New South Wales Court of Criminal Appeal CITATION : R v Johnston [2004] NSWCCA 58 HEARING DATE(S) : 12 November 2003 JUDGMENT DATE : 18 March 2004 JUDGMENT OF : Santow JA at 1; James J at 2; Whealy J at 245 DECISION : Leave to withdraw abandonment of appeal against conviction refused CATCHWORDS : Criminal law - appeal against conviction for murder - notice of abandonment of appeal - application for leave to withdraw notice of abandonment - evidence by person who might reasonably be supposed to have been criminally concerned - Evidence Act s 165(1)(d) - evidence by co-accused - prior consistent statement - Evidence Act s 108(3) - admissions made while in custody - separate trials - right to silence - hearsay evidence - Evidence Act s 165(1)(a) - whether manslaughter verdict available - evidence of prisoner informer - cross-examination of accused LEGISLATION CITED : Crimes Act 1900 Evidence Act Doney v The Queen (1990) 171 CLR 207 McKinney v The Queen (1990-1991) 171 CLR 468 Pemble v The Queen (1971) 124 CLR 107 Pollitt v The Queen (1991-1992) 174 CLR 558 R v Baartman [2000] NSWCCA 298 R v Clark [2003] NSWCCA 308 R v Clough (1992) 28 NSWLR 396 R v Fernando [1999] NSWCCA 66 CASES CITED : R v Henning (unreported CCA 11 May 1990) R v Middis (unreported 27 March 1991) R v Ngo [2003] NSWCCA 82 R v Patsalis and Spathis (1997) 107 A CrimR 432 R v Symss [2003] NSWCCA 77 R v Stewart [2001] NSWCAA 260 Stanoevski v The Queen (2001) 202 CLR 115 Webb v The Queen (1993-1994) 181 CLR 41 Webb and Hay v The Queen (1994) 181 CLR 41 PARTIES : Regina v Mark Anthony Johnston FILE NUMBER(S) : CCA 60250/02 COUNSEL : P Boulten SC/ S Torpey - Applicant D Howard - Crown SOLICITORS : J North - Applicant Solicitor for Public Prosecutions - 66 - IN THE COURT OF CRIMINAL APPEAL 60250/02 SANTOW JA JAMES J WHEALY J 12 NOVEMBER 2003 REGINA v Mark Anthony JOHNSTON Judgment 1 SANTOW JA: I agree with James J 2 JAMES J: This is an application by Mark Anthony Johnston ("the applicant") for leave to withdraw an abandonment of an appeal against a conviction for murder. 3 The trial at which the applicant was convicted of murder took place in 1996 before Simpson J and a jury and was a joint trial of the applicant and three co-accused. The applicant and Damien Ironside Watts were each charged with murdering Raymond Leonard Howlett on or about 17 August 1994 at Gulgong. Michael McLean Cameron and Glen Wright were each charged with being an accessory before the fact to the murder of Mr Howlett. Wright was also charged with having solicited Cameron and a man named Michael Organ to murder Mr Howlett. Each of the four accused was separately represented at the trial. 4 On 14 May 1996 the jury returned its verdicts, finding the applicant guilty of murder, Watts not guilty of murder, each of Cameron and Wright not guilty of being an accessory before the fact to murder and Wright guilty of soliciting to murder. 5 On 9 August 1996 Simpson J sentenced the applicant to penal servitude for twenty years, consisting of a minimum term of fifteen years and an additional term of five years, the sentence commencing from 21 November 1994, which was the date on which the applicant had been arrested and from which he had remained in custody. 6 On 18 June 1996, while he was awaiting being sentenced, the applicant applied for an extension of time in which to appeal against the conviction for murder and on 5 July 1996 a notice of appeal against conviction was lodged. On 22 August 1996 a further notice of appeal, which was an appeal against both conviction and sentence, was lodged. 7 The applicant's appeal was mentioned and adjourned in Court of Criminal Appeal call overs on many occasions in the remainder of 1996 and in 1997. A reason given for many of the adjournments was the delay which was being experienced in obtaining an advice from counsel on the applicant's prospects of succeeding on his appeal. On 25 September 1997 a senior Public Defender gave a written advice that in his opinion there was no ground of appeal against conviction which would have reasonable prospects of succeeding and there was no reasonable prospect of an appeal against the sentence imposed on the applicant succeeding. 8 At a Court of Criminal Appeal call over on 22 September 1997 a representative of the Legal Aid Commission appearing for the applicant indicated that the applicant's appeal might be abandoned. At a Court of Criminal Appeal call over on 27 October 1997 it was indicated that the Legal Aid Commission was no longer acting for the applicant. On 10 November 1997 the appeal was listed for summary dismissal on 1 December 1997. However, on 20 November 1997 the applicant signed a notice of abandonment of the appeal and in a Court of Criminal Appeal call over on 24 November 1997, there being no appearance by or on behalf of the applicant, the notice of abandonment signed by the applicant was filed and noted and the appeal was deemed to have been dismissed pursuant to r 27 of the Criminal Appeal Rules. 9 The co-accused Glen Wright appealed against his conviction for soliciting to murder and the Crown brought a Crown appeal against the sentence which had been imposed on Wright. On 8 July 1997 the Court of Criminal Appeal dismissed Wright's appeal against conviction and dismissed the Crown appeal against sentence. 10 After the applicant's appeal was abandoned and deemed to have been dismissed, no further formal step was taken on behalf of the applicant until 1 May 2002, when a notice of application by the applicant for leave to appeal against his sentence was lodged. This application was mentioned in Court of Criminal Appeal call overs on various dates over the next twelve months. At a Court of Criminal Appeal call over on 26 May 2003 it was indicated, for the first time since 1997, that the applicant wished to appeal against his conviction. On 23 July 2003 an amended notice of appeal setting out grounds of appeal against the applicant's conviction was lodged. INVESTIGATION INTO THE DEATH OF MR HOWLETT 11 On 18 August 1994 Mr Howlett's dead body was observed lying on a concrete path just outside the house on his property "Walkerville" near Gulgong. 12 The report of the pathologist Dr Lawrence who performed the post mortem examination of Mr Howlett's body was admitted into evidence at the trial. In his report the pathologist stated that the deceased had suffered nineteen stab wounds in the head, neck or chest, which were the direct cause of death, and blunt force injuries on the face and right arm. The stab wounds were consistent with having been inflicted by a knife. The pathologist considered that death had occurred on the evening of 17 August 1994. 13 A police investigation into the death of Mr Howlett proceeded over the next few months. 14 On 18 November 1994 a search warrant was executed at the home of Damien Watts in Katoomba. In a conversation with police at his home and in an electronically recorded interview later on 18 November 1994 Watts said that he had been present when Mr Howlett had been killed but that he himself had not killed Mr Howlett. He said that he had gone to Mr Howlett's house with the applicant and that it had been the applicant who had stabbed Mr Howlett with a knife the applicant had taken with him. 15 The applicant, who had been living in Katoomba, had gone to Cairns in Queensland earlier in November 1994. The applicant's fiancé Leyla McDermott was with the applicant in Cairns. 16 On 21 November 1994 two Sydney detectives, including a Detective Bray, travelled to Cairns. In a conversation with Detective Bray in the late afternoon of 21 November 1994 the applicant admitted that he had gone to Mr Howlett's property with Watts and that he had "bashed" Mr Howlett. An electronically recorded interview with the applicant was then conducted in which the applicant made many admissions. It will be necessary to refer to this interview in more detail later in this judgment. 17 After the conclusion of the electronically recorded interview the applicant was arrested and charged and taken to the Cairns Watch House. Shortly before 1 o'clock in the morning on the following day 22 November 1994 the applicant, according to evidence given at the trial by a Queensland police officer named Sullivan, told Sullivan, who was on duty at the Watch House, "I know where the knives are". Sullivan spoke to a superior officer named Stafford and, according to evidence given at the trial by Stafford, the applicant asked where the Sydney detectives who had interviewed him were. The Sydney detectives could not be found. Stafford said that he had activated a micro-cassette recorder and conducted a conversation with the applicant. By the time of the trial the tape recording of the conversation between the applicant and Stafford had been lost but Simpson J permitted an imperfect transcript of the tape recording to be read to the jury, which included an assertion by the applicant that he had put "knives" in a garbage bin at a caravan park. THE CROWN CASE AT THE TRIAL AGAINST THE APPLICANT 18 At the trial the Crown case against the applicant was ultimately put in three alternative ways:- (i) The applicant had been a party to a joint enterprise to kill or inflict really serious bodily injury on Mr Howlett. (ii) The applicant had been a party to a joint enterprise to do some lesser criminal act in relation to Mr Howlett but the applicant had contemplated the possibility that in the carrying out of the joint enterprise Mr Howlett would be killed or really seriously injured. (iii) The applicant himself had done the acts of stabbing which caused the death of Mr Howlett. 19 The Crown case against the co-accused Watts was ultimately put in the same three alternative ways. 20 The pattern of the verdicts returned by the jury, that is a verdict of guilty against the applicant and a verdict of not guilty in favour of Watts, shows that the jury were satisfied beyond reasonable doubt that it was the applicant, and not Watts, who had stabbed Mr Howlett. 21 At the trial the evidence in the Crown case against the applicant included evidence of the finding of the body of the deceased; evidence by Dr Lawrence; evidence of the finding of a rifle on Mr Howlett's property; evidence that the cord of the telephone inside Mr Howlett's house had been pulled; evidence by Mr Howlett's estranged wife that threatening telephone calls had been made to the Howlett's house and evidence by Mr Howlett's daughter of a telephone conversation by the applicant with her and then a telephone conversation with her father; evidence by Detective Bray about his conversation with the applicant on 21 August 1994 and about his conducting of the recorded interview of the applicant; the recorded interview of the applicant; evidence by the Queensland police officers Sullivan and Stafford of their conversations with the applicant in the early hours of the morning of 22 November 1994; evidence by a number of witnesses of things said to them by Watts which also incriminated the applicant; and evidence by the witness Michael Organ. It is necessary to refer in more detail to the applicant's recorded interview and to the evidence of Michael Organ. THE RECORDED INTERVIEW OF THE APPLICANT 22 The applicant made many admissions in the recorded interview of 21 November 1994. 23 Questions and answers 23 to 29 were in the following terms:- "Q.23. Do you agree that prior – prior to this interview, you told us that you were involved in the death of Raymond Howlett at Gulgong? A. As far as I can remember, yes. Q.24 Right. For the purposes of this interview, would you like to outline your involvement in the death of that man at Gulgong on the 17th of August 1994? A. ….. Q.25 Yes, just - A. From the very beginning? Q.26 From the beginning, yes? A. A friend of mine was asked if he would do a job for another guy, which involved bashing someone and he said no, he wouldn't, but he said he might have a friend who would and he come and – he come and asked me, I don't know if he asked anyone else first or anything like that. Q.27 Who was the friend? A. Michael Cameron. And I thought, Oh – well, I don't know. I thought – I just said I didn't know and then he got back to me and said the guy was willing to pay $5,000. I said, "Okay, righto, I will then", you – you know, I was looking at asking Leyla to marry me and I thought, oh $5,000 for belting a guy. They said he was a drug dealer and all this anyway, so I thought, why not? So I thought, okay, so I thought, big tough me, I could do that. I thought it'd give us money to go away with, you know, $5,000, I could, you know, we could drive up here and we'd be right for a month if we couldn't find work, you know. I said, "Just for belting a guy? So I said, "Yeah, and yeah, he come round, I can't remember how long later, I'm sorry. He gave me $1,000, I don't know how many days or, I don't know how long it was. Q.28 Who gave you the $1,000? A. Michael. And he gave me $1,000, and he – he told me that this guy – I don't think he told me what the guy's name was, but this other guy gave him – gave him the money and he just wants this guy belted, you know, like, scared, belted, you know, not he, didn't say anything to me he just want this guy scared or belted around a bit, so okay, so I took $1,000. I thought, you know, I'm not a poor man, it's just $1,000 and I went out and checked out where he worked. I thought, okay, I went out and checked out where he worked and all that, and then the next time, before I went out the next time, it could have been a week between it, I don't know what the dates are but I – I can't remember who told me. They said they wanted this guy just wiped out. I'll remember, I'll tell you who told me. They said they wanted this guy taken out, I was like,… Q.29 What did you infer that to mean? A. Killed, that's what I thought it meant, yeah. I was like, "Nah, I don't want, nah" and I was politely informed that I'd already accepted the money and I had to take on the job. I was, like so much for big tough me. Anyway, I – I went up there again with Mick Cameron". 24 In his answer to question 31 the applicant said that he and Cameron had visited "Walkerville". Mr Howlett had come out of the house and the applicant had had a short conversation with him. 25 In his answers to questions 34 to 36 the applicant said that some time later he had hitchhiked to Mudgee and from Mudgee had telephoned Mr Howlett's telephone number. The telephone call had been answered by Mr Howlett's daughter. The applicant had then had a short telephone conversation with Mr Howlett, in which he had told Mr Howlett that some one wanted to kill him and the applicant had made a proposal that Mr Howlett should meet the applicant in a hotel in Mudgee. Mr Howlett had abruptly terminated the conversation. 26 In his answer to question 45 the applicant first mentioned Damien Watts. He said "I was talkin' to Damien". 27 In his answers to question 45 and following questions the applicant said that he had gone to Kellyville with Watts, travelling in Leyla McDermott's car. The car was parked some distance from the house on Kellyville and the applicant and Watts had then walked to the house. Mr Howlett came out of the house and in his answer to question 62 the applicant said:- "And I ran over and I remember beltin' him – ran over dived and belted him and that – that's all I remember". 28 In his answer to question 68 the applicant said that he did not know where Watts was, when he, the applicant, was "belting" Mr Howlett. 29 One or other of the applicant or Watts ripped out the cord of the telephone inside Mr Howlett's house. The applicant and Watts then ran back to the car, got into the car and drove back to Katoomba. 30 In his answers to questions 101 to 104 the applicant said that he had never met, and did not know the name of, the person who wanted Mr Howlett "belted". 31 In his answer to question 114 the applicant said that he had taken Watts with him, because "he (Mr Howlett) might have people there… he (Mr Howlett) might be peaked out for me ringing him" and having Watts with him would "make me feel more secure… I just said to him (Watts) 'if you are willing to help me, you know, back me up, so, you, just stand back'". 32 In his answers to questions 134 to 139 the applicant said that he had received a further payment of $4,000, which he thought he had received from Michael Cameron. He could not recall whether he had received this further payment before or after he went to "Walkerville" with Watts. 33 Questions and answers 160 to 163 in the interview were as follows:- "Q.160 Police have spoken to Damien Watts in relation to this matter and he's told police that when you entered the house this particular night, you were armed with a large diving knife, silver handled, silver bladed diving knife. A. I may have, if it's coming from him. Q.161. Have you ever owned a knife, a diving knife? A. No. I don't dive I don't have a knife. Q.162 Well, do you recall being armed with a knife when you went to the house on this particular night? A. I remember havin' one beforehand. Q.163 When you say, 'beforehand' - A. Like at – at home". 34 At the request of the police the applicant then made a drawing of the knife he said he had had at home. In answer to question 182 he said that he did not know where that knife now was. 35 In questions 184 to 196 the applicant was asked about Watts having told police when he was interviewed by police, that when Watts and the applicant were running back towards the car the applicant had a rifle which he had taken from the house. The applicant said that he had seen a rifle on the verandah of the house but that he did not remember taking it. During the investigation police had found a rifle lying on the ground some distance from the house. 36 Questions and answers 197 and 198 were as follows:- "Q.197 Damien's also told police that he says you told him that you stabbed Mr Howlett. A. I told him that I did? Q.198 Mm. A. I may have". 37 Question and answer 208 were as follows:- "Q.208 Do you know where this knife is now? A. I wouldn't have a clue. I don't even know what I did with it. I don't even know if I had it on me when I went there". 38 At question 251 and following questions the applicant was asked about Michael Organ. The applicant said that he did not know anybody named Michael Organ but that he did know a person "Mick" who ran a business called "Mudgee Firewood" in Katoomba and that he had had some conversations with that person about the "bashing" of Mr Howlett. In answer to question 279 the applicant said that he had rung up Michael Organ "afterwards"…I wanted to meet up with this Glen guy". In his answer to question 338 the applicant said that he had never met "Glen (Wright)", until after he had been arrested. 39 Question and answer 350 were as follows:- "Were you – was there ever any suggestion that you were to receive any drugs for payment part payment for this matter? A. Yeah, they said first up that they were gunna give me a pound of pot – grass, whatever and or $5,000". EVIDENCE OF MICHAEL ORGAN 40 Michael Organ's evidence at the trial was very lengthy, occupying nearly 250 pages of transcript. I will outline some of what he said in his evidence in chief. 41 Organ conducted a business in Katoomba which supplied firewood. 42 Organ had known each of the four accused. He had known Wright for a number of years. Cameron had sometimes worked in Organ's business on a casual basis. Organ had first met the applicant after his car had broken down near Mudgee in June 1994 and he had been picked up by Cameron and the applicant. The applicant had never worked in Organ's business. Watts had worked for Organ for two days at the beginning of 1994. 43 In January or February 1994 Organ had a conversation with Glen Wright in which Wright complained that Mr Howlett had stolen a plantation of marijuana which had been cultivated by Wright on his property at Gulgong, which adjoined "Walkerville". 44 Some months later Wright came into the office at Organ's business premises in Katoomba. Cameron was also present in the office. Wright said to Organ "did I know anyone that could organise a slap around for Ray Howlett"? Organ said "tone it down, Glen. Keep it quiet". Cameron said that "he certainly wasn't interested but he had a mate in that line of work". Wright said "there's money or drugs in it for payment". Organ left the office, leaving Wright and Cameron together. After Organ had returned to the office, he saw Cameron writing things down, as Wright was talking to him. 45 Some time later Wright again came to Organ's premises in Katoomba. On this occasion Wright gave Cameron some money. Wright said that "he wanted the job done by June… he wanted him murdered". Wright said that "he'd give him an extra five grand", if Mr Howlett was also mutilated. 46 On a date which Organ fixed as being 21 June 1994 on the basis of a car towing invoice, his car broke down as he was travelling from Katoomba to Mudgee. By chance he was picked up by Cameron and the applicant, to whom he was introduced by Cameron, and given a lift into Mudgee. 47 On a date which by reference to another invoice Organ fixed as being 27 July 1994, he met Wright by chance in a hotel in Mudgee. Wright said that "it's pretty obvious these blokes aren't going to do that". Organ said "I think you have just been taken for a grand". Wright then asked whether Organ would be interested in helping Wright to kill Mr Howlett. Organ disclaimed any such interest. Wright also said that Mr Howlett had telephoned him and had said that someone had threatened Mr Howlett's life over the telephone. 48 On the afternoon of 17 August 1994 Organ received a telephone call from an unidentified caller, who asked him whether he knew Wright's telephone number. 49 On the morning of 18 August 1994 the applicant came into Organ's premises at Katoomba. The applicant said to Organ "I want my money. Tell your mate I want my money one way or another". Organ replied "that has been arranged between him and Gumby (Cameron)". 50 Several weeks afterwards Organ had a chance meeting with Wright at a service station at Ilford, which is a small township on the road between Katoomba and Mudgee. Wright said to him "there must be some hard boys in the mountains" and "don't lose what's on the front at the dash". When he got into his car Organ saw a large amount of cash on the dashboard. After he arrived at Katoomba Organ gave the cash to Cameron. 51 In about mid September the applicant approached Organ at a football match at Wallerawang. The applicant said "I've been ripped off. I'm owed more money". Organ said to the applicant that he should go and see Wright himself. 52 There was very extensive cross-examination of Organ by counsel for all the accused. THE DEFENCE CASE OF THE APLICANT AT THE TRIAL 53 At the trial the applicant gave evidence in his own case. His evidence was very lengthy, occupying nearly 150 pages of the transcript of the trial, and I will refer only to certain parts of his evidence in chief. 54 The applicant gave evidence that at some time between 6 and 10 June 1994 Cameron came to see him. Cameron said, "there's a bloke at the yard. He wants another fella bashed or knocked around… He said he's willing to pay and he asked me but I said 'I know somebody who might'". The applicant said, "I don't know. I'll have to know more about it". 55 Cameron came back a little later and said, "the guy at the yard is owed about sixty grand and this guy just wants it back. Put a scare in him". The applicant said, "what's it worth to me?" Cameron said, "five grand if he gets it all back". The applicant said, "yeah, well righto. Get all the details and tell him I'll go up and take a look". 56 On the following Sunday 12 June 1994 the applicant met Michael Organ, for the first time, at the Katoomba Hotel. Organ said that he was a mate of the person who wanted someone else knocked around. 57 On Tuesday 14 June 1994 the applicant and Cameron went to the sales yard at Mudgee and the applicant looked for someone answering the description he had been given of Mr Howlett. Later in his evidence in chief the applicant said that he might have been confused about which trip it was, on which he had been accompanied by Cameron. 58 The applicant asserted in his evidence that his understanding was that Mr Howlett owed $60,000 and "I was paid to try and get that $60,000 back". It was Cameron who had mentioned that there was a debt, when he first spoke to the applicant about the matter. Later in his evidence the applicant said that, on further reflexion, he thought it was Organ who had mentioned the figure of $60,000. 59 On 20 June 1994 Cameron gave the applicant $1,000 in part payment and some written instructions on how to get to Mr Howlett's property. The applicant had previously asked that he be paid half of the $5,000 in advance. 60 The applicant said in his evidence that he had never done any debt collecting before. He thought that he would tell Mr Howlett that he should pay up, otherwise Mr Howlett's property would be taken. 61 On 21 June the applicant and Cameron drove to Mr Howlett's property. There was no one at the property and the applicant and Cameron drove back to Katoomba. 62 The applicant denied that he and Cameron had ever given Michael Organ a lift after his car had broken down, as had been alleged by Michael Organ in his evidence. 63 At some time between 21 June and 1 July the applicant went to the firewood yard and had a conversation with Organ. Organ said, "my mate has changed his mind. He wants this Howlett gone. He's threatened him and refused to pay back his money. He wants you to get rid of him…. There's about ten grand in it for whoever does it". The applicant said words to the effect that he was not interested and added, "I'll give you back the grand and you can forget about it". Organ said, "no. it's too late. You've already taken some of the money. You have to do your job". 64 On 2 July 1994 at the Katoomba Hotel the applicant spoke to Watts and told him about the conversation he had had at the firewood yard with Organ. Later in his evidence the applicant said that on this occasion he had told Watts that he had been offered a job which involved debt collecting and that he was definitely not going to kill anyone. 65 On either 5 July or 12 July the applicant travelled alone to "Walkerville". Mr Howlett walked out on to the verandah of his home and the applicant had a brief conversation with him. The applicant said that he would telephone Mr Howlett later. 66 On a subsequent day the applicant travelled to Mudgee. His plan was to telephone Mr Howlett and persuade Mr Howlett to come into Mudgee and meet the applicant. The applicant rang Mr Howlett's telephone number a number of times, without succeeding in contacting Mr Howlett. A telephone call the applicant made in the evening was answered by a girl and the applicant was then able to speak to Mr Howlett. The applicant said to Mr Howlett, "I told you I'd give you a call… These blokes are not stuffing around… They're offering ten grand for someone to knock you and pretty soon someone's going to take them up on their offer". The applicant asked Mr Howlett to come into Mudgee and talk to the applicant. Mr Howlett "slammed" the phone down. 67 On either 8 July or 15 July Organ came to where the applicant was staying and they went together to the firewood yard. At the yard Organ told the applicant that "he had received a call from his mate and his mate's pulling out". Organ added, "why don't you just kill him?". The applicant said, "I'll try to get his money back but I'm not going to kill anyone". 68 About the first week of August the applicant went to the yard and asked Organ to obtain for him a pound of marijuana. He paid Organ the price, which was $4,000. Organ said to the applicant not to worry about what Organ had said at their previous meeting but "I still want you to go out there and stand over him". 69 On the following Friday the applicant went to the yard and asked for his money back, because Leyla McDermott was going to Cairns and the applicant wanted to give her some money. Organ agreed to give the money back but said that he did not have the money on him that day. 70 On a subsequent day the applicant went to the yard. Quite fortuitously, Watts accompanied him. At the yard Organ asked "when are you going out?" and the applicant said, "I'll go out soon". Organ said, "you're taking Damien out, are you?" The applicant, who had not previously thought of taking Watts, asked Watts if he would come and Watts agreed. The applicant thought it would be "a good idea" to take Watts. It would make him feel a lot more secure, having someone else with him. The applicant did not back out of the arrangement, "because I had taken money as part of an agreement to collect a debt" and the applicant felt that he had an obligation which he had to perform. 71 On 11 August Cameron gave the applicant $4,000. The applicant understood that he was being paid back the money he had previously paid to Organ for a pound of marijuana. 72 On the evening of Tuesday 16 August the applicant and Watts travelled in Leyla McDermott's car from Katoomba to Mudgee. They spent the night at a hotel in Mudgee. 73 On the following day the applicant made a number of unsuccessful attempts to contact Mr Howlett by telephone. In the afternoon he telephoned Organ and asked for Wright's telephone number but Organ declined to give it. 74 In the late afternoon of 17 August the applicant and Watts drove out to "Walkerville". The car was parked some distance from the house and the applicant and Watts then walked to the house. The applicant observed someone inside the house. The applicant told Watts to wait and the applicant approached the house. The applicant saw Mr Howlett inside the house and he noted that Mr Howlett was talking loudly on the telephone. The applicant observed a rifle near the back door of the house but he denied that he took the rifle. The applicant denied that he had a knife with him. 75 The applicant gave elaborate evidence about the movements he said he had made around the house. The applicant re-established contact with Watts and told Watts to wait where he was. The applicant walked back to the house and knocked on the door of the house. 76 A little later the applicant saw Mr Howlett standing outside the house. Mr Howlett had what appeared to be a knife in his right hand. The applicant continued, "he had the knife in his right hand at about a 30o angle and he looked like he was lunging towards me but I was going through the air, swept his right arm away with my left hand and I belted him on his face with my elbow". The applicant said that he hit Mr Howlett only with his elbow. Mr Howlett fell to the ground. The applicant said that "Damien was on the spot. He was in between myself and the house". 77 Mr Howlett moved a little and the applicant verbally abused him. He told Mr Howlett, "just pay your f- ing money". The applicant denied that he had stabbed Mr Howlett. He did not see the applicant being stabbed. He denied that he had ever told Watts that he had stabbed Mr Howlett. 78 The applicant told Watts to "go inside and pull the 'phone off" and Watts went inside the house. The applicant denied that he himself had gone inside the house. 79 The applicant ran away from the house and then started walking. He eventually saw Watts running towards him. He said that Watts had said, " sure you… leave me. I was checking his house for money" and when the applicant asked "do you think he will come after us?" Watts said, "no way". 80 The applicant and Watts returned to the car. On the trip back to Katoomba the applicant and Watts stopped at a service station. At the service station, according to the applicant, Watts said, "I'm glad I took the knife out and chucked his rifle". 81 When the applicant arrived at his home about midnight, there were a number of young women there, who were discussing setting up a jewellery business. 82 The applicant denied that on 18 August he had had any conversation with Organ. 83 Subsequently, when the applicant cleaned Leyla McDermott's car, he found a knife in the car. He had seen a similar knife at Watt's place. 84 On 22 August Watts gave the applicant $3,500 and asked him to buy a pound of marijuana for Watts. The applicant went to Organ and asked to be supplied with a pound of marijuana. 85 On 23 August the applicant asked Organ to talk to his "mate" to find out when the applicant would be paid the rest of his money. 86 The applicant had a conversation with Organ at Wallerawang. The applicant asked for the marijuana which Organ was to supply. Organ said to the applicant, "stop badgering me because my mate wants to put a bullet into both you and your missus". 87 On 28 August 1994 Watts said to the applicant, "I didn't stab that c - for nothing". Watts asked for the return of the knife the applicant had found in Leyla McDermott's car but the applicant, untruthfully, said that he no longer had the knife. 88 The applicant left for Cairns on 30 October, arriving at Cairns on 14 November. On 20 November the applicant telephoned Jason Rodger, a friend who lived in Katoomba. Jason Rodger told the applicant that Watts had been arrested and charged with murder and that the police wanted to talk to the applicant. The applicant then telephoned Katoomba Police Station. 89 At the time the applicant answered question 24 in the interview on 21 November 1994 he was not aware that Mr Howlett had been killed by being stabbed and he thought that he must have killed Mr Howlett by hitting him. The applicant thought that he was being asked questions about a bashing of Mr Howlett. At the time of giving evidence at the trial the applicant could recall more about the events which had happened, than he had been able to recall when he was interviewed on 21 November 1994. 90 The applicant called a number of witnesses in his defence case. 91 John Alexander Brickell was a remand prisoner awaiting trial. He gave evidence that while he and Watts were in prison he had had a conversation with Watts in which Watts had made an admission that it was he who had stabbed Mr Howlett. Brickell also gave evidence of a conversation he said he had had with the applicant while they were both in prison. A part of what the trial judge said in her summing-up about Brickell's evidence is the subject of one of the proposed grounds of appeal against conviction and I will refer to Brickell's evidence in greater detail when I deal with this proposed ground of appeal. 92 Leyla McDermott gave evidence that she had been, but no longer was, the applicant's fiancé. She had gone to Cairns alone in the first week of August 1994. However, she had returned to Katoomba on or about 24 or 25 August and had later travelled to Cairns with the applicant in her car. The night before the applicant was arrested he had told her that Watts had been arrested for murder and that he, the applicant, had been involved. The applicant said, "they got into an argument at a pub and they had hit somebody". 93 Two young women gave evidence that they had been present one night at a house where the applicant was living in Katoomba. They had been discussing forming a small jewellery and crafts business. That night the applicant had come home late. There was no blood on his clothing and they did not notice anything out of the ordinary or unusual about his behaviour. 94 Two other young women gave evidence of quite limited significance. 95 Dr. Oettle, a retired forensic pathologist, gave evidence that he had examined the evidence and reports of Dr Lawrence. Dr Oettle considered that all the wounds on Mr Howlett's body had been inflicted before he died. Dr Oettle considered that the distribution of blood was consistent with Mr Howlett having been struck an initial blow and then having been stabbed while he was semi-conscious. CASES OF THE CO-ACCUSED AT THE TRIAL 96 Each of the co-accused gave evidence. Some evidence given by one or other of the co-accused, and particularly Watts, incriminated the applicant in the murder of Mr Howlett. PRINCIPLES TO BE APPLIED 97 It was common ground on the hearing of the application that the principles to be applied on an application for leave to withdraw a notice of abandonment of an appeal to the Court of Criminal Appeal were correctly stated by Barr J, with whom O'Keefe J and Hidden J agreed, in R v Clark [2003] NSWCCA 308. In R v Clark Barr J held that, notwithstanding the substantial changes to the Criminal Appeal Act made in 2001, the principles to be applied in deciding whether to grant leave to withdraw an abandonment of an appeal had not changed. At par 20 of his judgment Barr J said:- "The law about the exercise of the discretion was reviewed by Smart AJ in R v Young [1999] NSWCCA 275. The matters to be considered are whether there may have been a miscarriage of justice at trial (which depends on the substance of the grounds of appeal desired to be argued), the reasons for abandoning the appeal and for seeking to withdraw the abandonment, the length of time which has elapsed since the conviction appealed from and, at any rate where it is desired to argue new trial grounds, any particular reason why the passage of that time may have prejudiced the other side". 98 I will first consider the "substance", that is the merits, of the proposed grounds of appeal on which the applicant would seek to rely. THE PROPOSED GROUNDS OF APPEAL 99 The final amended notice of grounds of appeal contained fourteen grounds, which were as follows:- "1. Her Honour erred by failing to adequately warn the jury in relation to the evidence of the Crown witness, Mr Organ, being a person who was criminally concerned in the events giving rise to the proceedings. Particulars i. Her Honour erred by referring to Mr Organ as an accomplice. ii. Her Honour did not inform the jury of matters which may have caused Mr Organ's evidence to be unreliable. iii. Her Honour erred in law by failing to adequately direct the jury as to the meaning of corroboration. iv. Her Honour erred by identifying an item of evidence which was not capable as a matter of law of amounting to corroboration. 2. Her Honour erred by failing to warn the jury in relation to the evidence of the co-accused, Mr Watts. Particulars i. Her Honour failed to warn the jury that the co-accused, Mr Watts, had an interest to serve in giving evidence, namely to exculpate himself by inculpating the appellant. ii. Her Honour failed to direct the jury to scrutinize the evidence of the co-accused with care, and if there is no corroboration, with special care. 3. Her Honour erred by rejecting the tender of a prior consistent statement. Particulars i. The Crown Prosecutor suggested that the appellant was fabricating or reconstructing his evidence, or that the evidence was a result of a suggestion. ii. The appellant's trial counsel tendered 2 prior consistent statements pursuant to s 108(3) of the Evidence Act 1995 (NSW). iii. Her Honour rejected the tender without giving reasons. 4. Her Honour erred by admitting evidence of the appellant's admissions made to Senior Constable Sullivan and Sergeant Stafford. Particulars i. The evidence was admitted in contravention of s 424A of the Crimes Act 1900 (NSW) 5. Her Honour erred by failing to warn the jury in relation to the evidence of Senior Constable Sullivan and Sergeant Stafford. Particulars i. Her Honour should have warned the jury that Senior Constable Sullivan's and Sergeant Stafford's evidence of an admission, which was not acknowledged in writing by the appellant, may be unreliable. ii. Her Honour should have informed the jury that the unreliability of evidence arises from firstly, the failure on the part of the police officers to tape record the admission, secondly, the delay on the part of the police officers to record the admissions in writing, and thirdly, because of the fact that police officers are generally practised witnesses and that it is not easy to determine whether a practised witness is telling the truth. iii. Her Honour should have warned the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. 6. Her Honour erred by refusing to grant the appellant a separate trial. 7. Her Honour erred by failing to direct the jury that no adverse inference could be drawn from the fact that the appellant declined to answer some of the investigating officers' questions. 8. Her Honour erred by failing to identify what evidence was admissible against the appellant. 9. Her Honour erred by failing to warn the jury that any hearsay evidence admitted against the appellant may be potentially unreliable. 10. Her Honour erred by failing to direct the jury as to the availability of a manslaughter verdict. 11. Her Honour erred by informing the jury of a matter which could not reasonably affect the reliability of the evidence of Mr Brickell. 12. Her Honour erred by permitting the Crown and the co-accused, Watts and Wright to cross-examine the appellant about matters relevant only to credibility without a grant of leave. 13. Her Honour erred by permitting the co-accused, Watts and Wright to cross-examine the appellant about matters relevant only to character without leave. 14. Her Honour erred by permitting co-accused counsel to ask improper questions in cross-examination." 100 These grounds of appeal, except insofar as they were no longer pressed by counsel for the applicant, were fully argued on the hearing of the application for leave to withdraw the notice of abandonment. I will now consider in turn the various grounds of appeal. 1. Her Honour erred by failing to adequately warn the jury in relation to the evidence of the Crown witness, Mr Organ, being a person who was criminally concerned in the events giving rise to the proceedings . Particulars i. Her Honour erred by referring to Mr Organ as an accomplice. ii. Her Honour did not inform the jury of matters which may have caused Mr Organ's evidence to be unreliable. iii. Her Honour erred in law by failing to adequately direct the jury as to the meaning of corroboration. iv. Her Honour erred by identifying an item of evidence which was not capable as a matter of law of amounting to corroboration. 101 Earlier in this judgment I summarised the evidence in chief of Michael Organ and noted that he had been cross-examined at very considerable length. 102 The only reference in the transcript of the trial, to which this Court was referred, to any submission or discussion about whether the jury should be given a direction about the evidence of Michael Organ is at p1407 of the transcript, where something said by the Crown Prosecutor is recorded in indirect speech by the court reporter, as follows:- "(The Crown Prosecutor stated that it would seem that in relation to the evidence of Mr Organ, her Honour should give the jury an accomplice direction in the course of her summing-up)" 103 The trial of the applicant and the co-accused was conducted after, but not long after, the commencement of the Evidence Act. The passage in the transcript at p1407 which I have quoted leaves it unclear whether the Crown Prosecutor was suggesting a direction of the kind which was given at common law before the commencement of the Evidence Act, when an accomplice had given evidence, or a direction under s165 of the Evidence Act on the basis that Organ's evidence fell within s165(1)(d). 104 This Court was not referred to any record in the transcript of any application or request having been made on behalf of the applicant or any of the other accused that the jury be given any direction about Organ's evidence. 105 At pp22-28 of the revised transcript of the summing-up her Honour said:- "The next thing I am going to say to you concerns particularly Mr Organ's evidence. Before I talk about Mr Organ himself, I want to say something to you about accomplices. An accomplice is a person who is himself involved in or is a participant in the crime or the crimes which are under consideration - not necessarily involved to the same extent or in the same way as the others, but a person who is in some way involved in or a participant in that crime. Evidence given by accomplices is frequently unreliable for fairly obvious reasons. But that means that it is appropriate that you subject the evidence of such a person to particular scrutiny. You might regard Michael Organ as an accomplice in the crime of murdering Mr Howlett. If you conclude that he is an accomplice, then you should carefully scrutinise his evidence before relying upon it, to convict any of the accused. You should look for corroboration of those parts of the evidence which you consider to be salient before you act upon it to convict any of the accused. There is a great deal of evidence on which you could conclude that Michael Organ was an accomplice. He is an important witness in the Crown case and he gave evidence over a number of days. He was cross-examined extensively by counsel for each of the accused. I know you paid careful attention to his evidence, but it was quite a long time ago. It is necessary to give you some specific directions about his evidence in particular. I have said that you would look for corroboration of his evidence if you conclude that he is an accomplice. Corroboration simply means some independent evidence from some other source supporting or confirming what the accomplice says. It can come from any of the other witnesses or it can come from the exhibits. When I refer to "witnesses", of course I also refer to the evidence of the four accused. Corroboration you might find for various parts of Mr Organ's evidence in various other aspects of the case. Mr Organ as an accomplice, as I have said to you, it is open to you to conclude that he was an accomplice in this murder. There is evidence of his own from which you might draw that inference and there is other evidence as well. You might recall his early evidence to the effect that when Wright first approached him at the wood yard he absented himself and let Mr Wright speak to Mr Cameron, but he absented himself. Mr Organ gave you evidence then that there was a meeting in a hotel at Mudgee. He said at that meeting when he spoke to Glen Wright, he said that was a meeting when Mr Wright said that he wanted to terminate the arrangement that had been previously made. Mr Organ's evidence in cross examination was that he said 'Just let it go' and Mr Wright said 'Right'. Mr Organ said 'Just let the matter rest' and Mr Wright said 'Obviously it's not going to happen'. He said 'I was personally relieved that Glen's enthusiasm wasn't there after all. He asked me did I want to help kill Ray Howlett and I said 'No' and then he said, from the general mood of the conversation he thought it was just 'pub talk'. You might think from his involvement as he told you about it himself on that point, that he had been somehow involved in the arrangements made by Mr Wright with Mr Cameron and others. There was also the evidence that he received $4,000 -he said against his will - from Mr Wright in the cafe at Ilford and he paid all that $4,000 to Michael Cameron. Now Mr Organ's own evidence was, well, that was just given to me. I didn't want it. It was unsolicited as far as I was concerned and all I did was pass it on. I didn't want anything to do with it. You may or may not accept that. You may or may not see Mr Organ as having somewhat greater involvement in all of this than he would have you believe. He also said in an interview with police - only parts of which are before you - through the cross examination - he had said "I can't really remember. One day he called in the wood yard, started mouthing on about Howlett and, you know, would I be interested in doing anything with him or anything like that and I just said 'No, it's not my sort of line of work'." It is argued that that sort of thing is inconsistent with Michael Organ as an uninvolved observer. Alone, of course, it does not incriminate him. He is not to be held accountable for what some other person might, unsolicited, say to him. If something of this sort is to involve him as an accomplice, it has to be by reason of his response to the invitation. His response may not be in words. It may be by conduct. He could in words refuse the invitation, but by his conduct become a participant. He also answered some questions about evidence he had given. You heard about the committal proceedings and you heard at various times what the nature of those is. It is a court case, not dissimilar to this, but it has a different function. Evidence is given in the same style as has been given in this court case. Mr Organ was cross-examined about the evidence he had given at that committal proceeding and he agreed that when he was interviewed by the police, he had said to Michael Cameron on the phone, "Yeah, and listen, you know, I don't want to ask you this really, but fucking - you didn't go up with Johnno and do the job, did you?" And then there was something else said that could not be understood. That again, it is suggested, is some material from which you could draw an inference that Mr Organ was more involved in this enterprise than he told you. Now, there is a great deal of evidence to that effect. It probably is not appropriate or helpful for me to go through all of that evidence. Perhaps the most telling evidence that Michael Organ was a participant to the point of being an accomplice is that given by Glen Wright himself who, you will recall, told you that he had discussions with Mr Organ about firstly, doing some injury to Mr Howlett and secondly, converting that arrangement into an arrangement to kill Mr Howlett, and you will remember what Mr Wright told you about the extent of Mr Organ's participation. Now, if you conclude that Mr Organ was an accomplice or is an accomplice, then you must, as I have said, scrutinise his evidence with very considerable care before you convict any of the accused on his evidence. You would look for corroboration, that is independent supporting evidence, elsewhere in the material that is before you. Indeed, the Crown accepts that in any event, you would treat the evidence of Mr Organ with considerable caution and you would, as I have said, scrutinise it with great care. Now, that is not to say that you cannot accept any of Mr Organ's evidence and indeed, I think some - not all - counsel to some extent rely on large portions of Mr Organ's evidence. What all of them say to you - and I endorse - is that Mr Organ's evidence is such that you should look at all of it very carefully before you convicted any of the accused on that evidence. For that reason, I will attempt to point you to evidence independent of Mr Organ's evidence which points to the same kinds of conclusions as Mr Organ's evidence would do. You will remember that the Crown said to you something to this effect in relation to each accused: well, put aside Mr Organ's evidence. There is still evidence on which you can convict any one of them and you may think that that is the appropriate way to go about your determination in this matter. Of course, when Mr Organ's evidence is corroborated by some other source, you may find that you feel more comfortable about accepting some or all of what he says. He, like all other witnesses, is a person whose evidence you may accept or may reject. All witnesses are witnesses whose evidence, as I have said to you, you should look at, weigh up, assess and consider whether you accept their evidence or do not accept it. It is not a case, in relation to any witness, of saying: all or nothing. It is not a case of saying: I accept all that witness' evidence or I reject all that witness' evidence. You can accept all or some part or none of any witness' evidence. That applies to Mr Organ as much as anybody else but in his case, it is agreed, I think on all sides, that you would look for corroboration. If his were the only evidence in relation to the guilt of any one of the accused, you should treat it with great caution before you return a verdict of guilty in relation to that accused; but, as the Crown says to you, there is other evidence pointing to the guilt, adequate evidence pointing to the guilt, of each of the accused, apart from Mr Organ's evidence; and if this evidence is in any respect corroborated by any other source, then you may act on it together with any of the other evidence". 106 Immediately after the trial judge had completed giving this part of the summing-up her Honour said that there would be a short adjournment and the following exchange then occurred between her Honour and counsel:- "Anything so far? CROWN PROSECUTOR: No, your Honour MARTIN: (for the applicant) No, your Honour. STRATHDEE: (for Watts) No, your Honour. STRATTON: (for Wright) No, your (Honour. DALTON: (for Cameron) No, your Honour". 107 At p45 of the summing-up her Honour said, in the course of dealing with the Crown case against the accused Cameron:- "The Crown puts its case against Mr Cameron in two ways. Firstly it says that you should approach the case having regard to the evidence of Michael Organ. In doing so the Crown very fairly reminded you of the frailties of Mr Organ's evidence. I have already indicated to you the way you approach Mr Organ's evidence. If you are satisfied that he is an accomplice in the crime that was committed, then it would be dangerous to convict any of the accused, including Mr Cameron, on his evidence unless the evidence on which you act is corroborated by some other independent evidence from some other source. I do not think I need to repeat what I have said to you about the evidence supporting a view that Mr Organ was an accomplice and in any case I remind you that the Crown accepts that accomplice or not, you will treat his evidence with some caution". Particular i. 108 It was submitted on behalf of the applicant that her Honour should not have used the word "accomplice" in referring to Organ. Counsel cited R v Stewart [2001] NSWCCA 260 at par 126 per Howie J and at par21 per Spigelman CJ. 109 At par126 Howie J said:- "It may be preferable that a trial judge avoids using the word 'accomplice' during his or her warnings to the jury. The use of that word may convey, inadvertently, that the trial judge believes that the witness is an accomplice of the accused and, therefore, that the trial judge has formed the view that the accused is guilty of the charge before the jury". 110 At par21 Spigelman CJ said in part:- "I agree with the observations of Howie J that a direction under s165(2) should not employ the word 'accomplice'. The use of such terminology may give the appearance to the jury that the judge has formed an opinion on the issue it has to determine...." 111 The judgments in R v Stewart were, of course, delivered long after Simpson J gave her summing-up at the trial held in 1996. 112 In referring to Michael Organ Simpson J did use the word "accomplice". However, in the part of her summing-up at pp22-28 of the transcript and also in the part at p 45 which I have quoted, her Honour, while referring to evidence which might lead to the conclusion that Organ was an accomplice, did not express any view of her own that Organ was an accomplice and clearly left it to the jury to determine for itself whether Organ was an accomplice. Furthermore, even if, contrary to what I have just said, anything said by her Honour might have conveyed to the jury that her Honour had herself formed a view that Organ was an accomplice, nothing that her Honour said would have conveyed to the jury whose accomplice her Honour believed Organ to be. 113 In my opinion, there is no merit in Particular i. Particular ii. 114 At pp22-23 of the summing-up her Honour said that evidence given by accomplices is frequently unreliable "for fairly obvious reasons". Her Honour did not go on to say what those 'fairly obvious" reasons were. 115 It was submitted on behalf of the applicant that her Honour had failed to comply with s165(2)(b) of the Evidence Act, which requires a judge when giving a warning under s165 of the Evidence Act to inform the jury of matters which might cause the evidence in question to be unreliable. It was submitted that the matters of which the jury should have been informed included:- "(1) Organ's knowledge of what had really happened might have enabled him to fabricate evidence more effectively. (2) Organ might be fabricating evidence so as to avoid being prosecuted himself. (3) Organ might have had other reasons of his own for fabricating evidence. (4) Organ had had notice that he was going to be interrogated by the police and thus had had an opportunity to prepare a fabricated version of events. 116 I do not consider that there is any substance in Particular ii. 117 At the trial there was no request by counsel for the applicant or by counsel for any of the other accused that a warning under s165 of the Evidence Act be given about Organ's evidence. 118 As I have already indicated, it is quite unclear from the transcript whether the direction which the Crown Prosecutor suggested should be given was a direction at common law about the evidence of an accomplice or a warning under s165 of the Evidence Act about the evidence of a witness falling within s165(1)(d) of the Act. The terms of the directions actually given by the trial judge including the direction given at p 45 of the transcript of the summing-up suggest that her Honour considered that what she had been asked to give was a direction at common law, rather than a warning under s165 of the Evidence Act. The requirement to give a warning under s165 depends on the making of a request for a warning (s165(2)). 119 Whatever direction her Honour was asked to give, it is significant that, immediately after her Honour had said what she had at pp22-28 of the transcript about Organ's evidence, she asked "anything so far?" and all counsel including counsel for the applicant replied in the negative. There is a strong inference that all counsel including counsel for the applicant considered that the reasons why evidence given by an accomplice is frequently unreliable were, indeed, "obvious". 120 The matters which counsel for the applicant on this application submitted were matters of which the jury should have been informed would, in my opinion, have been quite obvious to the jury. They were not matters of which the courts have special knowledge or experience which a jury might not possess (see R v Baartman [2000] NSWCCA 298 at (62) and R v Stewart at (97) and (101). That the witness Michael Organ had participated in many conversations and events prior to the killing of Mr Howlett and would have been aware of much of what had really happened would have been quite obvious to the jury. The jury had heard prolonged cross-examination of Organ in which suggestions were repeatedly put to him that he had fabricated his evidence and that he was seeking to "distance himself" or exculpate himself from what had happened. 121 The present case is different from Stewart, where a majority of the Court held that s165(2)(b) of the Evidence Act had not been complied with by the trial judge, because the trial judge had not included in the matters which might have caused the witness' evidence to be unreliable, that the witness had received a discount when he himself had been sentenced, as a result of giving an undertaking to give evidence against the appellant, and that, if the witness had failed to fulfil that undertaking, the Crown might have appealed against the witness' sentence pursuant to s5DA of the Criminal Appeal Act. These were matters of which the courts had special knowledge or experience which a jury might not possess. In the present case, on the other hand, Organ had not been sentenced for any offence and there is no indication that he had received any immunity from prosecution in exchange for giving evidence against the accused or any of them. Particular iii. 122 It was submitted that at pp22-28 of the summing-up and, quite explicitly at p45 of the summing-up, her Honour had given a direction of the kind which was given at common law about the evidence of an accomplice, that it would be dangerous to convict any of the accused on Organ's evidence unless it was corroborated. Although by virtue of s164(3) of the Evidence Act it is no longer necessary to give such a direction, such a direction can still be given. If such a direction is given, it is necessary for the trial judge to define, correctly, what corroboration means. 123 At p23 of the summing-up the trial judge told the jury that "corroboration simply means some independent evidence from some other source supporting or confirming what the accomplice says". 124 It was submitted that her Honour's definition was defective, in that her Honour had failed to include in the definition an essential element of corroboration, that the evidence independent of the witness to be corroborated should not merely support or confirm the evidence of the witness but should implicate the accused. Doney v The Queen (1990) 171 CLR 207 at 211 per curiam. 125 The definition of corroboration given by her Honour at p23 of the transcript of the summing-up was defective, in the way submitted by counsel for the applicant. However, at the trial no counsel, including counsel for the applicant, made any complaint about her Honour's definition. Furthermore, her Honour gave further directions which substantially reduced or eliminated the significance of the defect in the definition of corroboration her Honour gave at p23 of the summing-up. Although her Honour told the jury that they should look for corroboration of Organ's evidence, she added that the jury should, in any event, that is even if the jury found corroboration, treat Organ's evidence with considerable caution and scrutinise it with great care. Her Honour also told the jury that "if his (Organ's evidence) were the only evidence in relation to the guilt of any one of the accused, you should treat it with great caution before you return a verdict of guilty in relation to that accused". Other evidence "in relation to the guilt of an accused" which would prevent Organ's evidence being the only evidence in relation to the guilt of that accused, could only be evidence implicating the particular accused in the commission of the crime charged. In any event, there was abundant evidence at the trial independent of Organ supporting Organ's evidence and implicating the applicant. Particular (iv) 126 In this particular it is asserted that her Honour erroneously identified as evidence capable of amounting to corroboration of Michael Organ's evidence, evidence which was in law not capable of amounting to corroboration. The particular is based on the passage at p23 of the summing-up in which her Honour told the jury that corroboration of Organ's evidence could come from the evidence of any of the other witnesses, including the evidence of the four accused. 127 It was submitted on behalf of the applicant that this direction was erroneous, because evidence of an accomplice cannot be corroborated by evidence of another accomplice, unless there is no possibility of joint fabrication. In support of this submission, counsel for the applicant referred to a passage in the joint judgment of Dawson J and Gaudron J in Pollitt v The Queen (1991-1992) 174 CLR 558 at 600, where their Honours said:- "The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimizing their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. It is for this reason that a direction is given that accomplices cannot corroborate each other. Thus, if there is no possibility of joint fabrication, as for example, where the witness was an accomplice in other offences and is called to give similar fact evidence, a direction to this effect is not required. Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration. But there was no basis for any suggestion of joint fabrication in this case and, thus, there was no need for a direction that Denning and Jones could not corroborate each other". 128 This passage in the joint judgment of Dawson J and Gaudron J in Pollitt was quoted by the Court of Criminal Appeal in R v Ngo [2003] NSWCCA 82 at par 179. 129 It was submitted on behalf of the applicant that the passage in the joint judgment makes clear that the rule that one accomplice cannot corroborate another applies, unless there is no possibility of joint fabrication. It was submitted that, in any event, there was evidence in the present case raising the possibility of joint fabrication between Organ and one or more of the accused. Organ knew all of Wright, Cameron and Cameron's brother and Watts. The co-accused Watts and Cameron, unlike the applicant, had been released on bail quite soon after they were arrested and had been at liberty on bail for more than a year before the trial commenced. During this period Organ, Watts and Cameron, who all lived or worked in Katoomba, would have had opportunities to discuss what evidence they would give at the trial. 130 It was submitted by counsel for the applicant that her Honour's direction that evidence from any of the four accused would be capable of corroborating Organ's evidence would have been particularly important in the determination by the jury of what, it was submitted, was an important question of fact, namely what the applicant had been engaged to do in relation to Mr Howlett and hence why he had gone to "Walkerville". 131 As set out earlier in this judgment, the applicant gave evidence at the trial that he had been told that the man who had come to the yard (Wright) was owed $60,000 by another man (Mr Howlett) and that the applicant's understanding was that he had been engaged to try and recover that debt. The applicant claimed in his evidence that when he went to "Walkerville", he went for the purpose of seeking to recover the debt owed by Mr Howlett. According to the applicant's evidence, recovering from Mr Howlett the debt that he owed would not necessarily involve using physical violence against Mr Howlett; for example, the applicant might simply "put a scare" on Mr Howlett or make a threat that, unless Mr Howlett paid the debt, his property would be taken. The applicant gave evidence that he had not agreed that Mr Howlett should be killed. 132 As set out earlier in this judgment, Organ gave evidence at the trial that Wright had complained to him that Mr Howlett had stolen a plantation of marijuana which had been cultivated by Wright and that Wright wanted to arrange a "slap around" for Mr Howlett. Organ said nothing in his evidence in chief about there being any debt owed by Mr Howlett to Wright. 133 The question of whether the applicant's purpose in going to "Walkerville' was to attempt to recover a debt owed by Mr Howlett to Wright was discussed at length by her Honour at pp123-134 of the summing-up. In this part of the summing-up her Honour referred to:- (i) The applicant's evidence on the subject. (ii) Evidence by the accused Cameron. Cameron had given evidence that Wright had said that "a crop had gone missing". Cameron had given evidence denying that there had been any mention of a debt and had said in his evidence that the first time he had heard of any alleged debt of $60,000 was when the applicant had given evidence at the trial. (iii) Evidence by Organ. Her Honour noted that in the whole of Organ's evidence in chief there had been no mention of any debt, whether of $60,000 or of some other amount. In cross-examination Organ had denied that he had had any conversation with the applicant, as the applicant had alleged had occurred on either 8 July or 15 July. Organ had been cross-examined at length by counsel for the applicant at the trial and a number of conversations which the applicant in his evidence had alleged had taken place had been put to Organ but as her Honour noted:- "During the course of all that cross-examination on behalf of Mr Johnston there was no suggestion made that the reason for the proposed assault on Mr Howlett was debt collection, whether in an identified amount of $60,000 or some other identified "amount". (iv) Evidence by the accused Watts. Watts had given evidence that the applicant had told him that the applicant was going to "Walkerville" to see if he could retrieve what a man had allegedly stolen. In his evidence Watts had denied that the applicant had said anything to him about collecting a debt and had said that the first time he had heard about any alleged debt was during the trial. 134 In my opinion, her Honour's simple, unqualified direction at p23 of the summing-up that corroboration of Organ's evidence could be found in the evidence of any of the other witnesses, including the evidence of the four accused, was not correct. However, the significance of any misdirection was, in my opinion, greatly reduced by a number of factors:- 135 (i) It is by no means clear that for the purposes of the rule stated in the joint judgment in Pollitt Organ should be regarded as an accomplice or that the co-accused Cameron and Watts, both of whom were acquitted at the trial, should be regarded as accomplices. 136 (ii) There was in fact much evidence which was independent of Organ and which was also independent of any of the co-accused, which was capable of corroborating Organ's evidence, for example admissions made by the applicant in the recorded interview. 137 (iii) Although one accomplice cannot corroborate another for the purpose of a direction that it would be dangerous to convict on the uncorroborated evidence of an accomplice, a jury, in determining whether to accept a particular piece of evidence given by an accomplice, is not precluded from having regard to whether the particular piece of evidence given by the accomplice is supported or contradicted by the evidence of other witnesses, even if those other witnesses are accomplices. 138 (iv) On the question which counsel for the applicant submitted was particularly important as to whether the applicant had been engaged to seek to recover a debt of $60,000 owed by Mr Howlett to Wright, Organ in fact gave no evidence (except possibly by implication). Organ said nothing in his evidence in chief, either by way of assertion or denial, about there being any debt owed by Mr Howlett to Wright and it was never put to him in cross-examination that there was such a debt. 139 (v) As Simpson J indicated in her summing-up, there was much evidence emanating from the applicant himself which made his assertion, that he had been engaged to try and recover a debt of $60,000 owed by Mr Howlett to Wright, highly improbable. When he was interviewed on 21 November 1994 the applicant made no mention whatever of a debt or of debt collecting. On the applicant's own evidence, in neither his face to face conversation with Mr Howlett in July or his telephone conversation with Mr Howlett had he made any mention of a debt. If the applicant really had been engaged to seek to recover a debt from Mr Howlett, one would have expected him to have made some demand for payment of the debt or at least to have referred to the debt. On the applicant's own evidence the first time he mentioned any debt to Mr Howlett was on the evening of 17 August itself, when, according to the applicant's evidence, he said to Mr Howlett "just pay your f-ing money". Nothing the applicant had previously said to Mr Howlett would have alerted Mr Howlett to what the applicant was talking about when he said "just pay your f-ing money". 140 When all of these matters are taken into account, I consider that very little, if any, prejudice was caused to the applicant by any misdirection. 2. – Her Honour erred by failing to warn the jury in relation to the evidence of the co-accused, Mr Watts Particulars i. Her Honour failed to warn the jury that the co-accused, Mr Watts, had an interest to serve in giving evidence, namely to exculpate himself by inculpating the appellant. i. Her Honour failed to direct the jury to scrutinise the evidence of the co-accused with care, and if there is no corroboration, with special care. 141 Consistently with what he had told police on 18 November 1994, Watts gave evidence at the trial exculpating himself and inculpating the applicant. Amongst other things Watts said in evidence that the applicant had taken a knife with him on the evening of 17 August, that Watts had seen Mr Howlett on the ground with the applicant restraining Mr Howlett with his knee on Mr Howlett's back, that Watts had been told by the applicant to go inside the house to disconnect the telephone, that Watts had entered the house for that purpose and that when he came out of the house he saw Mr Howlett lying motionless in a pool of blood and he saw the applicant with a knife in his hand and blood on his arm. Watts denied that he himself had had a knife or that he had stabbed Mr Howlett. He denied saying the things incriminating himself which the applicant in his evidence had alleged that Watts had said. 142 The trial judge did not give the jury any warning about Watts' evidence and no such direction was asked for at the trial. 143 It was submitted by counsel for the applicant that a warning of the kind set out in the ground of appeal and the Particulars should have been given. Counsel referred to R v Henning (unreported CCA 11 May 1990) and Webb v The Queen (1993-1994) 181 CLR 41. It was accepted by counsel that, if such a warning had been given about Watts' evidence, a corresponding warning would have had to have been given about the applicant's own evidence, which exculpated himself and inculpated Watts. 144 In R v Henning the Court of Criminal Appeal said at p47:- "But different principles apply when the supposed accomplice who gives evidence against a co-accused is himself an accused giving evidence in his own case. It would be difficult indeed to seek to apply inflexible rules to such situations. For the interests of justice will almost certainly require different responses in different circumstances. Considerable latitude must be allowed in order to enable trial judges to address the situation in a manner which will adapt to the competing interests in the particular case". 145 One issue in Webb was concerned with what directions, if any, should be given at a joint trial when one accused gives evidence incriminating a co-accused. On this issue the leading judgment was given by Toohey J, with whom the other members of the Court agreed (Mason CJ and McHugh J at 56, Brennan J at 65, Deane J at 80). The effect of Toohey J's discussion of this issue at pp92-95 of his Honour's judgment is accurately summarised in the headnote to the report at p42:- "Per curiam (1) When an accused gives evidence implicating another accused, the question whether an accomplice warning should be given and, if so, in what terms, cannot be answered without reference to the unique circumstances of the case. (2) If in such a case the judge considers it necessary or appropriate to give a warning to protect the co-accused, it must be done in a way which makes clear that the warning relates only to the use of the evidence as against the co-accused and does not lead the jury to believe that the warning attaches to the accused's evidence in his own case". 146 At p94 Toohey J referred with approval to the passage in Henning which I have quoted. 147 It is clear from Henning and Webb that when in a joint trial one accused gives evidence which incriminates a co-accused, there is no inflexible rule that any warning should be given and considerable latitude must be allowed to the trial judge in deciding, in the circumstances of the particular case, whether any direction should be given and, if so, what should be the terms of the direction. 148 In the present case the circumstances included that the very evidence given by each of the applicant and Watts which tended to inculpate the other accused was evidence relied on by the accused giving the evidence as exculpating himself and that no request for a direction was made by counsel for the applicant (or by counsel for Watts). 149 A forensic purpose for not asking for such a direction can readily be inferred. If such a direction had been applied for, counsel for the applicant at the trial could not have resisted the giving of a corresponding direction about the applicant's own evidence. If similar directions had been given about both the applicant's evidence and Watts' evidence, the applicant would have been in much the same position as if no direction at all had been given. 150 There was no need for the trial judge to tell the jury that Watts (or the applicant) had an interest in giving evidence exculpating himself by inculpating the other accused. That would have been blindingly obvious to the jury. 151 In my opinion, there is no substance in this ground of appeal and on an appeal against conviction I would refuse leave under r 4 of the Criminal Appeal Rules to rely on this ground of appeal. 3. – Her Honour erred by rejecting the tender of a prior consistent statement . 152 As previously indicated, the applicant gave evidence in his own case at the trial, in the course of which he was subjected to a long cross-examination by the Crown Prosecutor. During a break in the cross-examination of the applicant counsel for the applicant gave notice that in re-examination of the applicant he would be seeking to tender two documents pursuant to s108(3) of the Evidence Act, on the basis of a question which the Crown Prosecutor had asked in cross-examination. The question asked by the Crown Prosecutor which was identified by counsel for the applicant as grounding an application under s108(3) was a question suggesting that the applicant in giving evidence at the trial had demonstrated a remarkable recovery of memory from the time he was interviewed by police on 21 November 1994. The applicant's answer to this question included that he had had a recovery of memory "in relation to some things". 153 After the re-examination of the applicant had been completed, counsel for the applicant tendered two documents, namely:- (i) A statement made by the applicant on 2 January 1995, which he had signed before a justice of the peace on 16 January 1995. This document was referred to at the trial as "the Statutory Declaration". (ii) A transcript of proceedings in the Supreme Court on 22 February 1995, when the applicant, appearing for himself, had, unsuccessfully, applied for bail on the charge of murdering Mr Howlett. During this bail hearing the applicant gave evidence and was cross-examined. 154 The Crown Prosecutor opposed the tender of both documents. The Crown Prosecutor accepted that in questions he had asked in cross-examination it had been suggested that evidence given by the applicant had been fabricated or re-constructed. However, the Crown Prosecutor opposed the tender of the documents on the grounds that the documents did not "logically" rebut the suggestion made in the questions, because the documents had been made "months and months afterwards". 155 A short adjournment was taken after the conclusion of the argument about the admissibility of the documents. Immediately after the short adjournment the trial judge said "the tender is rejected. I will give reasons for that in due course". 156 The trial judge did not subsequently give any reasons for her decision and was not asked to give any reasons for her decision. 157 The Statutory Declaration and the transcript of the bail hearing were before this Court on the hearing of this application. In the Statutory Declaration the applicant said inter alia that when Mr Howlett came out of the house on the evening of 17 August he had had a small knife in his hand, Mr Howlett had lunged at the applicant and the applicant had hit Mr Howlett on the face with his right elbow and the applicant had then run away from the house. 158 In his evidence in chief at the bail hearing the applicant said that at the time he was interviewed by police on 21 November 1994 he was not aware of how Mr Howlett had died; he accepted that he had struck Mr Howlett, but only in self-defence; and he had not agreed to do any serious harm, and had not done any serious harm, to Mr Howlett. 159 Section 108(3) of the Evidence Act provides:- "(1) The credibility rule does not apply to evidence adduced in re-examination of a witness. . . . (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement". 160 As previously indicated, it was conceded by the Crown Prosecutor that par(b) of s108(3) was satisfied but the Crown Prosecutor nevertheless opposed the granting of leave. 161 It was submitted on behalf of the applicant that her Honour should have granted leave and that, in the absence of any reasons given by her Honour for her decision to refuse leave, it could not be determined whether her Honour had taken into account all of the factors which her Honour ought to have taken into account in deciding whether to grant leave. 162 In my opinion, it can be inferred from the report of the argument before her Honour about the admissibility of the documents and from her Honour's decision, that her Honour accepted the Crown Prosecutor's submission that the documents did not have any probative force in rebutting the suggestion that the applicant's evidence at the trial had been fabricated or re-constructed. The documents were made some months after 17 August 1994. Furthermore, the documents were made several weeks after the applicant had been interviewed by police, arrested and charged with the murder of Mr Howlett. The applicant had had several weeks in custody in which he would have had the opportunity to fabricate or re-construct a self-serving account of what had happened which would exonerate him. 163 I do not consider that her Honour should be held to have erred in rejecting the tender of the documents. 4. - Her Honour erred by admitting evidence of the appellant's admissions made to Senior Constable Sullivan and Sergeant Stafford. Particulars The evidence was admitted in contravention of s424A of the Crimes Act 1900 (NSW). 164 This ground of appeal was not pressed at the hearing of the application. It was conceded that, by virtue of subs (5) of s424A, s424A did not apply to an admission made before the commencement of the section and the section had not commenced until 1 September 1995. 5. - Her Honour erred by failing to warn the jury in relation to the evidence of Senior Constable Sullivan and Sergeant Stafford. Particulars i. Her Honour should have warned the jury that Senior Constable Sullivan's and Sergeant Stafford's evidence of an admission, which was not acknowledged in writing by the appellant, may be unreliable. ii. Her Honour should have informed the jury that the unreliability of evidence arises from, firstly, the failure on the part of the police officers to tape record the admission, secondly, the delay on the part of the police officers to record the admissions in writing, and thirdly, because of the fact that police officers are generally practised witnesses and that it is not easy to determine whether a practised witness is telling the truth. 165 The terms of the ground of appeal and of the particulars suggest, and in written submissions counsel for the applicant expressly stated, that it was the applicant's contention that a warning under s165 of the Evidence Act should have been given about the evidence of the police officers Sullivan and Stafford. However, at the trial no request was made for such a warning and hence s165 did not require the giving of such a warning. 166 It was also submitted that a warning should have been given in accordance with what was said by Mason CJ, Deane, Gaudron and McHugh JJ in their joint judgment in McKinney v The Queen (1990-1991) 171 CLR 468 at 476. However, at p476 their Honours said that such a warning should be given "in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated". 167 In the present case the admissions allegedly made by the applicant to Sullivan and Stafford formed only a small part of the Crown case against the applicant on the charge of murder. 168 I do not consider that, independently of s165 of the Evidence Act, any warning was required to be given, especially in the absence of any request for such a warning. Of the matters which, it was submitted, might make the evidence of the police officers unreliable, at least two, that the conversations or parts of them had not been tape recorded and that a delay of some days had occurred before the police officers made statements setting out their recollection of the alleged conversations, were dwelt on in cross-examination of the police officers and would have been readily comprehensible to the jury. 169 I do not consider that there is any substance in this ground of appeal and on a conviction appeal I would refuse leave under r 4 to rely on this ground. 6. - Her Honour erred by refusing to grant the appellant a separate trial. 170 The trial commenced and was conducted throughout as a joint trial of the four accused. 171 At p1539 of the transcript of the trial counsel for the applicant is recorded as having informed the trial judge that he had received instructions to apply for a separate trial for the applicant, because of evidence given by Watts at p1482-1485 of the transcript. At pp1482-1485 of the transcript Watts was being cross-examined by the Crown about part of his answer to question 88 in his interview by the police, in which he had said that, while he and the applicant were outside Mr Howlett's house, "I knew what was about to be". In cross-examination Watts said, "I didn't know what was going to happen". In further cross-examination at pp1482-1485 Watts was asked about what he had thought the applicant might do to Mr Howlett and especially what he had thought the applicant might do with the knife which Watts said the applicant had and Watts answered that he had thought that the knife might be used "to ward off or scare off" someone. 172 The argument on counsel for the applicant's application for a separate trial for the applicant is reported at pp1658-1661 of the transcript of the trial. Much of this part of the transcript consists of summaries made by the court reporter and not verbatim reports of what was said by counsel or by the trial judge. 173 The transcript records that her Honour noted that the application for a separate trial was being made on the twenty-fifth day of the joint trial. It is, of course, the position, as counsel for the applicant pointed out, that an application for a separate trial can be made at any stage of a trial, although the stage in the trial at which the application is made is a relevant consideration in deciding whether the application should be granted. 174 A submission made by counsel for the applicant in support of the application for a separate trial is recorded in the transcript as follows:- "(Mr Martin asks for a separate trial for Mr Johnston from the trial of Mr Watts on the basis that in the course of the trial the evidence against Mr Johnston can be shown to be significantly weaker and different from the case against Mr Watts and the case against Mr Watts is highly prejudicial and there is a real risk the case against Mr Johnston will be made immeasurably stronger by reason of the prejudicial material flowing from Mr Watts.)" 175 It was submitted by counsel for the applicant at the trial that the case against Watts was stronger than the case against the applicant, because Watts had virtually made admissions that he was guilty of being a principal in the second degree to the murder of Mr Howlett. 176 During the argument the trial judge twice enquired of counsel for the applicant how, it was submitted, the evidence Watts had given in cross-examination at pp1482-1485 differed from what he had said when he was interviewed. The following exchange between the trial judge and counsel for the applicant at the trial is recorded verbatim in the trial transcript:- "HER HONOUR: You are entitled to assume that he was going to go into the witness box and say, 'I don't give those answers or if I did they were untrue'? MARTIN: Yes. HER HONOUR: You are saying that you had some reasonable basis for assuming that in the fullness of time, a position different from that in the record of interview would emerge? MARTIN: Yes". 177 In opposing the application for a separate trial the Crown Prosecutor said "that he did not know upon what basis Mr Martin had formed the view that there was a possibility that the accused Watts would divert from what was in his record of interview". 178 It would appear that counsel for the other three accused opposed the application for a separate trial of the applicant. Counsel for Watts submitted that the application was really an application for a discharge of the jury in relation to all the accused, because the trial could not proceed against any of the accused if the applicant was granted a separate trial. 179 The trial judge reserved her decision on the application for a separate trial for the applicant. On the next day on which the Court sat her Honour, without giving reasons, announced that the application for a separate trial was refused. 180 The principles on which applications for separate trials should be determined have been stated in such cases as R v Middis (unreported Hunt J 27 March 1991), Webb and Hay v The Queen (1994) 181 CLR 41 at 88-89 per Toohey J, R v Patsalis and Spathis (1997) 107 A Crim R 432, R v Fernando [1999] NSWCCA 66, R v Symss [2003] NSWCCA 77. 181 In R v Middis Hunt J said:- "Briefly, the relevant principles are that: 1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and 2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and 3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial". 182 In R v Patsalis and Spathis Kirby J said:- "There is a rule, and a proviso to that rule. It is desirable, in the ordinary course, that all persons said to have been concerned with the one crime should be dealt with in the one trial. That rule is subject to the proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered; R v Oliver (1984) 57 ALR 543". 183 In R v Symss Sheller J said at par68:- "The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts". 184 In the present trial the applicant and Watts (and the other two accused) were persons alleged to have been concerned in the one crime. Two of the bases on which the Crown alleged that the applicant was guilty of murder depended on the Crown establishing that the applicant had been a party to a joint enterprise with Watts. The principles stated in Middis did not apply, because inter alia the evidence against the applicant that he was guilty of murder as a principal in the first degree could not be said to be significantly weaker than the evidence against Watts. 185 The possibility that Watts might endeavour at the trial to explain away or qualify the answer he had given when interviewed, that while he and the applicant were outside Mr Howlett's house "I knew what was about to be" was readily foreseeable. In any event, the "departure" of which counsel for the applicant at the trial complained was, not that Watts in his evidence had said something different from what he had said when he was interviewed but that an expectation that counsel had had that Watts would say something different from what he had said when he was interviewed had not been fulfilled. 186 If Watts had given evidence which the applicant's legal representatives had not anticipated, then an application could have been made to have the applicant recalled to give further evidence. The trial judge had earlier indicated that, in a trial where there were a number of accused who would be presenting separate defence cases, she would be likely to be receptive to an application by an accused whose case had already been closed to re-open his case. 187 As her Honour remarked, the application for a separate trial was made on the twenty-fifth day of a joint trial of the four accused and considerations of conserving costs and avoiding inconvenience to witnesses strongly favoured refusing the application by the applicant for a separate trial. 188 In my opinion, the applicant has not shown that her Honour erred in refusing the application for a separate trial and has not shown that he suffered a miscarriage of justice because the application was refused and the trial continued as a joint trial. 189 In my opinion, there is no merit in this ground of appeal. 7. – Her Honour erred by failing to direct the jury that no adverse inference could be drawn from the fact that the appellant declined to answer some of the investigating officers' questions . 190 The transcript records at p734:- "(Mr Martin referred to the fact that reference had been made on a number of occasions to the accused Johnston refusing or failing to speak to the police except in the presence of solicitors and not talking to the police on legal advice. He advised that he would be seeking a direction that the jury draw no adverse inference from that). HER HONOUR: I will give that direction". 191 In fact, the trial judge did not give such a direction. No further application was made to her to give such a direction. 192 Although counsel for the applicant referred at p734 of the transcript to "a number of occasions", this Court was referred to only one such occasion. Detective Bray, having been told something by the Queensland police (inferentially that the Queensland police had had conversations with the applicant in the early morning of 22 November 1994) spoke to the applicant later on the morning of 22 November 1994. Detective Bray gave evidence that the following conversation occurred between himself and the applicant:- "Detective Bray: I've been told that you want to speak to me about the knife. Is that right? The applicant: I have changed my mind. I will wait until I speak to a solicitor in Sydney. Then I will tell you more. I remember some more". 193 In cross-examination Detective Bray said that he had been prepared to co-operate with the applicant regarding the applicant's wishing to speak to a solicitor. Detective Bray added "It was appropriate that he speak to his solicitor if he so desired". 194 Although her Honour should have given the direction she said she would give, I do not consider that any miscarriage of justice resulted from the failure to give the direction. The direction would have related to what was a very minor part of the trial. The jury had heard Detective Bray give evidence that it was appropriate that the applicant be allowed to speak to his solicitor before being interviewed further. The impression which I consider the jury would have received from the evidence as a whole would have been that the applicant had been generally co-operative with police and willing to talk to them. He had taken part in the recorded interview of 21 November 1994 and had agreed to provide body samples. He had taken part in conversations with the Queensland police officers and had asked them to attempt to locate the Sydney detectives, so that he could speak to the Sydney detectives further. 8. – Her Honour erred by failing to identify what evidence was admissible against the appellant. This ground of appeal was withdrawn by counsel for the applicant. 9. – Her Honour erred by failing to warn the jury that any hearsay evidence admitted against the appellant may be potentially unreliable . 195 A number of witnesses gave evidence of things said to them by Watts, which, while tending to implicate Watts as having some role in the killing of Mr Howlett, also implicated the applicant in the killing of Mr Howlett and, it was submitted, implicated the applicant more seriously than they implicated Watts. These witnesses were Sean Harris, Jason Rodger, Mark Ranse and a police officer Detective Fitzhugh. These witnesses were cross-examined by counsel for the applicant at the trial about what they said Watts had said to them and their evidence of what Watts had said to them became evidence in the trial of the applicant. 196 Harris gave evidence that on 16 November 1994 he had had a conversation with Watts. Watts asked, "do you think you would rot in hell if you committed murder?" and after Harris had said "yes" Watts asked, "what about an accessory to murder?" Watts told Harris that the applicant had been contacted to do "a hit" on a man, that Watts and the applicant had gone to the man's house and that the applicant had hit the man and had stabbed him. Harris later said in his evidence "Damien (Watts) didn't tell me that he saw everything…. He explained what he visualised would have happened". 197 Jason Rodger gave evidence that on a date which he could not remember he had had a conversation with the applicant in which the applicant had told him that "he was going to Mudgee to bash a bloke for five grand and a bit of pot". Jason Rodger also gave evidence of a conversation he had had with Watts. He could not remember when the conversation was but it was before Watts was arrested. In the conversation he had asked Watts how "the bash" went and Watts had replied, "Johnno (the applicant) went ballistic". 198 Mark Ranse gave evidence that he had had a conversation with Watts some time between September and November 1994 in which Watts had said, "I went with Johnno when he stabbed this guy". 199 Detective Fitzhugh gave evidence that on 18 November 1994 he had had a conversation with Watts at his home, in which Watts had said that he had been present when Mr Howlett had been killed, "but I didn't do it. I was only the driver for Johnno". 200 Another witness who gave evidence about a conversation he said he had had with Watts was Gregory Myles, who gave evidence that he had had a conversation with Watts in late August or early September 1994, in which Watts had said "we killed someone… me and Johnno". The evidence continued:- ".. and he just stabbed him and kept on stabbing him Q. Did he say who stabbed him? A. Damien said he stabbed him. Q. And you took that to mean Mr Watts stabbed him? A. That's exactly how I took it, sir". 201 It was submitted by counsel for the applicant that a warning under s 165 of the Evidence Act should have been given, on the basis that the evidence of what the witnesses said Watts had said was hearsay evidence and evidence of admissions and that the source of all the evidence was Watts, who might reasonably have been supposed to have been criminally concerned in the killing of Mr Howlett and who would have had an interest in exculpating himself and inculpating the applicant as being the actual killer. It was further submitted that there was evidence of links between Watts and the witnesses, such as to give rise to the possibility that the evidence the witnesses had given had been concocted between Watts and the witnesses. 202 A sufficient answer to the submission made by counsel for the applicant is that no request was made at the trial for a direction under s165 and hence there was no obligation on the trial judge to give a direction under s165. 203 The evidence given by the witness Gregory Myles that, very shortly after the murder, Watts had confessed that it was he who had stabbed Mr Howlett was capable of being regarded as powerful evidence against Watts and in favour of the applicant on the issue of which of them had stabbed Mr Howlett and could have prompted a forensic decision by counsel for the applicant at the trial not to apply for directions about the possible unreliability of hearsay evidence, which would have included a warning about the reliability of Myles' evidence. 204 One of the principal matters which often renders hearsay evidence unreliable is that the maker of the out-of-court representation is not available to be cross-examined about the making of the representation or about the truth of what was represented, did not apply in the present case, because Watts gave evidence and was available to be cross-examined about what the witnesses asserted he had said to them and about who in fact had stabbed Mr Howlett. 205 In my opinion, there is no substance in this ground of appeal and on an appeal against conviction I would refuse leave under r 4 to rely on this ground. 10. – Her Honour erred by failing to direct the jury as to the availability of a manslaughter verdict . 206 The question of whether the trial judge in her summing-up should give the jury directions about manslaughter was argued at pp1939-1950 of the transcript. Towards the end of this argument counsel for the applicant said:- "My concern is addressed solely to that difficult proposition where the jury decides to reject the evidence of each (of the applicant and Watts). I am quite prepared to accept, in the circumstances of this case as it has been conducted, that practically manslaughter is not available". 207 The trial judge did not in her summing-up give the jury directions about manslaughter. 208 On the hearing of this application counsel for the applicant attempted to formulate a scenario, that is a set of findings by the jury, under which the applicant would not have been guilty of murder and would not have been entitled to an outright acquittal but would have been guilty of manslaughter. Counsel submitted that the applicant would have been guilty of manslaughter, if:- (i) The jury were not satisfied beyond reasonable doubt that it was the applicant who had done the stabbing (if the jury were satisfied beyond reasonable doubt that it was the applicant who had done the stabbing, they would surely have been satisfied that he had done the stabbing with the intent required for murder). (ii) The jury were satisfied beyond reasonable doubt that there was an agreement between the applicant and Watts that they should assault Mr Howlett but not kill him or inflict grievous bodily harm on him. (iii) The jury were satisfied beyond reasonable doubt that the applicant foresaw that Watts might use a knife. (iv) The jury were not satisfied beyond reasonable doubt that the applicant contemplated that Watts might use the knife to kill Mr Howlett or to inflict grievous bodily harm on him. (v) The jury were satisfied beyond reasonable doubt that it was Watts who had stabbed Mr Howlett with the knife. 209 It is clear that if on the evidence in a murder trial it would be possible for the jury to return a verdict of guilty of manslaughter, the trial judge should give the jury directions about manslaughter. Pemble v The Queen (1971) 124 CLR 107. 210 In the present case, I do not consider that the scenario on which the applicant might have been guilty of manslaughter would have been open on the evidence. As counsel for the applicant at the trial conceded, there could not be any verdict of manslaughter, unless the jury rejected evidence which had been given by the applicant and Watts. In any event, any failure to leave manslaughter to the jury did not lead to any miscarriage of justice, because the verdicts returned by the jury showed that the jury were clearly satisfied beyond reasonable doubt that it was the applicant, and not Watts, who had stabbed Mr Howlett with a knife. 211 In my opinion, there is no substance in this ground of appeal and on an appeal against conviction I would refuse leave under r 4 to rely on this ground. 11. - Her Honour erred by informing the jury of a matter which could not reasonably affect the reliability of the evidence of Mr Brickell . 212 Earlier in this judgment I noted that John Alexander Brickell was a remand prisoner who was called as a witness in the applicant's defence case and who gave evidence of conversations which he said he had had in prison with Watts and with the applicant. 213 Brickell gave evidence that he had had a conversation with Watts on or about 22 November 1994 in the following terms:- "Brickell: What are you in for? Watts: Murder. Brickell: What happened? Watts: I was out at a property with a mate. My mate hit the guy, knocked him out. I went inside the house . When I came out the guy come around and I put a blade in him. Brickell: That's a fairly drastic measure". 214 Brickell gave evidence that in January 1995 he had had a conversation with the applicant. In the conversation reference was made to Watts' having applied for and having been granted bail and the conversation then continued:- "Brickell: Are you charged with murder as well? The applicant: Yeah, I did it. Brickell: Well that's not what he told me. The applicant: What did he tell you? Brickell: He said that he stabbed the guy". 215 In cross-examination Brickell was asked by the Crown Prosecutor to repeat the conversation he said he had had with the applicant. This time Brickell said that, after he had asked the applicant whether he was charged with murder, the applicant said, "Yes. He (Watts) blamed me". 216 In cross-examination by counsel for Watts Brickell said that the evidence he had first given about his conversation with the applicant, that the applicant had said "Yeah, I did it" was simply a mistake on Brickell's part. The following question and answer occurred in cross-examination by counsel for Watts:- "Q. Sir are you expecting to get any mileage out of giving evidence here to-day? A. I've got nothing to gain". 217 After Brickell had completed giving evidence, counsel for Watts asked her Honour to give an immediate direction about Brickell's evidence and her Honour gave the jury a direction to the effect that they should treat Brickell's evidence with caution. 218 In her summing-up her Honour gave the jury extensive warnings about Brickell's evidence (summing-up pp157-159). There is no need to set out or summarise all of what her Honour said in giving these warnings, because on the hearing of this application it was not disputed by counsel for the applicant that it was appropriate that the trial judge should have given the jury warnings about the evidence of Brickell and, with the exception of one part of what her Honour said, no criticism was made of the terms of the directions which her Honour had given. 219 The part of what her Honour said in giving the jury warnings about Brickell's evidence which was criticised by counsel for the applicant occurred in the following passage:- "The second reason you should do that (look at Brickell's evidence very carefully before acting upon it) is that any prisoner may have an incentive to give false evidence and so secure for himself some advantage. That obviously is more likely to be the case where the prisoner is called on behalf of the prosecution and that is not the case here. It may be less the case where here the prisoner has given evidence not for the prosecution, but on behalf of one accused against another. But that does not mean that there may not be some advantage which is quite unknown to you, to Mr Brickell, in giving evidence such as he has done. You should keep clearly in mind that he may be hoping to secure some advantage for himself". 220 It was submitted by counsel for the applicant that her Honour should not have said "but that does not mean that there may not be some advantage which is quite unknown to you, to Mr Brickell, in giving evidence such as he has done". It was submitted that that remark was sheer speculation on her Honour's part. 221 Counsel for the applicant at the trial did not make any complaint about this remark by her Honour. 222 I do not consider that her Honour's remark was in any way improper. In my opinion, her Honour was entitled to tell the jury that there might have been reasons, not apparent to the jury, why Brickell might have given evidence which was false. Prisons are peculiar, closed environments in which motivations for a prisoner acting in a particular way may not be readily apparent to an outsider. In R v Clough (1992) 28 NSWLR 396 at 405 Hunt CJ at CL included, as a proposition which could be gathered from the judgments delivered in Pollitt v The Queen (1992) 174 CLR 558, the following:- "3. Evidence of a prisoner informant that the accused has confessed his guilt to him is potentially unreliable because ... (iii) The witness is likely to have been motivated to concoct such evidence either: (a) By his perception that he will derive some benefit in terms of sentence, treatment or release from custody if such evidence is given, or (b) By reason of pressures upon him – which may not readily be apparent to the jury – arising from his prison environment, where conventional standards of conduct are replaced by a culture in which values such as truth and respect for the rights of others have little relevance…. 223 In my opinion, there is no substance in this ground of appeal and on an appeal against conviction I would refuse leave under r 4 to rely on this ground. 12. - Her Honour erred by permitting the Crown and the co-accused, Watts and Wright to cross-examine the appellant about matters relevant only to credibility without a grant of leave. 13. - Her Honour erred by permitting the co-accused, Watts and Wright to cross-examine the appellant about matters relevant only to character without leave . 224 These two grounds of appeal were dealt with together in counsel for the applicant's written and oral submissions. 225 In written submissions counsel for the applicant said that the applicant had been cross-examined by the Crown Prosecutor about:- (i) An offence to which the applicant had pleaded guilty in the Taree Local Court in 1990 for stealing some petrol. (ii) A lie, which the applicant admitted to be a lie, told by the applicant to Cameron, that Mr Howlett had fired a shot at the applicant on a visit by the applicant to Mr Howlett's property before 17 August. (iii) Alleged lies told by the applicant in his bail applications, which the applicant denied were lies. (iv) Certain lies, which the applicant admitted to be lies, told by the applicant to the investigating police officers or to one or other of the other accused. 226 In written submissions counsel for the applicant also said that the applicant had been cross-examined by counsel for Watts about matters including:- (i) An alleged lie told in evidence in a bail application that the applicant did not know of Mr Howlett's death until he was questioned by police, which the applicant denied was a lie. (ii) An alleged lie told in evidence in a bail application, which the applicant denied was a lie, that he had taken part in the recorded interview under duress, because the police were threatening to charge Leyla McDermott and "under threat of what I might say may incriminate other people". (iii) An alleged lie told in evidence in a bail application, which the applicant denied was a lie, that as at 2 July Watts had no knowledge of why the applicant was going "around there" (to Mr Howlett's property). (iv) An alleged lie told in an affidavit used in a bail application that the applicant had never been hired to "bash" a person at any time. (v) That at a time when the applicant was doing work for Leyla McDermott's father he was also claiming unemployment benefits. (vi) That the applicant had made an untrue statement to police and to the Taree Local Court when he was prosecuted for stealing petrol. (vii) That the applicant had told lies in connection with Mr Howlett to Cameron, Watts and to the investigating police officers. 227 No objection was taken by counsel for the applicant at the trial to any of this cross-examination. 228 Counsel for the applicant referred to various provisions of Pt 3.7 of the Evidence Act, which relates to credibility. Under s102 in Pt 3.7 evidence which is relevant only to a witness' credibility is not admissible. Under s103(1) the credibility rule does not apply to evidence adduced in cross-examination of a witness, but only if the evidence has substantial probative value. Under s104(2) a criminal accused must not be cross-examined about a matter that is relevant only because it is relevant to the accused's credibility, unless the Court gives leave. 229 It was submitted that the trial judge had not given leave under s104(2) and that, if the trial judge had given consideration to whether she should give leave, she would have had to have regard to the various provisions of the Act, including s192. 230 In my opinion, it was not necessary for the trial judge to make a grant of leave under s104(2) of the Evidence Act. 231 In his evidence in chief the applicant gave evidence to prove that he was generally (even if not entirely) a person of good character. For example, he gave evidence that, apart from some minor matters which included the offence of stealing petrol at Taree, there was nothing else "which had brought him to the adverse attention of the police". The applicant gave evidence in his evidence in chief that he had participated in the work of environmental or youth groups in New South Wales and Queensland. He said that he had worked, dressed up as a Koala, collecting charitable donations. 232 At p881 of the transcript, at a stage in the trial when the applicant was still giving evidence in chief, the following passage occurs:- "(The Crown Prosecutor stated that during the examination in chief of the accused Johnston Mr Martin asked him a number of questions which gave rise to his character. He stated that under the new Evidence Act, before he could ask him any questions to expand upon or clarity any of those things the Crown Prosecutor had to seek her Honour's leave to do so. Mr Martin stated the Crown Prosecutor was correct. Her Honour granted leave. Mr Strathdee stated that that position applied to all counsel. Her Honour stated there was no reason why the other accused should be treated differently from the Crown in this respect)" 233 Part 3.8 of the Evidence Act deals with evidence of character. Under s112 in Pt 3.8 of the Act an accused person is not to be cross-examined about matters arising out of evidence of a kind referred to in Pt 3.8, unless the Court gives leave. It would appear that the grant of leave which is recorded at p881 of the transcript was not opposed by counsel for the applicant. It is not clear whether, in deciding to grant leave, the trial judge had regard to s192(2) of the Act but if she had had regard to those matters she could not, in my opinion, reasonably have refused leave. See Stanoevski v The Queen (2001) 202 CLR 115 especially at 129 (56) per McHugh J. The applicant had deliberately adduced evidence of good character in his evidence in chief. The applicant had himself raised in his evidence in chief the matter of the stealing of petrol at Taree and had given his version of what he said had really happened. 234 That the applicant had told lies to one or other of the co-accused in connection with his dealings concerning Mr Howlett and that he had told lies to police officers investigating the death of Mr Howlett and that he had told lies in applications that he be granted bail on the charge of murdering Mr Howlett were matters capable of showing that the applicant was not a person of good character and were matters on which the applicant, after the grant of leave, could properly be cross-examined. In any event, insofar as the applicant had made statements to one or other of the co-accused or to investigating police or on bail applications, which were inconsistent with what he said in his evidence had really happened, then no leave under Pt 3.7 would have been required for the Crown Prosecutor to cross-examine the applicant about these prior inconsistent statements (s104(3)(c)), even if no leave had been granted under Pt 3.8. 235 In my opinion, there is no merit in either of these grounds of appeal. 14. Her Honour erred by permitting co-accused counsel to ask improper questions in cross-examination. 236 None of the questions asked by counsel for one or other of the co-accused to which this Court was referred in counsel for the applicant's submissions were objected to by counsel for the applicant at the trial. None of the suggestions made in these questions were acceded to by the applicant in his answers to the questions. The trial judge in her summing-up gave the usual direction to the jury that a question asked by counsel was not evidence and that there was no evidence unless a suggestion made in a question was assented to or adopted by the witness. 237 In my opinion, there is no substance in this ground of appeal and on an appeal against conviction I would refuse leave under r 4 to rely on this ground. DETERMINATION OF THE APPLICATION 238 I have now completed my examination of the substance or merits of the proposed grounds of appeal. I am mindful that in determining whether there might have been a miscarriage of justice at the trial, it is necessary to consider the proposed grounds of appeal cumulatively and not simply to consider each of the proposed grounds of appeal in isolation. However, the only ground of appeal which I have concluded has any substance is the first ground of appeal, that the trial judge erred in warning the jury about the evidence of Michael Organ and in particular in giving the directions she gave the jury about corroboration. 239 In my opinion, any errors made by the trial judge in warning the jury about the evidence of Michael Organ did not give rise to any miscarriage of justice. The trial judge gave the jury the very extensive warnings about Organ's evidence, which I have quoted. For reasons I have given in discussing the various particulars of the first ground of appeal, I do not consider that such errors as were made by her Honour caused the applicant any real prejudice. 240 The case against the applicant that it was he who had stabbed Mr Howlett was overwhelming. In his evidence at the trial the applicant did not dispute that he had been engaged at the very least to intimidate Mr Howlett and that on the evening of 17 August 1994 he had gone to Mr Howlett's house and had physically struck Mr Howlett. 241 When the applicant had been interviewed by police on 21 November 1994 he had told police that he had been engaged to "bash" or "belt" Mr Howlett. When it was put to him in the interview that on 17 August he had been armed with a knife and that he had told Watts that he had stabbed Mr Howlett, he gave answers that "I may have". 242 The applicant's evidence at the trial that what he had been engaged to do was to seek to recover a debt owed by Mr Howlett to Wright was, for reasons which I have set out in discussing particular (iv) of the first ground of appeal, inconsistent with much of his own evidence, contradicted or at least not supported by the evidence of all the other witnesses at the trial and highly improbable. 243 There were only two persons who could conceivably have stabbed Mr Howlett, the applicant or Watts. That Watts who, on the applicant's own evidence, had not been engaged to do anything in relation to Mr Howlett, who had accompanied the applicant on 17 August at the applicant's request in a supporting role, who did not take part in the physical assault on Mr Howlett and who was receiving instructions from the applicant such as the instruction to disconnect the telephone in Mr Howlett's house, should then have taken it upon himself to stab Mr Howlett a large number of times was highly improbable. 244 As regards the other matters to be considered on an application for leave to withdraw an abandonment of an appeal, no reason was advanced for abandoning the appeal, except that a senior Public Defender had advised that in his opinion there was no prospect of the appeal succeeding; several years have elapsed since the appeal was abandoned; and the proposed grounds of appeal are all based on alleged irregularities in the conduct of the trial and are not such as would ordinarily entitle a successful appellant to an outright acquittal. 245 In my opinion, leave to withdraw the abandonment of the appeal against conviction should be refused. ` 246 WHEALY J: I agree with the judgment of James J ********** Last Modified: 03/23/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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