New South Wales Court of Criminal Appeal CITATION : R v Hunt [2003] NSWCCA 301 HEARING DATE(S) : 29 September 2003 JUDGMENT DATE : 27 October 2003 JUDGMENT OF : Tobias JA at 1; Howie J at 77; Shaw J at 78 DECISION : Orders: Appeal against conviction dismissed. CATCHWORDS : CRIMINAL LAW - murder - appeal against conviction - whether failure of trial judge to exclude evidence or issue a warning to the jury in relation thereto resulted in a miscarriage of justice - EVIDENCE - whether evidence should have been excluded under s137 - whether trial judge should have issued a s165 or Longman warning in relation to evidence due to medical condition of witness - whether failure of trial judge to do so resulted in a miscarriage of justice - where defence counsel at trial had not sought exclusion or warning - PRACTICE - whether direction by trial judge to jury gave impression that he thought the accused was guilty - whether an error in directions resulted in the jury being misdirected - ND Crimes Act 1900 s353A, s428c(1) LEGISLATION CITED : Evidence Act 1995 s137, s165 Criminal Appeal Rules r4 Criminal Appeal Act 1912 s6(1) R v Moussa [2001] NSWCCA 427 TKWJ v R (2002) 76 ALJR 1579 Longman v The Queen (1989) 168 CLR 79 R v Johnston (1998) 45 NSWLR 362 CASES CITED : Crampton v The Queen (2000) 206 CLR 161 R v Stewart (2001) 52 NSWLR 301 R v Baartman (2000) NSWCCA 298 R v Chai [2002] NSWCCA 512 R v Ambrosoli [2002] NSW CCA 386 R v GK (2001) 53 NSWLR 317 PARTIES : Regina Leo Vincent Hunt FILE NUMBER(S) : CCA 60101/02 COUNSEL : A: Paul Byrne SC R: D C Frearson SOLICITORS : A: Greg Murray & Co R: S.E. O'Connor LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70047/01 FILE NUMBER(S) : LOWER COURT Dowd J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60101/02 TOBIAS JA HOWIE JA SHAW J Monday 27 October 2003 R v LEO VINCENT HUNT Judgment 1 TOBIAS JA: On 22 November 2001, the appellant was convicted by a jury of the murder of Marion Louise Reid (also known as Mary Reid) (the deceased). On 19 February 2002, the trial judge, Dowd J, sentenced the appellant to 14 years imprisonment with a non-parole period of 10 years. 2 The appellant is seeking to have his conviction set aside. There is no appeal against sentence. Of the four grounds of appeal originally advanced, the fourth has been abandoned. However, leave was granted at the hearing to add a further ground, which I will substitute for the abandoned fourth ground. The facts 3 Both the appellant and the Crown have adopted the summary of evidence contained in the trial judge's Remarks on Sentence. So far as is relevant, I have recorded these below. 4 At approximately 8.30 pm on Saturday 10 June 2000, Constable Styles from Uralla Police Station was called to a residence at 1/20 Queen Street, Uralla, concerning a domestic altercation and alleged assault. On arrival, Constable Styles spoke to the deceased who told him that the appellant, her boyfriend at the time, had assaulted her. 5 The appellant was then asked to leave the residence. Prior to leaving, he turned to the deceased and said in front of the police officer: "If you get another AVO, I'll fucking kill you." 6 The deceased said that the appellant had thrown an ashtray at her and accused her of having an affair with the man in Flat 4 of the building in which she lived. In a statement made to the police in relation to the assault, the deceased said that the appellant had pursued her out of her residence and, once he had caught her, began hitting and kicking her. He continued to abuse her both physically and verbally for some time. 7 The appellant was subsequently arrested for assault and taken to Armidale Police Station, where he was charged and bailed on the condition that he did not approach the deceased. The appellant was also served with a telephone interim protection order not to approach the deceased. The police informed the appellant of the order and the bail conditions. Constable Styles then drove the appellant back to his residence in Uralla at approximately midnight. 8 After being taken to his residence by the police, the appellant returned to the home of the deceased, who was at that time in bed. The appellant chased the deceased to the office/kiosk area of the Alma Park Caravan Park, where the he attacked her with a kitchen knife which he had most likely picked up at the deceased's home. 9 The deceased attempted to escape the appellant and was making her way to the Bicknell caravan when she was subjected to further stabbing. A blood trail through the caravan park led to where the deceased was eventually found lying dead. 10 Between 12.40 am and 12.44 am on 11 June 2000, the Police Service received a '000' call from the appellant from his home phone, stating that there was an emergency in Uralla. Constable Styles attended the home of the deceased and found the front door wide open with nobody inside. 11 Constable Hinds asked what had happened. The appellant responded: "Everything will be understood when you come". 12 When the police attended the home of the appellant, they questioned him as to the whereabouts of the deceased. The appellant said that he had last seen the deceased in the caravan park and made the following comment to the police: "You obviously don't know what's happened". 13 The police asked the appellant to accompany them to the caravan park where the deceased was then found with a knife embedded in her back. She had sustained multiple fatal stab wounds to the front and back of the upper trunk of her body. 14 The appellant was placed under arrest. He told the police that he had consumed a large quantity of Oxazepam (also known as Serapax) tablets, and the police officer then arranged for him to be transported to Armidale Hospital for treatment. During the transfer by ambulance to Armidale Hospital, the ambulance officers carried out a neurological assessment on the appellant, using the Glasgow Coma Scale Test to assess his neurological status. At that time the appellant scored 15 on the Glasgow Coma Scale (the maximum), which indicated that he was fully aware, oriented and alert as to person and place. 15 On arrival at Armidale Hospital, the appellant was admitted to the Accident and Emergency Department where his neurological status was further assessed by the medical staff who stated that the appellant was oriented as to place and person and was able to advise medical and nursing staff of his address, his date of birth and other personal particulars. However, he did present with some amount of confusion, a decreased sense of consciousness and was not completely oriented as to the actual time and sequence of events. This was consistent with a recent overdose of Oxazepam. 16 The appellant had taken approximately 50 x 30 mg tablets of Oxazepam. The timing of his ingestion of the overdose was an issue in the trial. The blister packs from the tablets were found in the general living room and beside the appellant's bed, alongside a glass of water. The appellant had been taking 30mg Oxazepam for some 30 years and the expert forensic evidence provided to the Court was that the therapeutic levels of Oxazepam would have been between 0.1mg and 0.4mg. A blood specimen taken from the appellant at 12:00pm on 11 June 2000 indicated an Oxazepam blood reading of 2.2mg, which was consistent with the overdose history he had given. 17 The forensic scientist for the New South Wales Police Department, Dr Allender, discussed at length the process of absorption and the effects of Oxazepam. It is a benzodiazepine which peaks in the blood plasma approximately four hours after ingestion of a normal dose and persists in the plasma for up to 48 hours. A dosage of 50 x 30mg tablets has different pharmacokinetics to that of a therapeutic dosage because of the bolus effect of the tablets. This means that the tablets form a ball, reducing the surface available to react to the digestive system of the body. The bolus effect actually results in a sustained release of sedative effects, such as drowsiness, which may begin to show within four hours or less. Whilst it was impossible for Dr Allender to calculate exactly when the appellant had consumed the Oxazepam, he estimated that it was between midnight and 1:00am on 11 June 2000. 18 Oxazepam produces a disinhibiting effect, causing people to lose their normal learned behavioural inhibitions. Ingestion results in a loss of co-ordination, drowsiness and confusion. One to two percent of people exhibit a paradoxical reaction, producing acute stimulation or excitement. Dr Allender concluded that it is unlikely that the appellant's acute rage on the night of the stabbing was caused by the Oxazepam. 19 Throughout the night in question, whilst under constant medical and police supervision, the appellant exhibited symptoms of an Oxazepam overdose, scoring 10 on the Glasgow Coma Scale at 5:00am, at which time medical intervention was required. This acute phase lasted until 7.00 am. 20 The police interviewed the appellant when he was discharged from the hospital on 12 June 2000. During this interview, the appellant claimed that he had no recollection of the events of the night of 10/11 June 2000. He said that he could not remember anything and did not wish to participate in any of the proceedings. He did not co-operate with the police at that stage and refused to give a blood sample for forensic purposes. A sample was later obtained pursuant to s 353A of the Crimes Act 1900 (the Crimes Act). The conduct of the trial 21 The primary issue in dispute at the trial was whether the offence had been proved beyond reasonable doubt – specifically, whether the appellant had stabbed the deceased with intent to cause or inflict serious bodily harm. The crux of the defence case was that, prior to the stabbing, the appellant consumed an overdose of Oxazepam tablets which, combined with his earlier consumption of alcohol, affected his state of mind such that he did not have the requisite intent at the time that he stabbed the deceased. The appellant's ingestion of the drug was to be taken into account by the jury in determining whether he had that intent: s 428C(1) of the Crimes Act. 22 It is common ground that the appellant ingested an overdose of Oxazepam. However, as noted in [16] above, the timing of the ingestion of that overdose was a contested issue at the trial. The defence case was that the appellant had ingested the overdose after Constable Styles returned him to his residence (at approximately 12:00 midnight), before he left that residence to seek out the deceased. It was contended that, by the time the stabbing took place, the effect of the ingested tablets had so impaired the appellant's mental capacity that he was incapable of forming the necessary intention to kill the deceased. Further to this point, the defence argued that the Crown had not disproved the possibility that the overdose had produced not the normal effect of sedation, but a "paradoxical reaction" which occurs in 1-2% of cases, taking the form of either acute rage or acute confusion. 23 The Crown case was that the appellant had ingested the overdose of Oxazepam after the stabbing in an attempted suicide. Alternatively, even if the appellant had ingested the Oxazepam prior to the stabbing, his state of mind would not have been so affected in the relatively short period of time between the ingestion and the stabbing (being approximately 40 minutes at most) such as to remove his specific intent to kill or inflict grievous bodily harm upon the deceased. 24 Neither of the experts called (Dr Alexander for the Crown and Dr Starmer for the defence) was able to conclude with any degree of certitude as to when the appellant had ingested the overdose. The only real evidence to support the finding that the tablets were ingested before the stabbing was that of the appellant himself. It included conversations between the appellant and Dr Spencer, a member of the medical staff of Armidale Hospital. 25 It is within the foregoing context that the grounds of appeal require consideration. Grounds of Appeal 1 and 2 26 It is convenient to consider both these grounds together. They are as follows: a) His Honour erred in admitting the evidence of the conversation between Dr Spencer and the appellant on 11 June 2000. b) His Honour erred in not warning the jury pursuant to s 165(1)(c) of the Evidence Act 1995 with respect to the contents of the conversation between Dr Spencer and the appellant on 11 June 2000. 27 The conversation in question was between the appellant and Dr Spencer, and took place in the Accident & Emergency Department of Armidale Hospital at approximately 2:30am. Senior Constable Neville noted it down approximately 1 hour after overhearing it. The conversation as relayed by Senior Constable Neville was in the following terms: "Dr Spencer: Why did you take the Serapax? Accused: I don't know. Dr Spencer: You must know why you took all those drugs. Accused: Because I did something bad. I'm in real trouble. Dr Spencer: So you did intend to suicide or do self-harm? Accused: Yes. Dr Spencer: Why? Accused: Because I did something bad. Dr Spencer: Do you mean stabbing the lady? Accused: Yeah, I don't know where the knife came from, I just had it. I warned her that if she involved the police again she would never warn the police again. Dr Spencer: Was it your wife? Accused: No, my wife died in 1983, it's a friend. I love her, but I told her if she got the police she'd never do it again." 28 However, Dr Spencer gave evidence before Senior Constable Neville did. In chief, Dr Spencer was examined as follows (T.283): "Q. What he told you in that was that he took an overdose of medication and then went to the caravan park in Uralla, and you have 'allegedly stabbed a woman several times killing her as he was annoyed with her for calling police onto him again'? A. Yes Q. That is what Mr Hunt told you? A. Yes. …. Q. When you were speaking to Mr Hunt, did you say something to him in relation to whom the lady was that he' stabbed? A. I think he mentioned that it was girlfriend, not his wife, because his wife had previously died. Q. Did he say how long ago his wife had passed away – I would invite your attention to the second page of your notes? A. I think what I've written here is 'several years ago'." 29 Dr Spencer was also examined as to the appellant's condition (T.283-285): "Q. When you initially examined Mr Hunt, did you find him to be drowsy, slightly confused with a decreased level of consciousness? A. Yes. Q. Did you rate him as 14 on the Glasgow coma scale? A. Yes. Q. When you were with him at that time, did you notice that he had a smell of alcohol about him? A. Yes. Q. That his speech was slurred? A. Yes. Q. And that he was orientated as to both persons and place? A. Yes." ………. Q. In your observations of the patient during the time you did observe him and treat him, did you see anything inconsistent with him having taken such an overdose? A. I wouldn't say I found things inconsistent with the overdose; I found things consistent with the overdose of benzodiazepines with a combination of alcohol. Q. What was it that you found that was consistent? A. He had slurred speech, slight mental confusion in terms of not orientated to what time it was and time sequence of events. He also had an ataxic gait and he smelt of alcohol." 30 When cross examined with respect to what he had been told as to when the appellant had ingested the overdose of Oxazepam, Dr Spencer responded (T.288): "…Mr Hunt said he'd taken the medications after he'd been dropped back to Uralla by the police and I think the history the police gave me was that they'd dropped him back after 11.30……." 31 The following further exchange took place with respect to this issue (T.288-289): "Q. In any event, what you ended up with as Mr Hunt's history was a history that the police had taken him back to his home at Uralla and dropped him off there; is that correct? A. Yes. Q. Before going to the caravan park or anywhere else? A. That's the history I got. ……….. Q Is this true: one thing you got clearly from him was that he took this overdose at his home – on his account of things – before he left home and went to the caravan park or anywhere else? A. From his account of the sequence of events, yes. Q. That was clear? From his account, that was clear? A. Yes." 32 The cross-examiner then turned to Dr Spencer's notes concerning the matter (the subject of his evidence extracted in [28] above). The following exchange then occurred (T.289-290): "Q. There is just one other thing. You told us in the last paragraph that you recorded there on page 1, "Police dropped Leo back in Uralla at approximately 2330 to midnight. Leo then took OD medications." That's what you recorded? A. That's what's written there. Q. "Then went to the caravan park" – that's what you recorded? A. Yes. Q. What you actually recorded next was "and allegedly stabbed woman several times killing her"? A. Yes. Q. That last part, "allegedly stabbed woman several times killing her", was not something that you heard from Mr Hunt, was it; it was something you got either from the police officer who was there… A. No, it was something I heard from Mr Hunt. Q. So you're saying Mr Hunt said "I went there and I allegedly stabbed the woman"; is that your account? A. This is what he is allegedly – he's telling me he's allegedly done. Something he alleges to have done. Q. So when you use the word "allegedly" there, you are recording Mr Hunt as saying, "The police dropped me back at Uralla" at the time he gave, between 11.30 and midnight; correct? A. He told me that the police dropped him back in Uralla. The time sequence, approximately 11.30 to midnight, is basically a correlation from what the police, ambulance staff and Mr Hunt told me. Q. But the rest of that is, on your evidence, what Mr Hunt told you – that is, that the police dropped him back at Uralla at a time… A. Yep. Q. ….that he, Mr Hunt, then took an overdose of medications? A. Yes." (my emphasis) 33 Immediately after the above exchange, trial counsel for the appellant elicited from Dr Spencer the following: " Q. And then he did go on to say, "I know it's alleged", or, "I know the police are accusing me of going from there to the caravan park and stabbing the woman"? A. No. Q. What do you say he said? A. He told me he went to the caravan park, chased a woman and stabbed her in the park and killed her. ……… Q. Why did you use 'allegedly' if it was something, according to you, that he was telling you straight out? A. If somebody comes to me and tells me they have done something, they have alleged to have done it. If a patient comes to hospital as an analogy and tells me they have flown to the moon, they have alleged they have flown to the moon. I don't know it is true. I didn't see it happen. Q. In fact, what Mr Hunt told you about what had happened, about the overdose, was that he couldn't remember anything after taking the overdose, wasn't it? A. No." (my emphasis) 34 It is apparent from the foregoing that the answers given by Dr Spencer regarding what the appellant told him as to when he ingested the overdose was of critical significance to the defence case. It was important that the relevant evidence was not watered down by a warning to the jury by the trial judge that it may be unreliable due to the appellant's medical condition at the time. 35 On the other hand, the questions and answers which I have highlighted in the exchange extracted in [32] and [33] above were not helpful to the defence case. In this regard, it was conceded by the appellant in his supplementary written submissions that this evidence could be construed by the jury as inculpatory in that it indicated that the appellant was referring to his actual state of mind at the time of the stabbing, rather than detailing historically what had occurred. 36 In an affidavit sworn on 18 February 2003 and read before us, the appellant's trial counsel deposed that he anticipated, from the evidence Dr Spencer had given in the committal proceedings, that it was the police and not the appellant who actually informed him (Dr Spencer) that the appellant had gone to the caravan park and stabbed the deceased. 37 Trial counsel was aware of Senior Constable Neville's account of the conversation between the appellant and Dr Spencer (set out in [27] above). In his affidavit, he swore that until Dr Spencer gave him answers in cross-examination which he had not anticipated, he had intended to challenge Senior Constable Neville's account of that conversation. He deposed to the following in [4] of his affidavit: "Yet Dr Spencer having given evidence as he did in response to a question by myself in cross-examination, I determined that I should allow into evidence without challenge Constable Neville's account of the conversation in an attempt to discredit Dr Spencer's account. Similarly I did not request a s 165 direction so as not to draw attention to Dr Spencer's version of the conversation". 38 The foregoing is supported by the fact that Dr Spencer gave his evidence towards the end of the day on 14 November 2001. Just before the court adjourned, trial counsel informed his Honour in the following terms (T.293): "The witness we are talking about is Senior Constable Neville. He was the officer in the ambulance and on guard at the hospital. There is evidence that has already been given. The application that I intend to make, really, is whether, and to what extent, your Honour is going to admit as evidence this officer's account of conversations overheard between Mr Hunt and people who were treating him. In order to do that, I will need to check the evidence given at least by the Ambulance Officer Williams, by Dr Spencer, and I think that's about all. But I would like the opportunity, if your Honour thinks it proper, to be able to consider it overnight before I advance the argument." His Honour acceded to this course. 39 At the commencement of the hearing the following day the appellant's trial counsel informed his Honour as follows (T295): "Firstly, I can indicate that I do not have any application in relation to the evidence of Senior Constable Neville, although I do thank your Honour for giving me the opportunity for proper consideration." 40 Senior Constable Neville was cross-examined with respect to the condition of the appellant at the time he observed him. He agreed that the appellant was "clearly and obviously drowsy" and had "occasional consciousness lapses" during the conversation with Dr Spencer. He said that the appellant (T.327): "answered some of the questions and then he would doze off or drowse off and then he would come back and then he would go off again" However, he also said that the appellant responded to some of Dr Spencer's questions " spontaneously and coherently ". 41 As to the conversation referred to in [27] above, the following exchange took place (T.328-329): "Q. What you ended up recording was the accused making a reference to having done something bad and saying, 'I'm in real trouble'? A. Yes. Q. And the doctor a little bit after that asking him about suicide and the accused saying, 'Because I did something bad'? A. That's right. Q. And then the doctor, not the accused, asking the question, Do you mean stabbing the lady'? A. That's correct. Q. So that in that conversation you're clear, aren't you, that the first reference to stabbing the lady came from Dr Spencer? A. Yes. Q. Not from the accused? A. No. No. it definitely came from Dr Spencer. Q. And the response that you recorded from the accused was, am I right, this: 'Yeah, I don't know where the knife came from, I just had it' and then he went on to say that he'd warned her? A. That's correct. Q. As to the actual events in the park, you're clear, are you, that the only thing that the accused said to Dr Spencer in your presence was, in substance, 'I did something bad', but it was then the doctor who asked, 'Do you mean stabbing the lady?', and the accused's response was, 'Yeah, I don't know where the knife came from; I just had it'? A. That's correct. Q. And that was a part of the conversation that you took particular interest in – a particular interest in? A. Yes, I did. Q. And you listened carefully to that part of it? A. Yes, I did. Q. It is true then, is it, that during that conversation with Dr Spencer the accused did not say, 'I went to the caravan park'? A. No, he didn't. Q. He didn't say, 'I chased a woman there'? A. No, he didn't. Q. And he didn't say, 'I stabbed her in the park'? A. No, he didn't. Q. And, as to that, because of the situation you were in, taking care about those things, you can be definite? A. Yes, I can be." 42 Senior Constable Neville had been cross examined earlier on the reliability of his note of what he had heard the appellant say to Dr Spencer (T.322): "Q. But you were also listening with care to see what, if anything, the accused said? A. Yes. Q. In the conversation that you then heard between Dr Spencer and the accused, were you in a position to hear all of it? A. Yes. Q. And you're confident that you did? A. Yes. Q. You didn't actually record that conversation as it was happening, did you, but you have explained, soon after, once you had gone with the accused when he was transferred to the intensive care unit? A. Yes, that's correct." 43 The appellant submits that the conversation between himself and Dr Spencer given in evidence by Senior Constable Neville was of particular significance to the Crown's contention that the appellant took the overdose of Oxazepam after the stabbing in an attempted suicide. The context of that conversation was at odds with statements made by the appellant (including those to Dr Spencer) in which he said that he had taken the Oxazepam prior to the stabbing. As the timing of the ingestion of the overdose was a critical feature of the Crown's case on the issue of intent, it was submitted that the trial judge should have excluded the evidence pursuant to s 137 of the Evidence Act or, alternatively, should have given a warning to the jury in accordance with s 165(1)(c). 44 It was acknowledged by the appellant that his trial counsel had not sought to have the conversation excluded from evidence pursuant to s 137; nor had he requested the trial judge to warn the jury that Senior Constable Neville's evidence of what he had overheard the appellant tell Dr Spencer may be unreliable due to the appellant's medical condition at the time. However, it was submitted that Rule 4 of the Criminal Appeal Rules should not be applied in the circumstances, as the conversation given in evidence by Senior Constable Neville was of central importance to the Crown case. The trial judge's failure either to exclude it pursuant to s 137 or to warn the jury in terms of s 165 resulted in a miscarriage of justice in that the appellant was thereby deprived of the real prospect of an acquittal on the charge of murder. 45 The significance of the absence of an application for further directions has been referred to by this Court on numerous occasions. It is sufficient for present purposes to cite the following passage from the judgment of Howie J (with whom Giles JA and Carruthers AJ agreed) in R v Moussa [2001] NSWCCA 427, where his Honour observed at [60] and [63]: "It may well be the case that, if the failure to seek a direction or warning was a result of a considered and competent decision made for tactical reasons, it would be virtually impossible for the appellant to obtain leave to rely upon the point because no miscarriage of justice could have occurred. But in my view it should not be taken to be the case that leave will automatically be granted simply because the proffered explanation is that counsel overlooked the point or was unaware of the law on the subject. Nor is it more likely that leave will be granted simply because counsel can no longer indicate why the point was not taken at the trial. …… At the end of the day the question, with which this court is concerned, is whether the conduct of the trial may have resulted in a miscarriage of justice and that question is not necessarily answered in favour of the appellant simply because of decision, errors or oversights by counsel falling short of incompetence. Trial counsel has a duty both to the client and the court to take objections or seek redirections where appropriate: Regina v Roberts [2001] NSWCCA 163. Like other aspects of the conduct of defence counsel during the course of the trial, a failure to seek a direction or warning will not necessarily result in a miscarriage of justice, even if counsel was negligent: Regina v Birks (1990) 19 NSWLR 677 at 685. If leave is required under Rule 4, then the appellant has to persuade this court that a miscarriage of justice may have occurred before leave is granted: Tripodina and Morabito (1988) 35 A. Crim. R. 183 at 191; Regina v Williamson & Morrell (NSWCCA, 11 October 1991). On the other hand, if the point is taken at trial, the Crown will have the onus of persuading this court that there had been no substantial miscarriage of justice: Clarke (1995) 78 A. Crim. R. 226." 46 More recently, in TKWJ v R (2002) 76 ALJR 1579, a case in which trial counsel had made a decision not to call certain evidence, which omission was later said to have resulted in a miscarriage of justice, Gleeson CJ (at [17]) said this: "Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice." See also McHugh J at [52]. 47 The following passage from the judgment of Gaudron J (with whom Gummow J agreed) in that case is also pertinent: "(33) Where it is claimed that the miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. That he or she will fail to do if the course is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question." 48 In his affidavit, trial counsel asserted that with the benefit of hindsight "a better approach may have been" to challenge the admission of the evidence of Dr Spencer and Senior Constable Neville. He also said that, given the medical condition of the appellant at the time those conversations took place, he ought to have requested a s 165 warning, had that evidence been admitted. 49 In supplementary submissions the appellant sought to expand Grounds 1 and 2 to include the evidence of Dr Spencer as well as that of Senior Constable Neville. In relation to Dr Spencer, it was (as I have said in [35]) conceded that part of his evidence could be construed by the jury as inculpatory in that it indicated that the appellant was referring to his actual state of mind at the time of the stabbing rather than detailing historically, in hindsight, what had occurred. Importantly, Dr Spencer's account also stipulated clearly that the appellant told him that he had ingested the Oxazepam before going to the caravan park. No doubt that was evidence which was of particular significance to the defence case, and hence evidence which the defence would neither seek to have excluded nor have the jury warned of its unreliability. 50 The appellant cannot, however, have it both ways. If he wished to maintain the evidence given by Dr Spencer that the appellant had told him that he had ingested the Oxazepam before going to the caravan park, he could not then seek, without calling into question the reliability of that evidence, a warning from the trial judge that evidence of other matters arising from the same conversation (together with what Senior Constable Neville overheard the appellant say to Dr Spencer) was unreliable due to the appellant's medical condition at the time. 51 In my opinion, it is clear that the course taken by trial counsel for the appellant was both an informed and deliberate decision. Furthermore, to adopt (and adapt) the words of the Chief Justice in TKWJ, viewed objectively it was a rational tactical decision made in order to avoid the forensic risk that the jury might consider the appellant's later statements as to when he ingested the Oxazepam as unreliable due to the effect of the drug at the time he made those statements. 52 Section 165(2) only requires the trial judge to warn the jury that the relevant evidence may be unreliable where a party requests such a warning. The appellant made no such request and hence the section had no application. Section 165(5) preserves the power of a trial judge to give a warning or to inform a jury about a matter arising from the evidence. A trial judge is required to give such a warning if that is necessary to avoid a perceptible risk of a miscarriage of justice: Longman v The Queen (1989) 168 CLR 79 at 86. The principle was articulated thus by Deane J at 95-96: "A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury." See also R v Johnston (1998) 45 NSWLR 362 at 369-370 per Spigelman CJ (with whom Sully and Ireland JJ agreed); Crampton v The Queen (2000) 206 CLR 161 at 207-209 per Kirby J; R v Stewart (2001) 52 NSWLR 301 at 318 [82] and [86] per Howie J. 53 A Longman type warning is usually required where judges have special knowledge or experience in dealing with type type of evidence which has been given which the jury may not possess or where there is a risk that the jury may attribute greater probative value or weight to the evidence than it property deserves: R v Baartman [2000] NSWCCA 298 at [62]; R v Stewart at [97], [101]. In the present case neither the evidence of Dr Spencer nor that of Senior Constable Neville falls into either category. 54 Furthermore, in determining whether to give a warning in a case like the present (which is not, as were Longman, Johnston and Crampton, a sexual misconduct case), the trial judge would have been entitled to take into account the particular course undertaken by the appellant's trial counsel. His Honour was aware, at least so far as Senior Constable Neville's evidence was concerned, that counsel had considered whether to object to that evidence or otherwise seek a direction with respect thereto, and had made a forensic and tactical decision not to do so. The trial judge was entitled to accept that defence counsel did not wish for a warning to be given to the effect that the evidence given by Senior Constable Neville as to the conversation he overheard between Dr Spencer and the appellant may be unreliable due to the appellant's then medical condition. 55 Furthermore, it was conceded by the appellant that there was no expert evidence with respect to the effect that the overdose of Oxazepam may have had on the reliability of the appellant's responses to Dr Spencer's questions. It is true that the appellant was drowsy and kept falling asleep and that his speech was slurred. I can accept that it was open to the jury to find that these factors led to unreliability. However, there was also evidence that at the time he was orientated as to both persons and place, and that he responded to "some questions" spontaneously and coherently. All this the jury would have appreciated. 56 In my opinion, it follows that a Longman type warning was not called for. As there was no potential danger in the jury acting upon the evidence in question, there was no perceptible risk of a miscarriage of justice or an unfair trial arising from the failure of the trial judge to warn the jury that that evidence may be unreliable. This is even more so, given that a considered tactical and rational decision was taken by the appellant's trial counsel not to seek such a warning. 57 I have arrived at the same conclusion with respect to Dr Spencer's evidence. No objection was taken to it and no application was made for a warning, whether under s 165 or the general law, and hence the trial judge was entitled to accept that, from the defence's perspective, no such warning was desired. Again, this was the considered tactical decision of the appellant's trial counsel, made in order to avoid a forensic risk. It did not produce a miscarriage of justice. 58 The appellant further submitted that the evidence of both Dr Spencer and Senior Constable Neville should have been excluded by the trial judge pursuant to s 137 of the Evidence Act, upon the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant. 59 The appellant submitted that although no application was made at the trial to exclude the evidence, such omission is not necessarily fatal. As was pointed out by this Court (Mason P, Sperling and Bergin JJ) in R v Chai [2002] NSW CCA 512 at [41], it has long been held that failure by a trial judge to disallow inadmissible evidence may give rise to a miscarriage of justice, notwithstanding the absence of objection. 60 In Chai the Court observed (at [43]) that evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted. Their Honours referred to R v Ambrosoli [2002] NSW CCA 386, where Mason P (with whom Hulme and Simpson JJ agreed) cited what he had previously said in R v GK (2001) 53 NSWLR 317 at [30]: "Section 137 requires the exclusion in criminal proceedings of evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The key term is 'unfair prejudice' in the sense of evidence creating 'a real risk that the evidence will be misused by the jury in some unfair way': R v BD (1997) 94 A Crim R 131 at 139, per Hunt CJ at CL; see also Papakosmas v The Queen (1999) 196 CLR 297 at 325-327; Ordukaya v Hicks [2000] NSWCA 180; R v Lisoff [1999] NSWCCA 364 at [52]; R v Toki (2000) 116 A Crim R 536 at 548. Merely because evidence points overwhelmingly to guilt does not make it unfair to adduce it. And even if evidence carries a prejudicial overlay its genuine probative value must be put on the scales. 61 Although the Crown's case included the suggestion that the appellant ingested the overdose of Oxazepam after the stabbing, it did not depend on the jury finding that as a fact. The appellant's statement to Dr Spencer elicited in evidence from Senior Constable Neville as to the time of ingestion of the Oxazepam was, of course, at odds with the evidence that he had given somewhat earlier (after the stabbing) that he had taken the Oxazepam before proceeding to the caravan park. It was a matter for the jury which of the appellant's statements they accepted. No complaint has been made with respect to the trial judge's summing up on this issue. If the jury accepted that the appellant ingested the overdose after the stabbing, clearly no question could arise as to the appellant's intent being proved beyond reasonable doubt. On the other hand, if they accepted that the overdose occurred prior to the stabbing, it was still open to them to find beyond reasonable doubt that the overdose did not impair his ability to form an intention to kill. The evidence of Dr Spencer and Senior Constable Neville was relevant to the Crown as well as the defence case. Its probative value was significant. It was prejudicial to the appellant, but not unfair in the sense that its admission created "a real risk that the evidence will be misused by the jury in some unfair way". In my opinion, the evidence came nowhere near to meeting that criterion. 62 Leave should therefore be refused under Rule 4 for the appellant to rely upon the first and second grounds of appeal. Ground of Appeal 3 63 This ground was framed in the following terms: " His Honour erred in directing the jury on 22 November 2001 in the following terms: "The Crown asks that you re-examine what he said in the conversation – 'I warned her' – and asks why would anyone commit suicide before he's done an event, in effect anticipating something which couldn't happen if he didn't find her. That is not what the Crown said but, in effect, why would he do it, commit suicide, which he clearly intended to do, unless he's already done it? " 64 The complaint made by the appellant is that, by this statement, the trial judge effectively directed the jury that the appellant was obviously attempting to commit suicide and was doing so because he had already stabbed the deceased. It was submitted that his Honour's direction gave the appearance of an expression by him of his view that the appellant was guilty. Although no objection was taken to this statement and no redirection sought, it was submitted that the trial miscarried as a consequence thereof. 65 In my opinion, this ground of appeal has no substance. It was common ground that the appellant took an overdose of Oxazepam. Although the expert evidence was that the dose was of an insufficient quantity to cause his death, it is difficult to see that he ingested the overdose otherwise than in an attempt to commit suicide. His Honour, in summarising the Crown case, noted that there appeared to be no logical reason why the appellant would attempt suicide before he had committed the offence, as it was the commission of the offence that provided the motive for suicide. 66 A reading of trial counsel's final address to the jury makes it clear that he did not seek to address the reason for the appellant's attempted overdose. He did, however, assert two things: firstly, that the evidence of Dr Spencer established that the appellant had taken the overdose after Constable Styles had dropped him back at his house and before the stabbing; secondly, that the Crown had not ruled out the possibility that at the time of the stabbing the appellant was affected by Oxazepam either in its paradoxical reaction effects or its other effects which resulted in his not forming the necessary intention to kill or inflict serious bodily harm upon the deceased. In other words, it was not suggested to the jury by the appellant's trial counsel in his final address that the overdose was not an attempted suicide. 67 For the foregoing reasons, I am of the opinion that even if the jury accepted that his Honour was expressing the view that the appellant's ingestion of the Oxazepam was an attempted suicide and this did not result in a miscarriage of justice in the sense that the appellant was deprived of a real prospect of an acquittal. It follows, in my view, that leave to rely upon Ground 3 should be refused. Ground of Appeal 4 68 This ground of appeal was as follows: " The learned trial judge erred in his directions to the jury on the course that the jury should take if they were not satisfied beyond reasonable doubt that the act of the appellant causing the death of the deceased was a deliberate voluntary act. " 69 The complaint that this ground encapsulates arises from the following passage in the trial judge's summing up: "The Crown must satisfy you that the alleged murder by the accused was a deliberate act on his part. If the Crown has not persuaded you that the accused deliberately murdered the deceased, then you must move on to deal with the third issue which the Crown must prove, that the result which the accused thereby sought to achieve was to kill her or to inflict really serious bodily harm". (emphasis added) 70 The appellant submitted that the above statement contained a misdirection in requiring the jury to "move on" and consider the issue of intent where it had not been persuaded that the appellant deliberately murdered the deceased. It was suggested that the jury may have been misled into believing that they could find the appellant guilty of murder even though they had not been persuaded that he deliberately stabbed the deceased. 71 Three pages prior to the offending statement, the trial judge had directed the jury in the following terms: "In the present case there are three ingredients in this offence which the Crown must establish to your satisfaction beyond reasonable doubt – namely, that it was the accused who did the act which caused the death of the deceased Marion Louise Read; secondly, that act was a deliberate and voluntary one on the part of the accused; and, thirdly, that it was done with an intention to kill or inflict really serious bodily injury. Those are the basic ingredients of the crime of murder." 72 The trial judge then proceeded to deal with each of those ingredients. A few paragraphs prior to the offending statement in the summing up, his Honour once again emphasised that it is indispensable to criminal responsibility that the physical act the subject of the charge was "a deliberate one", and that the onus was on the Crown to prove such beyond reasonable doubt. He then stated that the Crown's argument was that the jury should infer that it was a deliberate act on the part of the appellant because he intended by that act to kill the deceased or inflict really serious bodily harm on her. Immediately prior to the statement in respect of which complaint is made, his Honour said this: "The Crown's case is that the specific result that he sought to achieve in stabbing the deceased was so obvious that the action must have been deliberate. I have spoken to you in relation to intention, but it seems that such was the result that the accused sought to achieve, it seems inevitable that the act of the accused in stabbing the deceased was a deliberate one on his part." 73 Two paragraphs after the offending statement, the trial judge further directed the jury as follows: "Members of the jury, I remind you of the basic questions in murder: was the death of the deceased caused by the act of the accused; was the act a deliberate and voluntary one; was that act done with the intent to kill or inflict grievous bodily harm?" 74 It is clear that the insertion of the word "not" in the phrase "if the Crown has not persuaded you that the accused deliberately murdered the deceased" in the summing up was either a typographical error in the transcription of what his Honour said or an unintended slip on his part. Given the number of times the trial judge repeated to the jury that there were three ingredients to the offence of murder of which the second was that the Crown must have satisfied them beyond reasonable doubt that the accused deliberately murdered the deceased, there can be no doubt that the jury was forcefully directed that the second ingredient must be established beyond reasonable doubt before it moved to the third ingredient of intent. 75 When the relevant statement is considered in light of the whole of this part of the summing up, there is no proper basis upon which it can be suggested that his Honour misdirected the jury in a manner which gives rise to an appealable error. Furthermore, I do not consider that there was any real possibility that the statement would have misled the jury. Accordingly, even if I were of the opinion that this ground of appeal might be decided in favour of the appellant, I would apply the proviso in s 6(1) of the Criminal Appeal Act 1912 and dismiss this ground of appeal upon the basis that no substantial miscarriage of justice has actually occurred. Conclusion 76 In my opinion, it follows from the foregoing that the appellant's appeal against conviction should be dismissed. 77 HOWIE J: I agree with Tobias JA. 78 SHAW J: I agree with Tobias JA. ********** Last Modified: 10/31/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.