New South Wales Court of Criminal Appeal CITATION : REGINA v TANG [2003] NSWCCA 357 HEARING DATE(S) : 25 November 2003 JUDGMENT DATE : 19 December 2003 JUDGMENT OF : Spigelman CJ at 1; Dunford J at 31; Adams J at 36 DECISION : Appeal upheld; Conviction quashed; New trial ordered CATCHWORDS : Conviction appeal - murder - Jones v Dunkel direction against accused - no evidence that witness available - duty of Crown - no onus on defence to call any witness LEGISLATION CITED : Criminal Appeal Act 1912 s6(1) Evidence Act 1995 s38 Buckland [1977] 2 NSWLR 452 Dyers v The Queen (2002) 210 CLR at 285 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : R v Tang [2001] NSWCCA 210 RPS (2000) 199 CLR 620 at [26-28] Scott (2000) 112 A Crim R 543 Taufua [1999] NSWCCA 205 The Queen v Apostilides (1984) 154 CLR 563 PARTIES : Regina (Respondent) Choi Kia Tang (Appellant) FILE NUMBER(S) : CCA 60027/02 COUNSEL : P Ingram (Crown) G Scragg (Appellant) SOLICITORS : C K Smith (Crown) G Goold (Appellant) LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70212/98 FILE NUMBER(S) : LOWER COURT Howie J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60027/02 SPIGELMAN CJ DUNFORD J ADAMS J FRIDAY 19 DECEMBER 2003 REGINA v Choi Kia TANG Judgment 1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Adams J in draft. His Honour outlines the issues that arise on the appeal and sets out the two passages in the summing-up to which objection is taken. 2 This Court has before it a single ground of appeal in the following terms: "His Honour erred in the directions given to the jury on the failure of the appellant to call Mr Manunu Treiblemayr, the appellant's mother and father; the parents of Mr Manunu Treiblemayr and Mr He." 3 A number of additional grounds of appeal were originally filed, In written submissions all but the ground of appeal referred to were abandoned. However, on the day the case was listed the Appellant instructed counsel to apply for an adjournment on the basis that he did wish to press other grounds of appeal. The Court indicated that it would hear argument on the above ground of appeal and if that ground were rejected, the matter would be relisted. The case proceeded on this basis. 4 There are two distinct passages in the summing-up. The first, contains a Jones v Dunkel ((1959) 101 CLR 298) direction with respect to the absence of evidence from Mr Manunu Treiblemayr and, as I read the direction, Mr Treiblemayr's parents. The second refers to the evidence given about the telephone call on the night of the stabbing in which one of the Crown witnesses (AB), alleged the Appellant had made admissions. 5 The Appellant submits, and Adams J accepts, that these two passages should be linked, so that the effect is that a direction on an important aspect of the Crown case was given contrary to the principles subsequently established by the High Court in Dyers v The Queen (2002) 210 CLR 285. Whether or not the jury would have linked the two passages in the manner contended for on the appeal depends on the course of the trial. Nothing that his Honour said expressly linked the two passages. 6 The first passage, which contains the Jones v Dunkel references, commences with his Honour directing the jury's attention to the Crown address which the jury had heard over the course of the previous day and a half. His Honour introduced his remarks in the following manner: "The Crown referred during the course of his address to the fact that the accused had during the course of his evidence referred to quite a lot of activity that he had undertaken with his friend Manunu and with his father or his mother and yet they were not called to give evidence before you in support of the accused's case." 7 Nothing in this passage suggests that his Honour was referring in any way to the evidence given by AB with respect to the telephone call. 8 Shortly before summing-up to the jury the trial Judge had raised the issue of a Jones v Dunkel direction with counsel. The passage is quoted by Adams J in full. I find particularly revealing the following exchange with counsel for the Accused: "HIS HONOUR: The point here then is that the Crown couldn't be expected to call Mr Manunu or his parents. COOK: Yes, there's a question about that." 9 This occurred, of course, after the addresses and the issue raised by the Crown in this regard. The extent to which counsel for the Accused expressed agreement that, in all of the circumstances, neither Manunu nor his parents could be expected to be called indicates to me that those who participated in the trial did not believe that this question arose with respect to the alleged telephone call. I would not have expected experienced counsel to concede that the Crown could not have called Mr Manunu upon a matter of that character. It seems that everyone was focusing on different evidence. If that is the case, then it is likely that the jury had the same focus. 10 His Honour's decision to give the direction was expressed in the course of discussion with counsel in the following way: "HIS HONOUR: If I don't say anything the jury are left with what the Crown said and, with great respect to the Crown, it might mislead them." 11 Although there is no transcript of the Crown address, the detailed notes taken by the Crown Prosecutor's instructing solicitor were made available to the Court. 12 The transcript of the Crown submissions indicate that considerable reliance was placed on the evidence of AB about the telephone call. However, at no time during the course of the references to the telephone call did the Crown make any submission to the effect that Manunu was not called. 13 Submissions of that character were only made with respect to a distinctive body of evidence in the case relating to the events of the Monday following the stabbing. On the Crown case, the Appellant visited the residence of CD, one of the other young men involved in the incident. On that occasion, according to CD, the Appellant had indicated that he knew that the deceased had died and made a threat to the effect: "If anyone says anything they are going to get it". It was also on that occasion that CD said that he gave the Appellant a punching bag. 14 The Appellant's evidence was that he did not attend the house on that day. He said that he had obtained the punching bag about one month earlier when he saw CD in the company of Manunu and a Mr He. He said that on the Monday he was working unpaid for Manunu's father, Mr Joe Treiblemayr and, earlier, Mrs Treiblemayr had got him his breakfast. 15 The notes of the Crown Prosecutor's address, with respect to the evidence relating to the Monday morning, included the following: "Some or all these people would be able to confirm where Acc'd was on that day – you've not heard from them but it would seem they can confirm where Acc'd was that day. - Punching bag month b4 M + He with him. Manunu + He could also confirm this … but you've not heard from them." 16 Addresses by counsel commenced on the Monday of the last week of the trial. During the course of the accused's cross-examination and re-examination earlier that day, the following references to Manunu occurred: · On the day of the stabbing he went to Manunu's house and stayed there. He remained there from that time until his arrest (T542). This proposition was repeated on a number of occasions. (See, eg T543.25, T550.11.) · It was on the morning after the incident that he first learnt that Mr Laxale had died. He said at T550.40 to 47: "Because when we woke up the next morning Manunu's mum made breakfast for us to go to work, and then before we left I overheard them saying someone got killed over picking fruits, picking mangoes, and then I realised that, yeah, I was involved in that." · He was cross-examined at length about the nature of the work he said he did with Manunu's father and Manunu himself on the day after the stabbing (T553-554). 17 During the course of that cross-examination, the following questions and answers occurred at T554-T555: "Q: On that Monday, did you drive during the day, did you drive your sister's hatchback? A: No, I was in the truck all day. Q: And who is able to confirm this? Joe, that is Manunu's father is one, yes? A: (Nodded his head) Q: And Joe? A: Yes. Q: Sorry, Manunu, yes? A: Yeah. Q: You were working with the both of them? A: Yeah. Q: On that Monday, you see I suggest this to you, you were driving your sister's hatchback and you drove to where (CD) lived. That is what you did isn't it? A: No." 18 The evidence of CD was then put to the Appellant, including the fact that he told CD that a man had died and that he had made the threat to which I have referred above. It was also put to him that CD gave him an old punching bag on that occasion, to which the Appellant replied that he received the punching bag from him long before that event. The following questions and answers then occurred: "Q: Did you have anybody with you when you went to get that punching bag from (CD)? A: Yes. Q: Who was with you? A: My two friends, Manunu. … Q: And the other who is that? A: He." (T556.40-50) 19 The Appellant was also cross-examined about the evidence of AB concerning the telephone call on the night of the stabbing. He maintained his position that he could not remember making the phone call, but accepted that the records show that a phone call was made from his mobile that night. He did not remember what was said during the course of the phone call, but thought it may have been something of the character of asking for a lift home. (T581-586) 20 Thereafter, the Crown Prosecutor's cross-examination returned to the arrival of Manunu's house on the night and what he had done on the next day. (T586-587) Further cross-examination occurred about whether he was telling lies about with whom he stayed after the stabbing (see e.g. T603). 21 In the re-examination, the last questions and answers concerned the alleged visit to the home of CD on the day after the stabbing. He said that the punching bag was at his mother's home. Furthermore, he indicated that when he was staying at Manunu's home, he shared a bedroom. (T612-613) This was the last evidence that the jury heard. 22 This review of the evidence given at the trial and the material available to this Court about the Crown address, indicates that the discussion concerning the calling of Manunu, or any other witness, by the Appellant in his case, only arose in the context of the evidence of CD. No such suggestion was made in the course of the trial, including in the Crown address, with respect to the evidence of AB about the telephone call. It was in that context that his Honour's summing up must be understood. 23 It is overwhelmingly likely that the jury understood that the references to the failure to call Manunu and his parents, were not concerned with the telephone call on the night. It is, of course, possible, once the judge indicated a particular line of reasoning was permissible with respect to one body of evidence, that the jury may adopt the same line of reasoning, by way of analogy, with another body of evidence. It appears in this case, however, that all the participants in the trial understood that this matter arose only in one context. 24 That context included the evidence of CD, upon which his Honour in his summing up said, "the Crown relies very significantly", to the effect that the Appellant threatened him when he came to his house. Whether or not the punching bag was handed over on that occasion was a matter going to CD's credit. The Appellant's evidence was directed to the proposition that he was working with Manunu and his father on that day. The principal evidence of CD in this regard, however, was the alleged threat which was relied on by way of an admission. 25 It was, of course, common ground that the Appellant, together with the others, had been involved in the incident, an incident in which a man had died. The nature of the threat about which CD gave evidence was not in terms an admission that the Appellant had stabbed the deceased, unlike the evidence of AB with respect to the telephone call on the evening. CD's evidence that the Appellant had said "If anyone says anything, they are gonna get it", is a long way from an admission that the Appellant had stabbed the deceased. It is consistent with a wish to avoid being accused of any involvement in such an incident. 26 I accept Adams J's conclusion that, in the light of the High Court's decision in Dyers, his Honour erred in directing the jury in the following terms, even if the direction were understood to be concerned only with the evidence of CD and not AB: "You simply need to take that matter into account and act upon the basis that Mr Manunu could not at this stage assist the accused if he had been called to give evidence. No more, no less." 27 However, if the jury understood the evidence to be limited, so that it did not apply to the telephone conversation, the Crown position with respect to the application of the proviso is strengthened. 28 The principal evidence directly implicating the Appellant in the stabbing was given by AB and EF. The evidence of CD was not so directed, although he gave important evidence concerning the events of that evening. The Crown relied on the threat made to CD. 29 My mind has fluctuated on this issue. However, on balance, three matters are determinative. First, the Crown did rely on the threat made in the conversation with CD. Secondly, on the accused's case, the other three participants, albeit primarily AB and EF, must have got together in some way to implicate him. Thirdly, there is a possibility that, notwithstanding the circumstances of the trial, the jury may have used the direction about the failure to call Manunu with respect to the issue of whether or not he had rung Manunu and confessed to the stabbing on the night. 30 The combined effect of these matters is such that I conclude that the proviso should not be applied. Accordingly, I agree with the orders proposed by Adams J. 31 DUNFORD J: I have had the opportunity of reading in draft form the judgments of Spigelman CJ and Adams J. I agree with the reasons of Adams J and the orders he proposes. I only wish to refer to one aspect of the matter discussed in both the other judgments. 32 A significant piece of evidence against the appellant relied on by the Crown, even though such evidence only appeared during the second trial, was the evidence that on the night of the stabbing, the appellant had made a telephone call on his mobile to Manunu (apparently Manunu Treiblemayr) in which he said "I stabbed somebody". The only direct evidence of this call came from AB who, as Adams J points out, was an accomplice with every motive to implicate the appellant so as to exculpate himself. The content of the conversation was therefore crucial, and any corroboration of such content was vital. 33 The police evidence of telephone call records tended to corroborate the proposition that the call had been made; but not the content of such call. The only person who could do that was Manunu Treiblemayr, who was hardly likely to have forgotten if his friend, the appellant, had told him he had stabbed someone. 34 In these circumstances I would have expected the Crown to call the witness: The Queen v Apostilides (1984) 154 CLR 563, yet it failed to do so and gave no explanation (such as unavailability) for the omission. I therefore consider that not only did the reasoning in Dyers v The Queen prevent the giving of a Jones v Dunkel direction against the appellant, but it was an appropriate case for such a direction to be given against the Crown. Although the direction which was given, and should not have been given, was apparently only intended to relate to the activities of the appellant on the days following the stabbing, there is, as Spigelman CJ points out, the possibility that the jury may have applied the same reasoning to the failure of the appellant, rather than the failure of the Crown, to call Manunu Treiblemayr in relation to the telephone call deposed to by AB. 35 In the light of the judgments in Dyers v The Queen, the misdirection was so fundamental that no question arises as to the application of the proviso. 36 ADAMS J: On 9 November 2001 the appellant was convicted upon an indictment charging him with the murder of David Laxale at Berala on 24 February 1997. This was his second trial upon this charge, following upon a successful appeal to this Court: R v Tang [2001] NSWCCA 210. Although a number of grounds of appeal were notified, in the result the only ground pressed is, in substance, that the learned trial judge erred in directing the jury in accordance with the principle in Jones v Dunkel in respect of witnesses not called by the appellant. Before dealing with his Honour's impugned directions it is necessary to set out the context in which they were made. 37 On Sunday 23 February 1997 at about 10.45pm the deceased's mother heard him go outside the house and into their backyard. He later called out to her to open the front door and she found him on the front steps dressed only in his underpants, covered in blood. He told her, as was all too apparent, that he had been stabbed. An ambulance was called and Mr Laxale, after some emergency treatment, was taken to the hospital but died soon after arrival. On autopsy, the pathologist found a number of blunt force injuries (including bruises and lacerations) to the deceased's face, consistent with punching or slapping (but not kicking), two stab wounds in his chest, three in his back and two incised wounds on his left upper arm. The cause of death was massive blood loss from a number of these wounds. Although it was possible, according to the pathologist, that one knife caused all wounds, he though it was unlikely. One of the wounds could have been caused by a long thin knife, although it was unlikely that this knife caused the three stab wounds to the deceased's back. 38 A number of witnesses had seen what appeared to them to be a fight involving four young men and the deceased but, having regard to their distance from the incident and the bad light, they could not identify the participants. The appellant admitted that he was present. The crucial evidence that, one way or another, implicated him as the killer came from the other three youths. 39 In March 1997 the appellant, who was then a little over seventeen years old, was arrested and charged with Mr Laxale's murder. Also charged with the murder were AB, CD and EF, who were all aged sixteen at the time of the murder. Each eventually admitted that he had been involved in the attack on Mr Laxale. It is obvious from what I have already said, that one of them must have stabbed him and, probably, also another. The murder charges against AB and CD, who were committed for trial, were not ultimately pressed and each pleaded guilty in due course to assault occasioning actual bodily harm, not involving use of a knife. EF was discharged on committal and subsequently charged with, and pleaded guilty to, assault occasioning actual bodily harm, again, not involving use of a knife. All three youths were given bonds to be of good behaviour and each undertook to give evidence in the appellant's trial. It is self-evident that they had a strong motive for exculpating themselves and implicating the appellant. 40 AB gave evidence that, on the night of 23 February 1997, he went to a park with CD and EF, both of whom had come to his house earlier that evening. They were joined by the appellant, who showed them a mobile telephone and a knife, which AB described as being about 12.5 cm long and 4 to 5 cm wide. The pathologist considered that such a knife may have caused a number of the wounds, if the blade was tapered. The four boys then walked to CD's house where CD gave AB (according to the latter) a "butterfly" knife to hold and AB put the knife in his pocket. He described it as a long, thin knife about 9.5 cm long and 12 mm wide. Although the wounds, as I have mentioned, could have been caused by a long, thin knife measuring 9 to 9.5 cm long and 1.2 cm wide, such a knife would be wider than that described by AB. AB's reason for disclosing possession of this knife is far from clear; whether his description of its width was accurate it is impossible to say. 41 When the four boys approached the deceased's house, the appellant spotted mango trees in the backyard, jumped over the fence and started throwing mangoes over it to the other three boys. At some point someone yelled out and they started to run. AB ran with EF. They turned and AB saw the deceased grab CD by the shirt and CD hitting him with his hand. AB and EF went over to them and, at that time, AB noticed the appellant behind the deceased wrestling with him. AB could not see the deceased's back. He, EF and CD were kicking the deceased, he said, and eventually AB and EF ran off, with CD following and the appellant following him. AB said that shortly before they reached a tap, he saw a knife in the appellant's hand covered with blood, as were his hands and his shirt. He said that one of the other two boys asked "Did you stab him?" and the appellant said, "Yeah, three times". AB said he saw the appellant wash his arms and hands and the knife at the tap but did not see what EF and CD did there. AB said that the butterfly knife had remained in his pocket and he had not used it, or for that matter, any other knife. Eventually, CD and EF left in one direction and AB left with the appellant. The appellant removed his shirt and told AB to take off his. AB asked him why but the appellant just said, "Just trust me". Both shirts were thrown into a nearby wheelie bin. AB believed he did not have any blood on his own shirt, but said that he had felt blood on his leg after the second or third kick to the deceased and there was a spot of blood on his shorts as well as blood on his shoes from the kicking. 42 In cross-examination AB said that, just after the other two boys had left him alone with the appellant, the appellant rang someone on his mobile telephone and he overheard him say, "I stabbed somebody". He heard the appellant use the name "Manunu", say that he "had trouble", then "stab" and then repeated "stabbing". It seems almost certain that the Crown Prosecutor and quite probably defence counsel were taken by surprise by this evidence, since AB had not mentioned this conversation either to investigating police or during his evidence in the first trial of the appellant or in his evidence in chief. At the instance of the Crown Prosecutor, the police obtained mobile telephone records that demonstrated there was, indeed, a call from the appellant's mobile telephone to a number of which the subscriber was a Sandra Treibelmayr at an address in Croyden Park. Prison records showed that the appellant received a visit on 3 May 1997 from a Manunu Treibelmayr, who gave the same Croyden Park address and named Sandra Treibelmayr as his mother. A police officer gave evidence that when one of the detectives involved in the investigation had spoken to the appellant on 21 March 1997 shortly before his arrest, he was in the company of a number of persons, one of whom was named Manunu who gave his address at a different street in Croyden Park but the same telephone number which the appellant had called on the night of the murder. 43 CD gave evidence broadly speaking similar to that of AB, although he denied seeing anyone with a mobile phone or a knife at the park. He also denied ever having been in possession of a butterfly knife that night. CD was cross-examined by the Crown Prosecutor (by leave under s38 of the Evidence Act 1995) and counsel for the appellant. Amongst other things, he said that he saw no one with a knife that night and did not see anyone stab the deceased. He did not see anyone with a knife at the tap. He said that, on the day following the murder, the appellant came to his house and told him that the deceased had been stabbed. CD said that the appellant was with two other people and said to him, "If anyone says anything, they're gonna get it". He said that the appellant asked CD for a punching bag and CD gave it to him. This threat (denied by the appellant) is as consistent with his involvement in the attack as with having stabbed the victim. 44 EF gave evidence and was also cross-examined by the Crown Prosecutor. He at first denied any recollection of seeing a mobile phone at the park where the four teenagers first met but later said he remembered it when he was reminded of his evidence in this respect in the first trial of the appellant. However, he consistently denied seeing a knife at any point. His description of the fight did not, to my mind, significantly differ from the other accounts and included significant physical violence, including kicking. EF said that, as the four of them ran to a tap in the front yard of a house he heard someone ask "Did you stab him?" and the reply, "Yeah, three times" but he could not remember who said these words. At about that time he said he turned and "I think I seen a knife" in the appellant's hands. Someone he thought sounded like the appellant, said, "I've got to wash the knife". EF described the knife as having a blade about 10 cm long. He had not seen any other knife that night. He said that he did not wash himself at the tap and did not see what the appellant did there. He noticed, he thought, blood on the appellant's pants and said, when asked what he saw AB do at the tap, "I don't know, washed his hands, his legs". EF said that he thought that CD had blood on his hands and maybe on his tracksuits pants. Under cross-examination by the Crown, EF said that he recalled seeing the knife in the appellant's hand as they ran from the deceased's house and had told the police in his interview on arrest that he had seen the appellant wash the knife at the tap. He vaguely recalled giving evidence in the first trial of the appellant that he had seen him wash the knife under the tap and that the knife had blood on it. In his interview, EF had also told the police that the appellant had "heaps" of blood on his left leg (varied to "a bit" of blood at the first trial) and that it had been the appellant who said "I got to wash the knife". He had also said in his interview with police that, in effect, the appellant had said "Yeah, three times" following the question "Did you stab him?" but he could not any longer recall who said this, though he did not think it was either CD or AB. He denied that AB had stabbed the deceased and that he had admitted to stabbing him. EF had told a number of lies to police that were the same as those told by AB but he denied that they had agreed on what to say, claiming that it was mere coincidence. 45 Stephen James Roy, one of AB's and EF's friends, gave evidence, amongst other things, about conversations in his presence between AB and EF a few days after the incident in which AB said "that dopey Nip shouldn't have stepped in and stabbed him" and that AB later told him that he had only kicked the deceased and "the dopey Nip shouldn't have stabbed him". This was, obviously enough, a reference to the appellant. 46 The appellant gave evidence in which, in substance, he admitted having gone to the deceased's premises with the other three boys, stealing mangoes and participating in the attack on the deceased. He said that he saw AB with a knife cutting a mango before the fight, although he had not said this until he swore an affidavit on 8 January 2001, following his first trial, for the purposes of his appeal. In his affidavit he said that he had seen CD with a "butterfly" knife, which had a long, thin blade, at the park and had next seen a knife being used by AB to cut the mango but his evidence was that he did not know if the two knives were the same. The appellant said that, during the fight with the deceased, he saw AB striking him with a knife in his right hand, although he was not sure how often and it could have been only once. He said that, at the time he saw this, he was some distance from the three boys and the deceased but then he ran to them and hit and kicked the deceased. Shortly after, the fight stopped and the four boys fled. The appellant said that he said to AB, "You stabbed him, didn't you?" and that AB replied, "Yes". The appellant said that they all stopped at a tap and washed their hands and he noticed that he had blood on his hands, shirt and pants. He overheard EF say to AB, "You're fucked" (agreeing that this was the first time he had mentioned this), looked over to AB and saw him standing with a knife in his hand. He said that he took the knife from AB and washed it under the tap and gave it back to AB. He said that he had done this because he was very confused and had not been thinking clearly. AB looked helpless and he just wanted to help him. He added that it was at this point that he realised that the knife AB held was the same as he had seen CD with in the park earlier. 47 The appellant said that he had a friend named Manunu but was unable to recall whether or not he telephoned him shortly after the incident, conceding that he could have called him up to see if he was home because it was late and he wanted to stay at Manunu's house. Much was made by the Crown of the supposed incongruity of the appellant asking Manunu to stay at his house just after he had been involved in a serious attack on a man whom he had seen stabbed by AB. To my mind, the suggested incongruity proves little, if anything. The making of such a request makes it no more or less likely that the appellant stabbed the victim: it seems rather less likely that the appellant would telephone Manunu to tell him what AB alleged he said; whether he had stabbed the victim or not, the appellant might well be worried about being implicated in the incident and want to remain away from where the police would look for him, which was his explanation for staying with the Treiblemayrs. The appellant said that, following the incident, he went home and borrowed his sister's car with which he drove to Manunu's house where he stayed from that night onwards until he was arrested. He denied that he had talked to Manunu about the stabbing and certainly had not told him that he had stabbed someone. 48 The appellant agreed that his mother and brothers and sisters had visited him in gaol whilst on remand, as had Manunu. He said that he did not tell them about having seen AB stab the deceased because he did not want to talk about it, fearing the consequences of doing so. Nor had he told his legal advisers in the first trial, again because he was frightened, not only of AB but also CD and EF. He said that the punching bag that he got from CD had been obtained about a month before the night of the incident and denied CD's claim that he saw him obtain it on the following day, saying that he had spent that day with Manunu and his family. The appellant was not asked, either by his own counsel or (more significantly) by the Crown Prosecutor what his current relationship with Manunu and Manunu's family was nor, for that matter, whether any of them was available to give evidence. 49 It is clear that the evidence of Manunu was capable of being very significant. Assuming that he was credible, a denial by him that the appellant had discussed or made any admissions about the stabbing would not only have supported the appellant's credibility but would have substantially damaged AB's credibility. If Manunu and his family supported the appellant's evidence about their activities on the days following the incident, this would not only have strengthened the appellant's case (though on a somewhat marginal issue) but adversely affected CD's credibility. Of course, the converse is also true. 50 In weighing up the potential significance of Manunu's evidence, it should be noted that the only direct evidence capable of identifying the appellant as having stabbed the deceased was that of witnesses who obviously had the strongest motive for exculpating themselves and blaming the appellant. The probability (according to the pathologist) that two knives, rather than one, had been used emphasises the doubtfulness, on objective grounds, of the reliability of their evidence that none of them had used a knife. Moreover, the manner in which they gave their evidence adversely affected their credibility to a significant degree and, I think it fair to say, AB more than the other two, though this is not to say that the jury were not entitled to have regard to their demeanour. There were also good reasons for disbelieving the appellant. The problematical nature of the evidence provides the context for considering the significance of the direction given by the learned trial judge concerning the omission of the defence to call Manunu to support the appellant's account of events. 51 At the close of proceedings on 6 November 2001, according to a note in the transcript, the learned trial Judge asked Mr Cook, counsel for the appellant, whether he proposed to seek a Jones v Dunkel direction in respect of (I take it) Manunu but possibly also Manunu's parents, in particular his father and, perhaps, the appellant's own mother. There was certainly a proper basis such a query. The Crown Prosecutor relied on AB's evidence about the mobile telephone call as an important part of the prosecution case and adduced no evidence explaining why Manunu or his parents were not called to give evidence. This failure was not diminished in significance by the Crown's duty to call relevant and credible witnesses (and there appears to be no basis upon which the credibility of the Treiblemayrs should have been doubted). So considered, I cannot see why the Crown should not have been expected either to call the Treiblemayrs or explain their absence. (An examination of the notes made by the prosecutor's instructing solicitor suggests that the transcript is incorrect and that his Honour's query was directed to Mr Cook as to why a Jones v Dunkel direction should not be given against the appellant. However, nothing turns on this.) Mr Cook reserved his position until the following day. On the morning of 7 November the transcript notes the following exchange – "HIS HONOUR: … Do you have any views about a Jones v Dunkel direction? COOK: Simply that such directions should be given sparingly and always bearing in mind that it is for the Crown to prove its case beyond reasonable doubt. RPS [(2000) 199 CLR 620] at 633 (read). HIS HONOUR: The point here then is that the Crown couldn't be expected to call Mr Manunu or his parents. COOK: Yes, there's a question about that. HIS HONOUR: If I don't say anything the jury are left with what the Crown said and, with great respect to the Crown, it might mislead them. COOK: What I would invite your Honour to do is tell the jury something along the lines of, "The evidence upon which you are to determine the matter is what has been put before you and you shouldn't speculate about what other people not called may or may not have said". HIS HONOUR: Why shouldn't they be given a Jones v Dunkel direction in this case when all the material seems to indicate that I should? COOK: The only matter I can resort to is the onus of proof, that the failure by the defence to call a witness shouldn't be used to shore up the prosecution case. HIS HONOUR: What he's trying to do is shore up his case. COOK: Yes. HIS HONOUR: I will try and say something along these lines." 52 Not only did Mr Cook object to a Jones v Dunkel direction adverse to the defence but did so upon the proper basis namely, that its effect was to reverse the onus of proof. To my mind, there is also the additional ground that there was no evidence that, as at the date of trial, Manunu was or members of his family were actually available to give evidence. 53 Early in the learned trial judge's directions to the jury, when dealing with the available approaches to the assessment of credibility and reliability of witnesses, his Honour said – "I have been indicating to you what is the evidence and what you make of the evidence. One thing that is not evidence before you is what a witness who was not called might say. You cannot decide this matter on the basis of evidence that has not been presented to you. The Crown referred during the course of his address to the fact that the accused had during the course of his evidence referred to quite a lot of activity that he had undertaken with his friend Manunu and with his father or his mother and yet they were not called to give evidence before you in support of the accused's case. Well, you cannot speculate as to what those witnesses might have said had they been called to give evidence or why they were not called. You cannot assume that they were not called because the accused is lying about what he says in respect of the particular incident in which they were involved or because, if they were called, they might have given evidence contrary to that given by the accused. There can be any number of reasons why it is that a particular witness is not called by either party. The only way you should consider that evidence, that is, of a witness who you believe could have been called by one or other party and was not called, and where there is no explanation for the failure to call that witness or why the witness was not presented to you, is that the witness, if he or she had been called, could not have assisted the party whom you might have expected to call that witness. So, for example, if you believe at the end of the day that perhaps the accused might have called Mr Manunu to tell you various things about this particular night or the days afterwards and has not done so, you cannot therefore reason that the accused must be telling lies about that or Mr Manunu, if called, would say something different. You do not know why Mr Manunu was not called. You cannot speculate as to why he was not called or what he might have said if he was called. You simply need to take that matter into account and act upon the basis that Mr Manunu could not at this stage assist the accused if he had been called to give evidence. No more, no less. One thing which might explain why Mr Manunu has not been called is that matters which may now seem significant at this trial at this time before this Court may not have seemed very significant to Mr Manunu at the time and therefore he may not have a particular recollection of matters which might be of importance to you. I am not saying that that is the case, I am simply giving you an example of why it may be that a witness is not called who you might have expected to have been called." (Emphasis added) 54 It will be recalled that Manunu's potential evidence was relevant to two issues: the first was as to what was said in his telephone conversation with the appellant; and the second was whether the appellant had indeed spent the day following the incident with Manunu and his father or had gone to visit CD. Of these, the first was obviously the most significant. If Manunu had no recollection of the conversation with the accused or its content, then that was highly significant evidence supporting the appellant's case, since it seems extremely unlikely that, had he been aware that the appellant had been involved in the (or any) stabbing, he could have forgotten either that the appellant had telephoned him or had come to stay with him that night and had spent the ensuing days with him until his arrest for that very crime. A failure to recollect these events was thus inextricably linked to whether or not the appellant had admitted his involvement in the stabbing of Mr Laxale even though, carefully analysed, the quoted directions appear to be confined to the failure of the appellant to call the Treiblemayrs to support his evidence that he spent the night of the crime and the following day with them, rather than with the failure to call Manunu in connexion with the telephone call. (The notes of the prosecutor's address taken by his instructing solicitor, which were tendered in the appeal without objection, refer to a submission by him to the effect that one or more of the Treiblemayrs could confirm where the accused was on the day following the incident "but you have not heard from them".) However, I very much doubt that this distinction (even if a real one, and I do not think it is) would have been apparent to the jury, especially in light of the generality of his Honour's language. With respect, the explanation given by his Honour as to why Manunu may not have been called, rather than taking the sting out of the prosecutor's submission, as it were, reinforced the reasoning which it expressed. Since, for the reasons I have mentioned, the fact (if it were the fact) that he did not recall the conversation or the appellant staying with him up to his arrest must have assisted the appellant in the circumstances, the jury would have been left with the clear impression that they could infer that Manunu remembered the conversation and the events of the ensuing days and was not called by the defence for that very reason. 55 The learned trial judge returned to the issue of the conversation between the appellant and Manunu when dealing with the Crown case – "Now of course the Crown relies heavily on the telephone call which counsel says you will find the accused made shortly after the stabbing and which the Crown says boosts Jason AB' credibility. Of course, as Mr Cook suggested, Jason may be lying about who the accused spoke to on the telephone, and that is what was put by Mr Cook to Jason. The submission on behalf of the accused is that this is unbelievable evidence when it comes at the heel of the hunt as it were, that is after three other occasions when Jason has given an account of what he says the accused did and said on this particular night in relation to the stabbing of the deceased. Again if this is a fabrication of a confession you might think it is a curious one, because, as Mr Cook put to you it does not contain a confession at all. It only becomes a confession or admission, or could be taken as such when the accused acknowledges that he never told anyone, including Mr Manunu, about Jason stabbing the deceased, and certainly did not mention it on the phone. Again this is case of whether Jason may be devious enough to manufacture evidence in this oblique way against the accused. The Crown says on this issue of the telephone call that you would look at the explanation given by the accused, if any, for this telephone call. You may have thought even before the evidence of the accused that it was highly unlikely that the accused would be calling his good friend to tell him that someone else stabbed the deceased at the point of time when the accused says that he was scared and panicking. But in any event, the accused, as I have already indicated, agrees that he did not tell whoever it was on the line that Jason had stabbed the deceased. The Crown submits to you that the accused must know why it was that he called Mr Manunu at that time because it was such a singular incident in a very unusual occurrence, yet the only version that the accused can give, and it somewhat appears to be speculative, is that he must have wanted to find out whether Mr Manunu was at home." 56 Although these directions do not advert to the inference, if any, that the jury could draw from the omission of the accused to call Manunu, this passage highlights the importance of the conversation in the Crown case and would inevitably have recalled to the jury's recollection the directions on this matter which I have set out above. With respect, the jury should have been firmly directed to disregard completely the submission made by the Crown Prosecutor that sought to have them draw an inference adverse to the defence from the absence of the Treiblemayrs or any of them. 57 It seems to me that the matter is governed by the decision of the High Court of Australia in Dyers v The Queen (2002) 210 CLR at 285 (delivered well after this trial was completed; but see Buckland [1977] 2 NSWLR 452, OGD (1997) 98 A Crim R 151 at 159, Taufua [1999] NSWCCA 205, Scott (2000) 112 A Crim R 543, RPS 199 CLR 620 at [29-30], [111]). It is unnecessary to set out in extenso the reasoning in the various judgments delivered in the appeal. Gaudron and Hayne JJ pointed out that because (as had been said in RPS (2000) 199 CLR 620 at [26-28]), "it will be seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence … [and] it is for the prosecution to prove its case beyond reasonable doubt", the mode of reasoning upon which a Jones v Dunkel inference relies "ordinarily, therefore, cannot be applied to a defendant in a criminal trial… [since that] mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so". Their Honours then added, at 210 CLR [10] – "The reasoning which underpins the decision in RPS and in Azzopardi (2001) 205 CLR 50 cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt." 58 Their Honours also concluded that a Jones v Dunkel direction should not have been given in the case under consideration because the prosecution was under a duty to call persons "able to give credible evidence about matters directly in issue at the trial and thus the Crown should call them unless there is some good reason not to do so and the fact that a witness may give evidence inconsistent with the prosecution case is not a sufficient reason for not calling that person (210 CLR at [11]). To my mind, this obligation was relevant in the present case and would have justified a Jones v Dunkel direction against the Crown. The third reason enunciated by Gaudron and Hayne JJ for concluding that a Jones v Dunkel direction should not be given "arises out of a direction [given here] that a jury should not speculate about the evidence that might have been given by those who are not called…an instruction that directly contradicts the instruction that the jury may conclude that the evidence which those persons could have given would not assist the case of the party whom it was expected would call them" (210 CLR at [14]). 59 Callinan J also considered that the Jones v Dunkel direction should not have been given, essentially for the same reasons as Hayne and Gaudron JJ. Kirby J agreed on this aspect of the case with both the those reasons and those of Callinan J. McHugh J dissented but only, as I understand his Honour's judgment, where (as was the case in Dyers) "the accused does more than merely deny the prosecution case and sets up an affirmative evidentiary case …" (210 CLR at 26). In the present case, the Crown relied on the evidence of AB, in effect, that the appellant had admitted the stabbing to Manunu, and (in this respect) the appellant merely denied he had done so. In a sense, the appellant's evidence that he stayed with Manunu's family following the incident was an affirmative case but, realistically considered, it was but part of the narrative of events and not exculpatory. 60 The appellant also relied on the effect of the references in the impugned directions to the members of Manunu's family or the possibly implied reference to a Mr He. In the circumstances, it is unnecessary to discuss them. 61 It is most unfortunate that this, the second, trial of the appellant went awry. However, the error which I have identified lies at the very heart of the proper conduct of a criminal trial. There are few more vital principles than that which places on the prosecution the burden of proving its case against an accused person beyond reasonable doubt. In the circumstances of this case, the problematical nature of the evidence in the Crown case gives rise fairly to the inference that the jury did, indeed, give significant weight to the misdirection and, in effect, reversed the onus of proof on an element of the Crown case which obtained undue prominence, perhaps because of the way in which it arose. 62 It is obvious that the proviso to s6(1) of the Criminal Appeal Act 1912 has no application in this case. In the result, therefore, I am of the view that the appeal must be upheld and I propose that this Court order that the conviction be quashed and that there be a new trial. ********** Last Modified: 12/30/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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