 February. On that day she was again remanded in custody but his Honour's remarks, when dealing with an application by her for bail, indicate that she had made some expressions of contrition. His Honour repeated that her evidence would be taken in camera and urged her to take advantage of the audiovisual link. On 26 February evidence of other witnesses in the trial was taken. 188 On 27 February, the Crown Prosecutor announced that Ms Russell had indicated that she was prepared to give evidence and preferred it being done by a way of closed circuit television (CCTV). That latter course would seem to have come as something of a surprise to at least one of the counsel for the accused. His Honour indicated that, while he had indicated in the course of the contempt proceedings – one may infer in the absence of counsel for the accused in the trial - that he was prepared to adopt that course in order to minimise stress to Ms Russell, he would afford counsel an opportunity to debate the matter. This opportunity was availed of, but His Honour decided that in the interests of the health of Ms Russell and her unborn child, that the audiovisual link should be used. His Honour also directed that the court would be open and, following the witness' expressed willingness to give evidence, vacated his order under s38 of the Evidence Act. 189 The jury was then recalled and advised that Ms Russell's evidence would be taken by audiovisual link, and that the only purpose for that procedure arose from her advanced state of pregnancy (29th week), her medical history, her medical condition and a request from her medical advisors that, in the interests of her health and that of her unborn child, she should be allowed to give her evidence in the least possible stressful manner. Ms Russell was then re-sworn. After giving evidence, which occupied something over two pages of transcript, the jury again retired and the Crown Prosecutor indicated that he wished to have her recollection refreshed by the statement of 16 September 1999, and that he wished to make a further application under s 38 of the Evidence Act. After some debate, these applications were not pursued and evidence in front of the jury resumed. But not for long. Ms Russell said she could not remember a number of matters to which she had referred in her statement of 16 September, asserting that she had been under "heaps of drugs". She said, at one stage, that she could not recall looking into the boot of the car, and at another she said that she did not look in the boot. She said that she could not recall seeing anything apart from the baseball bat and the bag being put in the boot. When asked whether she remembered saying something about a gun in her statement of 16 September, she said that she did not wish to answer because the answer might incriminate her. 190 After some discussion, His Honour indicated that he would grant a certificate under s128 of the Evidence Act in respect of any truthful answers given by her in the proceedings concerning this aspect of the matter. The hearing then recommenced before the jury, at which point she then said that she had not in fact seen a gun at all. 191 When asked whether she had seen anybody get into the car, she said that she remembered "Boot" and Barry Yates doing so, as well as one other person whom she had not seen before. She said that she could not remember whether she knew that person by name or by nickname. The Crown Prosecutor said that he had another application to make and the jury again left the court. 192 Ms Russell was further questioned, in the jury's absence, and the Crown then made another application under s38, submitting that she had failed to make a genuine attempt to give evidence, and had made prior inconsistent statements. The responses of defence counsel varied. Counsel for Mr Parry limited himself to contending that the lies told by the witness needed to be identified. Counsel for Hyland submitted that s38 contemplated that it was only evidence that had been shown to be unfavourable which attracted leave to cross-examine and any leave should be so restricted. Counsel for Yates accepted that the witness was unfavourable and thus within the scope of s 38, but foreshadowed that the evidence of the witness could be of such little weight that it could not properly be left to the jury. Counsel for Messrs Powick and Wall accepted that Ms Russell did "fall within the scope of s38 at least insofar as the prior inconsistent statements are concerned" but submitted that his Honour "should exclude the totality of her evidence under s 137 [of the Evidence Act]. It was of little probative value because of her inconsistency and unreliability, and it can only result in unfair prejudice to the defence". No reference was made to other sections of the Act which might bear on the issue. 193 His Honour gave leave to cross-examine her, observing only that the factors necessary to attract s 38 had been demonstrated, and that "the witness has been established to be unfavourable. I also find that she is not making a genuine attempt to give evidence and that she has made inconsistent statements on a prior occasion". During the course of submissions which had been made earlier, his Honour had intimated that any leave to cross-examine would relate also to answers given before the Magistrate, as well as to the Crime Commission, on matters pertinent to the events of 2 October 1998 but not, at least at that stage, in respect of matters covered by the witness' statement of 11 October 1999 dealing with the question of identification. His Honour also did not refer to other sections of the Evidence Act. 194 The jury were again recalled and her evidence in chief continued. In significant measure it consisted of Ms Russell acknowledging that she had made the statement of 16 September 1999, of passages contained in that statement being put to her, and of her acknowledging that to have been the case but then asserting that she could not remember the event or events to which those passages referred. 195 However, Ms Russell gave other evidence to which reference should be made. She acknowledged that she had been called as a witness before the Crime Commission, and that it had been made clear to her that she should give evidence truthfully. When asked "did you try and tell the Commissioner the truth, or not?" she replied, "As far as I can remember, but I haven't got a good memory." She acknowledged that her statement of 16 September 1999 had been made well after the proceedings before the Crime Commission, that she had contacted the police and not vice versa, and that "in fact (she) phoned up Detective Sergeant Wrice and effectively had decided to tell the truth." She acknowledged that her statement of 4 October 1998 had been false, in that she had said that she and Mr Wall had gone camping on the Friday (2 October). She added that she had given that false account because she was hoping "to look after" Mr Wall. She acknowledged that, prior to the statement 16 September 1999, she and Mr Wall had experienced "a bit of a falling out" and that she had told him she was "sick of the whole thing and (was) going to tell the truth". 196 During the course of being questioned, in relation to paragraph 12 of her statement, she asserted that "I remember, Detective Wrice was the one that told me most stuff. He's put most stuff in this statement" and that Detective Wrice had told her the last name of "Dean". In two non-responsive answers she suggested that she was a "known liar" and a "liar". She asserted that she had a "short term memory loss" and could not even remember what she had done yesterday. Nevertheless she answered "yes" to the question: "I'm asking you, you were telling the police officer a version of events that at that stage when you were making the statement was true to the best of your ability ". 197 Taken to the passage in the statement where she had said she had seen "a big gun", which might have been a shotgun, and a little pistol, she responded "that's more lies". A little later she said that she had "just made up the pistol." 198 She said that she had made up a lot of things, but when asked about the passage to the effect that: "Detective Sergeant Wrice showed me his gun today and the one I saw in the boot of my car was similar. I am pretty sure it had that round bit in the middle and had a rounded handle the same. It was about the same size. " She acknowledged that " I told him that ." 199 Asked again whether she remembered giving evidence on oath in the Crime Commission, she said "not really, I was under Serepax", and a little later, "I can't remember being at the Crime Commission. I had bloody heaps of Serepax". 200 Asked whether she could "give any explanation as to why it is that all of this material in great detail is in this statement, signed by you as being the truth", she said "no". 201 A little later, Ms Russell said that she remembered getting a summons to go to the Crime Commission on 29 January 1999. She denied that, after receiving the summons, she had talked to friends about the matter. The transcript then records the following:- " CROWN PROSECUTOR: Q. Do you remember on 28 January going with Darren to your friend Carol's place at – well, your friend Carol's place, and Jason Yates lived there too? A. No. Q. You don't remember that? Well, do you remember that when you arrived there, that Barry Yates was there as well? A. I can't remember going there. Q. What I want to suggest to you, ma'am, is that at that time you said to those people, including Barry Yates, "I don't need this stress. I'm sick of it. I don't want nothing to do with it. I'm going to tell the whole story to the cops at the Crime Commission"? Do you remember saying that, or anything like that? A. I can't remember going there, so no, I can't remember saying nothing. Q. I'd suggest to you, ma'am, that during the course of that conversation, Mr Yates said, "You had better not, you'll be gone if you do. You don't want to do it." Do you remember that? A. No. Q. You are frightened about giving evidence here, aren't you ? OBJECTION (FITZGERALD). A. I can't remember going there at all. HIS HONOUR: Just a moment. QUESTION REJECTED. Q. Well, on 9 September, before you made the statement on the 19th, did you tell Darren Wall that you were going to tell the truth? A. I can't remember." 202 When Ms Russell was taken to the topic of her participation in the identification parade, her evidence included the following exchanges: " Q. And did you recognise one of the people in the line up? A. I didn't really recognise, but -- Q. I beg your pardon? A. I didn't really recognise no one. It was just everyone, like, more or less looked yucky, and there was one that had a flanno on --. Q. Sorry, had a what on? A. A flannelette shirt, and he looked like a bikie, like, so I chose him. Q. You chose one of the people in the line up? A. Yes. Q. And did you choose a particular person with a number? A. I just – I can't remember, but I chose one because, as I said, he looked like a bikie and all the rest looked like business people. Q. You were then asked did you recognise any of those men as being people that were present at the address at Belmont on 2 October 1998. That's true, isn't it; that was the reason you were there? A. Yes. Q. And you chose a particular person as being one of the men who was at Belmont North on that particular day, didn't you? A. But I – as I said, I only chose him because all the rest looked like business people. … Q. Was there anything about that person [picked in the line up] that you noticed particularly as being the same as something you noticed about the man on 2 October? A. I don't know. Q. Do you remember making particular reference to a tattoo on that man? A. I can't remember. Q. Do you remember making a statement on the same day about the events of the identification parade, the line up? Do you remember making a statement? A. Yes. Q. And in the statement do you remember also giving some other detail about the hairstyle of that person that you picked out? A. I can't remember nothing about the statement. I remember making a statement but I can't remember what's in the statement or nothing." 203 We would interpolate that we have seen the videotape of the identification parade, and are satisfied that the persons who participated in it looked nothing like businessmen. On the contrary, they represented an entirely fair selection of men of similar appearance, age, build and dress to Mr Parry. Nothing in his, or their appearance, or in the conduct of the parade, could have been construed as encouraging his selection. Moreover, Ms Russell appeared totally composed and was concentrating on the exercise which was undertaken. 204 The Crown Prosecutor then made a further application under section 38. Counsel for Mr Parry opposed leave being granted but no-one else accepted the invitation which his Honour extended to add to that objection. His Honour held: "In my opinion the Section 38 ground has been made out by the questions asked of the witness and I propose to allow the Crown to lead the evidence pursuant to the Section." 205 The jury returned and Ms Russell was taken to a copy of her statement of 11 October 1999 in relation to the identification parade. Again she acknowledged that her statement contained the various passages which were put to her, and re-asserted that number 7 was the only one with long hair that she could remember and that "all the rest looked like they were businessmen. They looked like they come out of a solicitor's office or something." This clearly was an answer which indicated that she was not making a genuine attempt to give evidence, as the men in the line up looked nothing like businessmen, or people who could be expected to be seen in a solicitor's office. 206 On the morning of 28 February, Mr Austin, Counsel for Mr Yates applied for a discharge of the jury. The ground of his application was the Crown Prosecutor's question set out above, "You are frightened about giving evidence here, aren't you?" 207 Counsel for most of the Accused joined in that application. In the course of the discussion which followed, His Honour remarked that the question should not have been asked and the Crown Prosecutor acknowledged what His Honour had said. Nevertheless His Honour declined the application, taking the view that any prejudice arising from it did not justify the discharge of the jury. He added that he thought that it was preferable not to again bring the matter to the attention of the jury by referring to it. 208 His Honour also declined an application made on behalf of the accused to reject the whole of Ms Russell's evidence pursuant to sections 135 and 137 of the Evidence Act. 209 Ms Russell was then cross-examined by counsel for all accused. At the outset she agreed with the assertion put to her, that "in respect of the matters before this Court, you are indeed a liar". She was taken at great length to individual elements of her alibi account and asked to agree that those statements were deliberate lies. Generally she did so. She agreed that she had mixed truth with lies so as to make the lies more believable. With the encouragement of counsel she repeated, several times, her earlier evidence of drug taking and poor memory and of taking medication on 2 October 1998. She added, at one stage, that she had an eyesight problem and could not even see properly. Glasses had been prescribed but she claimed she had not worn these since a pair which she had when she was a child were smashed. 210 She said that when she went to the police in September 1999 she was upset with Mr Wall, because he had engaged in sexual intercourse with her sister and she wanted to destroy him. She had been worried that she might suffer some penalty arising from having told lies to the police about her car being stolen, she had already been on a charge, and she had been told that the police would wipe that charge completely if she made a statement. She had mentioned Mr Yates because she knew that he had been charged, knew that his fingerprints would be on the car because he had been in it frequently, and because she had been trying to tell the police what they wanted to hear. She had included the reference to Hyland in her statement because she knew that the police had arrested him. 211 She asserted that she had seen no weapon on the day of her release from hospital, and that the only firearm she had ever seen in real life was the one which Detective Wrice had shown her. She said that she could not remember anyone walking past her on the evening of 2 October, she had not seen any face and that she had not seen "him" [Parry] getting into the car. She agreed that it was partially dark at the time. She could not be sure that she had heard the word "Blood" mentioned. It could have been "Doug". Indeed there was one answer the effect of which was that she could not even be sure whether the words used were those in her statement of 16 September, "See you, Blood". However, she did say that she had some memory of going with Mr Wall for a drive after she left hospital, and that after that, their car had been taken from them or borrowed. 212 She agreed that, at the identification parade, she had picked someone out. However, she said that this had occurred only because she had felt that she had been obliged to do so and that the person whom she had picked was the only one that had looked like a bikie. She had included the reference to a tattoo in her statement only because it had sounded better. 213 Later in the trial, Detective Wrice was recalled. He asserted that the information in Ms Russell's statement of 16 September came from her. He added that it was she who had first raised the topic of the pistol, although he had initiated that part of the discussion which related to the pistol's size and shape. There was no challenge to this evidence. 214 The grounds of appeal concerning the evidence of Ms Russell were not all in identical terms or comprehensive. However the following, taken largely from the grounds of appeal filed on behalf of Mr Powick, sufficiently summarises the complaints. The learned trial judge erred in: (i) granting leave for the evidence of Ms Russell to be given by remote video link; (ii) granting leave to the Crown Prosecutor to cross-examine Ms Russell; (iii) not rejecting her evidence in the exercise of his discretion pursuant to s135 and/or s137 Evidence Act 1995; (iv) admitting into evidence the asserted identification of Mr Parry by Ms Russell which had a prejudicial effect upon other appellants; (v) failing to discharge the jury after the Crown prosecutor put to Ms Russell that she was afraid of the accused as the reason why she was not willing to give truthful evidence, there being no factual basis for " this assertion "; (vi) failing to discharge the jury as a result of her evidence; (vii) failing to adequately and/or properly warn the jury as to the potential unreliability of the evidence of Ms Russell pursuant to s165 of the Evidence Act 1995; and in (viii) failing to adequately and/or properly direct the jury in regard to the lies admitted by her in evidence. 215 Although some of these complaints overlap and some tend to reinforce or provide a basis for others, it is convenient so far as possible to deal with them individually. Ground (i) His Honour erred in granting leave for the evidence of Renee Russell to be given by remote video link. 216 There was no suggestion that his Honour did not have the power to permit Ms Russell's evidence to be given by way of video link. Section 5B of the Evidence (Audio and Visual Links) Act 1998 authorises that course, where the party making the application satisfies the court that, it is in the interests of the administration of justice, that evidence be given in that manner. As has been indicated, his Honour was so satisfied. The submissions to this court were that the course followed: (a) imposed disadvantages in cross-examination; (b) meant that the appearance and demeanour of the witness was not readily ascertainable; (c) was an extraordinary one to take in a murder trial; and (d) might have caused the jury to imagine sinister reasons for its adoption. 217 Additionally, it was submitted that there was no indication that his Honour had paid regard to the matters set forth in s192 of the Evidence Act, before deciding to allow the Crown to present her evidence by way of video link. 218 We have no difficulty in accepting that the giving of evidence by video-link may well impose disadvantages in cross-examination. No great experience in the courts is necessary to know that many witnesses are untruthful. And while undoubtedly some witnesses may be somewhat overawed by the solemnity and public nature of court proceedings, and perhaps by the presence and manner of those participating in the proceedings, those features at times can also have a salutary effect on the witness and contribute to a better appreciation of his or her demeanour, reliability and credibility. When video screens are used, particularly where, as occurred here, they are not large, are seen from a distance and show only the face, torso and perhaps the hands of a witness, there is undoubtedly a risk that the testing and assessment of an unreliable or untruthful witness is made more difficult. On the other hand, as the High Court has recently observed in State Rail Authority of New South Wales v Earthline Constructions Pty Limited (1999) 160 ALR 588, there is a need to keep the appearance and demeanour of a witness in perspective, and to weigh that aspect in the light of the other more objective considerations. This follows, in particular, from the many studies which tend to question the reliability of any attempt to judge credibility from appearance alone. 219 Enough has been said to indicate that Ms Russell fell into the category of a witness whose evidence required the closest scrutiny, in an endeavour to ascertain what, if anything, of her accounts could be relied upon. Those remarks would apply whatever the charge but they have added weight when the charge, and the consequences of conviction, are as grave as in the case of murder. 220 But there were also other considerations. The administration of justice does have an interest in looking after those who are required to give evidence. The interests of justice and of those who come within its purview are not necessarily well served by a witness who is so concerned with her health, and that of her unborn child, that she is distracted from properly addressing the factual issues about which she can give evidence. There can be no doubt that being required to give evidence must have been very stressful for Ms Russell. Her de-facto husband and father of her children was one of the accused, and at least some of the other accused were persons with whom he had been friendly. By giving evidence she was, and was seen to be, helping the police or the authorities – a course of action upon which, regrettably, some members of society, including those who use and deal in drugs as she or Mr Wall seem to have done, frown. Additionally, by being in the court room, she would be facing and perhaps being stared at by not just one, but five accused, as well as by such of their friends and family members who chose to be present as observers of the proceedings. 221 We can accept also that the jury might have imagined sinister reasons for the course being followed. All things are possible. But decisions are not vitiated and appeals allowed on that basis. Absent persuasive reasons to the contrary, jury trials proceed upon the assumption that juries will follow any directions given and will accept what judges tell them. His Honour told the jury, in a little detail, that Ms Russell's evidence was being given via video link for health reasons. There was no reason for the jury to disbelieve his Honour, and the possibility that they might have imagined some other reason provides no ground for criticising the decision which his Honour made. 222 The claim that there is no indication that his Honour had regard to s192 of the Evidence Act is correct. There was however no obligation for him to do so. S 192 of that Act is concerned with leave, permission or directions given "because of this Act". The direction for the giving of evidence by video link was given under a different Act. 223 The decision by Ireland AJ that Ms Russell's evidence should be by video link was one made by him in the exercise of a judicial discretion. We remain unpersuaded that there was any error in or about that decision. Grounds (ii) and (iii) His Honour erred in: (ii) granting leave to the Crown Prosecutor to cross-examine Ms Russell; (iii) not rejecting the evidence in the exercise of his discretion pursuant to s135 and/or s137 Evidence Act 1995. 224 So far as is presently relevant, s38 of the Evidence Act provides:- " (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party; or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party." 225 Section 38 has been the subject of consideration in a number of recent cases including R v Fowler [2000] NSWCCA 142, R v Hogan [2001] NSWCCA 292 and Adam v The Queen (2001) 207 CLR 96. In light of those decisions, particularly Adam, we do not regard it as necessary to embark upon a detailed consideration of the interrelationship of s 38 and various other sections of the Evidence Act. 226 However it is necessary to deal with a number of the submissions which were made in support of the grounds presently under consideration. Reliance was placed on remarks of Wood CJ at CL in R v Fowler at para 120 to the effect that the grant of leave under s 38 is "[s]ubject to a number of discretionary considerations so as to prevent its abuse, and it is a section that needs to be applied with some care in criminal trials. So it is that before leave is granted, the trial Judge must give consideration to the matters in ss. 38(6), 135 - 137 and 192 of the Act". It was submitted that consideration had not been given to those provisions before leave was granted. 227 It was furthermore contended that the exercise of the discretion involved a scrutiny of the probative value of the evidence, and that this in turn involved an assessment of its reliability. It was submitted that neither of these tasks had been undertaken by his Honour and even if they had been, Ms Russell was a witness whose evidence was so "fundamentally (or inherently) unreliable" that leave to cross-examine her should not have been given. 228 It was also submitted that his Honour erred in not setting any boundaries regarding the Crown's cross examination of Ms Russell, and that the Crown did not confine itself during cross-examination to matters arising directly from her evidence. 229 The terms of s 38 (6) appear above. Sections 135 to 137 and 192 provide: " 135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 136 The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing. 137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 192 (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 proceedings; 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." 230 It is the case that his Honour referred to none of these provisions. This is not altogether surprising since, apart from Mr Cruikshank who asked that the evidence be excluded under s 137, none of the five counsel in the case referred to these provisions when making submissions on the Crown's application for s 38 leave. Be that as it may, if the proper inference is that his Honour did not advert to the matters which he was obliged to consider, and they were of relevance to the case, then the exercise of his discretion miscarried. The High Court so held in Stanoevski v The Queen (2002) 202 CLR 115. In that case the trial judge had granted leave under s 112 to cross-examine an accused person about her character, without adverting to s 192. Because the circumstances of that case raised aspects of the section which were relevant to the exercise of the judge's discretion, it was held that the appellant had not received a trial according to law and, it not having been demonstrated that no substantial miscarriage of justice had occurred, the appeal was allowed. Stanoevski v The Queen was followed in Hogan, where it was held that s 192 applied to grants of leave to cross-examine pursuant to s 38 of the Evidence Act. 231 It is not to be necessarily assumed that, because a trial juge makes no mention of a particular consideration, that it was not taken into account. On occasions, that will be the appropriate inference, but it is not necessarily so. That said, we are of the opinion that the failure of his Honour and counsel to mention s 192, or any of the considerations referred to in it, means that the inference should be drawn in relation to that section. Thus error in the manner of exercise of his Honour's discretion is made out. However, that is not the end of the matter for, if the matters his Honour failed to consider could have made no difference to his decision, then the error was of no consequence: see R v Ian Van Le [2002] NSWCCA 186. To a consideration of those matters we now turn. 232 At the outset, the trial was estimated to take 10 weeks or so. That, it did. Against a trial length of that extent, it could not be thought that cross-examination of Ms Russell, and any consequent increase in its length, by reason of that fact, would, within the terms of s 192(2)(a) "add unduly to" the length of the hearing. Insofar as cross-examination might shorten the hearing, though probably unlikely, that fact argued for permitting the cross-examination. 233 So far as s192(2)(b) is concerned, we see no unfairness to Ms Russell in being cross-examined by the Crown Prosecutor. After all, it was she who had made the statements, and given the evidence from which she sought to resile or in respect of which she asserted – to an extent which could only be regarded as deliberately false – that she could not remember. Her medical practitioner did not suggest that her health was such that she should not give evidence and she was allowed to do so via video link. 234 Nor do we see any unfairness arising from the circumstance that one of the accused was her de-facto husband. In dealing with an application by Ms Russell, under s 18 of the Evidence Act, which permits a de facto partner to object to giving evidence against the other partner, Ireland AJ had excluded from the areas in which the Crown could ask questions of Ms Russell, evidence which bore directly on the charges against Mr Wall. The only evidence which the Crown was permitted to adduce from her bearing on Mr Wall fell into the areas of his knowledge of, or friendship with some of the other accused, their taking of his car, and their placement of weapons into that vehicle. The charges against him related, however, to actions which he had committed on days following the home invasion and the killing which was charged against the principal offenders. Insofar as her evidence might have tended to incriminate Mr Wall, it could only have done so in a very indirect way. 235 Nor do we see any unfairness arising from factors common to all of the accused. The usual practice of requiring contentious evidence in chief to be adduced by non-leading questions arises from the concern that the use of leading questions – questions suggestive of the answer desired – will result in answers according with the suggestion, not because of a real recollection, but in consequence of dishonesty, complaisance or indolence – see Wigmore on Evidence, para 769, and notes thereto. Here the witness was so obviously unfavourable to the Crown that the dangers which provide the rationale for the rule, for all practical purposes, did not exist. Indeed, given Ms Russell's obvious attitude, the course permitted by his Honour gave the jury by far the best chance of assessing her credibility. It is difficult to see unfairness in that. 236 At the trial the Crown described Ms Russell's evidence as "vital". None of the counsel at trial disagreed with that characterisation. Nor did any counsel in the appeal. Although this description may, in relation to some aspects of her evidence, have overstated the position, her evidence concerning the reference to "Blood" certainly was essential to the Crown case against Parry and all of her evidence was important. The consideration described in s192(2)(c) therefore argued very strongly for the grant of leave to cross-examine. So did the consideration referred to in s192(2)(d), the nature of the proceeding, it being a trial of the accused for the serious offence of murder. 237 Indeed the weight of these last two factors is such that, even had we taken the view that there was a limited degree of unfairness to the appellants or to Mr Wall alone, arising from the grant of leave under s38, it would have been heavily outweighed by the factors referred to in the immediately preceding paragraph. 238 Ireland AJ had no relevant and useful power available to him of the type referred to in s 192(2)(e). 239 Accordingly, being satisfied that the trial Judge could not reasonably have refused to grant the Crown Prosecutor's application under s 38, even if all the relevant provisions had been taken into account, we are satisfied that the failure to advert to Section 192 did not invalidate the exercise of the relevant discretion. 240 The same conclusion follows in respect of s38(6) which specifies some further matters which the Evidence Act required his Honour to take into account. In the circumstances of the case, they could not conceivably have argued against the grant of leave. 241 We turn then to sections 135 to 137. All three require a consideration of the "probative value" of the evidence. It is convenient accordingly to address this issue, and the appellants' claim that Ms Russell's evidence was "fundamentally (or inherently) unreliable", together. 242 Undoubtedly the inconsistencies and untruthfulness in Ms Russell's evidence meant that, at the very least, her evidence required careful and close scrutiny. However there was an obvious logic in the three main stances which she had adopted during the period which they had spanned. Her first account – the alibi – was clearly calculated to distance Mr Wall from the murder which had occurred, and this was so whether the alibi was true or false. 243 Her second, of seeing persons whom she identified as having taken off in the car, and as having placed one or more weapons or other objects into its boot, was explicable on the basis which she had suggested, namely, of being sick of telling lies. The further aspect of this second stance, her repudiation of the alibi story was explicable on a similar basis. There was no other basis suggested for her account to the Crime Commission in February 1999. Her confirmation of this second stance, in her statement of 16 September, and in her evidence at the committal proceedings, is explicable on the basis of the break-up of her relationship with Mr Wall. 244 Her third stance at the trial, an important aspect of which was her assertion of a failure of memory, is itself explicable on the basis that, reunited with Mr Wall, she did not wish to further the Crown case against him or his co-accused. Concern about her unborn child would seem also to have been a factor. 245 Of course, there may have been other factors operating as well including, possibly, fear, although there was no evidence of that. It was not a case where one could conclude that the witness was just irrational, or was saying the first thing that entered her head, or that she was a person who did not or could not have known the truth. The probative value of her evidence and her earlier statements depended very much upon an assessment of what she said, her possible motives for saying it, the circumstances in which any particular aspect of it was said, and an assessment of her demeanour. 246 In any assessment of her evidence it was, and is, relevant also to see to what extent her account accords with other evidence. It seems common ground that at an early stage, when she first offered an alibi, she had known something about the use of the motor vehicle. It was in fact followed from the scene of the offence. In her evidence before the Crime Commission, she said that four persons got into the car, with Mr Powick taking on the role of driver. There was independent evidence that four men had arrived in that vehicle at the scene of the killing, and had left in it after the incident, with Powick driving on both occasions. She nominated one of the persons who had driven off in the car as Barry Yates. There was evidence that he was seen in the vicinity of the car after it had been driven away from the scene of the killing and had then stopped. 247 She nominated the others as Dean, "Boot" and "Blood". There was evidence that Dean Hyland's mobile phone was found in the vehicle after the killing and DNA evidence to show that blood of his profile was found in the car and at the scene. There was DNA evidence linking Mr Yates to a balaclava in the vehicle. There was DNA evidence linking Mr Parry to a glove, part of which was found at the scene and part of which was found in the car, as well as to a balaclava in the car. 248 She agreed in evidence that, in her statement of 16 September 1999, she had said that she had seen a black bag, a white bucket, a gun some 80 to 90 centimetres long (possibly a shotgun), a pistol and a baseball bat in the boot. A shotgun, albeit only about 45-50 centimetres long, a pistol and a baseball bat were used in the offences, and a black bag, a pistol holster and a white bucket were seen in the boot of the car afterwards. Two baseball bats were also found inside the vehicle along with two balaclavas. 249 Although as we have said, Ms Russell's evidence required careful and close scrutiny, the matters to which we have referred demonstrate that, despite the fact that she had clearly been untruthful in much of her evidence, there were also grounds for accepting much of what she had said, and in particular, what may be referred to as her second stance. If that were accepted, then so could her evidence of the pre-trial identification of Parry. 250 The matters to which we have referred demonstrate that the description of Ms Russell's evidence as "fundamentally (or inherently) unreliable" is calculated to conceal the true situation. A deal of what Ms Russell had said in that part of her statement of 16 September, as was referred to in evidence, was demonstrably true. Other parts of it were significantly corroborated. The fact that she had been untruthful in some areas did not provide a reason for characterising all of her evidence in the way counsel for the appellants sought to do. 251 This conclusion, that there were grounds for accepting much of what Ms Russell had said, is fatal to the appellants' arguments based on the "danger of unfair prejudice" element in sections 135 to 137. Those sections invite a comparison of the probative value of the evidence with, inter alia, any unfair prejudice (or the danger of such prejudice) arising in consequence thereof. "Probative value" is defined in the Dictionary to the Evidence Act to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". If what Ms Russell said in her second stance was accepted, those statements could rationally affect such an assessment and, although it was very much a matter of judgment whether this should occur, there was a clear basis for its acceptance. 252 On the other side of the comparison is "unfair prejudice", or the danger thereof arising from the evidence. All evidence incriminatory of an accused which has a probative value, necessarily causes prejudice, but this is not the prejudice of which sections 135 to 137 (or for that matter s 192) speak. Prejudice argues for exclusion only if there is a real risk of danger of it being unfair: R v Lisoff [1999] NSWCCA 364. This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight. However, insofar as any prejudice flows from the legitimate use of evidence it provides no ground for the exercise of the duty or discretion arising under sections 135-137. 253 As we understand it, the principal argument for the appellants in this area was as follows: (a) Ms Russell's evidence was " fundamentally or (inherently) unreliable ". (b) The extent to which that evidence could rationally affect the assessment of the probability of a fact in issue was therefore slight, if not non-existent. (c) The jury might nevertheless accept that evidence and give more than slight or no weight to it. (d) For that to occur would amount to prejudice which was unfair. (e) Therefore there was a danger of unfair prejudice. 254 One may immediately put aside evidence which is of no weight whatsoever. If evidence has no probative value, it is irrelevant and should be excluded on that ground. Sections 135 to 137 are directed to evidence which is otherwise admissible. 255 In so far as the argument relates to evidence of slight weight it also fails. Whether evidence should be accepted, and what weight should be given to it, are ultimately matters for the decision of the tribunal of fact, which, in the trial before Ireland AJ, was the jury. It is not unfair, nor does it create a danger of unfair prejudice to leave those decisions to them, subject to suitable cautions or warnings where relevant. A fortiori is this so when regard is had to the fact that, all of the considerations which are said to demonstrate that the evidence should not be relied on can be, and no doubt were, advanced to the jury in argument. 256 This conclusion accords with that in R v Carusi (1997) 92 A Crim R 52 at 65–66 and R v Singh-Bal (1997) 92 A Crim R 397 at 403 where this Court held that an assessment of probative value "does not permit the judge… to determine whether the jury should or should not accept the evidence," and that it can be excluded "only where, taken at its highest, its probative value is outweighed by its prejudicial effect". The approach which we have adopted makes it unnecessary to consider whether there should be any qualification to what was said in those cases, arising from the remarks of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at para 86, to the effect that an assessment of probative value in the course of the exercise of powers under s135 and 137, would necessarily involve considerations of reliability. 257 No reliance was placed on any of the other grounds set forth in ss 135 and 137 for the exclusion of evidence. Clearly none have any relevant application. 258 On the topic of ss 135-137, one further thing remains to be said. We have dealt with the argument based on those sections as if Ireland AJ had given no consideration to the issues which they raised. His Honour did not mention them, when giving leave under s 38 but, in light of what the transcript does record, the proper inference is that he did consider the issues of probative value and the danger of unfair prejudice. Less than half a page of transcript separates Mr Cruikshank's submission that Ms Russell's evidence should be excluded under s 137, and his Honour's final ruling on the Crown's application under s 38 to cross-examine her. Although it would clearly have been preferable had his Honour made express reference to s 137, or to the concepts to which the section refers, it is impossible to think that his Honour's decision did not involve implicitly a conscious rejection of the submission last made. 259 It follows from what we have said that the challenge to his Honour's refusal of the application, based on ss 135 and 137 to withdraw Ms Russell's evidence from the jury, fails. 260 Although it is doubtful whether this fell properly within the grounds of appeal, it was also submitted that error arose so far as " his Honour declined to set any boundaries regarding the Crown's cross examination of Ms Russell and the Crown did not confine itself during cross-examination to matters arising directly from her evidence. The Crown's approach to the cross-examination of Ms Russell constituted an exhaustive attack on her credit. " 261 Reliance was placed, in this regard, upon a passage in the judgment of Giles JA in R v Hogan [2001] NSWCCA 292 at para 3 that: " …. [t]he exercise of discretion [to allow cross-examination under s38] also miscarried, in my view, for the associated (perhaps consequential) failure to give attention to what [the witness] should be permitted to be questioned about… In a critical respect the appellant's trial was therefore contrary to law." 262 Counsel who was responsible for this submission did not provide any support for it through reference to any aspect of the Crown's cross-examination which went beyond any proper limits. Consideration of the Crown's cross-examination shows that there is no basis for this criticism. This ground fails. Ground (iv) His Honour erred in admitting into evidence the asserted identification of Mr Parry by Renee Russell, which had a prejudicial effect upon other appellants; 263 We have set out above so much of Ms Russell's statement, of 16 September 1999, as deals with her observation of "Blood" on 2 October 1998. We have also summarised her statement of 11 October dealing with her identification of "Blood" as Parry. In evidence she acknowledged her statements contained in those passages. We have also summarised her evidence in Court denying validity to that identification, and indeed to any significant sighting of "Blood". 264 There was admitted into evidence as Exhibit CE, a video tape of the identification parade, which showed both the persons who lined up with Mr Parry, and Ms Russell's selection of him. The tape was played during the hearing of the appeal, and as previously mentioned, it gave the lie to Ms Russell's evidence, that whereas Mr Parry looked like a bikie, all of the other participants looked like businessmen or as if they had all come from solicitors' offices. All participants were sufficiently similar in their appearance to cast no doubt whatsoever on the validity of the identification parade, which appears to have been conducted with conspicuous fairness. Moreover, Ms Russell's actions as depicted on the tape, give the appearance of a genuine attempt at identification, rather than one involving the solemn farce in which she suggested she had indulged. 265 It should be mentioned also that, when Mr Parry gave evidence in the appeal, there was clearly visible on the side of his neck above his collar line, part of a large and distinctive tattoo. That tattoo is also clearly visible in the video of the identification parade which showed each participant facing the observer (Ms Russell), presenting his profile on each side as well as his back. 266 One of the matters relied on was that the evidence of Ms Russell's identification of Mr Parry on 11 October 1999, was hearsay. That is correct. It was so held in R v Barbaro & Rovere (2000) 112 A Crim R 551 and see also R v Gee [2000] NSWCCA 198. However it does not necessarily follow that the evidence was inadmissible. Evidence of that identification was given by Ms Russell during her cross-examination by the Crown, by way of her acknowledgment of what had been contained in her statement of 11 October. It was admissible because of its inconsistency with the evidence which she had given earlier in the trial to the effect that on 11 October "I didn't really recognise no one". In accordance with the decision in Adam, once leave has been given under s 38, the evidence of prior inconsistent statements was evidence of the truth of the matter therein contained: R v Coe [2002] NSWCCA 385. 267 The tape recording of the identification parade was admissible to rebut Ms Russell's evidence that she chose that particular person because he looked like a bikie, and that all the rest looked like business people, or persons who had come out of a solicitor's office. The questioning of her as to that part of her statement, wherein she had referred to seeing a tattoo on Mr Parry's neck during the identification parade, and had also seen one on Blood's neck on 2 October 1998, was justified on a similar basis. 268 Otherwise, the arguments in support of this ground largely followed those which we have considered above. In summary, it was submitted that because Ms Russell had, in the witness box, disavowed the identification of Mr Parry, the judge should not have allowed evidence of her out-of-court identification to be given. For the reasons we have given, we are not persuaded that his Honour erred in the course which he permitted the Crown to adopt. Ground (v) His Honour erred in failing to discharge the jury after the Crown prosecutor put to Ms Russell, that she was afraid of the accused, as a reason why she was not willing to give truthful evidence, in the absence of any basis for " this assertion ". 269 There is no force in this submission. First, at the time when the matter arose the Crown Prosecutor was engaged in cross-examination of the witness. His phraseology in the passage objected to, left much to be desired but there can be no doubt that, in context, the words objected to would have been understood by the jury as involving a question rather than a statement of fact. 270 Secondly, it has not been shown to our satisfaction that the question lacked a proper basis. In her evidence to the New South Wales Crime Commission, Ms Russell had asserted that Mr Yates had "warned us not to say anything to anyone"; and that he had also said "don't say nothing to no one at all, otherwise like, (I think he said that he had been threatened that) if anything got out, he was in trouble as well". In her statement of 16 September, she had attributed to Mr Yates the words, which were reproduced in the prosecutor's question, immediately preceding the question to which objection was taken, "You had better not, you'll be gone if you do. You don't want to do it" and asserted that they had been said immediately after she had threatened to tell the whole story to the Crime Commission. 271 Common experience would suggest that the witness's change of story between her 1999 evidence and statements on the one hand, and her evidence before Ireland AJ on the other hand could well have been, at least in part, a response to fear which had been engendered by those, or other, threats. For all that the transcript reveals fear may also have been a reasonable inference to draw from her evidence and demeanour in court. Contrary to one submission which was put to the Court, the Crown Prosecutor did not need specific instructions that the witness was frightened before asking the question. 272 However as the question went to Ms Russell's credibility, it was one which, given the terms of s 38(3) of the Evidence Act, required leave. None had been sought or given. In those circumstances, as the Crown Prosecutor in due course conceded, the question should not have been asked. In those circumstances, it was imprudent of the Crown Prosecutor to have done so. 273 However, it does not follow that the jury should have been discharged. It was an isolated question amid pages of questioning, of which the vast majority comprised cross-examination by counsel for the appellants. Moreover, it was not answered by the witness, and was almost immediately rejected by his Honour. A consideration of the transcript shows that Ms Russell's evidence took well under two days, albeit spread over four days, to give. Until the question was asked, the trial had taken something over three weeks and obviously had a long way to go. It was not a matter to which reference was made at any later stage of the trial, and the fact that his Honour intervened quickly meant that there is every reason to assume that, as an unanswered question, it disappeared into the background. 274 It was submitted that the question, and the fact that Ms Russell's evidence was given by video link might together have created in the jury's minds the thought that Ms Russell was in fear of the accused, thereby leading to prejudice against them. 275 Given the nature of the events canvassed in the trial, and Ms Russell's evidence, it would not have needed the Crown Prosecutor's question to engender in the jury's mind the possibility that Ms Russell was in fear. It seems to us inevitable that any consideration of her evidence would have necessarily involved a consideration of her possible motives for the various accounts which she had given. 276 However it does not follow that the jury would have been prejudiced against the appellants or used that prejudice, rather than the evidence in the case, to their disadvantage. Trials have to be conducted in a variety of circumstances, often raising issues on the fringe of, or extraneous to, the issue of guilt. Thus in the instant case, Ireland AJ warned the jury against being influenced by their views on the use, abuse or sale of prohibited drugs. His Honour instructed them to decide the case on the evidence. We do not see in the offending question, even against the background of the use of the video link, a significance of such a degree that Ireland AJ should have discharged the jury. His Honour's decision not to discharge the jury involved a discretionary exercise of judgment, which we are not persuaded miscarried. This ground fails. Ground (vi) His Honour erred in failing to discharge the jury as a result of Ms Russell's evidence. 277 There was nothing additional put forward in support of this ground. It fails. Grounds (vii) and (viii) His Honour erred in failing to adequately and/or properly warn the jury as to the potential unreliability of the evidence of Ms Russell pursuant to s165 of the Evidence Act 1995; His Honour erred in failing to adequately and/or properly direct the jury in regard to the lies admitted by Ms Russell in evidence; 278 Section 165(1) applies to evidence of a kind that may be unreliable, including identification evidence, and evidence given in criminal proceedings by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. It is not confined to the specific matters identified in ss (1) – see R v Clark [2001] NSWCCA 494 and see also R v Rose [2002] NSWCCA 455. Sub-section (2) provides that if there is a jury and a party so requests, unless there are good reasons for not doing so, a trial judge is to: "(a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it." 279 Requests were made that his Honour give warnings to the jury in respect of the reliability of Ms Russell generally, and on the topic of identification. 280 In his summing up, Ireland AJ gave a warning in more or less conventional terms concerning identification evidence. It complied with paragraphs (a) and (c) of s 165(1), and no complaint is made about it so far as those paragraphs are concerned. His Honour said that there were a number of matters relevant to the reliability of the identification, to which he proposed to draw attention, and he instructed the jury that they were obliged to consider them. He then dealt with matters concerning the accused, other than Mr Parry, before observing: " Renee Russell gave evidence of not having known the accused Parry prior to seeing him at Paul Webb's place on 2 October 1998 when he said, "Hello" to her, and when she heard him referred to as "Blood", prior to him entering the car with the other three men whom she did know. She was angry at that time at the car being taken by the four occupants, and she had been discharged from hospital earlier that day and had used marijuana that day. Her lack of familiarity with Parry is a factor also in her identification of him in the "line-up" identification on 11 October 1999. In cross-examination she agreed with the proposition put to her by counsel that she did not see his face – however, you may think that is inconsistent with her evidence given in her statement made in September 1999 (p886 line 5) that on that occasion he smiled at her when he said, "Hello". That of course is a matter for you. Subject to the further directions which I shall give you concerning the evidence of Renee Russell, those are some of the matters which you are bound to consider when deciding whether you accept the identification evidence in this case. I give you this further direction however, that you are to consider the whole of the evidence in the case in this regard." 281 Shortly thereafter His Honour continued: "The evidence of Renee Russell warrants a further warning. You will have observed the manner in which she gave her evidence, and the stress which she appeared to be under when answering questions asked of her, particularly by the Crown Prosecutor. Once again, the need for a warning arises from the experience of the Courts that certain circumstances may cause the evidence of a witness to be unreliable. Several relevant circumstances apply in the case of Ms Russell. She gave evidence of having been discharged from John Hunter Hospital on 2 October 1998, having, I believe, discharged herself. She said that she was on prescription medication in the nature of pain killing drugs administered in hospital, and had used cannabis, which was her custom, that day. Ill health is recognised as a factor which may bear on the unreliability of a witness' evidence. When Ms Russell made her false alibi statement at Charlestown Police Station on 4 October 1998, she was involved, in one sense, as an accomplice of Darren Wall, there being no issue in this trial that on that occasion Mr Wall made a false statement concerning the car being stolen, and about going to Gloucester on the Friday rather than the Saturday. Involvement by a witness in criminal activity which is associated with the alleged criminal activity in question may also play a part in making a witness' evidence unreliable. In making her volunteered statement to Chief Inspector Wrice on 16 September 1999, having contacted him by telephone, in which she gave a version of events associated with the Gloucester trip which is supported now by the evidence of many witnesses, Ms Russell was, you may think, bent on revenge for Mr Wall's infidelity, and whilst this does not mean that she was not telling the truth on that occasion, it establishes at least that on the prior occasion she had been prepared to make a false statement. Finally, you will perhaps have recognised that the Crown Prosecutor who called Ms Russell in the Crown case against the accused, other than her de facto husband Darren Wall, was permitted to ask her questions in a leading form, that is to say, in a form in which the question suggests the answer and permits of a response "yes" or "no". In certain circumstances, the law permits this course to be followed as was the situation with Ms Russell and her evidence. A consequence of that course being followed, and of the matters which I have referred to, is that a warning in the strongest terms must be given to you that you must scrutinise with great care her evidence before placing reliance on it, and where her evidence relates to an element of an alleged crime, or the question of guilt itself, that you would not rely on it unless supported by other evidence from another source. This warning may be given in every case in which the circumstances to which I have referred are present. The warning is not intended to reflect any view I may have formed concerning the evidence of Ms Russell because what you make of her evidence, how much you find to be fact and how much fiction, is a matter for you as members of the jury and for you alone to determine. My function in this regard is no more than to warn you that her evidence may be unreliable and as to why that may be so. Having approached the evidence of Ms Russell in that way, and exercising the constraints I have directed you upon, you may then, if you wish, rely on so much of her evidence as you consider to be reliable." 282 Later, while dealing seriatim with the case, and with the arguments advanced on behalf of each of the appellants, his Honour's remarks included the following observations: (intervening paragraphs not relevant to the present point have been omitted):- " (a) Mr Cruickshank (Counsel for Mr Powick)… drew your attention to Renee Russell's evidence of seeing a shotgun that was 90 cm long, whereas the weapon located was about 50 cm long, and that in this regard Ms Russell was lying and that she was a self confessed liar. (b) Mr Austin (Counsel for Mr Yates) raised in front of you, members of the jury, the conundrum of how do you know the person who says "I am a liar" is telling the truth or simply telling another lie. This was, of course, in relation to the evidence of Renee Russell. I will not ask you to solve that problem, members of the jury, it seems that Mr Austin with respect to Renee Russell's evidence suggests you would be minded to reject it. Mr Austin took you through the parts of his cross examination of Ms Russell which he relied upon in support of his contention in this regard. (c) There is one further aspect. I gave you a warning about the evidence of Ms Russell, as to the care that you should scrutinize that evidence with.. Mr Warwick (Counsel for Mr Parry) related to you the events that occurred as recounted in the evidence of Renee Russell. Members of the jury, you know them so well I will not take you through them again. There is no doubt that Ms Russell declared herself to be a liar, and that she agreed with the propositions put to her by way of leading questions in cross examination by Counsel for each of the accused. Mr Warwick reviewed with you comprehensively almost all of the evidence given by Ms Russell and submitted to you, not surprisingly, that in the relatively short period of time Ms Russell had in the poor light prevailing at about 6.30 pm on 2 October 1998, and with her statement that she was supposed to wear glasses and had been on pain killing prescription drugs, and when you are upset, that you may indeed make a mistake as to identification. He submitted to you further that to make an identification in a line up some twelve months later, as was done by Ms Russell, might also be subject to error. Mr Warwick referred you to the evidence of Ms Russell in which she said that she picked out Mr Parry – that is in the line up – because to her mind he was the only one who looked like a bikie, and that she saw a tattoo on his neck. She had not said this before 11 October 1999, although her evidence was, members of the jury you might recall, that seeing Mr Parry sparked her recollection in that regard. However, Mr Warwick reminds you of Ms Russell's evidence that she thought it would look better putting a tattoo in. You will of course, members of the jury, have made up your own minds about the evidence regarding the line up and the video that you have now seen on two occasions and may if you wish see again. So members of the jury, whilst suggesting to you that Renee Russell is a witness of no credibility, Mr Warwick, in common with other defence counsel in the case, from time to time seeks to rely upon what she said in support of the defence case. There is nothing wrong with that of course, but it remains the situation that it is your assessment of her evidence which is of ultimate importance. (d) Mr Fitzgerald (Counsel for Mr Hyland) referred you to the evidence of Renee Russell emphasising to you those aspects of her evidence that she submits would persuade you of her untruthfulness and her unreliability. You were referred to the mixing of truth with lies as being a device used to assist in remembering the lie, a proposition with which Ms Russell agreed. Mr Fitzgerald submitted to you that you would not accept Ms Russell…" 283 It is complained on behalf of the appellant Parry that the directions concerning Ms Russell's identification of him did not comply with the requirements of s165(2)(b), which are largely reflective of the common law requirements identified by the High Court in Domican v The Queen (1991-1992) 173 CLR 555 at 561-562 to the effect that:- "The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case.' A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to Counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." 284 Reference may also be made to R v Clarke (1997) 97 A Crim R 414 at 427, R v Eldridge [2002] NSWCCA 205 and R v Coe [2002] NSWCCA 385 at para 67. 285 When asked in what respect his Honour should have gone into more detail, counsel for Mr Parry said that his Honour should have gone in detail through the history of Ms Russell's evidence, pointing out " her reluctance, her responses, particularly to the Crown which were quite, at times, spiteful, the concessions that she made in cross-examination and also in chief, the fact that she was declared hostile and, more to the point – and this was picked up by one of the counsel at the trial and it was picked up quite succinctly, the way in which, when she was cross-examined by the Crown, the evidence was elicited." 286 It was submitted that his Honour should have "gone chapter and verse through all of her evidence and outlined all inconsistencies or retreats through her cross-examination", and that as she was so discredited, the value of her evidence had to be evaluated for the jury by the judge. 287 No such direction was sought from his Honour either when the original requests for warnings were made, or by way of a request for redirection. Leave under Rule 4 of the Criminal Appeal Rules to rely on this argument should be refused unless the error identified constituted a substantial miscarriage of justice of the kind explained in Festa v The Queen [2001] 185 ALR 394 and see also R v Coe [2002] NSWCCA 385. The omission to seek a direction, as suggested in the immediately preceding paragraph, is hardly surprising. It would have been quite inappropriate. Having regard to its nature, her attitude in the trial, and the defence attacks upon her, the need for care in relation to Ms Russell's evidence stood out like a beacon. It featured large in the closing addresses of both the Crown Prosecutor and defence counsel, and it received no insignificant attention in his Honour's summing up. 288 Counsels' addresses, which were transcribed, went for two days and the summing up for another day and a half. The significance of a matter can be lost not only by its omission from a summing up but also by over emphasis of it to the point where the jury loses interest. The issue of Ms Russell's credibility and reliability, and the evidence bearing on these topics, were sufficiently before the jury without his Honour embarking on the additional exercise suggested. That trial counsel perceived this to be the case at the time of the summing up is not unimportant. 289 His Honour gave the jury warnings, inter alia, to use "special caution" before accepting the evidence of identification, "in the strongest terms [that the jury] must scrutinise with great care [Ms Russell's evidence]", and "that you would not rely on it unless supported by other evidence from another source". Some of these warnings were repeated. Counsel submitted that his Honour should have, but did not, warn the jury that it would be dangerous to convict on the basis of Ms Russell's evidence. However s165(4) provides that no particular form of words is required. There can be no doubt that the jury was fully alive to the issues arising in consequence of Ms Russell's suspect credibility, and his Honour did not err in failing to use the expression suggested. 290 Not merely by reference to the arguments of counsel but with the authority of his office, his Honour identified many matters going to the reliability of the identification, and to the reliability of the witness. It is true that some of the matters which bore on the former, e.g. health and drugs were mentioned after his Honour had moved from the topic of the reliability of the identification to the reliability of the witness generally, but the juxtaposition of the two topics was such that we do not regard this as a matter of significance. 291 There were, however, some other matters bearing on the reliability of Ms Russell's identification of Mr Parry to which his Honour could possibly have referred. There was her evidence of having eyesight problems. There was her evidence of it being partially dark at the time of her observation, and her agreement that, in her statement of 16 September, she had indicated that her observation of the man "Blood" had lasted for only about 30 seconds. There was also the fact that the tattoo seen on Mr Parry's neck during the 11 October 1999 identification parade had not previously been mentioned by Ms Russell. Additionally there was the 12 months gap between the events of 2 October 1998 and the 11 October 1999 identification parade. 292 These were all mentioned when his Honour recounted Mr Warwick's arguments but, given the context, it is impossible to regard this as a compliance with s 165(2)(b) of the Evidence Act, or with the law as laid down by the High Court. However, counsel did not seek any further direction in respect of these omissions. Leave is required under Rule 4 to pursue this submission. 293 To a considerable extent the submission concerning these omissions involves an exercise in nit picking, a circumstance supported by the fact that none of the large number of experienced trial counsel involved saw any deficiency in the directions given. 294 In this regard the present case bears some similarity to Coe where Dunford J, with whom Giles JA and Greg James J agreed, said at para 87: " it is important to bear in mind that, although the judge must stamp his authority on the directions, the judge is not required to lend his or her judicial authority to every argument reasonably open to defence counsel on the evidence: R v Cook (CCA – unreported – 24 August 1998 at 13) citing R v Domican at 178-9; see also Eldridge at [56]." 295 It remains important for trial counsel to assist a trial Judge in framing suitable directions, and not to leave challenges unspoken until the time arrives for an appeal. Where a particular body of evidence has been hotly disputed then it should be expected that counsel will pay particular attention to the summing up: R v Roberts [2001] NSWCCA 163. Where they remain silent, there is good reason to assume that they assessed the summing up, in the context of the trial, as being sufficient. 296 We would respectfully adopt the approach enunciated by Howie J in R v Moussa [2001] NSWCCA 427, and adopted in R v Richards [2002] NSWCCA 38, concerning the principles applicable to Rule 4: see also R v Nguyen [2002] NSWCCA 342. 297 For the reasons identified, and consistently with those principles, we refuse leave to argue this aspect of the appeal. However, in case we are in error in relation to Rule 4, we also consider it proper to examine whether any deficiency in the directions was such as to warrant a new trial. 298 Where there is a failure to direct a jury in accordance with the law, it would follow that the appeal should be allowed, unless the Court is satisfied that "no substantial miscarriage of justice has actually occurred" by reason of the error: s 6(1) Criminal Appeal Act 1912. 299 As Heydon JA, with whom Dunford and Buddin JJ agreed, said in Ian Van Le (at para 94): " According to authorities conveniently collected in Glennon v R (1994) 119 ALR 706 at 710-712, the proviso cannot be applied in two circumstances. One is where the error is so fundamental that it caused the trial to miscarry so far as hardly to be a trial at all… The other is if the conviction is not 'inevitable' in the sense that the appellant can be said to have lost a chance of acquittal." 300 The proper application of the proviso and of the decision in Mraz v The Queen (1955) 93 CLR 493 was considered in Festa v The Queen (2001) 185 ALR 394, where McHugh J pointed out (at para 119) that the use of the word "substantial" in the section "performs the function of denying the proposition that, of necessity, the existence of any of the enumerated sections in the sub-section amounts to an injustice." 301 His Honour continued: " As his Honour [Barwick CJ] also pointed out in that case [Driscoll v The Queen], undermining the significance of the word 'substantial' runs the risk of focussing on the error at the expense of assessing the effect, if any, of the error on the jury's verdict." 302 McHugh J noted earlier (at para 118) that: " The test which has been adopted, in relation to whether or not a substantial miscarriage of justice has occurred in a trial is that stated in Wilde v The Queen, namely: ' … where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted'… Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.'" 303 In relation to this question, his Honour said: "121. The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts in the case. The prevalence of dissenting views in cases dealing with the application of the proviso illustrates the largely subjective nature of the enquiry, resting as it does on factors such as the error alleged, the relative strength of the prosecution and defence cases and the court's characterisation of the hypothetical jury 'acting reasonably' and properly directed. As Brennan, Dawson and Toohey JJ stated in Wilde: ' In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.' 122. But one important development has occurred since this Court decided Mraz, Storey, Driscoll and Wilde. Courts of criminal appeal are now required to examine and analyse the evidence in criminal trials to a much greater extent than previously. This Court has interpreted the 'miscarriage of justice' ground of appeal as entitling a court of criminal appeal to examine the whole of the evidence and form its own opinion as to whether there is a reasonable doubt as to the accused's guilt. Even 30 years ago, such an approach would not have been contemplated. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said: 'In most cases a doubt experienced by an appellate court will be a 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.' Although the term 'miscarriage of justice' appears both as a ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different. In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted. But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues. In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury. Speaking generally, the court's view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court's view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility. Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction." 304 Kirby J noted (at para 198) that the provision in the code applicable to the case on appeal, which was: " .. common to criminal appeal statutes throughout Australia, seeks at once to uphold the high standards of legal accuracy expected in trials of offenders for criminal offences whilst at the same time recognising that mistakes of varying degrees of significance are difficult or impossible to eliminate completely in any system of criminal justice." 305 He continued: " A criminal trial which involves a wrong decision of a question of law and which results in a conviction of the accused, in one sense, itself involves a miscarriage of justice without more. However, the postulate of provisions such as that invoked by the prosecution in this appeal is that a discretion is retained by the appellate court to dismiss an appeal, notwithstanding demonstration of such a wrong decision, if the appellate court considers that no substantial miscarriage has actually occurred. The emphasis upon 'substantial' and 'actually' requires the court that has detected a wrong decision on a question of law, to consider whether the circumstances of the particular case, viewed as a whole, require the outcome ordinarily required by the provision or permit, in effect, excusing the 'wrong decision' because of an affirmative conclusion that the error has not resulted in a substantial miscarriage of justice and that the prisoner has not lost a chance of acquittal that was fairly open on the evidence." 306 Hayne J made the following observations in relation to the proviso: " First, the common form provision, taken as a whole, is to be understood as rejecting demonstration of mere formal error, as distinct from substantial error, as the criterion for setting aside the judgment of the court of trial. The rejection of that approach … finds important reflection in the proviso, where the addition of the epithet 'substantial' to qualify 'miscarriage of justice' and the use of the word 'actually' in the expression 'actually has occurred' may be thought to emphasise to the court of appeal that the inquiry must be directed to the substantial merits of the case, not merely matters of form. Secondly, the proviso to the common form provision can be seen as accepting that a basic premise of the common law is that an accused person is entitled to a trial according to law. For that reason, alone, any departure at trial from what the law requires is a miscarriage of justice. But the proviso recognises that not every departure, at trial, from the proper application of the law warrants setting aside a conviction. Thirdly, both the framing and the subsequent application of the common form criminal appeal provisions, including the proviso, have had to take account of two other considerations: that the jury is the tribunal of fact in a criminal trial and that the prosecution must prove its case beyond reasonable doubt. In recent years, some prominence has been given to cases where a court of criminal appeal, having examined for itself the evidence given at trial, has formed its own opinion as to whether there was a reasonable doubt about the accused's guilt. But those have been no more than particular applications of the common form provision requiring the court to allow the appeal 'if it is of the opinion that the verdict of the jury… cannot be supported having regard to the evidence'. … A court of criminal appeal must approach the consideration of the proviso in any particular case paying close attention to the nature and consequences of the error that has been identified in the trial." 307 It is by reference to these principles that the proviso is to be considered in this case. In that regard we also refer to the observations which we will make in due course concerning the unreasonable verdict grounds of appeal. The conclusions there reached have equal relevance for the proviso submission. So do the matters of immediate relevance for the identification evidence referred to in the following paragraphs. 308 We are satisfied that this case is suitable for an application of the proviso. Firstly, some of the matters which his Honour omitted to mention were so obvious that it did not need "the authority of the judge's office" to convey their significance to the jury. None of the omissions were of such a nature that a jury could be expected not to be aware that they were of some significance to the reliability of Ms Russell's identification. 309 Furthermore, the jury was reminded of all of the matters omitted from his Honour's warning when he repeated the arguments which had been put to them by counsel. In the circumstances of this case, and the obvious satisfaction of trial counsel with the identification directions, we are satisfied that the jury must have had the relevant factors, as well as their significance and the dangers associated with them, present in their minds. 310 There is a second basis upon which we are satisfied that there was no substantial miscarriage of justice. Ms Russell's evidence tending to identify Parry fell into two distinct parts. One was the reference in her statement of 16 September to hearing the fourth person who entered the car which was used in the offences, addressed as "Blood". That this was in fact his nickname was not in dispute. The second was the reference in that statement to her observation of that person, and then the evidence of her subsequent identification of him. The omissions from the warning in the summing up related to only this second aspect. Her evidence on the first aspect, that is, hearing the fourth person referred to as "Blood", was not directly affected by these omissions. 311 As is apparent from the extracts of her evidence set out above, both aspects of this identification were among the numerous parts of her statement from which, in her oral evidence, Ms Russell endeavoured to retreat, either by repudiation, or by saying that she did not remember the relevant event, or by attributing what was contained in it to Detective Sergeant (Inspector) Wrice, as the source. In many cases a retreat would simply lead to the conclusion that the earlier statement or part of it could not be relied upon. However, in this case, the magnitude of the retreat necessarily raised two wider questions. One was whether the statement of 16 September 1999 had been an honest attempt to state what she knew. The second was whether her retreat was itself deliberately false. 312 Having read and re-read Ms Russell's evidence we are convinced that the jury could not have acted on any part of her earlier statement, as elicited in cross examination, without answering both of these wider questions in favour of the Crown. In saying that, we do not forget the general principle that the decision of what evidence to accept is a matter for the jury, and that juries are commonly told that they can accept or reject the whole or any part of a witness' evidence. However so many and so substantial were the changes between what Ms Russell said in her statement of 16 September, on the one hand, and her evidence in court on the other hand that, before accepting anything which she said, the jury must have addressed and made a decision on the questions to which we have referred. 313 Additionally, we do not see that acceptance of any of Ms Russell's evidence incriminatory of the appellants was necessary before the jury could convict. The evidence tending to place Powick, Yates and Hyland either in, or in the vicinity of, the motor vehicle, very soon after the incident, combined with the eyewitness evidence and the DNA evidence relating to Hyland and Yates was sufficient so far as they were concerned. In relation to Parry, the eyewitness evidence, together with the DNA evidence, and the reference to the man who was addressed as "Blood", was sufficient to entitle the jury to convict him. 314 The various matters to which we have referred, including the absence of any request by counsel at trial for a supplementary direction, convince us that, in the particular circumstances of this case, his Honour's failure to mention the further factors in the course of the identification warning, did not lead to a miscarriage of justice. In short, we are satisfied that a reasonable jury would inevitably have convicted the appellants even if the trial judge had not omitted the matters mentioned from the identification directions. VERDICT UNREASONABLE 315 To a considerable extent this ground, which was pressed by Powick and Hyland in particular as a separate ground, has to be understood in the light of the other grounds. Had error been demonstrated in relation to Ms Russell, or in relation to the DNA evidence (although this did not relate specifically to Powick), there would be much to say for the view that there had been a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912, entitling the appellants to a new trial. 316 In the light, however, of our findings in relation to these grounds, this ground falls to be considered against the sufficiency of the evidence properly admissible in relation to each appellant, and in accordance with the test enunciated in M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1998) 191 CLR 440. The question to be asked is whether, after the Court makes its own independent assessment of the whole of the evidence, it thinks that it was not open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In making this assessment it is necessary for the Court to assess both the nature and quality of the evidence, its reliability and its credibility: Morris v The Queen (1987) 163 CLR 454 at 463. Powick 317 The case against Powick, in relation to the home invasion, depended, in summary, upon the following evidence: · Ms Russell's evidence of her observations of him in the company of the other appellants, at Paul Webb's home on the evening of 2 October, while weapons were loaded in the vehicle NUR 593; · The sighting of vehicle NUR 593 waiting at a location near the scene of the murder/home invasion, at a time when its occupants had entered the premises armed with a rifle, baseball bat and a shortened firearm, wearing balaclavas; · The departure of the vehicle with the offenders on board; · The presence of Powick as its driver when it stopped in the vicinity of San Remo, after allowing the passengers to alight and to disappear into the bushland; · The conversation between Powick and Mr Kiriona, whilst waiting for police; · The telephone calls between telephone services in the names of Powick and Wall, and of his association with the premises where Wall lived. 318 Its case against him on the charge of accessory after the fact to murder depended in substance on all of the foregoing, including additionally: · The fact that the sound of the gunshot was distinctly audible from a distance of not less than 800 to 900 metres, within which distance the vehicle NUR 593 was parked; · The instructions from the offenders, on leaving the premises, to the driver to "go, go, go"; · The inference that the offenders would, on rejoining the car, have discussed what had occurred; · The fact that he drove them away from the scene and later allowed them out adjacent to bushland, some distance away. 319 There was no issue at trial that Powick had been the driver of the vehicle. His case depended essentially upon his answers in the ERISP, to the effect that: · he had borrowed the vehicle from a mate of his, "Walley", at Charlestown for an hour; · he had returned home, collected a mobile phone and baseball bat, and had gone to the Newcastle foreshore for a bite to eat; · while he was there he had run into "Bob", "Fang" and "Cob", and had gone with them to Wyong to buy some pot; · after having some drinks, he gave Bob $25 to purchase the pot; · "Bob", who had a baseball bat, went into the house with "Fang" and "Cob" to buy the pot; · they were all wearing beanies; · he heard some banging and they had then run out and instructed him to "go, go"; · he drove them away; · they urged him to evade what appeared to be the police, before telling him to stop; · when he did so, they bolted into the bush; · he knew Yates, but had not seen him for a month and had no idea of why he would be seen in the vicinity where the car was stopped; · he had a baseball bat with him for protection from rival gangs; · he knew nothing of the other bats found in the vehicle; · he did not know the surnames of "Bob", "Fang" or "Cob"; · he had not considered it necessary to return the vehicle to Wall after the expiry of the hour for which he had borrowed it. 320 The Crown submitted that this version of events made no sense and should be rejected by the jury as being untrue. 321 In the light of the remaining evidence, and of our findings concerning the version given by Ms Russell, this ground of appeal lacks all merit. The circumstances relied upon by the Crown, in our view, established a very strong circumstantial case that Powick was party to a common enterprise to commit the home invasion offence; and that he became aware of the murder and thereafter gave assistance to the remaining appellants, after its occurrence. This case is one where the appellant clearly had the knowledge required for accessorial liability considered in R v Tevendale (1955) VLR 95 and R v Stone (1981) VR 737. 322 No jury, acting reasonably, could have been left with a reasonable doubt as to his guilt. In particular, it beggars belief to suggest, as Powick did, that there was a reasonable inference open that he had accompanied three men to Levitt Street, who had then gone into the premises dressed in dark clothing, balaclavas and carrying weapons, for the purpose only of purchasing $25 worth of pot. It is equally offensive to common sense to suggest that a reasonable inference was left open that he drove the men away from the scene, entirely ignorant of what had occurred. Hyland 323 The Crown case, in relation to the murder and home invasion offences in relation to this appellant, depended upon the following bodies of evidence: · Ms Russell's evidence of seeing Hyland at Wall's home when the vehicle NUR 593 was loaded with weapons, and of departing with them; · Eyewitness evidence in relation to the general description of the man with the shotgun; · Evidence that the offenders left the scene in vehicle NUR 593; · Evidence to the effect that when the vehicle was stopped at San Remo, the occupants other than the driver escaped into the adjacent bush; · Evidence of the discovery of a mobile phone in the vehicle, registered in a name which the jury were entitled to find was that of Hyland; · Evidence concerning the observation of a man of strikingly similar appearance to Hyland, wearing only shorts, and on foot, early in the morning of 3 October, who had cuts to his body consistent with him making his way through the bush, and with a cut to his knee; · The discovery of a shotgun and discarded clothing near the area where the car was stopped; · DNA evidence in relation to the blood found on the broken glass door at Levitt Street, and on the rear of the passenger seat in vehicle NUR 593, being of the same profile as Hyland's DNA profile; · Evidence to the effect that the man seen at Mr Lusty's shop at San Remo was taken by taxi to a location near Arnold Street, Charlestown. 324 Again, it would be the case that, if the DNA evidence or the evidence of Ms Russell were excluded, or shown to be inherently unreliable, then there would be much to say in support of this ground. However, for the reasons previously given, we are satisfied that the evidence was admissible, and was well capable of acceptance by the jury. 325 Once that conclusion is reached, then in the light of the remaining evidence identified above, we are satisfied that this is not a case where a jury ought to have entertained a reasonable doubt about Hyland's guilt. On the contrary, there was a very strong case that he was one of the offenders who entered the house and who was later dropped off at San Remo. Yates 326 Similar considerations apply to Yates, so far as he also sought to amend the grounds of appeal to rely upon a submission that the verdict was unreasonable. Apart from the DNA evidence, and Ms Russell's evidence, which we have already dealt with, the Crown relied upon the following bodies of evidence: · The evidence of his presence at Webb's house when vehicle NUR 593 was loaded with weapons and driven from the premises carrying each of the appellants; · Eyewitness evidence at the scene that the man with the baseball bat was wearing a Metallica T-shirt with a skeletal snake; · Evidence concerning the observation by police of Yates some hours later, wearing a shirt of this description, albeit inside out; · Evidence that the offenders left the scene in vehicle NUR 593 from which its occupants, other than Powick, decamped at San Remo; · Kiriona's evidence that while detaining Powick at San Remo a man approached him wearing clothes consistent with those worn by Yates; · Observations of residents in the San Remo area of a man of a similar description to Yates; · Evidence concerning the telephone call made on behalf of this man by a San Remo resident to the parents of Yates, at 1.30 am; · The arrest of Yates at San Remo; · Evidence to the effect that Yates had an empty knife pouch on his belt, and that a folding knife which fitted the pouch was found in bushland adjacent to the location where vehicle NUR 593 was stopped; · Evidence to the effect that Yates' fingerprints were found in vehicle NUR 593; · DNA evidence concerning the balaclava found in the vehicle NUR 593, the profile of which matched that of Yates, (which was not challenged on appeal). 327 While there was a theoretical possibility that Yates' fingerprints may have been found in the car as a result of him having been a passenger in it on another occasion, that was hardly a credible possibility in relation to the balaclava. Taken together, in the light of our conclusions concerning the DNA evidence and Ms Russell's evidence, the Crown case against Yates was, in our view, overwhelming. We are satisfied that no jury could have entertained a reasonable doubt as to his guilt. Parry 328 Parry advanced this ground solely by reference to the other grounds relating to the DNA evidence and Ms Russell's evidence. It was not separately advanced by reference to the strength of the remaining bodies of evidence which, in his case, went to: · Ms Russell's evidence of the person with the name "Blood" leaving the Belmont North premises with the remaining appellants in vehicle NUR 593, into which weapons had been placed; · The fact that he was addressed by the name "Blood", and that this was his nickname; · Ms Russell's later identification of him in an identification parade; · Evidence as to the sighting of a man generally fitting his description, with tattoos and a rat's tail down his back, at a Wyong hotel; · Evidence from eyewitnesses at Levitt Street, as to the description of the man with the handgun, having tattoos on his arms and a plait down his back; · DNA evidence in relation to the finger section of the glove found at the scene, and the balaclava found in the glove box, the profile of which matched Parry's profile (which was not challenged on appeal); · The fact that the finger piece at the scene matched the missing piece of the glove found in the vehicle NUR 593; · Evidence of the registration of a vote in Parry's name at Carrington on 3 October; · Evidence of Parry attending the Boolaroo chapter clubhouse at about midday on 3 October and engaging in a private conversation with the president and sergeant at arms of that chapter, and with the president of the Gateshead chapter. 329 Again, by reason of the combination of circumstances, the Crown case was unanswerable. Any suggestion that the DNA may have been found on the balaclava or piece of finger accidentally (for example, because plastic gloves were used in tattooing carried out at the club house, or that clothing such as balaclavas were available there for borrowing) was, at best, tenous, and not such as to weather its force. 330 Accordingly this ground fails, in relation to all appellants. APPEALS AGAINST CONVICTIONS - CONCLUSION 331 For the foregoing reasons, we are not persuaded that any of the appeals against conviction were made good. Each appeal is dismissed. APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE 332 As was pointed out earlier Robert Parry, Barry Yates and Dean Hyland were each convicted of murder, an offence which attracts a maximum penalty of life imprisonment. Each of them was also convicted pursuant to s 111(3) of the Crimes Act of entering a dwelling house with intent to commit a felony in circumstances of special aggravation. The maximum penalty for that offence is 20 years' imprisonment. The sentencing judge imposed the following individual sentences upon the various offenders. 333 Robert Parry was sentenced to a term of 26 years' imprisonment with a non-parole period of 19 ½ years for his role in the murder. That sentence was ordered to commence on 23 January 2000 to accommodate periods which he had spent in custody prior to sentence. This offender, together with Barry Yates, had been on bail at the commencement of the trial but in each case bail was revoked at that time. Mr Parry's head sentence will thus expire on 22 January 2026 and the non-parole period is due to expire on 22 July 2019. His Honour fixed a concurrent fixed term of 11 years' imprisonment in respect of the charge brought pursuant to s 111(3) of the Crimes Act. 334 Dean Hyland was sentenced to 23 years' imprisonment with a non-parole period of 17 years and 3 months for his role in the murder. That sentence was ordered to commence on 10 May 1999 (the date on which he went into custody) and will expire on 9 May 2022. The non-parole period is due to expire on 9 August 2016. Mr Hyland was also sentenced to a concurrent fixed term of 11 years' imprisonment in respect of the charge brought pursuant to s 111(3) of the Crimes Act. 335 Barry Yates was sentenced to 20 years' imprisonment with a non-parole period of 15 years for his role in the murder. As he had spent only a few days in custody prior to the start of the trial his sentence was ordered to commence on 21 January 2001. That sentence will expire on 20 January 2021 and the non-parole period is due to expire on 20 January 2016. In respect of the s 111(3) matter, a concurrent fixed term of 10 years' imprisonment was imposed. 336 Bradley Powick was sentenced to 10 years' imprisonment with a non-parole period of 6½ years in respect of his conviction for the s 111(3) offence. That sentence was to be served cumulatively upon a sentence which this offender was serving in respect of an unrelated robbery offence. It was accordingly ordered to commence on 10 May 2002 and to expire on 9 May 2012 with a non-parole period which is due to expire on 9 November 2008. He was also sentenced to a concurrent fixed term of 3 years' imprisonment in respect of his conviction for being an accessory after the fact to murder. 337 Barry Yates made no application for leave to appeal against the sentences imposed upon him. Robert Parry and Dean Hyland each sought leave as did Bradley Powick. He sought leave both in respect of the matters upon which he was sentenced by Ireland AJ and in relation to the robbery matter. 338 Upon the question of how the offence ought to be characterised the Crown submitted to his Honour that: " ..the murder of Alan Brown, accompanied as it was by a high degree of cold blooded callousness, is fairly to be described as an atrocious and gravely wicked act in which the degree of brutality exhibited by all three offenders in the execution of an innocent man out of vengeance when they did not get their own way, falls within the worst category of cases." 339 In evaluating that submission the sentencing judge had regard to s 61 of the Crimes (Sentencing Procedure) Act 1999, which relevantly provides: " (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. (2) … (3) Nothing in subsection (1) affects section 21(1)." 340 Section 21(1) is in the following terms: " If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term." 341 His Honour nevertheless decided to impose determinate sentences in respect of each offender. His Honour said: " The brutal and callous execution style killing of the victim, aggravated by the beating with a baseball bat to which he was subjected, and the further aggravating features of the home invasion with assaults, ill treatment and terrorising of the occupants, including the throwing of the victim Alan Brown against the sitting room wall from the couch where he was seated, amounts to a vicious killing unmitigated by any suggestion of provocation, self defence or other extenuating circumstances, and in my view justifies the categorization of this murder. Having said that, I am nevertheless not persuaded that in the terms of s.61(1) the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence." 342 His Honour, having considered the respective subjective cases advanced on behalf of each of the offenders and having decided that there were no "special circumstances" in respect of Parry, Hyland and Yates, proceeded to impose the sentences earlier referred to. 343 It is now necessary to give separate consideration to the individual applications for leave which were made. Parry 344 This applicant was aged 35 years at the time of the offences. He had two children from a relationship which had come to an end. He was at the time of sentence in a relationship with a Ms Murrell who gave evidence that they were engaged to be married. There was evidence that the applicant had worked on an intermittent basis in manual labouring jobs. There was also evidence that he had conducted himself well whilst in custody. 345 Nevertheless the applicant had an extensive criminal history dating back to 1982 when he had been convicted of assault occasioning actual bodily harm. Since then he had been convicted on four further occasions of either assault or assault occasioning actual bodily harm and he had been twice imprisoned for such offences. In 1995 he had been sentenced to two years' imprisonment, comprising a minimum term of 18 months and an additional term of 6 months for malicious injury. This offence arose out of his having stabbed his stepbrother in the abdomen in what was an apparently unprovoked attack. The applicant had also served terms of imprisonment for conspiracy to supply a prohibited drug, entering a building with intent, breach of recognisance, driving whilst disqualified, and resisting arrest. There were various other convictions for driving offences and drug offences which had not resulted in sentences of imprisonment. 346 His Honour observed that the applicant had shown no contrition or remorse for his actions. His Honour continued: "On the contrary, the offender's callous disregard for the consequences of his acts is eloquently expressed in his seeking to profit from the killing by exhibiting the body of the victim as a threat." 347 The only reference in the written submissions filed on behalf of the applicant on the question of sentence is in these terms: "His Honour sentenced the appellant on the basis that he was the person carrying and using the pistol when there is no evidence of same." When the Court inquired of Mr Conomos, who appeared for the applicant Parry, during the course of oral submissions if he was persevering with the severity appeal, he replied that he had instructions to do so but that he had nothing to add to what had already been submitted (presumably in writing). When pressed further he said that "I will make the bald submission…that 26 years was excessive in the circumstances." 348 It is to be noted that no submissions were advanced during oral argument in support of the proposition that there was no evidence to the effect that the applicant had fired the fatal shot. Clearly it was a finding that was well open on the evidence. This was so notwithstanding the fact that the three intruders attempted to disguise their appearances, primarily by the wearing of balaclavas. Nevertheless the evidence revealed sufficient details about the individual offenders to enable a determination to be made as to the role played by each of them. 349 The three men were armed, respectively, with a handgun or revolver, a shortened shotgun and a baseball bat. Derryn King gave a description of the man with the handgun which included a reference to having a plait coming out the back of his balaclava which went half way down his back. This was a relatively unique distinguishing feature of the applicant Parry. 350 There was compelling evidence that the offender Yates carried the baseball bat. As we have earlier observed, Daniel Harrison was attacked outside the premises by the man who was carrying this implement. He gave a detailed description of a "Metallica" T-shirt, with a snake design and a "Don't Tread on Me" caption upon it, which was worn by that person. Yates was wearing such a shirt (albeit inside out) when he was apprehended several hours later by police. 351 There was evidence from Peter Brown, which was not disputed, that Hyland wore his hair in a very short, almost shaved fashion, at the relevant time. 352 The submission, however faintly put, that the sentence imposed upon the applicant was manifestly excessive, must be rejected. As his Honour observed, this was a "brutal and callous execution style killing of the victim" which was aggravated by reason of the associated brutality which was inflicted upon the other victims of what was a most terrifying home invasion. As his Honour said, the wanton conduct exhibited by each of the offenders convicted of murder justified "the categorisation of this murder as being in the worst class of such cases". 353 Notwithstanding that assessment of the matter, his Honour, as has been observed, decided to impose determinate sentences. In doing so his Honour extended as much leniency to the offenders as the circumstances permitted. About the only thing that could be said on behalf of the applicants is that there is no evidence to suggest that they entered the premises with a premeditated intention to kill any specific person who may have been there. That is not sufficient to show, in the circumstances of this case, that some sentence other than that imposed was warranted and should have been imposed: s 6(3) of the Criminal Appeal Act 1912. Hyland 354 This applicant, who was aged 27 years at the time of the offence, had a criminal record dating back to 1989. Although he had accumulated a significant number of convictions, he had only once previously been imprisoned. That had occurred in 1995 when he was sentenced in the Local Court for a variety of matters which included breach of recognisance, breaches of community service orders, drug and driving offences, steal motor vehicle, goods in custody and carrying a cutting instrument. 355 The main argument advanced on behalf of this applicant was that he entertained a justifiable sense of grievance by reason of the sentences imposed upon his co-offenders, and in particular the sentences imposed upon Barry Yates. More particularly it was submitted that such sense of grievance was heightened when it was recalled that the sentencing judge had specifically found that the fatal shot had been fired by Parry, in the presence of Yates, at a time when the present applicant was not even in the room. It is to be observed at once that it was for the very reason that the present applicant had not fired the fatal shot that his Honour concluded that his degree of criminality had been somewhat reduced. That explained why his sentence was less severe than the one imposed upon Parry. There is of course no complaint in that regard. 356 The sentencing judge made the following findings in respect of the co-offender, Barry Yates: " In October 1999 the offender sustained a fracture of his seventh cervical vertebra in a motor cycle accident. He was hospitalised for four days and remained in a "halo jacket" spinal brace for three months. He still experiences pain for which he is prescribed Naprosyn. Ms Kusch administered a number of tests which led her to conclude that the offender Yates' intellectual functioning is in the lowest 8% of the general population, hence being a person who has more difficulty than the average in considering the consequences of his behaviour and may possibly be vulnerable to manipulation by others. The offender's criminal history dates back to 1982. Whilst there are a number of offences they do not include custodial sentences and are of little significance for present sentencing purposes. I note also the testimonials tendered in Exhibits (3D)1 and (3D)2. I approach the task of sentencing in this case on the basis that the offender was a follower and not a leader, and that he is a person whose intellectual functioning is at a relatively low level. He will, at least in the early days of his incarceration, be disadvantaged in a number of ways by the after effects of his injury." 357 Contained within that passage is the explanation as to why the sentencing judge differentiated between the present applicant and Barry Yates and as to why a less severe sentence was imposed upon the latter. 358 In Lowe v The Queen (1984) 154 CLR 606 Brennan J said: " The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. To facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time " (at 617). 359 In those circumstances for his Honour to have imposed comparable sentences upon the applicant and Barry Yates would have been "unjust". The present applicant's submission in relation to the issue of parity must accordingly be rejected. 360 It is also to be remembered that the present applicant was a party to a joint criminal enterprise featuring acts of extreme violence, which culminated in the murder of Alan Brown. Although the present applicant was convicted of two separate offences and is to be sentenced accordingly, it is clear that he was involved in one episode of sustained criminality. The extent of his actual involvement in pursuing the joint criminal enterprise was made apparent in the Remarks on Sentence of Ireland AJ to which reference was made earlier. 361 We conclude that in all of the circumstances of this appalling criminal episode the fact that the present applicant was not in the room at the time that the fatal shot was fired was of little moment. This applicant has similarly failed to show that some sentence other than that imposed was warranted in law and should have been imposed. Powick 362 As has been observed this applicant seeks leave in relation to the sentences imposed by Ireland AJ in relation to the charge brought pursuant to s 111(3), as well as in relation to a sentence imposed upon him for robbery, in respect of which he was serving a sentence at the time at which he came to be dealt with by Ireland AJ. It is appropriate to deal with that latter matter first. (a) The robbery offence 363 The applicant seeks an extension of time within which to apply for leave to appeal against the severity of a sentence imposed upon him by his Honour Judge Kirkham in the District Court at Gosford on 19 May 1999. The applicant adhered to a plea of guilty first entered in the Local Court to a charge of robbery contrary to s 94 of the Crimes Act 1900 which provides for a maximum penalty of 14 years' imprisonment. His Honour imposed an overall sentence of five years' imprisonment which comprised a minimum term of three years four months commencing on 10 March 1999 and expiring on 9 July 2002 and an additional term of one year and eight months commencing on 10 July 2002 and expiring on 9 March 2004. The applicant accordingly would have been eligible for release on parole in respect of this offence on 9 July 2002. 364 Judge Kirkham found the following facts for the purposes of sentencing the applicant: " About 6.30 pm on Tuesday, 9 March 1999, the prisoner attended the Caltex Service Station on Pacific Highway at Swansea. He entered the service station, walked to the counter and enquired of this victim, Luke Wolfenden, who was the console operator at the time, whether he could use his savings card to conduct an electronic transaction to withdraw some money. The prisoner attempted this transaction, however it was declined due to insufficient funds being in his account. The prisoner then said to Mr Wolfenden, "You're lucky I don't pull out my gun and ask for all of your money," and then he walked from the service station. After the declining of the transaction electronically, a receipt was printed which was retained by the victim. This receipt recorded the time, the date and the card number used during the transaction. The prisoner returned to the service station a short time after where he spoke to a Mrs Ellakamp. She was on the driveway whilst refilling her car with petrol. The prisoner enquired whether she was driving towards Charlestown and she informed him that she was not. He then said to her, "You'll be taking me to Charlestown, I've got to go there, I've got to go inside here and I've got a gun." The prisoner walked into the service station shop, approached the victim who was behind the counter and demanded that he give him all of the money. The victim refused to comply with this demand which resulted in the prisoner threatening to pull the victim across the counter and assaulting him. The victim still refused to comply with the demand and the prisoner informed the victim that he was in possession of a gun which was behind his back, down his belt. The prisoner threatened to take out the gun and shoot the victim in the head if he did not give him the money. Fearing for his safety, he opened the till and removed seven hundred and five dollars in various Australian bank notes which he passed across the counter to the prisoner. He took the money, put it in his rear jeans pocket and left the service station. The alarm was activated and police attended the garage a short time later and during enquiries of the service station a security video tape was viewed which clearly showed the prisoner entering the service station on both occasions and talking to the victim. The victim provided the receipt to police from the prisoner's electronic transaction and enquiries resulted in the prisoner being identified through bank records. Other enquiries conducted by the police indicated that the prisoner left the Swansea area in a taxi cab around 7.30 pm and he was driven to the Belmont North area where he got out. The taxi driver had been made aware of the robbery by some radio contact with his base. He alerted the police to the location where he had dropped off the prisoner but an extensive search failed to locate him at that stage. Later in the evening of the 9 March, the prisoner attended an address at Natarbi Road, Jewells, where a Toyota Corolla coupe registered number MIH-513 was parked outside and advertised for sale. The prisoner bought it for two hundred dollars from a Mr McDougall and a handwritten receipt was provided. Further police enquiries identified the prisoner as being responsible and he was arrested at 7.25 on 10 March. He declined to be interviewed by way of recorded interview electronically and denied having any knowledge or involvement in the offence. The money has not been recovered." 365 The sentencing judge said that "[a]pplying the principles in Henry & Others, it seems to me that the appropriate head sentence is one of five years penal servitude." His Honour's reference was of course to the then recently pronounced guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346 in which the Court said that for an offence of armed robbery in which there were a number of identifiable features which are ordinarily to be found in such cases, a range of between four and five years for the full term would generally be appropriate. 366 The applicant submits that it was an error on his Honour's part to have equated the offence with which he was charged, with the more serious offence of armed robbery with which Henry was concerned, and which carries a maximum penalty of 20 years' imprisonment. The Crown in its written submissions appears to concede that error has been demonstrated. Indeed it drew the Court's attention to the decision in R v Black [2001] NSWCCA 41 as support for the proposition that it was inappropriate to regard a sentence of four to five years' imprisonment as a starting point for offences of robbery other than armed robbery. In our view the submission ought to be upheld. 367 It is necessary now to consider the application for an extension of time. As has been observed sentence was imposed on 19 May 1999. It was not until 22 June 2001 that the applicant sought an extension of time. The applicant swore an affidavit in which he sought to explain that lengthy period of delay. He said that he had wished to lodge an appeal but had been advised by counsel who appeared for him, both in this matter and in the trial before Ireland AJ, that there "was no need to lodge an appeal because if [he] was convicted in the subsequent…proceedings he expected that I would receive a concurrent sentence of greater length than the sentence I had just received." Nevertheless, as has been observed, Ireland AJ subsequently imposed sentences upon the applicant for his role in the "home invasion" matters which were almost wholly cumulative upon the non parole period for the sentence which had been imposed in respect of the robbery offence. The applicant suggested, in essence, that he had decided not to seek leave to appeal against the severity of the robbery offence only because of the advice he had received from counsel, which he appeared to characterise as being, in the final analysis, as at least misconceived, if not misleading. 368 Section 10(3) of the Criminal Appeal Act 1912 (which was in operation at the relevant time) gives the Court a discretion to extend the time within which to file a notice of an application for leave to appeal. Even though the section confers an unfettered discretion upon the Court to extend the time it will not be granted as a matter of course. Indeed where there has been a considerable delay, "exceptional circumstances will be required before the appeal is permitted to proceed." See R v Lawrence [1980] 1 NSWLR 122 at 148. A critical question which frequently arises for consideration in cases such as the present is whether or not there may have been a miscarriage of justice. See R v Young [1999] NSWCCA 275. If there is a concern of that nature then the requirement for demonstrating that exceptional circumstances exist will usually have been made out. 369 In the light of the error to which reference was earlier made, and the erroneous advice which had been given, it is our view that the applicant has demonstrated a proper basis upon which the time for leave to appeal should be extended. Furthermore it is our view that the Court should intervene and proceed to re-sentence the applicant. See s 6(3) of the Criminal Appeal Act 1912. 370 There can be no doubt that the matter in respect of which the applicant appeared for sentence in the District Court was a serious offence. Although no gun was used by him, there was a threat made by him on more than one occasion that he was in possession of a weapon, and that he was prepared to use it. The fear engendered by that threat would have been very real from the perspective of the victim. In addition it was, as his Honour said, "a significant aggravating factor" that the applicant committed this offence whilst on bail for the matters in respect of which he later appeared before Ireland AJ. See R v Richards [1981] 2 NSWLR 464. 371 Nevertheless there were a number of matters of a subjective nature upon which the applicant was entitled to rely. He was aged 20 years at the time of the offence and had only two minor previous convictions, for offensive language and failing to supply the name of the driver of a vehicle, for which he had been fined. There was evidence that he had been an industrious and conscientious employee until he had lost his job after a work related injury which had required surgery. He had thereafter been unable by reason of that incapacity to secure employment. He had pleaded guilty at an early stage of the proceedings and was entitled to a significant measure of leniency on that account alone. See R v Thomson & Houlton (2000) 49 NSWLR 383; R v Cameron (2002) 187 ALR 65. It may be noted that the guideline judgment in Henry upon which the sentencing judge relied was predicated upon a late plea of guilty. The material before us also demonstrates that he has been spending his time productively whilst in custody. 372 In our view, given all the circumstances, an appropriate sentence for this offence is imprisonment for a fixed term of three years to commence on 10 March 1999 and to expire on 9 March 2002. It is appropriate to impose a fixed term because of the fact that there are other sentences to be served which were imposed subsequently. (b) S 111(3) offence 373 The sentencing judge said that it was common ground that the home invasion offence was the more serious of the two matters with which he was concerned. The accessorial offence arose solely from the applicant's blatant attempts to mislead the police in his ERISP. His Honour having decided to accumulate the present sentences upon the pre-existing sentence for robbery said that "principles of totality mandate a reduction of the sentence now to be imposed in light of the accumulation of the sentences". His Honour also made a finding that there were "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 by reason of the applicant's age, his family support, the fact that this was to be regarded as his first offence in point of time and his favourable prospects for rehabilitation. 374 In relation to this aspect of the matter, it was submitted on behalf of the present applicant that he entertained a justifiable sense of grievance by reason of the fact that he had received the same head sentence for this matter as had Yates, and only one year less than those imposed upon Hyland and Parry. It was submitted that there were a number of matters which distinguished his case from those presented by his co-offenders, the consequence of which ought to have been reflected in a more substantial differentiation between the respective sentences than was in fact made. The matters pointed to included the following: (a) his somewhat lesser role in relation to the offence, being limited as it was to, his being the driver of the vehicle; (b) his age (he being a number of years younger than his co-offenders); (c) his status as a first offender as found by the sentencing judge, stood in stark contrast to the position of his co-offenders; and (d) the fact that his Honour had concluded that there ought to be a reduction in his sentence for this offence in order to accommodate the principle of totality. 375 Although the sentences imposed upon each of the co-offenders for the home invasion were fixed terms, and therefore do not bear direct comparison with the sentence imposed upon the applicant, we have come to the view that the applicant's submission should nevertheless be upheld. It needs however to be made abundantly clear that the applicant's role in this very serious crime was an important one. He drove three men to and from a home invasion in the knowledge that they were armed with highly dangerous weapons, which they were undoubtedly prepared to use. In the circumstances we have concluded that only a relatively modest reduction in the sentence imposed by Ireland AJ is called for. We find "special circumstances" for the reasons advanced by the sentencing judge. In order to properly reflect the principle of totality as enunciated in Pearce v The Queen (1998) 194 CLR 610, we take the view that the sentence for this offence should be served to some extent concurrently with the robbery offence. 376 It will be necessary, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999, to adjust the commencement date of the subsequent sentences by reason of the decision to reduce the sentence imposed for the robbery offence. The subsequent sentences will commence on a date which will take account of the fact that the applicant had spent two months in custody prior to trial, which was solely referable to the present matters. This approach conforms with the conclusion at which the sentencing judge himself arrived. The fact of accumulation is properly to be taken into account as a special circumstance in setting the non parole period, so as to ensure an appropriate potential period of supervised release on parole when considered against the total period of continuous custody. 377 Accordingly, the orders of the Court will be: Robert Parry 1. Appeal against conviction dismissed 2. Leave to appeal against sentence granted. 3. Appeal dismissed. Dean Hyland 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal dismissed. Barry Yates 1. Appeal against conviction dismissed. Bradley Powick 1. Appeal against conviction dismissed. 2. The robbery matter : (i) Extension of time within which to apply for leave to appeal against sentence granted. (ii) Leave to appeal against sentence granted. (iii) Appeal against sentence allowed. (iv) Sentence imposed in the District Court quashed. In lieu thereof the applicant is sentenced to imprisonment for a fixed term of three years, to commence on 10 March 1999 and to expire on 9 March 2002. 3. The s 111(3) offence and the accessory after the fact offence: (i) Leave to appeal against sentence granted. (ii) Appeal against sentence allowed. (iii) Sentences imposed in the Supreme Court quashed. In lieu thereof the applicant is sentenced, in relation to the s 111(3) offence, to imprisonment for nine years to commence on 10 January 2001 and to expire on 9 January 2010. A non-parole period of five years and six months is fixed, to commence on 10 January 2001 and to expire on 9 July 2006 at which time he will be eligible for release to parole. The sentence imposed in respect of the offence of accessory after the fact to murder, of a fixed term of 3 years, is confirmed however it is now to commence on 10 January 2001. It is to be served wholly concurrently with that for the s 111(3) offence. ********** 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.