Reported Decision : (2002) 132 A Crim R 44 New South Wales Court of Criminal Appeal CITATION : R v Yammine & Chami [2002] NSWCCA 289 FILE NUMBER(S) : CCA 60562/01; 60563/01 HEARING DATE(S) : 12 July 2002 JUDGMENT DATE : 23 July 2002 PARTIES : Regina v Youssef Yammine Regina v Walid Chami JUDGMENT OF : Hodgson JA at 1; Studdert J at 2; Bell J at 84 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0296 00/21/0297 LOWER COURT JUDICIAL Armitage DCJ OFFICER : R.A. Herps (Crown) COUNSEL : G. Nicholson QC/B.W. Cross (Yammine) B.W. Walker SC/G.A. Bashir (Chami) S.E. O'Connor (Crown) SOLICITORS : Susan N. Goodsell (Yammine) Sachs Gerace Lawyers (Chami) CATCHWORDS : CRIMINAL LAW - trial by jury - testimony of Crown witness - issue of credibility - necessity for warning - whether warning given sufficient - Evidence Act, s.165. CRIMINAL LAW - trial by jury - introduction by Crown Prosecutor of assessment of credibility of Crown witness attributed to judge (other than trial judge) who had earlier sentenced the witness - whether resulting miscarriage. CRIMINAL LAW - trial by jury - whether verdict on each count unsafe and unsatisfactory. LEGISLATION CITED : Criminal Appeal Rules Evidence Act R v Stewart (2000-2001) 52 NSWLR 301 R v Vo [2001] NSWCCA 67 R v Clout (1995) 41 NSWLR 312 Domican v The Queen (1992) 173 CLR 555 CASES CITED: Pitkin v The Queen (1995) 130 ALR 35 R v Siebel & Anor (1991) 59 A Crim R 105 R v McDonald (1984) 1NSWLR 428 R v Fedler (1989) 42 A Crim R 5 R v Stevens [2001] NSWCCA 330 R v Reardon & Ors [2002] NSWCCA 203 DECISION : Each appeal allowed; convictions of each appellant and sentences imposed on each appellant quashed; new trials ordered. IN THE COURT OF CRIMINAL APPEAL 60562/01 60563/01 HODGSON JA STUDDERT J BELL J Tuesday 23 July 2002 REGINA v YOUSSEF YAMMINE REGINA v WALID CHAMI Judgment 1 HODGSON JA: I agree with Studdert J. 2 STUDDERT J: Youssef Yammine and Walid Chami stood trial in the District Court before his Honour Judge Armitage QC and jury on an indictment charging each with a number of offences, namely: (i) that between 10 March 1999 and 29 March 1999 they supplied a prohibited drug, namely heroin; (ii) that in the same period they supplied another prohibited drug, namely cocaine; (iii) that on 27 March 1999 they detained Jaimie Byrne with intent to hold him for advantage; (iv) that on the same date they used an offensive weapon with intent to commit an indictable offence, namely assault; (v) that on the same date they assaulted Jaimie Byrne occasioning him actual bodily harm. 3 The jury found each of the appellants guilty on all counts, and each of them was sentenced to various terms of imprisonment. 4 Each appellant appeals against his conviction on each count and seeks leave to appeal against the severity of the sentences imposed. 5 The principal witness in the Crown case was Jaimie Byrne, and I shall refer in summary to his evidence. Mr Byrne was a heroin user who purchased heroin for a period from a man named "Joe". For a time he paid in cash, but he was then extended credit, and became indebted in an amount of $2000 approximately. Mr Byrne then met the appellant Chami who offered him the choice of working to pay off his debt or the threat of violence for non payment. Mr Byrne said he chose the former course and thereafter he sold drugs from an apartment in Chandos Street, Ashfield, which apartment, on the prosecution case, was provided for him by the appellants. Mr Byrne said he was supplied with drugs for sale by both appellants and he accounted for the takings to his suppliers. These activities were the subject of counts 1 and 2 in the indictment. 6 Mr Byrne said that he fell into difficulties in his accounting. He said that a drug user who he allowed to stay in the Chandos Street apartment was stealing from him. According to Mr Byrne it was as a consequence of the shortfall that the events on 27 March 1999, which gave rise to the third, fourth and fifth counts, occurred. 7 Mr Byrne gave evidence that the appellants drove him to a car park near an oval and he was taken from the car and kicked and punched. He was then directed to return to the car and was driven to another park where again he was taken from the car and told to walk to the oval closest to the river. There he said he was again kicked and punched and the barrel of a gun was twice placed in his mouth by the appellant Chami. Mr Byrne said that the appellant Yammine stabbed him in the toe with a knife. Mr Byrne said that as a result of the attack his teeth were chipped, his shoulder was dislocated, his body was bruised and he sustained the stabbing injury to his toe. He said that the appellant Chami told him he had until the following Sunday to pay what was owed or Chami would "put a bullet in your f… head". Mr Byrne said he made unsuccessful attempts to raise the money and then went to the police, where he identified the appellants from an identification video. He later participated in a drive-around, showing police officers the locations where he claimed to have been attacked. 8 The Crown case depended upon the acceptance of the essential parts of the evidence of Mr Byrne, but it also relied upon other evidence which, it was submitted, supported the evidence of the principal witness. I shall refer to this further evidence when considering the ground of appeal that the verdicts of the jury were unsafe and unsatisfactory. 9 Neither accused gave evidence. 10 Against the above outline, I now turn to consider the various grounds of appeal against conviction as advanced by each of the appellants. 11 There are grounds of appeal common to the appeals of each appellant and it is convenient to address these grounds first. (The numbering is mine.) Ground 1: The directions given by the learned trial judge in relation to the unreliability of the witness Mr Byrne were inadequate 12 The relevant instruction was given in the following passage (SU 24-25): "Members of the jury, in this case, for two reasons, I give you a warning in respect of the evidence given by Mr Byrne. On one view of the matter it may well be that he was criminally concerned in the events giving rise to these proceedings. Mr Byrne himself says that he was, but he says, in effect, that he was forced into it because he feared for his life. The two accused of course deny that there were any criminal activities. Nevertheless, if you are of the view that Mr Byrne was criminally involved in these events, I warn you that his evidence may be unreliable. Persons who are criminally involved in the very matter about which they are giving evidence often lie, sometimes to protect themselves and sometimes to transfer the blame to others, often quite innocent people. The second reason for giving the warning is Mr Byrne's mental state at the time these events took place. He agrees that at times he was unable to distinguish fact from fiction, and when he said that he was talking about his condition back in 1999. I remind you too that Mr Byrne has agreed that when sentenced in the District Court he promised to give evidence against these two accused. It is necessary for you to bear in mind that that could have provided him with a motive to lie. I say 'could have'; I am not for a moment expressing any view about it. I am not saying for a moment that he did have a motive to lie. I am saying it is a matter that you should consider; it could have provided him with a motive to lie. Whether it did or not, entirely a matter for you." 13 The appellants each submitted that the judge was wrong to leave it to the jury to determine whether the jury was of the opinion that Mr Byrne was criminally involved in the events. Criticism was made in particular of the content of the second-last sentence of the first paragraph of his Honour's instruction set out above. It seems to me that in expressing himself there as he did, his Honour was simply acknowledging the role of the jury as the judges of the facts. The reality was that Mr Byrne made plain in his evidence the fact of his involvement in criminal activity in the supply of heroin over a period. I do not consider the fact that the judge expressed himself conditionally in this sentence would, of itself, render the warning expressed in the passage deficient. 14 The Crown submitted that whilst the judge dealt with the matters attracting the warning "relatively briefly", the instruction was sufficient to highlight the three aspects that the jury needed to consider when assessing the reliability of the evidence of Mr Byrne. It was further submitted that at the conclusion of the summing up no further directions in point were sought, although on the hearing of this appeal the Crown indicated that no point was being taken under r 4 of the Criminal Appeal Rules. 15 I have, however, come to the view for a number of reasons that the jury was given insufficient instruction in terms of the content of the warning which the circumstances of this case warranted. 16 Firstly, the warning concerning the mental state of the witness directed attention only to his condition in 1999 and it ignored his mental state thereafter, and in particular at the time of the trial in April 2001. 17 It is necessary to examine the evidence given at the trial about the mental condition of the witness with some care. 18 In the course of his evidence on 4 April 2001 the witness complained that he was not well and the transcript records these questions and answers (T 40): "HIS HONOUR: Q: You're not well? A. No, I've got really bad voices. Q. You've got? A. Bad voices, and I can't understand the questions. I'm a schizophrenic." 19 After that exchange the witness indicated that he needed his medication and that it would take half an hour. The witness resumed his evidence on the following day and these questions and answers are recorded in the transcript (T 46): "Q. As you no doubt recall yesterday in the course of giving evidence you had some difficulties there in the witness box and the court adjourned for the day, are you aware of that? A. Yes. Q. Are you able to tell the ladies and gentlemen of the jury what the problem was yesterday? A. I suffer from schizophrenia, paranoid schizophrenia and my voices started coming up pretty bad. Q. Your voices started coming up pretty bad? A. Yes. Q. What do you mean by that? A. I have voices in my head that tell me to do certain things. Q. Was that something that suddenly popped up while you were in the witness box or did it develop over a period of time while you were there in the box? A. Over a period of time. Q. Did that or did those symptoms affect in any way your understanding of the questions you were being asked at any stage? A. Yes. Q. Did it affect in any way your hearing of what was being said in the court room at any stage? A. Yes it did." 20 On the following day, in the course of cross examination, the witness was asked these further questions and gave these further answers (T 181): "Q. The voices that you heard allegedly on the first day that you gave evidence, should not occur whilst you're on medication, should they? A. They still do. Q. Please answer my question sir? A. I am still being medicated for my illness and when I am under complete stress, it comes on. It is an illness that you cannot control. If you read into it, you might know about it. Q. The voices that you claim you heard on Wednesday of this week, are not supposed to occur whilst you're taking your medication, is that not the case? A. That's correct." 21 Then, on Monday 9 April 2001, the witness was being cross examined about the content of the record of interview which he gave to the police, having had the opportunity of considering it over the weekend. It emerged that he had spent the weekend in hospital: "Q. Did you, in the reading of your record of interview, either or both of them, find that sort of detail told by you to the police? A. I don't remember, I didn't read it very clearly, they know the reasons why, why I was in hospital. Q. Mr Byrne, is it going to be the case that in respect of the other matters I'm going to ask you about, you're going to claim you didn't read the records of interview clearly? A. No, because I spent most of my weekend-- Q. Please-- A. -- up in hospital. OBJECTION (CROWN PROSECUTOR) Q. You don't have a clear memory of what you read over the weekend, is that what you say? A. No I don't. I spent most – as I said, I spent most of my time at the hospital." 22 The mental state of the witness at the time of the alleged offences was not the only relevant consideration. His mental state at the time of giving evidence was a relevant matter to be considered by the jury when determining the reliability of his testimony. The jury was not informed that this was so, in the context of a warning under s 165(2)(b) and (c) of the Evidence Act. 23 Secondly, whilst the jury was reminded that Mr Byrne had agreed to give evidence against the appellants and that this could have provided a motive for him to lie, the judge did not draw attention to the circumstance that, having regard to the undertaking given in the District Court, the sentence of the witness could be increased if he did not give evidence in accordance with his undertaking. In my opinion, this further instruction was called for, bearing in mind the requirements of s 165(2)(b) of the Evidence Act. See R v Stewart (2000-2001) 52 NSWLR 301. 24 Thirdly, once warning was requested, s 165(2) of the Evidence Act required that the judge: "If there is a jury and a party so requests, the 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." 25 The warning here given did not address the substance of s 165(2)(c) so each appellant lost the benefit of a direction which warned the jury of "the need for caution in determining whether to accept the evidence and the weight to be given to it." 26 Section 165(3) provides that the judge "need not comply with sub-section (2) if there are good reasons for not doing so." It has not been contended by the Crown that such reasons existed, and clearly there were none. What was missing from such warning as was given was, in my opinion, of very real significance, and I consider that this ground of appeal has been established. Ground 2: The directions to the jury by the trial judge and address by the Crown Prosecutor on Judge Viney's assessment of the witness Mr Byrne in his sentencing proceedings were irrelevant and prejudicial to the appellant 27 This ground concerns what the Crown Prosecutor said in his closing address to the jury, and by way of background it is necessary firstly to refer to part of the cross examination of the witness Mr Byrne. 28 Counsel who appeared for the appellant Yammine at trial cross examined Mr Byrne about his sentencing procedure before Judge Viney and the relevant cross examination was as follows (T174-175): "Q. I just remind you of what the sentencing judge said – first of all did the sentencing judge make some remarks in open court to you? A. Yes. Q. And you were there obviously when he was making those remarks? A. Yes. Q. I'm just looking at page 10 of the sentencing remarks of his Honour Judge Viney in this court on 28 April 2000, in the matter of Regina v Jamie Wayne Byrne, page 10 at about .7, his Honour said, 'Next Mr Byrne has given an undertaking to give evidence against these others which in his situation, and given the nature of this sort of enterprise and where people who inform on drug deals are always at risk, then that is an heroic demonstration first of all of his contrition and indeed of his process of rehabilitation. For him to be available to give evidence against the others is extremely risky but he has taken up that position and indicated in evidence that he abides by the undertaking to give that evidence'? A. Yes." 29 The reason for that cross examination appears in a later question put to Mr Byrne (T 176) and in a submission put to the jury by counsel for the appellant Yammine, which submission was taken up in the summing up. The questions asked were these: "Q. The fact is you promised to give evidence against a person like Youssef Yammine knowing that you had nothing to fear from him because he had nothing to do with this case? A. Whatever, he's got plenty to do with this case, it's-- Q. Isn't it the case Mr Byrne, that you, even to this day, you're protecting the real thugs, you're protecting them by not naming them? A. No, I'll name them right now." 30 In the course of his closing address the Crown Prosecutor said, when addressing the jury as to the credibility of Mr Byrne: "…as you have heard Jamie Byrne gave evidence before his Honour Judge Viney in April last year when he was dealt with, Jamie Byrne agreed that he was prepared to give evidence for the prosecution in this trial. And you've heard that he, Jamie Byrne having already served five months in custody on remand bearing that in mind, his Honour Judge Viney released Jamie Byrne on a bond and in that process it was incumbent upon him to fulfil his undertaking with Judge Viney to give evidence in this trial and that's what he has done… Bear in mind this that when Jamie Byrne came before his Honour Judge Viney, you might think Judge Viney was in a very, very good position to make an assessment as professional judge of Jamie Byrne. For Judge Viney to consider Mr Byrne up close if you like and personally in totally different circumstances to what we have here in the trial where to a large extent things are pretty clinical. But in that sentencing process, I'd suggest to you and you might think as a matter of common sense, Judge Viney, A, wouldn't have had the wall [sic] pulled over his eyes and would have had been in a much better opportunity, a much better position to make an assessment of Jamie Byrne. So what did Judge Viney say in the process of passing sentence on Jamie Byrne? And this is in part what he said and this is the part that was read out by Mr Bailey, 'Next, Mr Byrne has given an undertaking to give evidence against these others which in his situation and given the nature of this sort of enterprise and where people who inform on drug deals are always at risk, then that is a heroic demonstration. First of all, of his contrition and indeed of his process of rehabilitation. For him to be available to give evidence against the others is extremely risky. But he has taken up that position and indicated in evidence that he abides by the undertaking to give that evidence.' That's what Judge Viney thought of Jamie Byrne. Even to the extent of referring to his heroic demonstration. And you might think that view formed by Judge Viney would be of some assistance to you in ultimately assessing whether you are prepared to accept what Jamie Byrne has told this Court beyond reasonable doubt." 31 Whilst the cross examination incorporated part of Judge Viney's remarks in which it was stated that Mr Byrne "indicated in evidence a willingness to abide by his undertaking", there was in fact no evidence at the trial of the appellants that Mr Byrne had given evidence before Judge Viney. Even if he had done, there was no evidence as to whether he was subjected to cross examination, or whether what he had to say was strenuously tested. 32 It seems to me that the submissions of the Crown Prosecutor above recorded were most inappropriate. Unfortunately, the learned judge made reference to those submissions on a number of occasions in the course of the summing up. Those references were not disapproving but in the context of reminding the jury of the Crown's submissions. In this connection, his Honour said (SU 19-20): "In this context the Crown reminds you of what Judge Viney said when he gave the accused a bond in this court complex. He described Mr Byrne's undertaking to give evidence as 'a heroic demonstration of his contrition and his process of rehabilitation'. It is unlikely, the crown puts to you, that Judge Viney would have had the wool pulled over his eyes, as he would have had an excellent opportunity during the sentencing procedure of assessing Mr Byrne." And then (SU 33): "The Crown Prosecutor put to you that when Jamie Byrne came before Judge Viney, the judge had an excellent opportunity of assessing him. He said, in the process of passing sentence, 'Next, Mr Byrne has given an undertaking to give evidence' – I have not got the whole of it noted down here, but you will recall the effect of it, members of the jury. The judge went on to say, 'That is a heroic demonstration of his contrition and his process of rehabilitation. It is extremely risky." 33 Then the jury was reminded on a third occasion about this topic, this time in the context of reviewing the submissions of counsel for the appellant Yammine: "Mr Bailey then addressed you as to the judge's comment when Mr Byrne appeared for sentence, that is that Mr Byrne's decision to give evidence was 'heroic'. Mr Bailey put to you that he, Mr Bailey, led that evidence to reinforce his submission that Mr Byrne knew full well that he was not giving evidence against a real drug dealer. He suggests he would certainly not have been heroic if he knew it was a real drug dealer. He knew it was not a real drug dealer. Therefore he was prepared to be heroic." 34 No objection was taken at the trial to the regrettable emphasis placed upon the significance of what Judge Viney had to say, but to my mind the conclusion is inescapable that there was the very real risk that the jury would have been improperly influenced by what was attributed to Judge Viney in discharging its responsibility of making its independent assessment of the witness. After all, the Crown had impressed upon the jury that "Judge Viney would not have had the wool pulled over his eyes" and that he "would have had…a much better opportunity, and would have been in a much better position to make an assessment of Jaimie Byrne" (presumably than the jury). The jury was invited to consider that Judge Viney was "in a very, very good position to make an assessment as professional judge." Those submissions should not have been put forward. 35 In the case of the appellant Yammine, it is true that his counsel at trial was responsible for introducing the topic which prompted the later submissions to the jury, but I do not consider that it follows that that appellant visited upon himself the real risk of miscarriage in the circumstances that occurred. Nor do I consider that the failure of counsel for either appellant who appeared at the trial to object to what occurred avoids the need for this Court to now intervene. To my mind, what occurred was so prejudicial that this Court ought not to allow the convictions to stand. The jury simply should not have been invited to have regard to any assessment of Mr Byrne that may have been attributed to Judge Viney. 36 Hence I conclude that this ground of appeal has been established. 37 Having regard to the outcome of each of the grounds I have considered, it seems to me that each of these appeals should be allowed. Because its assessment would influence a decision as to whether new trials should be ordered, it is appropriate to next consider what I shall number Ground 3. Ground 3: That the verdict of the jury in relation to each count is unsafe and unsatisfactory 38 At the time written submissions were presented, this ground was being pursued by both appellants. The ground was only argued at the hearing on behalf of the appellant Chami. However, it is desirable that the Court assess the evidence as available against each appellant when now considering this ground. 39 The approach to be applied in considering the present ground is now well settled and was stated by Wood CJ at CL in R v Vo [2001] NSWCCA 67 at paras 29-31: "29 The test to be applied in relation to s 6(1) of the Criminal Appeal Act is now well settled by the decisions in M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 194 CLR 106; Fleming (1998) 197 CLR 250 and Giam No 2 (1999) 109 A Crim R 348. 30 As was observed by Mason CJ, Deane and Toohey JJ in M: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.' (See Whitehorn v the Queen (1983) 152 CLR 686; Chamberlain v the Queen [No 2] (1984) 153 CLR 532; Knight v the Queen (1992) 175 CLR 495 at 504-505; 511). 31 But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. ( Chamberlain v The Queen [No 2] (1984) 153 CLR 621)." 40 The Crown case depended upon the jury being satisfied beyond reasonable doubt as to the substance of the evidence of Mr Byrne, but having considered the entire fabric of the Crown case, it seems to me to have been open to the jury to be satisfied beyond reasonable doubt that each appellant was guilty. 41 There were circumstances consistent with and supporting his account of events: (a) when he went to the police, Mr Byrne identified photos of each appellant, although there was no evidence that either was previously known to him other than in the circumstances that the witness described; (b) Mr Byrne described Walid (Chami) as having a yellow Japanese sports car, and it was otherwise established that this was so; (c) Mr Byrne described Youssef (Yammine) as having a silver Hyundai Excel and this was also established to be correct; (d) there were the phone numbers about which Mr Byrne gave evidence which were linked to the appellant Chami. "Joe" had brought the witness into communication with Walid (Chami) and Mr Byrne had contacted "Joe" on a mobile phone number traced to "Chami Sanaa" with the same address as that of the appellant Chami. Then, according to Mr Byrne, that appellant had provided him with a mobile phone for use in the drug dealing activity in which Mr Byrne became engaged. The subscriber to that phone number proved to be the appellant Chami; (e) there was evidence that linked each of the appellants to the Chandos Street apartment. When the appellant Chami was arrested, his yellow Nissan was seized and keys found in the centre console fitted the door locks of that apartment. When the appellant Yammine's Hyundai Excel was searched, an envelope was found in the boot addressed, not to the appellant, but to an addressee at 58 Chandos Street, Ashfield. More significantly though, the fingerprints of the appellant Yammine were found on the outside of a glass sliding door at 58 Chandos Street; (f) Mr Byrne gained some support for his evidence as to the attack upon him on 27 March 1999 from Mr Tannous who lived across the road from Centenary Park, Croydon. On the night upon which Mr Byrne said he was attacked, Mr Tannous said that he saw two men kicking and punching a third man who was on the ground. He was able to make out the words "money" and "we won't trust you again". He said that one of the men came towards him and said "You didn't see anything, you didn't hear anything. If you say something we'll be back." Mr Tannous said that he saw a yellow sports car parked near to the place where the attack occurred, and then, shortly afterwards when he was driving towards Burwood, he saw the same sports car in Shaftsbury Road, Burwood, and he said he could hear screams and yelling coming from within the car. According to his evidence, the yellow car was then travelling in the direction towards Tasker Park, and Mr Tannous later saw the appellant Chami's motor vehicle at Ashfield Police Station. He described it as being "similar" to the vehicle that he had earlier seen; (g) Mr Byrne's description of the attack upon him at Centenary Park was not inconsistent with the description Mr Tannous gave as to what he had observed; (h) then there was the evidence of Constable Faulkner. Whilst Mr Byrne said he did not previously know the names of the two parks where he was attacked by the appellants, one of the aids to their location was the location of the police random breath testing unit where Constable Faulkner was working on the night that Mr Byrne said the attacks took place. Constable Faulkner was working at a random breath testing location near Tasker Park on the night of 27 March 1999 and he said that during the course of the operation that night he saw a distinctive yellow Nissan. He had seen that same vehicle earlier that day. It was a vehicle with which he was familiar; (i) Mr Byrne gave evidence that the appellant Yammine walked away from Tasker Park after Mr Byrne had been taken there and that he had returned about five minutes later with a revolver and a knife. The address of the appellant Yammine was a short distance from Tasker Park; (j) Mr Byrne gave an account of injuries sustained in the attack consistent with the observations made by Detective Doran that the witness had chipped teeth, bruising to the shoulder and a lacerated big toe; (k) during the drive around, police accompanying Mr Byrne located pieces of paper about which Mr Byrne gave an account to the effect that he did not know what had happened to them after the appellant Yammine had examined the records of drug sales which appeared on them; (l) Mr Byrne gave evidence that at Tasker Park he was told to take some "deals" out of his mouth and that the appellant Yammine then placed them next to a tree. Detective Doran found two white balls wrapped in rubber party balloon material in a position consistent with that account. 42 Of course, the credibility of the witness was strenuously tested during the trial; the witness had a significant criminal history; he had a history of drug abuse, and there was the question of his mental condition upon which particular emphasis was placed in oral submissions. Nevertheless, my evaluation of all the evidence does not lead me to conclude that it was not open to the jury to be satisfied beyond reasonable doubt that each accused was guilty of each of the offences charged. 43 To the extent that proof of this ground depends upon the evidence available for the assessment of the jury, this attack upon the verdicts returned has not been established. 44 None of the remaining grounds advanced by either appellant would warrant his acquittal and it follows that, whilst I consider the convictions should be quashed, a new trial should be ordered against each appellant on each of the charges expressed in the indictment. 45 I propose nevertheless to address shortly the remainder of the grounds which have been argued. Ground 4: That the directions given by the learned trial judge concerning the evidence of resemblance of the car allegedly belonging to the appellant and that seen by Mr Tannous were inadequate 46 This ground is relied upon by each appellant and relates to the evidence of the sighting of the yellow vehicle on 27 March 1999 to which reference has already been made. 47 The evidence was not identification evidence to which Pt 3.9 of the Evidence Act applied. In the course of his summing up the judge gave the following directions in respect of it (SU22-24, 11 April 2001): "I come now to a rather strange thing really in the context of this case. It is a question of identification. It may seem odd to you. Members of the jury, usually when a question arises, it concerns of course the identification of a person. In this case, however, a question arises as to the identification of a motor vehicle. The evidence in question is that given by Constable Faulkner and Mr Joe Tannous. Constable Faulkner's evidence is that the motor vehicle he saw at 3.30 pm on Saturday 27 March 1999 was the same as the vehicle he saw later that day some time between 8.50 pm and 9.40 pm. A little later I will remind you with more detail of what he said about it. Mr Tannous' evidence is that the yellow sports car he saw from his balcony on that same Saturday, and later that day saw in Burwood, is the same vehicle he later saw at the Ashfield police station. Members of the jury, I am required to inform you that there is a special need for caution before accepting evidence of identification, whether it be identification of a person or an object. I warn you that there have been occasions when innocent people have been convicted on the basis of mistaken identification. Witnesses who appear to be certain and who are completely honest may be mistaken. Matters to which you should pay attention are the lighting present at the scene, that would apply to both circumstances here because the police constable was working at night, on one occasion at least, working his RBT unit. It was certainly at night when Mr Tannous came out onto his balcony and looked across the road towards the park. So you would need to have regard to the lighting present at the scene; the distance from which the witness' observations were made; and, of course, the eyesight of the witness, and you have heard some evidence about that, Mr Tannous has said in evidence that he was not wearing his glasses. I should point out at this stage that Constable Faulkner, when asked if it was possible that he could have made a mistake – he was asked that by Mr Stanton – he replied 'Anything is possible.' Mr Tannous, when shown the two photographs, exhibit A, was asked, in effect, to comment on them. He said 'This is similar to the vehicle I saw at Centenary Park and at Shaftsbury Avenue'. I simply remind you of that at this stage. As I say, I will deal with their evidence in a little bit more detail in a moment." 48 His Honour later went on to review at some length the evidence given by Constable Faulkner and by Mr Tannous (SU 11-19 of 12 April 2001). I do not propose here to summarise that review. 49 It has been submitted that the instruction to the jury was inadequate, particularly having regard to the decisions in R v Clout (1995) 41 NSWLR 312; Domican v The Queen (1992) 173 CLR 555; and Pitkin v The Queen (1995) 130 ALR 35. 50 The evidence that the vehicle which had been sighted was similar to that yellow vehicle owned by the appellant Chami was but a circumstance in the prosecution case. It seems to me that the directions given afforded adequate assistance for the jury in their assessment of the evidence that related to this vehicle, and, indeed, no complaint was made at trial about such directions. Rule 4 has application, and I would not, in any event, have been minded to grant leave to rely upon this ground. Ground 5: That the trial miscarried by reason of content of the final address of the Crown Prosecutor 51 Evidence was introduced on behalf of the appellant Yammine that he had no criminal record. In the course of his address, which was recorded, it appears that the Crown Prosecutor said this to the jury: "And the prosecution doesn't dispute that indeed Mr Yammine doesn't have a criminal record. But whether that leads to you coming to the view that he's a person of good character is a quantum leap, I'd suggest. It would have been available to Mr Yammine to call evidence as part of his case, for people who get in that witness box and say look I've known Mr Yammine all his life, he's a wonderful bloke, a good father or whatever. Not a tittle of evidence to support the claim or to support the proposition that he's a person of good character. So whilst it's available to you to use this question of character in his favour if you are of the view that it's appropriate to do so, the only material you have is that he does not have a criminal record. And I'd suggest to you at the end of the day the question of Mr Yammine's character, that is good character will not have any weight with you whatsoever in your determination." 52 In my opinion, it was not correct for the Crown Prosecutor to submit to the jury that the appellant Yammine could have called evidence of the type suggested. There was no requirement for him to do so. However, the jury was given adequate instruction in the course of the summing-up (SU 56, 12 April 2001). His Honour corrected something said earlier, but it is necessary only to refer to this last direction from which it also appears what was said earlier: "I will remind you of what I did say. What I did say to you was that Mr Yammine has called evidence to establish that he is a person of good character. That evidence was the evidence of the police officer that he has no prior convictions. I then said to you you may assume that if anything unfavourable in that regard had been known of the accused, it would have been put before you by the Crown. In that regard I was referring to the fact of the convictions. It really goes beyond that because by introducing that evidence that he has no prior convictions, the plain fact of the matter is that Mr Yammine is, in a general sense, asserting to you that he is a person of good character. What I should have said is this, that you may assume that if anything unfavourable had been known of the accused, it would have been put before you by the Crown. If anything unfavourable had been known, it would have been put before you by the Crown. That is what I should have said, and I indicate to you now that that is the correct direction, and that is the direction that I now give you. I continue by saying, as this has not happened, you may proceed upon the basis that the evidence put forward by the accused is not challenged; that is the general evidence that he is a person of good character." 53 The above direction was clear and correct and sufficed to correct the position that had been stated in the Crown Prosecutor's address to the jury. 54 I am not persuaded that the trial miscarried because of what the Crown Prosecutor had said as to character. This challenge has not been made good so far as the appellant Yammine is concerned. 55 So far as the appellant Chami was concerned, no evidence was led on his behalf that he was of good character. That evidence as to character that was led by the co-accused prompted the Crown Prosecutor to make the remarks that he did. But the jury was ultimately given directions appropriate to the evidence introduced by the appellant Yammine and that same direction, or a direction to that effect, would have been invited by reason of the introduction of the evidence of good character whether the Crown Prosecutor had acted as he did or not. 56 A further complaint is made that in the closing address the Crown Prosecutor made comments in breach of s 20 of the Evidence Act by commenting on the failure of the accused to give evidence. This submission was prompted by the concluding remarks of the Crown Prosecutor: "Ladies and gentlemen, just in conclusion, you took an oath at the start of this trial to return your verdicts according to the evidence. The sworn evidence in this trial has come not just from one witness but indeed from all of the prosecution witnesses. Questions or propositions put to a witness do not make evidence. The answers make the evidence. So, accordingly, when Mr Bailey and Mr Stanton in turn suggested to Jamie Byrne that he was lying, and in fact their respective clients weren't involved as Mr Byrne says they were involved, it is Mr Byrne's answer that is the evidence, and the evidence in this case is that they were involved. And, additionally, as I have already pointed out, if you needed to have it pointed out to you at all, there is a wealth of material in this trial over and above what Mr Byrne has specifically said, that goes to support completely the version of events Mr Byrne has provided in evidence and accordingly I'd suggest, ladies and gentlemen, that your verdicts in all respects would be verdicts of guilty." 57 In my opinion, what the prosecutor said in the above passage falls short of comment prohibited by s 20. In R v Siebel & Anor (1991) 59 A Crim R 105 King CJ said this (at 109): "It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment." 58 Whilst the observations of the Chief Justice were not in the context of considering the requirements of s 20, they are, nevertheless, apt in determining its application. In my opinion, there has not been any contravention of s 20 in this case. 59 I am not satisfied the trial of either appellant miscarried by reason of the matters raised in Ground 5. Ground 6: The trial judge erred in not discharging the jury 60 It has been submitted on behalf of each appellant that the behaviour of the Crown Prosecutor in his address to the jury on the question of character should have lead his Honour to discharge the jury. I am not persuaded that his Honour erred in declining the application that he do so, and as I observed when considering Ground 5, the mischief complained of was sufficiently addressed by the directions which his Honour ultimately gave on the issue of the character evidence and its significance. This present ground has not been made out. 61 Apart from the grounds already considered, the appellant Yammine raised two additional grounds, as did the appellant Chami. I propose to consider these four grounds shortly. Additional grounds relied upon by the appellant Yammine 7. His Honour's summing up lacked the required degree of balance and fairness (Appellant Yammine's ground 4) 62 This ground is directed to matters previously considered, including the matters considered under grounds 1 and 2 expressed as having been common to the appeals of both appellants. It is also submitted that the trial judge erred in his directions as to the good character of the appellant. That ground has been dealt with under ground 5 common to the appeals of both appellants. 63 However it was also submitted that his Honour's summing up made clear reference to evidence in chief but that it did not deal in a balanced way with the material arising in cross examination. On my reading of the summing up, I do not consider that this complaint has been established 8. The directions given by his Honour as to the onus and standard of proof were erroneous and misleading (Appellant Yammine's ground 5) 64 The direction that his Honour gave the jury appears at pp 9-10 of the summing up of 11 April 2001: "Members of the jury, the onus of proof is the subject of the next important direction of law which I must give you. This is a criminal trial and the burden of proof of the guilt of the accused is placed firmly upon the Crown. That onus remains upon the Crown in relation to every issue in this case. There is no onus of proof on the accused at all. It is not for the accused to establish their innocence, but for the Crown to prove their guilt, and to prove it beyond reasonable doubt. The Crown must satisfy you of that guilt beyond reasonable doubt. It is, and always has been, a fundamentally important part of our system of justice that persons tried in these Courts are presumed to be innocent of the crime or crimes alleged them, until a jury of their fellow citizens has been satisfied by the Crown, beyond reasonable doubt, that they are guilty of those crimes. Each accused is entitled to the benefit of any reasonable doubt in your minds. It is vitally important that you clearly understand that the accused must be acquitted if their guilt has not been proved to your satisfaction beyond reasonable doubt. You do not have to be satisfied that an accused person is innocent before you should acquit him. If you are unable to decide where the truth lies, even though you feel that he may be guilty, if you have a reasonable doubt about it, you must find him not guilty . I should warn you that suspicion is not a substitute for proof beyond reasonable doubt. Suspicion must play no part in your function as the judges of the facts. Not even the gravest suspicion will suffice as proof beyond reasonable doubt." 65 There have been a number of cases in which comment has been made upon the undesirability of inviting a jury to determine where the truth lies: see R v McDonald (1984) 1 NSWLR 428 and in particular the judgment of the Chief Justice at 436 where a number of cases in point are cited. See also R v Fedler (1989) 42 A Crim R 5, and in particular the judgment of Grove J at 12 where his Honour cited what Street CJ said in McDonald. 66 Consistent with those authorities, it is to be regarded as preferable to avoid introducing in directions to a jury an invitation to seek to determine where the truth lies. However, taken in context, I do not consider that the language which his Honour used in the above direction was likely to distract the jury from its appropriate task. Indeed, I do not understand it to be contended by this appellant that the use of those words alone caused any miscarriage. Rather, it is submitted that the mischief arose in later directions. 67 In the course of reminding the jury of submissions made by counsel for the appellants at the trial, his Honour said this (SU 28, 12 April 2001): "Both Mr Stanton and Mr Bailey remind you that the Crown case against each accused depends upon the evidence of Mr Byrne to the extent that unless you are satisfied that the evidence that Mr Byrne has given is truthful and reliable, unless you are satisfied of that beyond reasonable doubt, both accused must be found not guilty." 68 Complaint is made that his Honour should have lent his judicial weight to those submissions. I do not accept that it was necessary for him to do so at that point of time. The summing up is to be viewed in its entirety. 69 A further criticism is made that when his Honour was directing the jury on joint criminal enterprise he did not spell out that the jury needed to be satisfied of that matter beyond reasonable doubt with respect to each particular charge. Again, I do not consider it was necessary for the judge to repeat the directions as to the burden and standard of proof in the immediate context of the instruction on joint criminal enterprise following so close as it did upon the instructions as to the burden and standard of proof which his Honour had given and which I have set out above. 70 I do not consider that there is any substance in this ground. Additional grounds relied upon by the appellant Chami 9. The learned trial judge erred in allowing the Crown to lead evidence that Mr Byrne had acted under duress in relation to the counts of supply and in directing the jury that Mr Byrne was "criminally concerned in the events giving rise to these proceedings" but "he was forced into it because he feared for his life" (Appellant Chami's ground 1) 71 The direction complained of in this ground was considered earlier in connection with Ground 1. 72 It was submitted on behalf of this appellant that it was contradictory for Mr Byrne to have pleaded guilty to charges of having supplied drugs and then to give evidence at the trial of the appellants that he felt compelled to do so by the behaviour of one or other or both the appellants. Had he acted under duress in his supply of the drugs then that would have amounted to a defence to the charges to which he pleaded guilty. 73 It does not seem to me that the earlier plea precluded the witness from giving the evidence which he gave at the trial of the appellants or that such evidence was necessarily inconsistent with that plea. Moreover, the jury was not invited to consider the legal concept of duress at all. It was aware that the witness had pleaded guilty in the District Court to drug offences and the evidence for its consideration led from the witness invited the conclusion that he was criminally involved. 74 In my opinion, this ground has not been established. 10. The learned trial judge erred in allowing the witness Mr Byrne to refresh his memory from the transcript of a record of interview from 1999 75 On the first day of his evidence Mr Byrne was unable to recall the telephone number of a phone which he claimed to have been given by the appellant Chami for use in the supply activities. On the second day of his evidence the witness was asked whether he was then able to recall a number and responded (T 47, 5 April 2001) "I can recall some of the digits, yes." He was then asked to give his best recall of the digits and responded: "0419 492, and I have difficulties with the last couple of numbers. I think it was 992." He was subsequently permitted to refresh his recollection from a transcript of interview conducted on 28 March 1999 in which was recorded the telephone number. Having so refreshed his recollection, he gave evidence as to that number that he had given to the police on 28 March 1999. 76 Section 32 of the Evidence Act only permits of the use of a document by a witness for the purpose of reviving his memory with leave of the court. Section 32(2) is in the following terms: " (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document, and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or (ii) was, at such a time, found by the witness to be accurate." 77 The complaint is made that counsel at the trial was not given the opportunity of being heard on the question as to whether the judge should grant leave. 78 Any decision to grant leave involved the exercise of the discretion and this meant that the judge had to consider the requirements of s 192 of the Evidence Act which included considering: " (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 79 The transcript does not disclose whether the judge considered s 192 before allowing leave but this did not necessarily reflect error: see R v Stevens [2001] NSWCCA 330 at 57. Nor is it to be assumed that the failure of the judge to specifically address s 192 before granting leave indicates that his Honour failed to consider the section. In R v Reardon & Ors [2002] NSWCCA 203 Hodgson JA expressed the opinion that it should be assumed that a judge hearing a case will continually have regard to matters of the kind referred to in s 192(2) of the Evidence Act: see Reardon at paras 30 and 31. 80 The evidence was that the witness had been using the phone frequently in the period of over a week immediately before the date of the interview recorded so that the number would have been fresh in his mind at the time of that interview. 81 What reason could have been advanced for refusing leave? When one considers the matters addressed in s 192(2), I am not persuaded that failure to mention that section before leave was granted indicates that his Honour did not consider what that sub-section required. Nor am I persuaded that a consideration of the requirements of s 192(2) ought properly to have led to the refusal to grant the leave which was allowed. 82 This ground of appeal fails. FORMAL ORDERS 83 In my opinion each of the appeals should succeed and I therefore propose the following orders: 1. That each appeal should be allowed; 2. That the convictions of each appellant and the sentences imposed on each appellant be quashed; 3. That new trials of each appellant be ordered. 84 BELL J: I agree with Studdert J. ********** 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.