New South Wales Court of Criminal Appeal CITATION : R v Nale [2002] NSWCCA 31 FILE NUMBER(S) : CCA 60062/01 HEARING DATE(S) : 21 February 2002 JUDGMENT DATE : 5 March 2002 PARTIES : R v Jolane NALE JUDGMENT OF : Giles JA at 1; Greg James J at 45; Kirby J at 46 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0490 LOWER COURT JUDICIAL McGuire DCJ OFFICER : COUNSEL : P Byrne SC & G Bashir - Appellant E Wilkins - Crown SOLICITORS : Ross Hill & Associates - Appellant S E O'Connor - Crown CATCHWORDS : CRIMINAL LAW - grievous bodily harm inflicted - by either Crown witness or the accused - Crown witness convicted, on basis of joint criminal enterprise - fact of conviction for inflicting grievous bodily harm brought out in cross-examination - trial judge gives explanation - explanation introduced irrelevant and prejudicial material. D. CASES CITED: R v Booth (1982) 2 NSWLR 847; R v Stokes (CCA, 16 June 1988, unreported). DECISION : Orders previously made quashing conviction and ordering new trial; reasons published. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CA 60062/01 DC 99/31/0490 GILES JA Greg JAMES J KIRBY J Tuesday 5 March 2002 R v Jolane NALE Judgment 1 GILES JA: The appellant was tried on an indictment charging him with causing grievous bodily harm to John William Varley with intent to murder (Crimes Act 1900, s 27), and in the alternative maliciously inflicting grievous bodily harm on John William Varley with intent to do so (Crimes Act, s 33). He was found guilty on the first charge, and a verdict on the alternative charge was not required. He was sentenced to 12 years imprisonment with a non-parole period of 9 years. He appealed against both conviction and sentence. 2 It was acknowledged that all grounds of appeal were such that, if the appeal were upheld, there should be a new trial. We first heard submissions on the ground of appeal, "The learned trial judge erred in directing the jury as to the basis of Gilbert's conviction and sentence". At the conclusion of the submissions we ordered that the appeal be upheld, the conviction be quashed, and a new trial be held. We said that our reasons would be delivered at a later date. These are my reasons for the orders. The principal issue 3 There was no doubt that grievous bodily harm had been caused to or inflicted on Mr Varley. The principal issue in the trial was whether his injuries were caused by the appellant or by Mr Michael Gilbert. 4 Mr Varley was severely injured. He suffered a depressed fracture of the right frontal bone over the forehead, bruising to the frontal lobes of the brain and a cracked skull at the back. He had a scar from his right ear over the top of his head to his left ear, and nerve damage which caused his face to drop and his left eye lid to hang down. He had no sense of smell and difficulty in swallowing. 5 Mr Varley could not say who had injured him. He went to a hotel. He was introduced to the appellant and another man, on the Crown case Mr Gilbert. During the evening he put his wallet on the bar, then turned away, and when he turned back it had gone. He accused the appellant and the appellant's companion, saying one of them must have taken his wallet. The appellant said he did not have the wallet. The other man said that the appellant had the wallet and should give it back, but the appellant maintained his denial. Mr Varley left the hotel a little later. The appellant and his companion left in front of him. Mr Varley said that his next recollection was waking up in hospital. 6 It is not necessary to go deeply into the other Crown evidence at the trial. It implicated the appellant rather than Mr Gilbert. There was some direct evidence apart from that of Mr Gilbert. Mr Frank Hull saw a man of Maori appearance standing at the head of a person on the ground, apparently in a rage, and said that the man appeared to kick the head or face of the person on the ground; he saw a smaller man standing at the feet of the person on the ground. The appellant is of Maori appearance, and is a bigger man than Mr Gilbert. Ms Robyn McKenzie saw a smaller man and a big man going up a laneway and then running out of the laneway. Mr Mark Murphy saw much the same, plus hearing the big man saying to the smaller man "I want this bloke in a fucking box". Mr Varley was found up the laneway in the location seen by Mr Hull. There was other evidence from which it could be concluded that the smaller man was Mr Gilbert. Mr Gilbert's conviction and sentence 7 Mr Gilbert was called by the Crown. His evidence began, after giving his name - "Q. You are currently in prison? A. Yes. Q. And is that following a jury verdict in relation to a trial in relation to your involvement in the matter currently before the court? A. Yes." 8 Mr Gilbert then gave evidence that he was acquainted with the appellant, and that they went together to the hotel. He said that they were not introduced to Mr Varley, and that he did not remember any discussion with a man in relation to a missing wallet. When he and the appellant left the hotel he got into the passenger seat of his car, with the appellant to drive. He saw the appellant arguing with the driver of a white car. The white car then ran into the back of Mr Gilbert's car. The appellant pursued the white car and ran into it. Mr Gilbert said that he left the car and tried to hide. Then he and the appellant went up the laneway to the white car, and the appellant and the driver of the white car had a fight in which the driver of the white car was knocked to the ground and the appellant picked up a brick and threw it down onto his head. 9 In the cross-examination of Mr Gilbert various matters in relation to the reliability or credibility of this evidence were elicited, or at least put to him. The thrust of the cross-examination was that Mr Gilbert had a psychiatric condition which caused him to become violent from time to time, and that he had been driving his car, had become angry when the white car ran into it, and had pursued the white car and fought with its driver. The substance of this was put to Mr Gilbert more than once, on the last occasion the culminating question and answer being - "Q. I suggest to you that you were in such a rage that you pursued and attacked Mr Varley? A. No." 10 Counsel for the appellant immediately moved to a new matter - "Q. You have a real interest in being here don't you and giving evidence in these proceedings? A. I don't understand. Q. I suggest to you that you went to trial in this court in July of this year and that you were convicted? A. Yes. Q. And you were convicted of maliciously inflicting grievous bodily harm? A. Yes. Q. And you were sentenced in relation to those proceedings. A. Yes. Q. But before you were sentenced you entered into an agreement with the Crown with respect to this trial?" 11 This seems to have been the beginning of putting to Mr Gilbert that he had agreed with the Crown to give evidence in the appellant's trial in order to receive a reduced sentence when himself convicted, and that he had promised and then given false evidence implicating the appellant in order to obtain and retain the reduced sentence. Although not fully carried out, in due course that cross-examination progressed. But before the cross-examiner had gone further, the trial judge intervened - "HIS HONOUR: Ms Kluss are you aware of the Crown case against Gilbert. KLUSS: I'm sorry your Honour. HIS HONOUR: Are you aware of the basis of the Crown case against Gilbert in the trial involving him? KLUSS: Yes your Honour. HIS HONOUR: Well you might be and the Crown Prosecutor might be but I'm not. Ladies and gentlemen this is a matter that I desire to discuss with counsel in your absence because it isn't quite as simple as it sounds." 12 The transcript then reads – "IN THE ABSENCE OF THE JURY WITNESS STOOD DOWN WITNESS LEAVES THE COURT "(Discussion ensued re the Crown case presented against Gilbert. His Honour outlined remarks he proposed to direct to the jury regarding the Crown case against Gilbert. Ms Kluss outlined further questions she wishes to put to witness Gilbert. Ms Kluss requested access to the draft sentence relating to Gilbert. Photocopy access granted.)" 13 The jury returned, and the cross-examination continued - "KLUSS: Q. You went to trial with respect to these matters on 10,11, 12 and 13 July of this year. Is that correct? A. Yes. Q. Is it the situation that you were convicted of maliciously inflicting grievous bodily harm with intent to so cause that grievous bodily harm? A. Yes. Q. And you entered into an agreement with the Crown did you not that you would give evidence in this trial? A. Yes. Q. That agreement with the Crown was told to the sentencing Judge when you were sentenced wasn't it? A. Yes. Q. And indeed the Judge who sentenced you indicated to you that that assistance provided to the Crown was worth 50 per cent of the sentence that you would serve. A. Yes. Q. The Judge indicated to you that your, as he assessed your involvement in all the matters pertaining to this matter from the evidence at your trial that he calculated the offence was worth six years? A. Yes. Q. That's what he said to you when he sentenced you didn't he? A. Yes. Q. But because of the assistance and because you were giving evidence in this trial that in fact your sentence would be three years? A. Yes, Q. And that you would serve one year of the minimum term? A. Yes. Q. And the additional two years in the community? A. Yes. Q. Provided that you complied with requirements that were placed upon you? A. Yes. Q. If you don't give evidence in this trial you know that you can be re-sentenced don't you? A. Yes. Q. And you know that the re-sentencing procedure that you would be conducted would reflect what his Honour said to you? A. Yes. Q. And the fact that his Honour had assessed that your involvement was worth six years? A. Yes. Q. You've got a real interest haven't you in giving evidence in this trial? A. Yes Q. So when you were at your trial the accused never gave evidence in your trial did he? A. No. Q. And indeed his ERISP interview was never shown to the jury either was it? A. No." 14 The transcript then records - "KLUSS: Your Honour I appreciate that your Honour wishes to make some comment to the jury. Is that a convenient time? HIS HONOUR: Have you finished? KLUSS: There are some Browne and Dunn [sic] matters that I wanted to go to but there was nothing else on this particular aspect. HIS HONOUR: You complete your. [sic]" 15 After some short further cross-examination, the trial judge addressed the jury. It is desirable to set out in full what he said - "HIS HONOUR: Ladies and gentlemen, I was concerned that you may have been misled, inadvertently misled, by a line of questions that were being put to Mr Gilbert and I consider it important that you know the basis of Mr Gilbert's conviction and the basis of the sentence that was imposed. You are of course aware that he was convicted and he was sentenced for his part in the assault on Varley. The evidence in this trial was substantially the same as the evidence that you have heard from this trial. That is to say that the same police witnesses were called, the same experts, the same lay witnesses who heard statements being made, who saw things happen in the lane and so on. It is the law, ladies and gentlemen, that when two people, two or more people but in this case two people, enter into an agreement to commit a crime and when they engage in some joint criminal enterprise pursuant to that agreement, then each of them is responsible for the actions performed by the other in the course of that joint criminal enterprise in the course of that agreement. To give you an example removed from this case, if two men decide to hold up the TAB in Gosford, one man sits in the car revving up the engine whilst the other man goes in with a shotgun, holds up the TAB, brings back the money and gets into the car, both of them are equally liable for that holdup. That is so even though one man did not hold the shotgun at any stage, he didn't threaten anybody at the TAB, he didn't take any money, he didn't touch any money, but he is equally liable because the agreement between then [sic] was that they would rob the TAB so even though one man only drove the car he is just as guilty as the man who had the shotgun. In this case the Crown alleged in the trial of Mr Gilbert that there was a joint criminal enterprise, an agreement to assault Varley. This man was charged and the trial against him was conducted on the basis that although he didn't lay a hand on Varley, that he didn't use the brick or he didn't do anything physically to Varley, that he was liable because he had agreed with the accused that Varley would be attacked. The joint criminal enterprise upon which they had set about, upon which they had agreed, was the attack on Varley. So that in the trial against Gilbert the Crown relied upon his participation in the sense that he was there and that he was ready, willing and able if required to assist the accused. He was guilty even though, on the Crown case in his trial, even though he didn't touch Varley. There was no evidence at his trial from any source to suggest that Gilbert used the brick or did anything to Varley. The jury in his trial was never asked to consider whether Gilbert had used the brick or any violence on the victim. The Crown case was that Nale, this accused, had performed the violence and as I say, there was no evidence to the contrary. It was on that basis that the trial judge left the case to the jury and it was on that basis that the jury returned a guilty verdict against Gilbert. The basis was their joint criminal enterprise, not on the basis that he, Gilbert had used any violence against Varley. Even though he didn't, he was equally guilty. The trial judge sentenced Gilbert on that basis. That of course ladies and gentlemen does not prevent, is not any bar to the accused in this case to assert that it was Gilbert who proffered the violence to Varley. It is no bar to the accused in this matter raising the defence that it wasn't him who used the brick, that it was Gilbert. As to whether the accused did what the Crown says that he did, that it was the accused who violently assaulted Varley with that brick or in any other way it is for your to say. I will of course instruct you further as to what matters the Crown must prove before any guilty verdict can be returned. Whilst you have been out, I have read the sentencing judge's remarks on sentence and it is clear that he took into account Gilbert's agreement to give evidence in this trial when fixing sentence. It is the law, ladies and gentlemen, that sentencing judge must do that. The law must give credit to a person who is prepared to take the risks that are involved in giving evidence against somebody who is charged with violent crimes. Before Gilbert was sentenced nothing was indicated to him by the Judge as to what discount would be given to him. The way it's done is that if the person says 'I will co-operate with the authorities by giving evidence against a co-offender' the Judge then says 'All right you've agreed to do that I will give you a discount' and as I say the judge is bound to do that. So that's what happened in the case of Gilbert, that's what happened in this trial and that's what happened on his sentence. As I say he was convicted on the basis that he was jointly liable for the actions of this accused. That, however, does not prevent this accused in his trial from saying though that isn't the way it happened, it was he, Gilbert, who used the brick, it was he Gilbert who was violent to Varley not me and as I say in due course you're going to have to decide whether the accused did what he is charged with and I'll give you further instructions before you come to consider your verdict in that regard ." (underlining and italics added) 16 I have underlined and italicised in the trial judge's remarks the passages most material to the ground of appeal, although of course what was said must be considered as a whole. 17 There was then brief re-examination of Mr Gilbert, and at its conclusion the transcript records - "IN THE ABSENCE OF THE JURY HIS HONOUR: Mr Kluss, with regards to the remarks that I just made to the jury are there any alterations or amendments that you seek? KLUSS: Your Honour, I was inclined to ask your Honour when your Honour was summing up to indicate to the jury that, and I appreciate that your Honour has done this with some respect but to emphasise to the jury that no determination of another court is binding upon their determination of fact. HIS HONOUR: Remind me, if I forget to do that would you remind me of that? KLUSS: Most certainly. I appreciate that your Honour has already adverted to it but I'd ask that it be stressed. HIS HONOUR: No I think what you say is entirely reasonable and I'll do it but remind me about it in case I omit to do so." 18 The trial judge's summing-up included - "During the course of this trial I was explaining to you what had occurred in the trial of Gilbert and the conviction of Gilbert and at that time I told you that whatever occurred in Gilbert's trial was no bar whatsoever to the accused in this trial asserting that it was Gilbert and not he who proffered violence to Varley. I cannot emphasise it too strongly ladies and gentlemen that what occurred in the trial of Gilbert is in no way shape or form binding upon you. You are concerned only with the evidentiary material before you in this trial, which is no doubt different from that what was present in the other trial. For instance, Mr Varley did not give evidence in Gilbert's trial. If he had done so we do not know what the result might have been. So you must not guess or speculate about the course of Gilbert's trial, what was done in that trial and so on. You must concentrate on the evidence in this case. Put aside any other matter. Now you have each taken a solemn oath to determine this matter on the evidence in this trial. Your oath binds you to do that. Your oath also binds you to accept my directions with regard to any matter of law, and what I have told you is a direction with regard to the law. I confidently expect that you will be true to your oaths and that you will put aside any matters that you have not observed, either in the witness box or from the material that has been tendered before you, and that you will use only that material as a basis for any decision that you would arrive at. Now do you have any difficulties with understanding that direction, because if you do raise them." Was there error in the trial judge's remarks? 19 To repeat, the ground of appeal was, "The learned trial judge erred in directing the jury as to the basis of Gilbert's conviction and sentence". On the submissions, the complaint was not so much about what the trial judge said in the summing-up as about what he said at the conclusion of the cross-examination of Mr Gilbert. 20 We do not know what was said between the trial judge and counsel in the discussion in the absence of the jury. It seems that his Honour was moved to intervene by it being brought out in cross-examination that Mr Gilbert's conviction for his "involvement in the matter currently before the court", which the Crown had led in those vague terms, was a conviction for maliciously inflicting grievous bodily harm. It appears that his Honour was concerned that the jury might reason that, if Mr Gilbert had been convicted on that charge, it followed that Mr Gilbert had caused or inflicted the grievous bodily harm and the appellant had not caused or inflicted the grievous bodily harm. 21 It was accepted in the appeal that this was a legitimate concern, and that his Honour could properly have said something to the jury at the time so that they should not misuse the evidence. There was nothing wrong in counsel for the appellant eliciting, as part of the cross-examination concerning Mr Gilbert's sentencing discount, that Mr Gilbert had been convicted of maliciously inflicting grievous bodily harm. (After the trial judge's intervention and before he made his remarks to the jury this was amplified as maliciously inflicting grievous bodily harm with intent to do so, which was the alternative charge against the appellant.) Indeed, it may have been appropriate for the Crown to have led the conviction and sentencing discount in chief. But the appellant submitted that what his Honour said went much too far, and introduced irrelevant and prejudicial material into the trial which the summing-up did not cure. 22 The appellant referred to R v Stokes (CCA, 16 June 1988, unreported), and it is instructive first to consider that case. The accused was charged with having sexual intercourse without consent. The complainant had been taken to a shed by five men, one being the accused. Another of the men had had the sexual intercourse. The accused was charged as a principal in the second degree. 23 The reasons of Street CJ, with whom Lee and Maxwell JJ agreed, were relevantly - "During the course of the cross examination of the complainant it became apparent that there were to be some questions asked of her regarding evidence given on other occasions. His Honour then, in order to assist the jury to understand the significance of evidence given elsewhere, gave to the jury an instruction in the following terms: 'Members of the jury, to assist your understanding of the case I deem it appropriate to tell you this. Arising out of the alleged occurrences that have been referred to in this trial, there have been two previous trials as well as the committal hearing. At the first of such trials in July of last year three accused persons appeared, not including this accused. That trial aborted for reasons you need not concern yourselves with and no verdicts were returned. Those same three accused were re-tried in October 1986 and the jury on that occasion convicted two and acquitted one. Now members of the jury I inform you of that background simply so that you can more readily understand the cross-examination which will probably now ensue by Mr Cook. I warn you not to speculate either as to who those three persons were who were placed on trial or as to who it was who was convicted and who was acquitted. That is completely irrelevant for your purposes. Your task is to consider the evidence against this accused and this accused alone.' It is contended on behalf of the appellant that his Honour having told the jury that two other of the five men had been convicted in an earlier trial, and that the jury should not speculate as to who they were, that is to say, who it was who was convicted and who was acquitted. Accepting that his Honour's intention was to assist the jury with a fuller understanding, it nevertheless stands out irrefutably that putting before the jury this irrelevant and hence inadmissible material carried with it a very real and substantial prospect of prejudicing the jury's evaluation of the evidence being given by the complainant of the events in the hut on that evening. The information was irrelevant. It was prejudicial and, in the view that I take, no direction could have been adequate to correct or excise it from the jury's later evaluation of the facts. The circumstances that it passed without protest by counsel for the appellant at the trial does not, in my view, preclude it being advanced on appeal before this Court for the first time, bearing in mind the gravely prejudicial overtones of what took place. On the whole I am persuaded that this must be regarded as a trial in which there was a miscarriage of justice and it follows that I consider that the appeal should be allowed, the conviction quashed and there should be a direction for a new trial." 24 The irrelevant and prejudicial material was that two other of the five men had been convicted in an earlier trial. The Chief Justice did not spell out why it was irrelevant and prejudicial, but at least one basis can readily be seen. If the two other men had been convicted, the complainant's evidence of sexual intercourse without consent must have been accepted by the earlier jury. It was irrelevant in the accused's trial that the complainant's evidence had been accepted by the previous jury, and highly prejudicial. 25 What the trial judge said in the present case was of the same kind, but worse. 26 Through the second and third underlined passages the trial judge in effect told the jury that the Crown's opinion was that the appellant, not Mr Gilbert, had inflicted the grievous bodily harm on Mr Varley. Through the first and third underlined passages the trial judge in effect told the jury that the witnesses who had given evidence before them had been accepted by the earlier jury, and more particularly that the earlier jury had found that the appellant, not Mr Gilbert, had inflicted the grievous bodily harm on Mr Varley. The trial judge's remarks included, in the third underlined passage, that the Crown case at the earlier trial was that the appellant "had performed the violence" and that "it was on that basis that the jury returned a guilty verdict against Gilbert". That was a blunt indication that the appellant had inflicted the grievous bodily harm on Mr Varley. 27 None of this could have been given in evidence if the Crown had sought to do so. It should not have been put before the jury, but it was put before the jury by the judge otherwise than as evidence, and with the authority of his office and in circumstances such that the line was blurred between the trial judge's directions which the jury was bound to accept and the evidence in the case which it was for the jury to evaluate. The prejudicial effect must have been enormous. 28 Although it was raised but in passing, there was a further aspect of irrelevancy and prejudice. Whilst reference to sentencing policy which made it appropriate to give a sentencing discount could be explained, it was important that any explanation be provided in agreed terms. In the fourth underlined passage what the trial judge said was capable of being seen by the jury as suggesting that the appellant was a violent man. It is not necessary to say more of this in order to dispose of the appeal. 29 The trial judge did say, in the first of the italicised passages, that what had happened in Mr Gilbert's trial "does not prevent" or "is not any bar to" the appellant "to assert that it was Gilbert who proffered the violence to Varley" or "raising the defence that it wasn't him who used the brick, that it was Gilbert". This was repeated in the second of the italicised passages, in the language that what had happened in Mr Gilbert's trial "does not prevent this accused in his trial from saying though that isn't the way it happened …". Two important things may be said of these passages. First, the trial judge's remarks were left as relevant material for the jury's consideration. Secondly, the caveat was only that they were not conclusive against the appellant, who was still entitled to maintain that "that isn't the way it happened". Use of the remarks as evidence of "the way it happened" was endorsed. The ostensible recognition of the appellant's interests in fact exacerbated the problem. 30 The Crown submitted that the trial judge's remarks were justified by R v Booth (1982) 2 NSWLR 847. That, however, was quite a different case. 31 A convicted co-conspirator gave evidence for the Crown. The Crown led from him in chief that he had been "charged in relation to this matter that is now before the court" and had "been dealt with". Objection having duly been taken, on appeal it was contended that this was not relevant to any issue which fell to the jury to determine, and was prejudicial to the accused because it amounted to suggesting to the jury that the person named in the indictment together with the accused had been charged with the same conspiracy and had admitted his guilt. 32 Street CJ said that the evidence was relevant because it established that the witness was an accomplice and so that there was a duty to warn the jury that his evidence was inherently suspect. His Honour continued (at 849-50) - "It is then contended that the Crown went too far by adducing evidence going beyond the mere fact that the witness was an accomplice. It is said that it is not open to the Crown to establish, as did the Crown in the present prosecution, that the putative accomplice has been charged in relation to the matter in question and dealt with. I leave aside consideration of how that might be proved without going to the length that the present evidence went to. It seems to me that the conclusion is inescapable that the full nature of the position of the witness as an accomplice is necessarily opened up as a relevant matter for evidence, so that the jury may be able to give proper meaning and carry properly into effect the warning which the trial judge is required to give them. Quite plainly, it would be of more significance in the jury's mind in evaluating the effect of the warning if it knew that the accomplice was still awaiting being dealt with. Equally, if an accomplice has been dealt with, the effect of the judicial warning can then be related by the jury to the determination of the weight which they will give to the evidence of the accomplice. It is well recognized in practice that accomplices should normally be finally dealt with before being called to give evidence in support of the Crown. It will rarely arise in practice that an accomplice who has not been finally dealt with, or who perhaps may not have received a pardon or otherwise has had his position finalized, will be called to give evidence. But the comparative rarity of the situation does not necessarily preclude the investigation, as a relevant subject matter, of precisely what may be the individual status of the particular accomplice whose evidence is being tendered, and in respect of whom the judge in due course must give to the jury a warning in relation to his evidence. It may be desirable in clear cases that the warning be given when the evidence is tendered, but this is a matter for the trial judge." 33 O'Brien CJ of Cr D said (at 850) - "Once the principle is conceded that the attention of the jury must be directed to the risk inherent in accepting the evidence of a witness whom they find to be an accomplice of the accused, it becomes relevant, in the assessment by the jury of that risk, to know whether he has any advantage to gain from the Crown in his giving evidence against the accused. It is relevant therefore that the jury should know that he has been charged and dealt with, if that be the case, since that source of risk would thereby be removed. The evidence that he has been charged and dealt with is therefore in my view admissible, and its weight is not overborne by the alleged prejudice to the accused in the disclosure simply that he has been charged and dealt with." 34 Lee J agreed with the Chief Justice, with some additional observations to the effect that the witness's status as an accomplice and his position vis à vis the Crown was a relevant matter and the jury should not be left to speculate. 35 Nothing in R v Booth justified the trial judge's remarks. Mr Gilbert's conduct on the occasion when Mr Varley was injured and his conviction and sentencing were proper matters for evidence in order to show that he was an accomplice and enable the weight to be given to his testimony to be assessed. But the trial judge's remarks were not evidence of that kind, or indeed at all. The nature of Mr Gilbert's position as an accomplice depended on what he did, as brought out in examination in chief and cross-examination, not on his earlier conviction. The cross-examination was directed to whether Mr Gilbert had any advantage to be gained by giving evidence against the appellant, and the trial judge's intervention was neither necessary nor appropriate in that connection. The trial judge's remarks were quite outside anything authorised by R v Booth. 36 It would not be satisfactory to criticise the trial judge's remarks without giving some attention to what could properly have been said to the jury. There is no single acceptable course, and whatever might be said should first be discussed with counsel. The trial judge could have said something like - "You have heard that Mr Gilbert was convicted of maliciously inflicting grievous bodily harm on Mr Varley. You may think that the fact that he was convicted of that offence has some bearing on whether the accused committed one of the offences for which he now stands charged. It does not. I now direct you that as a matter of law the fact that Mr Gilbert was convicted says nothing as to whether he was the one who caused Mr Varley's injuries or the accused was the one who caused the injuries, and you must not use that fact as evidence one way or the other in deciding whether or not the accused caused the injuries." Did the summing-up cure the error? 37 The Crown submitted that any error had been overcome by the passage in the summing-up earlier set out. The trial judge did not repeat his description of Mr Gilbert's trial and the basis of his conviction. But nor did he unequivocally tell the jury, after reflection, that what he had earlier said should be put out of their minds. On the contrary, by again saying that what occurred in Mr Gilbert's trial was "in no way shape or form binding on you" he left his remarks as material for the jury's consideration. Although he also told the jury to concentrate on the evidence in the case, put aside any other matter, and put aside any matter they had not observed in the witness box or from the materials that had been tendered before them, that still left the significant possibility that the jury would regard the remarks, coming from the presiding judge whose directions in law they were bound to accept, as something to which they could also pay regard. It may be that the error could not have been overcome by unequivocally telling the jury that the remarks should be put out of their minds. But the summing-up certainly did not, in the words of R v Stokes, "correct or excise [the remarks] from the jury's later evaluation of the facts". Other Crown submissions 38 The Crown submitted that counsel for the appellant had not objected to the trial judge making his remarks, that by force of rule 4 of the Criminal Appeal Rules leave was required for the ground of appeal, and that leave should be declined. 39 As I have said, we do not know what was said between the trial judge and counsel in the discussion in the absence of the jury. No objection to the trial judge making the remarks he then outlined is noted, as would be expected if counsel for the appellant had objected. Perhaps the trial judge's intention was firmly expressed and brooked no opposition, although that is when counsel must be respectfully fearless. 40 But the Crown had a responsibility also, to dissuade the trial judge from error. It may be that rule 4 strictly does not apply to the trial judge's remarks, because they were not a direction, omission to direct, or decision as to the admission or rejection of evidence. The rule could apply if the relevant omission be regarded as occurring when the trial judge did not in his summing-up unequivocally tell the jury that what he had earlier said should be put out of their minds. Without troubling over this, the Crown does not seem to have endeavoured to save the trial judge from error, and the prejudice was great. If leave be necessary, it should be granted. 41 Finally, the Crown submitted that the proviso in s 6 of the Criminal Appeal Act 1912 should be applied, and that the Court should conclude that no substantial miscarriage of justice had actually occurred and dismiss the appeal. 42 There was the evidence of Mr Hull, Ms McKenzie and Mr Murphy to which I have referred. Other evidence assisted to place the appellant at the place where Mr Varley's injuries were inflicted. There was undoubtedly a Crown case of some strength. But the appellant gave evidence, saying that Mr Gilbert had been driving when there was the collision with the white car, that Mr Gilbert had pursued the white car, then run up the laneway, and that he (the appellant) had seen Mr Gilbert kicking Mr Varley and had pulled him away. The principal issue remained, and only Mr Gilbert's evidence had the appellant picking up a brick and throwing it down on Mr Varley's head. That was important to the intent to murder, and it was acknowledged that in the summing-up the trial judge correctly described Mr Gilbert's evidence as critical. 43 The trial judge's remarks significantly undermined the appellant's evidence and in consequence boosted that of Mr Gilbert. I do not think it can be said that a jury properly instructed would inevitably have convicted the appellant if the trial judge had not brought into their consideration the irrelevant and prejudicial material. In any event, the judicial intervention was a fundamental flaw in the appellant's trial. In my opinion the proviso did not apply. 44 Greg JAMES JA: I agree with the reasons of Giles JA. 45 KIRBY J: I also agree with the reasons of Giles JA. *********** 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.