New South Wales Court of Criminal Appeal CITATION : Regina v Ayoub [2004] NSWCCA 209 revised - 06/07/2004 HEARING DATE(S) : 7/5/04 JUDGMENT DATE : 28 June 2004 JUDGMENT OF : Grove J at 1; Howie J at 2; Newman AJ at 20; DECISION : 1. Appeal upheld; 2. Conviction quashed ; 3. New trial ordered CATCHWORDS : Criminal Law - appeal - identification - standard of proof - negative identification - rule in Browne v Dunn - judicial intervention - warning concerning potential unreliability of defence witnesses LEGISLATION CITED : Evidence Act 1995 - S165 (1) (e) Mule v The Queen [2002] WASCA 101 Pollitt v R (1990) 51 ACR 227 R v Stewart (2001) 52 NSWLR 301 CASES CITED : R v Fowler [2003] NSWCCA 321 R v Baker [2001] NSWCCA 151 R v OGD (1997) 45 NSWLR 744 R v Rose (2002) 55 NSWLR 701 PARTIES : Regina Brian Nicholas Ayoub FILE NUMBER(S) : CCA 60022/04 COUNSEL : Crown: D. Woodburne Ayoub: P. Hamill SOLICITORS : Crown: C.K. Smith Ayoub: S. O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/0024 FILE NUMBER(S) : LOWER COURT Ducker ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60022/04 GROVE J HOWIE J NEWMAN AJ Monday 28 June 2004 R v AYOUB Judgment 1 GROVE J: I have had the advantage of reading the judgments of Howie J and Newman AJ in draft form and I agree with their Honours and the orders which are proposed. 2 HOWIE J: In this matter the facts and circumstances giving rise to the appeal are set out in the judgment of Newman AJ. He would allow the appeal on grounds 1 and 4. I agree with the orders he proposes. However I wish to make some brief comments on these grounds and the reasons given by his Honour for allowing the appeal. I also believe it appropriate to consider aspects of one other ground of appeal. 3 There can be no doubt that Judge Ducker's interjection in defence counsel's address, as set out in the judgment of Newman AJ, was unwarranted. The simple fact that his Honour intervened in the way that he did would not carry the ground of appeal. The significance of the interjection is in the timing of it and the subject matter to which it was directed. 4 There is nothing wrong with a submission to the jury that, if there is a reasonable or real possibility that the Crown case had not been made out, they should acquit the accused. That submission is merely a different formulation of the standard direction that the jury cannot convict the accused unless they are satisfied of the offence beyond reasonable doubt. If a real or reasonable possibility exists that, for whatever reason, the Crown's contention in support of the charge is not true, it follows that the jury cannot be satisfied beyond reasonable doubt that the Crown has made its case. 5 With respect, it does not seem to me to matter whether the Crown case is one of identification of the accused as the offender or not. It is not uncommon for self-defence to be put to a jury in terms of whether there is any reasonable possibility that the accused acted in self-defence. That is because the jury might have difficulty in understanding that before the Crown has proved its case, it has to disprove either a positive assertion by the accused or an inference arising on the evidence that the accused was acting in self-defence. It is also not uncommon, in my experience, where the accused has given an exculpatory account in evidence or in a recorded interview, for the jury to be told that, if there is a reasonable possibility that the account given by the accused is true, they should acquit. 6 The only possible danger with putting the standard of proof in this way is that it might suggest that the accused has an onus of raising the possible scenario that is inconsistent with the Crown case. But I do not believe that a jury would have the slightest difficulty understanding that it is not for the accused to prove that such a possibility exists, especially where it is made clear that the accused has to prove nothing by way of defence to the charge. But in any event, if defence counsel sees some forensic advantage in putting the defence in that way, there is no reason why the trial judge should interfere and suggest that what is being said is erroneous or inappropriate. 7 If the difficulty that his Honour had with defence counsel's submission was that he did not use the words "real" or "reasonable" before the word "possibility", then such a fault simply did not warrant the trial judge's intervention. I understand that the proper formulation of the standard of proof stresses that the jury is concerned with a "reasonable doubt" or a "real possibility" but I believe that the concern that a jury will act upon a possible scenario that is unreasonable or fanciful is without foundation. In any event, as Newman AJ notes, the absence of the word "reasonable" or "real" from counsel's submission could easily have been addressed in the summing up. 8 The second part of this ground is to the effect that the trial judge failed properly to direct the jury as to the standard of proof and the possibility that Walsh or some other person stabbed the victim. The argument is that his Honour ought to have directed the jury in the way that defence counsel had sought to do in his address: that the jury should acquit the accused if there was a reasonable possibility that the victim was stabbed by some other person. 9 I do not believe that there is any general requirement for a trial judge to use this formulation as part of the directions on the onus and standard of proof whatever be the nature of the Crown case or the evidence tending to exculpate the accused. In my view Mule v The Queen [2002] WASCA 101 and Pollitt (1990) 51 A Crim R 227 should not be considered as authorities requiring some special form of direction to be given in a case of "negative identification", that is where there is evidence to suggest that the accused was not the person who committed the crime. Provided that the judge makes it clear to the jury that, if they accept the evidence exculpating the accused or could not exclude it beyond reasonable doubt, they should acquit, it does not matter how that proposition is expressed. In a case where there was evidence of "negative identification" I can understand that many judges would, at some stage in the summing up, use the formulation commended in those decisions and that defence counsel attempted to use in the present case. But that is a matter of personal choice. There are enough restrictions and requirements placed on trial judges as it is without creating another. 10 I agree with Newman AJ that in the present case the trial miscarried. But that is not because there would have been any defect in the directions in the summing up on the onus and standard of proof, absent the interjection by the trial judge in defence counsel's address. In my view, the defect in the present case is that, having interjected in the way that he did, his Honour could well have left the jury with the understanding that the fundamental issue in the trial could not be determined in the way that counsel had expressed it; that is that they should acquit the appellant if there was a possibility that the victim was stabbed by Walsh or some other person. If that understanding was left with the jury, there is a very real risk that they were at least confused as to how they should resolve the issue before them. The summing up would not have adequately dispelled any confusion or misunderstanding arising from his Honour's interjection occurring as it did at the very end of defence counsel's address. 11 I agree with Newman AJ that success on this ground is enough to dispose of the appeal and that the verdict must be quashed. I also agree that ground 4 has been made out for the reasons given by Newman AJ and I have nothing to add in that regard. However I do wish to say something about Ground 2. 12 This ground complains of directions given by his Honour during the summing up in relation to the witnesses generally and three witnesses in particular: Geoffrey MacDonald; Dylan Walsh; and the appellant. In my view the complaints in respect to the evidence of Walsh and the appellant are not made out and there is no need to refer to that part of the summing up dealing with these witnesses as the appeal is being allowed in any event. However, the warnings given in respect of MacDonald were unwarranted and, in my opinion, resulted in an unfairness to the defence case. 13 Geoffrey MacDonald was a witness called in the defence case who gave evidence of an admission to the stabbing of the victim allegedly made by Dylan Walsh while the two were in prison together. It must be acknowledged at the outset that there was a substantial problem with his credibility arising from his evidence to how it was that he came to give evidence at the trial. However, it is unnecessary to give any detail about his account in order to understand the ground of appeal and the complaint made about what his Honour said to the jury about his evidence. 14 The nub of the criticism of the summing up in this regard is that his Honour treated MacDonald as if he were a prison informer in respect of whom a warning was required under s 165(1)(e) of the Evidence Act, yet he was giving evidence for the defence. On at least two occasions his Honour directed the jury that his evidence needed to be scrutinised very carefully. He advised the jury that: Sometimes people in custody do make confessions to other inmates on the belief that they will not be passed on. Sometimes it has been shown that false claims have been made of prisoners that a fellow prisoner has made a confession of some kind. At one stage his Honour went so far as to inform the jury that giving evidence of a confession by an inmate "could help the person who gave that evidence to an earlier parole or possibly a better time in gaol". His Honour later withdrew that observation, but the fact that it was said indicates the flavour of the comments made in relation to the evidence of MacDonald. In any event even when redirecting the jury his Honour told the jury that "he was a witness of a type whose evidence really needs to be scrutinised". Unfortunately none of these comments were apposite to a witness who was not a prison informer as that class of witness was regarded in Pollitt v The Queen (1992) 174 CLR 558 or in s 165: he was not giving evidence on behalf of the prosecution. 15 In my view, it will rarely be appropriate for a jury to be warned to scrutinise the evidence of a defence witness with care regardless of how unreliable the witness might be. Warnings and cautions in relation to the potential unreliability of witnesses usually arise because the court has some knowledge of particular aspects of the evidence which might undermine its reliability and which might not be readily apparent to a juror. See generally R v Stewart (2001) 52 NSWLR 301; R v Fowler [2003] NSWCCA 321 at [125]. The matter or matters that call for a warning under s 165 will rarely be applicable to a witness who is not giving evidence implicating an accused person of the offence for which the accused stands trial. 16 So, for example, where a witness falls within the class of witness mentioned in s 165(1)(d), often referred to as an accomplice, but is giving evidence for the defence exculpating the accused, no warning under the section would be appropriate at least so far as the evidence is in favour of the accused; R v Baker [2001] NSWCCA 151 applying R v OGD (1997) 45 NSWLR 744. This is because the aspect of the witness's status that gives rise to the possibility of unreliability is no longer relevant: the potential of the witness to falsely implicate the accused in order to diminish his own culpability ceases to exist. 17 In Fowler, above, the Court was at pains to point out that whether a warning is required under s 165 and the content of the warning if one is necessary will depend upon the issues raised in the trial. Judges should avoid routinely giving warnings under the section without a request being made by counsel or without at least raising the matter with counsel so that the issue can be addressed by the parties and the content of the warning settled. The Crown made no request for a warning about the evidence of MacDonald and his Honour did not forecast that he intended to give the jury a warning about his evidence. Once the warning is given, it is difficult to effectively withdraw it where it proves inappropriate. 18 There are some classes or types of evidence that are potentially unreliable no matter whether they exculpate or inculpate an accused. Identification evidence is the most obvious. In R v Rose (2002) 55 NSWLR 701 it was held by a majority of this Court that identification evidence is so notoriously unreliable that some warning should be given where such evidence plays any part in the trial even if it tends to exculpate the accused. That was a case where evidence was given of the identification of the deceased at a time and place inconsistent with the Crown case against the accused for her murder. In the joint judgment of Wood CJ at CL and myself at [297], we held that in such a case some warning should be given about the unreliability of identification in general, but that "there would be good reason for the trial judge to temper the warning and information given to the jury in respect of that evidence". 19 I can see nothing in the evidence of MacDonald that called for any warning of the type envisaged by s 165. It was open for his Honour to make comment upon the aspects of the evidence of MacDonald that might indicate he was an unreliable witness other than that he was giving evidence of a gaol confession allegedly made by a fellow prisoner. But the Crown's cross-examination of the witness was to suggest that Dylan Walsh's confession was a result of him "big noting himself". It was never put to the witness that he was untruthful or unreliable but rather that the confession by Walsh might have been unreliable. That being so there was no occasion for the trial judge to make any comment about the reliability of MacDonald let alone to give a warning about it. The trial miscarried as a result of the unnecessary warnings and comments made about MacDonald's evidence. 20 NEWMAN AJ: The Appellant appeals against his conviction for maliciously inflicting grievous bodily harm with intent upon Shane Anthony Jones at Lismore on 8 September 2002. He relies upon the following grounds of appeal: 1(a) The learned trial judges intervention in defences counsel's address. (b) His Honour's failure thereafter properly to direct the jury in relation to the standard of proof and the possibility that one Dylan Walsh or another person committed the stabbing. 2(a) The trial judge erred in his directions as to the evidence of Geoffrey McDonald. (b) The trial judge erred in his directions as to the evidence of Dylan Walsh. (c) The trial judge erred in his directions as to the evidence of the Appellant. (d) The trial judge erred in his directions as to the evidence of the witnesses. 3. The trial judge erred in directing the jury that the accused may have attempted to set up a false alibi and failed to withdraw those directions adequately or at all. 4. The trial miscarried as a result of the trial judges intervention in the evidence of the witness Austin Irvine; and 5. A miscarriage of justice resulted from a combination of the matters in the preceding grounds. 21 These grounds of appeal can only be fully appreciated against the factual background of the relevant circumstances of the case. 22 The Crown case was that the wounding of Shane Jones occurred in a flat at Lismore some time shortly after 7am on 8 September 2002. At the time the Crown alleged some six persons were present in the flat. They were Shane Jones, Austin Irvine, Rachel Edwards, John Green, the appellant and Dylan Walsh. The first four persons nominated were in the flat at all relevant times. The appellant and Dylan Walsh came to the flat some time shortly after 7o'clock. It was the Crown case that when the appellant and Walsh arrived at the flat they banged loudly at the door. Jones told them in florid terms to go away. Surprisingly, Jones then opened the door which resulted in a scuffle ensuing. The scuffle involved Jones, Walsh and the appellant. Sometime shortly thereafter Jones went to the bathroom to relieve himself and there became involved in a fight with Walsh. It was the Crown case that the Appellant became involved in that scuffle and that, during it, he stabbed Jones. The appellant then left the flat and shortly thereafter Walsh also left. 23 There was no issue that Jones had infact been stabbed and that the extent of the injuries he suffered were sufficient to ground the subject charge. An issue arose in the course of the trial as to who it was that had stabbed Jones. Jones and Irvine identified the appellant as being the assailant. The witnesses Green and Edwards while they overheard the altercation taking place in the bathroom did not see what happened. 24 Walsh's evidence was somewhat diffuse. Having been declared unfavourable pursuant to s38 of the Evidence Act his evidence in chief took the form of cross examination on statements he had made to police. Furthermore he was granted a certificate pursuant to s128 of the Evidence Act that his evidence could not be used against him in criminal proceedings. He had given a number of statements to police. His first statement did not inculpate the appellant in any way. However in the statement given shortly before the trial commenced he said that he had been in the bathroom with Jones and the appellant and had seen a knife during the course of the scuffle which took place between the three of them. He said that the knife was not in his hands or in Jones but did not specifically say that he saw the knife in the appellant's hands. Hence my description of his evidence being somewhat diffuse. 25 The suggestion that it was Walsh and not the appellant who had been the assailant came from the evidence of one Geoffrey McDonald. McDonald, of course, was not present during the relevant events. However, while incarcerated in the same prison as Walsh MacDonald stated that Walsh had confessed to him that he had been responsible for the assault upon Jones. 26 I turn then to the grounds of appeal. 27 Ground 1: The trial miscarried as a result of (a) the learned trial Judge's intervention in defence counsel's address and (b) his Honour's failure thereafter properly to direct the jury in relation to the standard of proof and the possibility that Dylan Walsh or another person committed the stabbing. 28 Near the end of defence counsel's closing address the following exchange is recorded in the trial transcript:- "POLACK: …I ask you to consider those things, but primarily it's a situation if you think there's a possibility that Dylan [Walsh] has done it or that any of the other person's have actually done the stabbing, you should find the defendant. HIS HONOUR: No, no. That is not a proper submission. That confuses the question of reasonable doubt. Don't do that." 29 Earlier in his submissions defence counsel is recorded as saying "you may find there is a real possibility that it was someone other than Dylan or my client." That was in the context of counsel submitting that it could be somebody other than the appellant who stabbed Jones. 30 It is in my view trite law that where there is identification of evidence which exculpates an accused a trial judge should instruct the jury that while there is no onus of proof upon an accused, it is sufficient in exculpation if upon the evidence adduced, a reasonable possibility exists or arises consistent with the innocence of the accused (see Pollitt v R (1990) 51 ACR 227; Mule v The Queen 2002 WASCA 101) 31 In the light of defence counsel's use of the phrase "reasonable possibility" earlier in his address his Honours intervention was in my view unwarranted. By intervening as he did his Honour in my view cast defence counsel in a light which might have encouraged the jury to believe that defence counsel could not be relied upon. As the issue of negative identification had been squarely raised through the evidence of McDonald it was in fact entirely proper for defence counsel to raise the matter in the way he did. If his Honour wished to remove any concept of remote possibility from the jury's minds he could have done so by way of clear direction. In fact his Honour's directions in relation to this topic are as follows: HIS HONOUR: " You might think that the defence case essentially is that you cannot be satisfied beyond reasonable doubt that it was not the young man, Dylan Walsh who stabbed Jones. Jones says it was not. Irvine says it was not and there were the earlier events…" And at page 81: HIS HONOUR: "The defence case is, that, for reasons that cannot be known to him, the people downstairs have put their heads together to inculpate him and to an extent Walsh, instead of one of them. Or alternatively, that Walsh is the fly in the ointment and it was really Walsh who had the knife and that you should not believe Walsh and that you should not believe Irvine, who says that he saw the knife actually in the hand of the accused and when he was recalled, said that he had actually seen the last stabbing. Remember the onus rests on the prosecution and only the prosecution. There is no onus resting on the Accused and if you have any reasonable doubt as to the guilt of the accused he must be given the benefit of that doubt and found not guilty." 32 In my view these directions do not state the law in relation to negative identification. In essence the directions compound the problem caused by his Honour's intervention in defence counsel's address. It follows that in my view the appellant has made out this ground. 33 This of itself would be sufficient to dispose of the appeal. I should say that in relation to Ground 2 in my view his Honour erred particularly in relation to the matters raised by Grounds 2(a) and 2(b) of appeal. However in view of the conclusion I have reached as to Ground 1 I do not believe that it is necessary for this court to explore the matters raised in support of that ground. 34 In my view similar considerations apply to Ground 3. 35 However the extraordinary events which found Ground 4 of the appeal do call for this court in its supervisory role to deal with the matter raised. 36 Ground 4: The trial miscarried as a result of the trial judge's intervention in the evidence of the witness Austin Irvine. 37 As I have already indicated earlier in these reasons Irvine was a witness who deposed that he had seen the scuffle in the bathroom involving the accused, Jones and Walsh. At the completion of Irvine's evidence (there being no re-examination) his Honour permitted Irvine to stand down. His Honour then remarked as follows:- HIS HONOUR: "Just a moment, stop that witness please. Has this witness been asked the question that – the direct question that he did not see Mr Ayoub stab Mr Jones." 38 At that stage Irvine had not specifically stated that he had seen the appellant stab Jones. His Honour then went on to say to counsel for the accused as follows:- HIS HONOUR: "Yes but if it's your case that this man could not have seen that happen, because it didn't happen, then it must be put to him in that form." 39 After counsel for the accused had asked a number of questions discussions ensued in the absence of the jury as to Irvine's recollection as to whether he saw the accused with the knife. When the jury returned his Honour is recorded as saying as follows:- HIS HONOUR:- "Bring the witness back please. As you would know, the alternative is that if the Browne and Dunn rule is not followed then it creates an extremely difficult situation, because the court is put in a situation where it's either got to reject the question or reject the evidence that might be led, where there hasn't been a compliance with the rule, that's why it is so important to ignore it, those are two possibilities…". The accused's counsel then took part in the following exchange with the witness and his Honour. POLLACK:- Q. "All I have to put to you is that you did not see Mr Ayoub holding the knife? A. You put to me that I didn't see him holding the knife, is that what you said? Q. Yes? A. Well you're wrong. HIS HONOUR:- All right, next question. POLACK:- Q. I put it to you that you did not see Mr Ayoub using the knife? A. The same answer. HIS HONOUR:- Well that - - Witness:- If there hadn't been involved I wouldn't have stepped in and stopped it. HIS HONOUR:- Q. Yes, but did you actually see the motion of his body that was, in your view, the movement of his hand with a knife in it and the knife coming into contact with the body of Mr Jones? A. He stabbed him, what else can I say, you know. Q. Well stabbing consists of holding a knife in your hand? A. Yeah Q. And then by some movement, causing the knife to enter the person – the body of another person? A. Yeah. Q. At any time did you see the knife action – what you realised at the time to be a knife, actually strike Mr Jones body? A. Yes I did, the last blow that hit him in the stomach." 40 His Honour's action in effectively forcing counsel for the accused to ask questions purportedly to comply with the rule in Browne v Dunn, in a situation where the witness up to that point had not given direct evidence that he had seen the accused stab Jones, was incorrect. The adversarial system does not require a judge to take such an action in the course of a trial – particularly where in fact no contravention of the subject rule had occurred. In other words his Honour's action resulted in the accused being subjected to procedural unfairness. In short I find that this ground is also made out. 41 As is the case with Grounds 2 and 3 it is not necessary for me to deal with the matter raised by Ground 5. 42 Counsel for the appellant rightly conceded that this was not a case where he could successfully advance an argument that in the light of his client's appeal being successful he could seek a verdict of acquittal from this court. This being so I am of the view that the following orders should be made:- 1. Appeal upheld. 2. Conviction quashed. 3. New trial ordered. ********** Last Modified: 07/08/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.