Appeal Outcome: Special leave refused by the High Court (s152/2010) 1 October 2010 New South Wales Court of Criminal Appeal CITATION: Clark v R [2010] NSWCCA 94 HEARING DATE(S): 7 December 2009 JUDGMENT DATE: 11 May 2010 JUDGMENT OF: Hodgson JA; Howie J; Johnson J DECISION: Leave to appeal granted. Appeal against conviction dismissed. CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Whether evidence should have been rejected as unfairly prejudicial – Whether juror should have been discharged – Whether summing-up unfair by reason of inclusion of matters not relied on in Crown's address. LEGISLATION CITED: Criminal Appeal Act 1912 s.5(1) Evidence Act 1995 s.135, s.137 CATEGORY: Principal judgment Crofts v R [1996] HCA 22; (1996) 186 CLR 427 Maric v The Queen (1978) 52 ALJR 631 Qoro v R [2008] NSWCCA 220 Rasic v R [2009] NSWCCA 202 CASES CITED : R v Clark (No. 1) [2008] NSWSC 820 R v Clark (No. 2) [2008] NSWSC 821 R v Meher [2004] NSWCCA 355 Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 Sieders v R [2008] NSWCCA 187; (2008) 72 NSWLR 417 Smale v R [2007] NSWCCA 328 PARTIES: Michael Rex CLARK (applicant) Regina (respondent) FILE NUMBER(S): CCA 2006/3605 COUNSEL: M THANGARAJ (applicant) M GROGAN (respondent) SOLICITORS: Matouk Joyner Lawyers (applicant) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2006/3065 LOWER COURT JUDICIAL OFFICER: Kirby J LOWER COURT DATE OF DECISION: 10 March 2008, 27 March 2008 LOWER COURT MEDIUM NEUTRAL CITATION: R v Clark [no 1] [2008] NSWSC 820, R v Clark [no 2] [2008] NSWSC 821 - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/3605 HODGSON JA HOWIE J JOHNSON J 11 May 2010 CLARK, Michael Rex v R Judgment 1 THE COURT: Between 10 March 2008 and 2 May 2008, the appellant was tried in the Supreme Court of New South Wales before Kirby J and a jury on an indictment containing two charges. The first charge was that the appellant on 30 April 2005 at Bexley in the State of New South Wales did murder Ernest Richard Clark (the appellant's father, who will be referred to as "the deceased"). The second charge, brought in the alternative, was that on 30 April 2005 Ben Richard Clark (the appellant's son, who will be referred to as "Ben") did murder the deceased and that the appellant, knowing that Ben had murdered the deceased, did "assist, maintain, harbour or receive" Ben. 2 There was no dispute that Ben had murdered the deceased, and that the appellant was not present at the time; and the appellant also accepted guilt in relation to the second count. The Crown case was that the appellant agreed with Ben to murder the deceased. 3 At the commencement of the trial, the appellant pleaded not guilty to murder and guilty to the alternative count of accessory after the fact to murder. The Crown did not accept the plea of guilty to the alternative count, and the matter proceeded to trial. On 2 May 2008, the appellant was found guilty by the jury of murder. 4 This had been the third trial of the appellant on these charges. At the first trial in 2007 the jury was unable to reach a verdict. The second trial aborted after several weeks, and the third trial started immediately after that. 5 On 11 August 2008, the appellant was sentenced to imprisonment comprising a non-parole period of 24 years commencing on 21 July 2005 and expiring on 20 July 2029 with a balance of term of six years expiring on 20 July 2035. 6 The appeal is brought with respect to conviction only. No challenge is made concerning sentence. Leave to Appeal Under s.5(1) Criminal Appeal Act 1912 7 The grounds of appeal relied upon by the appellant do not involve "a question of law alone". As a result, the appellant must be treated as an applicant for leave to appeal against conviction: s.5(1) Criminal Appeal Act 1912; Rasic v R [2009] NSWCCA 202 at [2], [12]. No point was taken by the Crown in this case with respect to the grant of leave. In these circumstances and having regard to the nature of the offence of which the appellant was convicted, it is appropriate that there be a grant of leave to appeal. Crown Case 8 We will give a brief outline of the evidence led by the Crown. 9 Neighbours gave evidence of being woken at about 12.40 am on 30 April 2005 by Jessica Chung (the partner of the deceased), who had just found the deceased in his pyjamas lying near steps to the backyard of his house at Bexley. Other neighbours gave evidence of hearing two shots fired at about 11 pm on 29 April 2005. An ambulance was called and arrived at the scene. An ambulance officer found a shell-casing, and determined that the deceased had been shot. The police were notified. The deceased was taken by ambulance to St George Hospital where he died. 10 When police attended the scene, the ambulance officer who had found the shell-casing gave it to Inspector Yates. Inspector Yates also gave evidence that he attended the hospital, and there saw Jessica and her son Thomas, who were visibly upset and crying. Jessica spoke to Inspector Yates about the appellant, and Inspector Yates contacted the appellant on his mobile phone and informed him of the incident. 11 Nurses at the hospital gave evidence that when the appellant attended the hospital, he was tearful and emotional. 12 There was forensic evidence that the direct cause of death was a gunshot wound to the forehead fired from about 60 centimetres. There was another wound to the left side of the neck, consistent with a second shot hitting the deceased. 13 Detective Sergeant O'Hagan gave ballistic evidence. She was referred to the ERISP given by Ben in which he admitted shooting the deceased, described the gun he had used and provided a diagram of it. In that interview, Ben said he had used a gun bought from a stranger in a pub at Mt Druitt for $150, described by him as being a little tube with a spring in it, having two barrels with two bullets in it. Ben said he had not used it prior to 29 April 2005, and that after he used it he threw it to the side of the road. 14 Detective Sergeant O'Hagan was also shown a second diagram of the gun provided by the deceased. She said that the bullet casing found at the scene was rimless, and that if used in the weapon shown in the diagram it would slip through the weapon unless there was some tooling inside to stop it (that is, a decrease in diameter so that the case could go no further, but the bullet, being of smaller circumference could pass along it). The shell-casing had marks which indicated it had been ejected twice from a conventional weapon with an ejector or extractor. The weapon shown in the diagram had no ejector; and to remove a fired cartridge case from it, the firing pin mechanism would have to be unscrewed from the barrel. 15 Jessica Chung gave evidence of her relationship with the deceased. She said that at a birthday dinner for the deceased in 2002 with the appellant and the appellant's wife Jennifer, the deceased had said he was going to divide his assets equally between the appellant and Jessica. Jessica said the deceased sold his business in 2004 for $800,000, and that in October 2004 he moved in with her at her house in Bexley. He spent about $40,000 on renovations to her house, and was considering paying off the mortgage which was $54,000. 16 In October 2004, the deceased told Jessica that the appellant had asked to borrow $20,000; and in November 2004, the deceased told her the appellant had asked to borrow $50,000. Later, the deceased told her the appellant and Jennifer had told him he should not move in with Jessica and spend that much money to renovate the house. 17 Jessica gave evidence that, one day in 2005, the deceased told Jessica that the appellant had asked to borrow $18,500 to start a business in Queensland, and that on 17 January 2005 the deceased wrote a cheque to the appellant for $18,500. On the night of 28 April 2005, the deceased and Jessica discussed buying Jessica's sister's fish and chip business; and the deceased told her that he had discussed this with the appellant. 18 Evidence was also given by friends of the deceased. One of them, George Hooper, gave evidence concerning the deceased's business premises at Granville, where Ben had sometimes worked. 19 David Seckold, a cousin of Jennifer Clark, gave evidence that in October or November 2004 the appellant spoke on the phone and said he was having financial problems and was living on credit cards; and that he told the appellant that he had a job in Brisbane that would last four to five weeks. The appellant took up that job and worked from just after Christmas 2004 to the end of January 2005, and was paid cash. During that time, they agreed to buy a second-hand concrete cutting machine for $12,000 each paying half. Later, the appellant asked to be paid out because he was in financial problems. 20 Mr Seckold gave evidence that he met Detective Sergeant Agnew at Albury on 28 July 2005. Detective Agnew asked Mr Seckold whether or not he had heard the appellant threaten the life of the deceased. Mr Seckold replied that the appellant had complained about the deceased not lending him money, and had said "he's a tight old prick" and "he's got more money than he can poke a stick at", and that he wished he was dead; and that the appellant had also said "the Asian lady's draining all his money by spending it on her house". Mr Seckold gave evidence that the appellant was very angry; and that the appellant's statement that he wished his father was dead was made after they bought the concrete cutting machine. 21 Detective Sergeant Maree was officer in charge of the investigation. He gave evidence that on 8 July 2005 two listening devices were placed in the appellant's home at Faulconbridge in accordance with a warrant. The tapes and transcripts of them were exhibits in the case, and their admission is the subject of one of the grounds of appeal. 22 Detective Sergeant Maree interviewed Ben by way of ERISP on 12 July 2005. Ben gave an account of his movements on the night of 29 April 2005, and said that the last time he saw the deceased was on 15 March 2005. He denied owning a firearm. 23 On 14 July 2005, Ben was intercepted on his motorbike near Tea Gardens. He made admissions to Detective Sergeant Maree in relation to the shooting of the deceased. He was placed under arrest. In an ERISP taken at Maitland Police Station he made more detailed admissions. 24 A listening device recorded conversations between the appellant and his wife and children at 6.15 am on 14 July 2005, during which the appellant spoke of discovering a note that Ben had written and left on his bed, in which Ben confessed to killing the deceased because the deceased had verbally and physically abused him when he worked for him, and because on the night in question the deceased had verbally abused him again and threatened to kill him. That note was recovered by Detective Sergeant Maree on 21 July 2005, and it was put into evidence. 25 On 14 July 2005, Jennifer Clark participated in an audio ERISP. In it she said the appellant and the deceased had a close relationship. She said their current financial situation was "down the gurgler"; and she said that on 24 April 2009, it had been arranged between her daughter Amy and the appellant that they go to dinner and a movie in Richmond. 26 The appellant was interviewed by way of ERISP on 19 July 2005. He told police that he did not have any knowledge that Ben had shot the deceased until he found Ben's note on 14 July 2005. The appellant was arrested for murder of the deceased on 22 July 2005, and then exercised his right to silence. 27 A summary of calls and text messages, made on 29 July 2005 between 3.30 pm and midnight, showing several calls and messages between the appellant and Ben, was put into evidence. The contents of the SMS messages were not available. 28 Molly Baker, Jennifer Clark's mother, gave evidence that she and her husband owned the house in which the appellant and his family lived; and that after Jennifer and the appellant put a large extension on the house at their own expense, they no longer had to pay rent. She gave evidence that the appellant was highly emotional, had a bad memory, repeated himself, was paranoid and very anxious at times. 29 Amy, Jennifer's daughter, and her partner both gave evidence about the appellant and Jennifer going to a movie and dinner with them on 29 April 2005. According to Amy, this was arranged when she rang the appellant on that day and had a chat. 30 An investigative accountant employed with the Fraud Squad gave evidence concerning the finances of the deceased and of the appellant and his wife. The appellant and his wife had limited income and an amount of debt that varied but was generally at the top of the available limit of their credit card. However, St George Bank had offered a top-up of the appellant's personal loan because he was paying it well; and he was in advance of his repayments of that loan as of 9 April 2005. 31 Ben's mother Rhoda Clark gave evidence that when Ben worked for the deceased, he always came home from work very upset, and he complained of the deceased verbally abusing him; and that the deceased said to her that Ben was "nothing but a lazy little bastard". She (along with other witnesses) said the appellant was paranoid, emotional and had memory problems, which she understood was the result of brain injury from a car accident when he was 18. 32 Ben gave evidence that he shot the deceased. He said he had been riding his motorcycle, had got lost, but found himself near the deceased's house. He parked a couple of hundred metres from the house and walked to it. He tried to tell the deceased how he was doing well with his life, but that the deceased kept verbally abusing him and insulting him, and he shot the deceased. He said the deceased had physically and verbally abused him when he had done some work at the deceased's shop when he was 16, and had also sexually abused him. 33 Ben gave evidence that he told the appellant he had shot the deceased about two weeks before he was arrested. He said to the appellant that he had to swear never to tell anyone. The appellant had told him to go to the police and tell them the truth. He told the appellant that the gun had broken after being fired and one of the cartridges had fallen out. The Appellant's Case 34 The appellant gave detailed evidence of his relationship with his family and with the deceased and Jessica. He said Ben had never told him about sexual abuse by the deceased. 35 The appellant said that when he was 18 he was in a serious car accident that left him with serious head injuries, blind in one eye and in a coma for a number of days. He was in hospital for about one and a half years. 36 The appellant said that he and his family were not in trouble financially. He said he never suggested to the deceased that he not spend money on Jessica or that he should not move in with her. 37 The appellant denied the conversation given in evidence by David Seckold. He denied that he organised the outing with Amy and her partner to give himself an alibi. He said that when he was standing in the front of the movie theatre that night, he received two texts from Ben saying he was lost and wanting directions. 38 The appellant said he did not have any involvement in the death of the deceased, and did not have any idea that Ben would kill him. He first found out that Ben had shot the deceased about two months after the shooting. He lied about this to police because he did not want to admit that he had been harbouring Ben. The Competing Contentions 39 The competing contentions of the Crown and the appellant at the trial were as follows (this summary being taken from the appellant's submissions on appeal). 40 The Crown's contentions were: a. The appellant was a beneficiary under the deceased's will and therefore had a motive. b. The appellant was in financial difficulties. c. The appellant was concerned about recent changes in the relationship between the deceased and his partner, Jessica, in that their relationship was becoming more involved. d. The appellant was concerned about the money that the deceased was spending on Jessica, including paying for renovations, paying her mortgage and consideration of buying a joint business. e. The appellant resented the deceased for the generous way he treated Jessica. This was in contrast to the mean way he treated him when rejecting a number of loan requests made by the appellant. f. The appellant therefore harboured ill feeling towards the deceased as disclosed in the evidence of David Seckold. g. On the particular night, there was contact via mobile phone between the appellant and Ben at times alleged to be both before and after the shooting of the deceased. h. There was also evidence emerging from listening device recordings to a pact between the appellant and Ben which were said to amount to admissions by the appellant. The appellant would pay Ben part of the inheritance once it was received. The appellant was concerned that he would forfeit the inheritance if it were proved that he was involved in the crime. i. The weapon used was not a homemade weapon as claimed by Ben. It was a handgun. j. There was no other reasonable explanation for Ben shooting the deceased in that the allegations by Ben of sexual abuse were not acceptable. 41 The appellant's contentions were as follows: a. The appellant loved his father. This was the evidence of a number of witnesses, including independent witnesses. The only evidence to the contrary was the uncorroborated evidence of David Seckold who had a motive to lie. b. The appellant was genuinely upset by the death of his father. This was the unanimous evidence of the witnesses including relatives of the deceased, friends of the deceased, hospital staff and police at the scene. c. The accused was not in a bad financial situation. He also had access to funds. d. The appellant's conduct with his family and children showed that he would never do something so evil as to procure his son to murder his grandfather. e. The appellant always respected Jessica and her relationship with his father. The deceased was very sensitive to criticism of Jessica. The appellant would not have upset the deceased, as the Crown contended, and complained about renovations or living with Jessica in those circumstances. If he did, the deceased would not have entrusted the appellant to be the executor of his will. f. The appellant did not have any difficulty with Jessica and his father's money. In fact the appellant asked his father to speak to Jessica before lending him money. g. If the Crown case was correct as to Ben using a traditional weapon, where was the second cartridge? h. Ben had no motive to kill the deceased except his own. There was no suggestion that the appellant knew anything about the sexual assault. Whether or not Ben was sexually abused, he had his own motive, he acted on his motive, and there must therefore have been a reasonable doubt of the appellant's guilt. i. The listening device evidence supported the appellant's evidence that he made a pact with Ben not to reveal what Ben had done. There was not one single piece of evidence on the tapes which confirmed his guilt, even though there was an enormous amount of recorded material. Grounds of Appeal 42 The appellant relies on the following grounds of appeal: 1. His Honour erred in admitting the evidence of the South Australian tapes. 2. His Honour erred in failing to discharge a juror. 3. His Honour erred in failing to discharge the jury as a result of his Honour's summing up. 4. His Honour erred in failing to re-direct the jury after the application to discharge. 5. The combination of the above resulted in a miscarriage of justice. 43 There was no ground of appeal to the effect that the verdict was unreasonable. 44 We will deal in turn with the following grounds: (1) Admission of the South Australian tapes (ground 1). (2) Failure to discharge a juror (ground 2). (3) Complaints about the summing up (grounds 3 and 4). Ground 1 - His Honour Erred in Admitting the Evidence of the South Australian Tapes The Decision of the Trial Judge 45 Relevantly, the primary judge gave the following reasons for admitting this evidence (see R v Clark (No. 1) [2008] NSWSC 820). [9] I should deal with one aspect of the Crown case of particular relevance to the conversation which the Crown seeks to tender, namely the gun used by Ben Clark to shoot his grandfather. The gun has never been recovered. Neighbours reported hearing two shots at about 11.10 pm. The injuries to the deceased were consistent with his having been struck by two bullets. The first was a glancing blow to the left side of the head. The bullet appears to have then struck a tile at the rear of the premises near where the deceased was then standing. The second bullet was fired at close range, penetrating the left side of the forehead. It passed through the brain, fracturing the base of the skull and other facial bones, before exiting on the left side. It was plainly the second bullet that caused death. [10] A number of police officers have given ballistics evidence. One cartridge case was recovered. It was a .38 calibre Winchester cartridge case. It was examined microscopically, revealing extractor and ejector markings, consistent with use in a .38 self loading pistol. [11] Ben Clark was arrested on 14 July 2005 and later interviewed by the police. In the course of the interview he confessed to having shot his grandfather. He provided a description of the gun which he had used. He said that he bought the gun in a pub in Mt Druitt (Q122). His ERISP included the following: (p 18) Q123 Can you describe the gun to me? A I didn't look so much like a gun but more like a, like a little toy or like a, I don't know what you would call it, like a little tube with a spring on it, and you pull the spring back and let go. [12] He was asked to provide a diagram. He then produced a rudimentary drawing of a homemade gun with two barrels and springs. He later provided the police with a more sophisticated diagram which, according to the Crown, had the appearance of a reproduction from a gun manual. Neither diagram suggested that the homemade gun was fitted with either an extractor or an ejector. The interview also included the following: (p 19) Q137 Can you tell me where the gun is now? A. I don't know where it is, 'cause on the way home I threw it to the side of the road. Q138 Do you know whereabouts? A No, I wasn't thinking straight at that time, I was panicking, I was scared. [13] There were, according to the Crown, a number of difficulties with Ben Clark's explanation. First the description he provided was remarkably similar to that suggested by the accused (on the Crown case) in a conversation recorded by listening device that day before the interview: (9.55 am 13 July 2005) MC Remember the story … [ind] … that's most important mate the story … [ind] … gun. It was about this long this thin … [ind] … the spring sprang back you know. BC Yeah. MC And if they say to ya 'well how did the shells come out' you say 'oh I don't know' … [ind] … 'where did you throw the gun' … [ind] … 'in the city somewhere down the drain' right? BC [sighs]. [14] Secondly, the homemade gun as described and drawn by Ben Clark, would not eject a cartridge once fired. Yet a cartridge case was found at the scene. Moreover, the case had ejector and extractor markings which you would not expect if the gun as drawn and described by Ben Clark had been used. On the other hand, there were two sets of extractor and injector markings, suggesting that the cartridge had previously been in a gun with an extractor and ejector, but had not been fired. [15] As mentioned, the gun has never been found. Its source has not been identified. The Crown suggests that one would infer that the account given by Ben Clark was false and that he had a self loading .38 handgun. If that is right, the question arises: "Why would the accused suggest that his son give a false account?" [16] In a conversation between the accused and Ben Clark, recorded by listening device at 11.00 pm on 11 July 2005, that is, a few days earlier, the accused said this: MC [sighs] Fuck … [ind] … ever put you there if you didn't touch a fucking beer bottle. And if you got them fucking clips, they wouldn't a known what sort of a fucking gun. They wouldn't have known the weapon. You know? (emphasis added) [17] Let me turn to the grounds of objection. Relevance . [18] It was submitted on behalf of the accused that the conversation was irrelevant. The discussion was about the trip to South Australia, which had nothing to do with this trial. When the argument began, counsel for Mr Clark asked the Crown to identify the particular relevance relied upon. The Crown did so (T362). In the debate that followed, other issues were canvassed. The suggested relevance of the material can be broadly stated as follows: First, the reaction of Michael Clark to the recounting to the police of the visit to the shooting gallery by Ben was said to be so extreme that it betrayed that Michael Clark had "far more knowledge than he will let on at any stage during this trial" (T362), specifically about the gun. Secondly, the reference by Ben Clark to having previously fired a "handgun", and the reaction of Michael Clark to that disclosure, suggested an awareness of the actual weapon used, and perhaps its source. Thirdly, the conversation is relevant to the alternative charge, although it should be acknowledged that the Crown has a deal of other evidence to prove that charge. In the conversation objected to, comments are made by Michael Clark which are open to the construction that he was aware of the essential nature of Ben's crime and thereafter counselled and instructed him as to the way in which he should respond to the police, and thereby avoid arrest. His instructions, arguably, included coaching in a false story. Fourthly, and perhaps most importantly, the tape is capable of providing real insight into the relationship between the accused and his son, Ben. It is one of a series of conversations between father and son relevant, according to the Crown, to the primary issue in this trial, that is, whether the accused's involvement began before or after the murder. Finally, there are individual answers which are relevant to a number of subsidiary issues. The accused was also interviewed by the police. His instructions to his son as to the way in which he should deal with questions by the police seeking information is relevant to the answers which he ultimately provided when interviewed (Ex E on the Voir Dire: p 4, 6). Similarly, the comment by the accused concerning mobile phone contact between himself and Ben on the night of the murder is relevant in the context of evidence concerning such contact (Ex E on the Voir Dire: p 21). There are other illustrations. [19] In my view, the proposed transcript is relevant in the various ways suggested. As the debate progressed, I understood counsel for the accused to ultimately accept that, in at least some of these ways, the Crown could satisfy the requirements of relevance (T423 (21.2.08)). Exclusion because of unfair prejudice. [20] The real issue was the exclusion of the conversation under s 135 or s 137 of the Evidence Act 1995. Since the evidence was not misleading or confusing (s 135(b)) and would not result in an undue waste of time (s 135(c)), the real question concerns unfair prejudice. Should the evidence be excluded, as a matter of discretion, under s 135(a), or must it be excluded under s 137 because its probative value is outweighed by the danger of unfair prejudice to the accused? [21] Before dealing with counsels' submissions, I should briefly refer to what was said in the conversation. When Ben Clark was interviewed by the police on 12 July 2005, he was asked whether he had ever fired a gun. He acknowledged that he had. He described an episode when he was about ten years old. His family was in Adelaide visiting his father's relatives. His father and uncle took him to a commercial indoor shooting gallery. He fired a handgun and found the experience frightening, much to the amusement of the owner of the gallery. On the day following the interview, in the conversation the subject of objection, the accused asked Ben Clark about his police interrogation. Their conversation included the following: (Ex E on the Voir Dire: p 2, the initials referring, respectively, to Michael, Ben and Jennifer Clark.) MC Did they ask, have they asked you have you ever shot a gun? BC Yeah. MC What did you say? BC Um, years ago when I was about ten or something over in Adelaide. JC Oh fuck. BC At a firing range. JC Oh fuck. MC Oh no. Fuck Ben. BC What? JC Oh, we're done. BC What? MC Fuckin' mate, that involved Robert that involved Hells Angels, it involves everyone. Fuck mate. BC I didn't know that. MC Oh no. That's why they're comin' back mate. That's why they're comin' back at ya. [22] In the conversation that followed, the accused expressed concern for himself. He said this: (p 4) MC How many kids that are ten years old get to go to a firing range and fire guns Ben? That means I'm involved in that. Fuck. (BREAK IN RECORDING) It's disappointing, fuckin' come and sit down. [23] Shortly after the accused said this: (p 5) MC They're gunna pin it on me. Guaranteed. BC How can they? MC Well, they will mate. There's too much fuckin', too much loose evidence now. BC But you couldn't have because youse were all out that night. MC Yeah, but that means they're gunna say that I paid someone to fuckin' do it Ben. [24] Immediately after this conversation, the accused said this: (p 5/6) BC Oh. MC They're gunna say it and we're gonna lose everything mate. That's what they're gunna bring up in court. Because it fits me, it fits me to a situation where I've had past things see all they needed, right, was a situation where they could say, 'Yes well you've had experience in guns before.' See? I had one experience in guns prior to, prior to fuckin' them knowing that, that was my offence. BC Mmm Mmm . MC And I was a stupid kid when I did that offence . (emphasis added) [25] I will return to the words in bold. In the version of the conversation which the Crown proposes to put before the jury, the words in bold will be excluded. However, they remain relevant to one aspect of the submissions by the accused on unfair prejudice, which I will return to shortly. [26] The transcript of the conversation continued: (p 6) MC What did you fire, what type of gun? BC A handgun. MC Oh. Fuck. [27] Shortly after these words, the accused added: (p 7) MC Who knows? See? … anyone that has been, I mean how do, how do they know it was a handgun? See, what, that's what I mean. Of fuck. (BREAK IN RECORDING) I'll be the next one they drag in. [28] The conversation continued: (p 8/9) MC … and the direction they were heading can't you, can't you figure out what they're trying to do? BC Well, tryin' to find someone to put it on. MC Well, and which way are they directing it now? BC Us. So for me at the moment, because of my story. MC I don't think they're tryin' to direct it onto you Ben. I think they're tryin' to get to me. BC Oh. MC I think they think that I wasn't where I've said I was. BC Well, you've got three people witnessing. MC They're family mate. JC Simon's not. MC Yeah. [29] The accused then returned to the implication of any involvement on his part, he being a beneficiary under his father's Will: (p 9) MC You know even if they suspect me — BC Mmm Mmm. MC — I can't even go ahead with the will or anything, you know if, if, if they fuckin suspect, suspect. BC Mmm Mmm. MC I lose all rights, all fuckin' everything. Fuck. [30] In the conversation that followed, there are a number of references to the Hell's Angels and Rob, including the following: (p 18) MC Well mate, I can't bring him into it in any way, shape or form. Any way. Mate, if he comes into it that means the Hell's Angels come into it. You know, that's, you know, and, and then I'm fucked anyway. Every, everyone basically. They'll move in an fuckin' you know, (VOCALLY DEMONSTRATES). You know. (LAUGHS) 'Cause you don't, just, just don't give people up, it's as simple as that. [31] Counsel for the accused identified a number of aspects which he suggested gave rise to unfair prejudice. First, taking a ten year old child to a shooting gallery was discreditable and should be excluded. Indeed, it should also be excluded from Ben's interview. However, many children under the supervision of adults, and especially in the country, have been to a shooting gallery and fired a gun at fairgrounds and otherwise. I believe the prejudice, if any, is so mild as to be swamped by the probative value of this material (cf accused's ERISP 19.7.05 p 39 Q396–414). [32] Secondly, it was submitted that one did not need to guess at the prejudice which would flow from the admission of this material. The present trial is a retrial. The conversation was admitted in the previous trial without objection. Michael Clark gave evidence and was cross examined upon it. It was suggested that his reaction was such a gross over-reaction that it betrayed that he knew much more than he was letting on. Michael Clark, in these circumstances, had been obliged to explain his reaction and concern. In the process, he was forced to reveal discreditable material about himself which was highly prejudicial. This was the unfair prejudice. The person "Rob" was a good friend, Robert Attenborough. Robert Attenborough was a person to whom he had been introduced by his brother, Andrew. He had a hydroponic business in Adelaide and secretly supplied hydroponic equipment to members of the Hell's Angels motor cycle club for use in the cultivation of drugs. One assumes that he had been charged and convicted for having done so, which was known to Mr Clark, who nonetheless maintained his friendship with him (Transcript previous trial pp 831–834). It was not proposed that Robert Attenborough would be called in the Crown case. [33] No doubt some prejudice attaches to the disclosure of an association with Mr Attenborough and Hells' Angels. Hells' Angels is notoriously an organisation involved in drug distribution and crime. However, it is not suggested that Michael Clark was a member of the Hell's Angels gang, or was associated with Mr Attenborough's crime. Rather, Michael Clark knew someone in another state who, at some point, had done business with the Hell's Angels to his discredit, committing a crime. I believe the conversation has significant probative value in respect of the various issues identified, which is not outweighed by the danger of unfair prejudice to the accused. [34] The third submission related, amongst other things, to the passage set out above in bold which, for convenience, I repeat: (p 5/6) BC Oh. MC They're gunna say it and we're gonna lose everything mate. That's what they're gunna bring up in court. Because it fits me, it fits me to a situation where I've had past things see all they needed, right, was a situation where they could say, 'Yes well you've had experience in guns before.' See? I had one experience in guns prior to, prior to fuckin' them knowing that, that was my offence . BC Mmm Mmm . MC And I was a stupid kid when I did that offence . (emphasis added) [35] Counsel for Michael Clark drew attention to the accused's significant criminal record. He had been convicted of armed robbery, shooting to avoid apprehension and various drug offences. His criminal record explained his reference to "past things". His state of mind and his reaction to Ben's account of his interview with the police therefore involved, according to counsel, a separate matter of concern (additional to the Hell's Angels and Robert Attenborough), namely, his own past which he dare not reveal to the jury. The unfair prejudice to him therefore, arising from the admission of this material, is that in explaining his reaction, and answering the suggestion that it was an over-reaction, he is only able to give part of the explanation. [36] Dealing with that argument, a number of things should be said. First, when cross examined in the previous trial, Michael Clark limited his explanation to the aspect concerning the Hell's Angels and the discreditable past of his friend, Robert Attenborough. Obviously that is not determinative because he may have confined himself to that aspect precisely because it was prejudicial to mention his criminal record in front of the jury. Secondly, and more to the point, the conversation the subject of objection began with these words: (Ex E on the Voir Dire — p 1) MC They can't, they got nothing to prove anything. JC Oh. MC So all they're doing is fishing at the moment. BC Yeah. Just lookin' for — MC (TELEVISION IN BACKGROUND) 'cause they're obviously, my, my history — BC Yeah. MC — they're trying to say, Well fuck me. I could have quite easily fuckin' you know? BC Yeah. [37] The reference to "my history", one would infer, was a reference to the accused's assumption that the police would be well aware of his criminal record. The jury, of course, will not be aware of that record, so that the passage is anodyne. The accused's concern is not that the revelation by Ben will cause the police to uncover his own past. It is that Ben's account to the police may expose Ben to the charge of murder. The comments immediately following the reference to the Hells' Angels and Robert (Attenborough) are instructive. The conversation was in these terms: (Ex E on the Voir Dire — p 2/3) MC Fuckin' mate, that involved Robert that involved Hells Angels, it involves everyone. Fuck mate. BC I didn't know that. MC Oh no. That's why they're comin' back mate. That's why they're comin' back at ya . BC No, I told them that last night. MC Oh fuck. BC Well, I didn't know, I — JC What were you thinking? MC Well mate why would you say you've ever fired a gun if, if you, it's, it's a fuckin', it's a murder mate . (emphasis added) [38] On the Crown case, Ben was the insulation that the accused required from the accusation of murder. If there was no proof against Ben then, because of his alibi and his presence in Richmond (corroborated by mobile phone records), there could be no involvement of the accused. If, on the other hand, there was proof against Ben, then the accused recognised that he may be vulnerable, notwithstanding his alibi. It may be alleged that he and Ben were acting in concert. It is not unreasonable to suppose, in these circumstances, that in his own mind his vulnerability was the greater because of his criminal record and that may explain, in part, his reaction. [39] Assuming that the accused gives evidence (as has been foreshadowed), and the Crown asks the same question concerning his reaction to Ben's account of the interview, the issue is whether, in giving one aspect of the explanation (concerning Robert Attenborough and the Hells' Angels), his explanation is emasculated to the point that there is unfair prejudice? [40] I accept that there is some unfair prejudice to Michael Clark in being obliged to leave out one aspect of his state of mind when called upon to explain that state of mind. However, I also believe that his main preoccupation was with the vulnerability of Ben, such that he was only indirectly preoccupied with himself. Balancing the probative value of this material against the danger of unfair prejudice to the accused, I believe the conversation should be admitted. To my mind, its probative value significantly outweighs the danger of unfair prejudice to Mr Clark. In making that judgment, I am assuming the significant deletions foreshadowed by the Crown (as set out in Ex E on the Voir Dire), where references to Michael Clark's criminal history have been removed. Submissions 46 On appeal, Mr Thangaraj for the appellant made a number of submissions concerning prejudice from the tapes and the transcript generally, in particular that the material on the tapes was difficult to hear and understand, and that the transcripts had been prepared by Detective Sergeant Maree who, the appellant submitted, had given false evidence concerning the circumstances of the arrest and interview of Ben. 47 His main submissions were directed to the material referred to at [21] to [30] of the primary judge's judgment (set out at [45] above). Mr Thangaraj submitted to this Court, as to the primary judge, that the material was of little, if any, probative value, but was highly prejudicial. 48 In relation to probative value, Mr Thangaraj submitted that there was no significant probative value in the matters referred to at [18] of the primary judge's judgment (set out at [45] above). 49 As regards the first and second of those matters, he submitted that the appellant's reactions were not probative of anything, having regard to the appellant's emotional nature and paranoia and to the circumstance that such reaction as there was first came from Jennifer (it never being suggested that she knew anything at this time). On the other hand, the material could give rise to prejudicial speculation concerning the possibility of the appellant's sourcing a gun from South Australia. 50 As regards the third respect, he submitted that there was overwhelming evidence in support of the alternative charge, so any probative value was nugatory. 51 As regards the fourth and fifth respects, he submitted that the material did not support a conclusion that Ben was dominated by his father, or otherwise provide material of probative value. 52 In relation to prejudice, Mr Thangaraj submitted that any association with Hells Angels was prejudicial; that there was danger of the jury speculating that the appellant had sourced a gun from South Australia; and that to fully explain his reaction, the appellant would have to give evidence not only of his association with Hells Angels but also of his past offending. Decision 53 In substance, the appellant submits that the trial Judge erred in refusing to exclude conversations contained in the South Australian tapes under s.135 or s.137 Evidence Act 1995. 54 As the trial Judge observed in R v Clark (No. 1) at [20], the real issue was whether the evidence should be excluded, as a matter of discretion, under s.135(a), or must be excluded under s.137 because its probative value was outweighed by the danger of unfair prejudice to the appellant. The appellant does not submit that his Honour applied an incorrect principle or principles in his determination of this issue. Rather, the challenge on appeal is to the decision made to admit the evidence. 55 In our view, as noted by the primary judge, the part of the tapes challenged should not be considered in isolation, but having regard particularly to what was an issue in the case, namely whether the gun used to kill the deceased was a homemade gun as described by Ben or a commercially manufactured pistol. This was a significant issue in the case, not merely a matter going to credit. 56 For one thing, part of the Crown case was that Ben had gone to the deceased's house with the intention of killing him (resulting from an agreement with the appellant), rather than going there by accident and then being provoked to kill him, as Ben testified. Ben's evidence to the effect that he habitually carried a small homemade device on his key ring could support his account that he did not go to the deceased's house intending to kill him; whereas if the murder weapon was a commercially manufactured pistol, Ben's evidence that he found himself at the deceased's house by accident would be highly implausible unless Ben habitually carried a commercially manufactured pistol with him. 57 The conversation set out at [13] of the primary judge's judgment (which occurred on 13 July 2005, about 30 to 45 minutes after the challenged material) strongly supports an inference that Ben's account of a homemade gun was one agreed between him and the appellant no later than 13 July 2005. If the jury accepted that this account was false, as it was well open to them to do, it was also open to them to conclude that the appellant was implicated in the concoction of a false story about the type of gun used; that is, that the appellant did not want it to be disclosed that a commercially manufactured weapon had been used. 58 In our view, when the challenged tape is considered in the light of these circumstances, it would not be mere speculation to conclude from the challenged tape that the appellant was concerned that disclosure of the events in South Australia relating to the shooting of guns (which could in turn disclose an association with the Hells Angels), and relating to South Australian gun laws, could suggest a link associating him with a commercially manufactured pistol. 59 In our opinion, accepting that this material could not support a positive inference that the appellant had obtained a commercially manufactured pistol from South Australia, the appellant's concern about the possibility of such a link being suggested has probative value. If he was innocent (although knowing at this stage that Ben was guilty), such concern seems highly unlikely. Whether or not it is explained by the appellant's paranoia and emotional nature is in our opinion a jury question. Similarly, the impact on this question of a similar reaction from Jennifer is also a jury question: the Crown did not assert that Jennifer knew the truth at this time, but on the other hand it was not shown she did not, and Jennifer did not give evidence in the case. 60 As regards prejudice, we agree with the primary judge's assessment that there was some prejudice in disclosure of an association with Hells Angels, and in the appellant being unable to fully explain his state of mind without referring to his criminal history; and also that the latter aspect can be categorised as unfair. We also agree with the primary judge's assessment that the probative value of the evidence significantly outweighed the danger of unfair prejudice. 61 The trial Judge evaluated the evidence under challenge in accordance with relevant principles. No error has been demonstrated in his Honour's ruling that the evidence ought not be excluded under s.135 or s.137 Evidence Act 1995. 62 In our opinion, there is no substance in the more general complaints made by the appellant; and accordingly this ground of appeal fails. 63 We note that some of the submissions on appeal appear to have been directed to widening this ground of appeal to extend to alleged unfairness in cross-examination. In our view, there is no substance in that complaint. Further, there were no objections taken to the cross-examination at the time and there were no pertinent directions sought. Ground 2 - His Honour Erred in Failing to Discharge a Juror The Decision of the Trial Judge 64 The primary judge's decision on this matter is at R v Clark (No. 2) [2008] NSWSC 821. The relevant parts are as follows: [6] Yesterday, that is 26 March 2008, I received a memorandum from the Senior Deputy Registrar of the Supreme Court setting out a conversation which she had had the previous Saturday evening with a person who identified himself as a juror in this trial. That memorandum has been marked for identification 16 and is in these terms: Memorandum I refer to the trial that is currently before His Honour Justice Kirby. At a private function on Saturday evening, a person known to me indicated that he is a juror in the above trial. I write to inform you that he disclosed to me that he has been given information that the defendant has been tried on a previous occasion. As best as I recall, a conversation took place with words to the following effect: He said: Where are you working now? I said: I'm working at the Supreme Court. He said: Is that at Darlinghurst? I said: No, it's at Queens Square, near St James. He said: Oh — I'm on the jury in a trial up at Darlinghurst. Before Justice Kirby. I said: So that would be a trial for murder? He said: Yes it's a murder trial. I said: That would be interesting. He said: Yes it is. (Some discussion ensued about him never having been on a jury before, and how long the trial is meant to be going for) He's actually been tried before. I said: What, they told the jury that? He said: No, some people from church accidentally told me. I said: Did you tell anyone that you had found that out? (I meant — had he informed the Court) He said: No. I said: Well don't tell me any more. If you have any questions, please do not hesitate to contact me. Joanne Gray Senior Deputy Registrar. [7] Upon the trial resuming this morning that memorandum was provided to counsel and the opportunity given to obtain instructions. Instructions having been obtained, the juror with whom the Senior Deputy Registrar had the conversation was then called to give evidence. I should add that I spoke briefly with the Senior Deputy Registrar simply to identify the juror so that he could be segregated from the other jurors and, ultimately, examined if that was appropriate. The instruction to segregate that juror was given to the Sheriff's officer and that was done. He was ultimately called to give evidence and that evidence appears at p 468 and 469 of the transcript. [8] Counsel was again given the opportunity of obtaining instructions and then made submissions. [9] It is Mr Thangaraj's application that the jury should be discharged. He says in the alternative that the particular juror should be discharged and further submits that the separate discretion which would then arise, as to whether the trial should proceed, should be exercised by then discharging the reduced panel of only ten jurors. [10] The basis upon which Mr Thangaraj makes his application for the discharge of the panel or, alternatively, the discharge of the juror and the consequential discharge of the panel, is that the juror was not forthcoming when giving evidence. He, therefore, has no confidence that the juror has been frank as to what he knows. He surmises that he may well know prejudicial material which he is not disclosing and nothing by way of further questioning is likely to elicit such material. [11] The Crown says, on the other hand, that there is no basis for discharging the juror. He acknowledges that to some degree, perhaps to a large degree, he was not forthcoming when originally examined, such that specific questions had to be asked of him before the material that appears in the transcript became available. Nonetheless, he points out that the juror had the stress and the embarrassment of having been segregated from his fellow jurors, together with the knowledge that he had, to some degree, departed from the warnings that had been repeatedly given to him and other jurors that they were not to discuss the trial or the evidence. [12] Dealing with these submissions, when I first read the memorandum my concern was the same concern that had led me to discharge the previous jury, namely, the possibility that highly prejudicial material relating to the accused's criminal record may have come to the notice of the juror. However, it is clear that the accused's past was not an aspect of the conversation between the juror and the officer from the Supreme Court. Nonetheless, there was allusion to a further conversation at Church where something had been said. [13] I am quite satisfied, however, that my early misgivings in this respect were unfounded and that the entire conversation related to the history of this trial. [14] Two issues arise: The first is whether the hunch of counsel for the accused that this witness is concealing prejudicial material from the Court is well founded. The second is, I suppose, the alternative possibility whether one can be reasonably confident that, at the end of the day, this juror has disclosed what he knew, that is, that he is not holding something back. [15] Now, it has to be said that the juror was not forthcoming when initially asked about his discussions with others concerning this trial. I accept, however, that he was embarrassed because he plainly had departed from the warnings that he had repeatedly been given. Although it did require direct questioning, I nonetheless believe that ultimately he provided the Court with such knowledge as he had. [16] It is perhaps instructive to ask: What could he possibly have known that he may have withheld? The answer is, of course, pure speculation. It is possible, I suppose, that it came to his notice from these discussions that the previous jury in the trial before Patten AJ was a hung jury. If that were so, then that would be a matter favourable to the accused, which Mr Thangaraj for the accused, acknowledged. [17] One must, indeed, speculate much further before prejudice could arise that the conversation included jury numbers and the possible view of the particular person who was said to have been on the previous jury. [18] A number things will be noticed about the conversation at Church as related by the juror. First, nothing in the conversation with the Supreme Court officer was prejudicial to the accused. There was a reference to the fact that he knew that there had been a previous trial but that was a matter disclosed to this jury at the very outset of the trial. The only source of possible prejudice must concern the conversation at Church. It appears that one of the Church members was a previous jury member. However, the conversation as related by the witness was a conversation not with that person but his wife, and the juror's wife. I accept the juror's account as ultimately given that when he recognised, having come to the conversation late, that it concerned the same trial, he put an end to the conversation. [19] The juror was asked whether he had spoken to other jury members about his Church conversation. His answer was in these terms: No, nobody knows about that, no. Hang on; hang on. I'm sorry, I can't remember that. I don't think so but I could have said something; just that I was, that I stopped. [20] The impression I got from that evidence was that he may well have mentioned the coincidence, which is remarkable, that someone from his Church group had been on a previous jury, and that he had put an end to the conversation once that came to his notice. [21] It seems to me, taking all these matters into account, that there is no basis upon which the jury should be discharged; that I should decline to discharge the particular juror and that the third question (as to the discharge of the reduced panel), therefore, does not arise. 65 The following evidence was given by the juror: Q. I think, for the record, I have ascertained from the Sheriff's office that your number is 7622035? A. Yes, sir. Q. First of all, I simply would like to reassure you that in questioning you I am in no way suggesting that you're in some sort of jeopardy or anything. There is a matter that has come to my notice that I need to inquire into; do you understand? A. Okay. Q. I received information from an officer of the Supreme Court that she had had a conversation with you on Saturday night, at a function? A. Yeah. I know who you're talking about, sir. Q. I just ask you, if you would, as best you recollect, I know it is hard; just tell us what was said in that conversation? A. Oh, I can't recall exactly. I had mentioned I was up here; that it was a murder trial and that you were the Judge. I can't recall anything else that I said, but. Q. It was a coincidence that you should happen to be in a Supreme Court trial and there should be a person from the Supreme Court at this function, but I can imagine that that immediately sparks some conversation. Was anything said about the trial itself? A. As far as I am aware, no sir. I haven't said anything about the trial. Q. In the account which I have been given in respect of the conversation there was a reference to the fact that there had been a previous trial; he had been tried before or something of that sort. Do you remember saying that? A. That was only from what has been, I haven't, I'm not sure. I may have said something about a previous trial, but it was not that, I haven't done any research on any previous trials or anything. I have stayed away from that. But reference has been made here in the Court. Q. Certainly to previous trials. A. To previous trials and that is as far as it's gone. Q. Was there any reference to a conversation, a previous conversation, that is before this evening, by you with the Church group? A. With the church group? Q. Yes; or at Church? A. Not that I am, I have mentioned that I've had, with a previous church group? Q. At a Church group which you apparently attend or a Church? A. There is only one reference. I was at Church and a lady was talking to my wife and my wife mentioned to her that I was on a trial and the lady was talking about her husband and I arrived at the time. She mentioned a trial. She said, I told her to stop; that I don't want to know anymore about it. So that is as far as that went. Q. Was there anything said along the lines of you had been accidentally told that there had been a previous trial at a Church group? A. Sorry, say that again, sir? Q. Did you say to the Supreme Court officer on the Saturday night that you had been told, accidentally told at a Church group that there had been a previous trial? A. Not at a Church group. A lady that my wife talked to mentioned that there was, her husband was selected for a previous trial last year and she started -- Q. On this matter? A. On this matter. And she started talking and I told her to stop; l didn't want to know anymore. That is as far as it's gone. Q. In that conversation, what if anything, were you told or did you hear? A. Oh, what did she say? Oh, I think she talked about the son murdering the grandfather and I said, "don't talk anymore." That's it. Something like that; along those lines. HIS HONOUR: Thank you. Mr Crown? CROWN PROSECUTOR: If the juror has spoken to other members of the jury about it, I take it he has not? HIS HONOUR Q. When did the conversation at the Church group take place? A. It must have been a couple of weeks ago. Q. Have you spoken to any other members of the jury about that? A. No, nobody knows about that, no. Hang on; hang on. I'm sorry, I can't remember that. I don't think so but I could have said something; just that I was, that I stopped. Submissions 66 Mr Thangaraj submitted that in this evidence the juror was evasive and did not give frank or accurate evidence. It was no excuse that he was concerned about his failure to comply with the primary judge's repeated directions. He submitted that the appellant was entitled not to have confidence that the juror was honest, or that he had not learnt anything from his church group or others. Decision 67 This ground of appeal challenges the trial Judge's discretionary refusal to discharge a juror. The appellant did not submit that his Honour had erred in principle in this ruling. Rather, challenge is made to his Honour's findings of fact with respect to the juror and his ultimate view that the juror ought not be discharged. 68 The failure to discharge a jury or a juror is not a ground of appeal in itself. The appeal is against conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question on appeal is whether there was such a high degree of necessity for the discharge of the juror that the failure to order such a discharge has resulted in a mistrial. Much leeway must be allowed for the trial Judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the Judge will usually have a better appreciation of the significance of the events complained of, seen in context, that can be discerned from reading a transcript: Crofts v R [1996] HCA 22; (1996) 186 CLR 427 at 440-441. Nevertheless, the duty of the Court of Criminal Appeal, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. This Court must decide for itself whether in the circumstances, the result of the refusal to discharge the juror occasioned the risk of a substantial miscarriage of justice: Crofts v R at 441; Qoro v R [2008] NSWCCA 220 at [29]. 69 In this case, the trial Judge saw and heard evidence from the juror which his Honour assessed carefully in reaching the conclusion that the juror ought not be discharged: R v Clark (No. 2) at [12]-[21]. 70 In our view, it was well open to the primary judge to conclude that, despite some initial evasiveness, the juror was honest and that the account ultimately given by him was correct. In those circumstances, in our view, the decision not to discharge the juror was the correct one. It follows that the refusal to discharge the juror has not occasioned the risk of a substantial miscarriage of justice. Ground 3 - His Honour Erred in Failing to Discharge the Jury as a Result of his Honour's Summing up Ground 4 - His Honour Erred in Failing to Redirect the Jury after the Application to Discharge 71 On 30 April 2008, after the primary judge had given the bulk of his summing up, Mr Thangaraj applied for discharge of the jury. The transcript records the following submissions: THANGARAJ: I am concerned what happened yesterday was partly analysis of the evidence rather than a summary. Some of the specific concerns I have, I take your Honour to when your Honour took the jury to a piece of evidence somewhere in the listening device transcript or his statement to police or record of interview then took them to another part of the evidence and on each occasion your Honour did that it demonstrated what would appear on the face of it to be an inconsistency. For example, his evidence was he had no problem with Dick and Jessica moving in together. Your Honour took them to a bit of evidence about that and you also took them to evidence in his statement to police on 18 May, a particular paragraph which has a couple of prejudicial problems, with respect. First that statement or that topic, that statement, or that paragraph I should say, was not put to Mr Clark so he has never had the opportunity or the reason to address it. HIS HONOUR: But it is in the evidence. THANGARAJ: It is in the evidence but it is not my responsibility to take him through every possible piece of adverse evidence in his statement, record of interview, evidence from 2007. It is my job to listen to the cross-examination and to address an issue if I have to address it, to address it in re-examination. HIS HONOUR: It is the Crown's job, if it is the course he chooses to make, to challenge the veracity of a witness and you do not have to, I said this yesterday, put line by line every single matter that can be put in relation to every topic. Now I think it is very plain that the Crown challenged the veracity of Michael Clark, obviously, and there is a deal of evidence about that. All I am doing, I hope helpfully for the jury, is draw attention to various aspects of the evidence, which included in the case of the matter which you identified, the commentary which is to the same effect by Jennifer in her interview of the 19 July. Now I see that as my function, I am afraid. THANGARAJ: But, your Honour, the problem with it is this, is not a Browne and Dunn criticism, I am not suggesting the Crown should have taken him to this part of the statement, because the Crown did not address on that part of the statement, but your Honour is highlighting or interpreting what could be an inconsistency and when your Honour takes the jury to one piece of evidence and to an inconsistency in the evidence the unfair part is Michael Clark was never asked by anyone why did you say this to the police, what did you mean by this, what is the context of this. I therefore had no reason to address on it. It is now too late. Your Honour can read out my address later today in full but there is no answer to that problem. There was never any issue made to be addressed. HIS HONOUR: None of these points were raised by you at the end of yesterday. Had there been a problem I would have expected it to be raised. THANGARAJ: Your Honour asked me to be patient and wait but on reflection there were important things I needed to say this morning. Your Honour told me to wait. HIS HONOUR: I didn't tell you to wait, I told you to wait until I had given the summing-up in respect to an issue you seemed apprehensive about. However, the matter you now identify as a matter of concern, that is quite different. THANGARAJ: Your Honour repeatedly took the jury to various parts of the listening device material or Jennifer Clark's record of interview. Again these are pieces of evidence Mr Clark was not asked about so he is not able to say what the context of that was in his evidence because it has not been addressed by the Crown. I have not said yes, there is this part of the evidence in the transcript, but look at this in relation to the same topic, that is the context to explain it. He is now left in a position where he cannot give evidence about it. I have not addressed on it. HIS HONOUR: Mr Thangaraj, your task and function is to address on the evidence. The Crown makes arguments and does things, no doubt you address those, but ultimately your responsibility is to assist the jury in respect of the evidence which they have in front of them. They have all the listening devices in front of them. They have from time to time been the subject of evidence. They have been played to them. They will be played again no doubt in the jury room and insofar as there is an issue then you should seek to deal with it if it is a problem. THANGARAJ: There are two things to say about that; if I take the jury myself through all that material first I would have to address for a week. Secondly, I would be highlighting issues they may resolve against me even though the Crown has not addressed on it. HIS HONOUR: The Crown did not address, for instance, upon "I had a dream". No mention of that. You chose to deal with that and to raise a particular argument in respect of it. That is your right. Indeed that is your function. THANGARAJ: The Crown cross-examined him on it and challenged him. HIS HONOUR: He didn't challenge him on "I had a dream". He challenged him on "the almighty act". That was but one line. I do not remember a particular question. THANGARAJ: With respect, your Honour, my friend said "You say you had a dream?" Mr Clark said, "Yes". He said, "You expect us to believe that do you?". HIS HONOUR: I think you are right. I remember that. THANGARAJ: So I addressed on that. The third problem, your Honour did not sit in the 2007 trial. Your Honour has not, with respect, read the evidence from the 2007 trial so there are good reasons why the Crown may not ask particular questions that on the face of it seem attractive. The fact the Crown does not ask it, I am certainly not going to raise it. That means now your Honour is raising it for the first time Mr Clark has not had an opportunity to give what may be a perfectly logical explanation for it. I had no need to address it. Now the jury has been given an apparent inconsistency in evidence coming from the Bench which is highly problematical for my client because they are going to wonder, well, we have not thought about that. The Judge is raising this. Maybe the Judge thinks that is an important issue. They obviously would think that. Your Honour has not taken them to all the evidence of course. HIS HONOUR: So you have raised paragraph 16 of the statement. What else? THANGARAJ: The number of times your Honour took them to pieces of evidence in the listening devices and Jennifer Clark's record of interview either in isolation or in comparison to another piece of evidence, none of which he has had an opportunity to address, therefore neither have I taken that opportunity. The problem now is my client is concerned about the way the jury is reacting to some of this material, some of the points your Honour is making, but every single piece of evidence your Honour has taken the jury to, with respect, that has not been part of the addresses by my friend or myself, every single one has been a matter that has assisted the Crown case. Your Honour has not taken them to one bit of evidence to support what I say unless it is repeating what I said. That is a further part of the problem. HIS HONOUR: I frankly do not recollect exactly what matters I have taken them to that you say were not a feature of the Crown address. The Crown chose to address in this matter in what might be described as the old fashioned way of summing-up, that is to deal with each witness in order and simply to summarise their evidence. Occasionally interpolating arguments in respect of various matters. The Crown did not deal with absolutely every aspect but he did commend to the jury that they should listen to and look at the listening device tapes and, of course, that is material before them and one can expect they would, indeed one can expect they already have. What is your next point? THANGARAJ: I have got no problem with the jury doing that but when Mr Clark has not been given an opportunity to explain what seems to be inconsistency and my friend has not addressed on it, he does not have to. There are significant parts of the listening device he had addressed on. He is entitled to and there may be good reason why some questions were not put to someone because of what was said in the previous trial and you know the answer will not assist you. But the way your Honour put to the jury- HIS HONOUR: I am simply, in voluminous material, reminding them and, I hope, helpfully, of some material which may bear upon the issue and I see that as my function, I am afraid. THANGARAJ: But your Honour has taken them to bits of evidence no one, we have not had the opportunity to give the jury any information about or address on, some isolated bits your Honour has taken them to comparing them to other parts. I have had no opportunity to address on that and Mr Clark was not asked so he could explain it. HIS HONOUR: Jennifer Clark, for instance, gave her records of interview and Michael Clark was not present so what evidence can he give in respect of that? He can deal with the issues if he chooses perhaps, but that is a matter for you if you choose. It seems to me in the context of describing, for instance, as I did, the relationship between Michael Clark and Jessica, that and the moving in to Bexley, that I should draw the jury's attention to the comments by Jennifer Clark which were apposite or relevant to that issue. That is just part of my function. THANGARAJ: But the Crown has cross-examined Mr Clark by saying well Jennifer said this, she had this interview about some things such as being in financial distress in July or having a problem with Jessica, not helping the move. Your Honour took them to that evidence. My friend has cross-examined Mr Clark about aspects of Jennifer Clark's evidence. HIS HONOUR: Anyway I am anxious about this jury. Give me your next point. THANGARAJ: That summarises it your Honour. HIS HONOUR: All right I will hear from the Crown. CROWN PROSECUTOR: Your Honour, my view is I thought your summing-up was fair and balanced. I would have indicated if it was not. The opportunity was yesterday to make any complaint. It was not made. In relation to those matters raised by my friend your Honour is entitled to put those matters to the jury. They are all part of the evidence. It seems obviously these complaints are client driven over night and, with respect, they are without foundation. THANGARAJ: I don't mind my friend rejecting my submissions but to say they are client driven, these are concerns I discussed with my solicitors yesterday. It doesn't make any difference where they come from. HIS HONOUR: It doesn't matter. I assume your client has had some input. That is appropriate. Anyway anything you want to say in reply? THANGARAJ: No your Honour. HIS HONOUR: I refuse the application. I do not believe that anything that I have said is or was inappropriate and that the summing-up simply is designed to draw together material which I believe may be relevant to the jury's consideration of the issues which the parties have raised. THANGARAJ: Can I just ask your Honour to say one thing to the jury at some point then? HIS HONOUR: Yes? THANGARAJ: I ask your Honour to say to the jury that your Honour has taken them to parts of the evidence that he has not had an opportunity to answer in evidence and therefore his counsel has not had an opportunity to address them on and there may be reasons why certain questions were not asked that may have been asked in a previous trial and they need to bear those things in mind. HIS HONOUR: Mr Crown what do you say? CROWN PROSECUTOR: I think that is totally unnecessary. There is no basis, with respect, for your Honour to do that. It creates an impression your Honour has perhaps not been fair to the accused. I think that is incorrect. Your Honour has. HIS HONOUR: I will think about that. The jury thankyou. 72 In response, the primary judge said this to the jury in his further summing up: Let me then come to the final factual issue which I intend to deal with. Perhaps I should say this by way of introduction. Ultimately I am simply giving you a summary, a potted summary, if you like, of the evidence and of parts of the evidence. Simply because I may select something as worthy to include in my summing-up does not mean you should regard it as important. You have your own view. I am simply endeavouring to assist, as I would see it, your ultimate function. The impression that you may have had of the witnesses and the evidence and issues and the importance which you think should be attributed to those matters is something you should not discard simply because of my particular summary. In the nature of things I can not and do to the repeat all of the evidence. Indeed, it should be recognised that in the nature of things in a trial such as this counsel do not address every issue that comes up and chase every rabbit down its burrow. Inevitably there were many issues that to some extent were left floating, otherwise we would be here forever. So counsel is selecting issues and dealing with issues. But ultimately you have in front of you the evidence, and ultimately your decision must be based upon the evidence. You would understand that in the nature of counsels' function there may be good reason why they do not ask questions, or do not pursue particular matters or for reasons of economy of time they select certain issues as more important than other issues and so on. So in some respects you would appreciate this inevitably means that the witnesses who are called, and ultimately Mr Clark himself as the accused does not address every issue that may arise on the evidence. You should draw no adverse inference arising from that. Ultimately you must deal with what you have in front of you. That is, his version, his sworn evidence, whatever it is you are dealing with, and indeed the same with other witnesses as well. Submissions 73 In this Court, Mr Thangaraj referred to R v Meher [2004] NSWCCA 355, in support of the proposition that a judge should not in summing up advance an argument on behalf of the Crown in support of the prosecution case which the judge considers to be available, but which was either overlooked or not used by the prosecution. Mr Thangaraj quoted paragraph [88] of that decision, which is as follows: [88] There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Prosecution case. First it is inconsistent with judicial impartiality. Secondly, to do so denies the Prosecution and the defence the opportunity either to disavow, or to meet the argument. 74 In written submissions, Mr Thangaraj identified the following matters which he contended amounted to arguments on behalf of the Crown not put by the prosecution: 71. To this end, his Honour recounted (SU 120) two payments to Jessica of $10,000 each, as well as a third cheque for $10,000. His Honour stated that the appellant might have said that these loans came to his notice but only after the deceased's death. His Honour then referred to a discussion involving the appellant recorded on one of the listening device tapes. The appellant said on the tape, seemingly sarcastically, that perhaps he should have asserted that the deceased gave some reason for wanting to lend him money. His Honour suggested to the jury that this might be a reference to the loan of $18,500 from the deceased to the appellant but that it was for the jury to work out. This was not a proposition put forward by the Crown at any time. 72. At SU 121 his Honour, in dealing with the assertion that the appellant was concerned about the deceased moving in with Jessica, referred to a statement made by the appellant to the police on 1 May 2005 in which he said " [n]o one wanted dad to move in there ". This evidence was never directly put to the appellant and/or relied upon by the Crown. This is because it was clear that the appellant wanted his father to be near the water for fishing, as he had always planned. 73. In the next paragraph of the Summing up, the judge took the jury to the interview of Jennifer Clark where she said that she and the accused were concerned about the deceased spending money on Jessica. 74. His Honour went on to state (SU 122) that the appellant had said in a later interview to the police on 19 July 2005 that he in fact " was not concerned " about the money being spent on Jessica and the house. This suggested an inconsistency with the statement made by the appellant in his police statement. 75. Again, this suggested inconsistent evidence was never put to the appellant by the Crown. The appellant was therefore denied the opportunity to explain any prima facie inconsistency between those statements. Presumably the appellant would have explained why he did not want his father moving in there. There was no concern on the part of the appellant about his father moving in with Jessica. The extract was being read to support the Crown suggestion that there was 'concern on the part of Michael Clark and Jennifer Clark as to moving in with Jessica into Bexley' (SU 121.3). 76. On the following page, his Honour referred to the interview between the police and the appellant. In it, the appellant told the police that he had no problem with the money being spent on the house. This argument had been made on his behalf in the closing address. However the Summing up meant that it was placed in the context of the statement which prima facie suggested an inconsistency, that is, that the appellant did not in fact want his father to move in with Jessica. 77. Further, the explanation proffered by the appellant was incorporated into the Summing up directly after a passage was extracted from the interview of Jennifer Clark (SU 121). In this passage, Jennifer Clark said that both she and the appellant were concerned about the deceased spending money on Jessica. 78. The Summing up on this aspect of the motivation took the jury to evidence that was not relied upon in this way by the Crown in cross-examination of the accused or in its address. To then insert the part of the evidence relied upon by the appellant minimised the value of his exculpatory evidence. Further, it positively gave the impression that it was inconsistent with the earlier statement the jury was taken to. It was a position that the Crown adopted more generally to support its case. 79. Another example occurred (SU 124-127) where his Honour took the jury to evidence from Mr George Hooper. Mr Hooper claimed that the appellant had sought to borrow $20,000 from the deceased. In cross examination, Mr Hooper acknowledged that he had not said this in his first statement to the police. His Honour recounted (SU 126-127) a passage from the listening device recordings which recorded a conversation involving the appellant regarding him seeking a loan from the deceased for $20,000 for machinery. Critically, this passage was never put to the appellant. It was then pointed out that the appellant had given evidence saying that there had never been a discussion for a loan of $20,000. Again, certain evidence was not put to the appellant by the Crown and he was clearly denied the opportunity to explain any seeming inconsistency between those statements. Not only did it support the Crown case, it necessarily weakened a more general submission that had been made on his behalf. 80. The difficulty with an analysis using different pieces of evidence from the appellant was that it ignored the state of mind he had at the relevant times. At first he did not know that Ben Clark had committed the murder. Then when he did find out, he deliberately sought to assist his son avoid being charged. He was therefore not being frank with police as to what he knew. It was only when he gave evidence that he was no longer seeking to protect Ben Clark. It was therefore misleading and unfair to take the jury to snippets of evidence from different statements made by the appellant which sitting together, and out of context, were inconsistent. The unfairness was exacerbated by the fact that the appellant had not been asked about this in cross-examination, or the Crown not addressing upon it. The submission would have been made to the jury if relied upon by the Crown. Decision 75 In substance, the appellant argues that a miscarriage of justice has occurred arising from the trial Judge leaving to the jury a possible basis for conviction which had not been relied upon by the Crown: Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at 127-129 [137]-[149]; Smale v R [2007] NSWCCA 328 at [79]ff; Sieders v R [2008] NSWCCA 187; (2008) 72 NSWLR 417 at 450-454 [197]-[212]. The question to be considered by the Court of Criminal Appeal is whether there has been unfairness to the appellant which gives rise to a miscarriage of justice by reason of the conduct of the trial, and which requires the Court's intervention: Robinson v R at 129 [149]. In assessing such a ground, it is appropriate to consider whether there has been any procedural or substantive unfairness to the appellant: Qoro v R at [47] 76 In our opinion, subject to questions of judicial impartiality, the basic principle is that an accused must be given a fair opportunity to meet any evidence and any contention that is put against him or her. The question is not whether some matters put in the summing up were not matters relied on in the Crown address or the subject of cross-examination although these may be important factors relevant to the question of fairness. Rather, the question is whether the inclusion of matter in the summing up does in substance amount to the advancing of a contention adverse to the accused which the accused has not had a fair opportunity of meeting. 77 In our view, none of the matters referred to by Mr Thangaraj have that character; and, in addition, there is no basis for any suggestion of lack of judicial impartiality. 78 As shown by the appellant's own summary of the rival contentions, it was an important part of the Crown case that the appellant was in financial difficulties, was concerned about recent changes in the deceased's relationship with Jessica, was concerned about the money the deceased was spending on Jessica, and resented the deceased for the generous way he treated Jessica. These contentions were denied by the appellant. The references complained about were, in our view, no more than references to evidence going to these issues in ways that must have been apparent to the appellant and his counsel during the conduct of the case. 79 Dealing with some particular complaints, in our opinion references to evidence concerning discussions about a possible loan of $20,000 and the actual loan of $18,500 were not adverse to the appellant, but gave the jury some assistance in dealing with quite confused aspects of the evidence. 80 As regards the complaint concerning the statement by the appellant to the police that "no one wanted dad to move in there", the reason associated with wanting the deceased to be near the water for fishing was included in the same statement, which was quoted in the summing up. 81 As regards Jennifer's statement in her interview that she and the appellant were concerned about the deceased spending money on Jessica, that was a piece of evidence which on its face lent some support to the Crown's contentions. In our opinion, the absence of cross-examination on that specific piece of evidence and the absence of reliance on it by the Crown in its closing submissions did not make reference to it in the summing up unfair. There are of course limitations on what can properly be done in cross-examining one person on a statement made by another. We note however that the appellant was cross-examined on Jennifer's statement to the effect that the appellant had said to Mr Seckold that he'd love to kill his father, to which the appellant offered no explanation but merely denied that he had said such a thing. 82 None of the matters relied upon by the appellant under these grounds demonstrates any procedural or substantive unfairness to the appellant in the conduct of the trial. To the extent that ground 4 complains of the failure to discharge the jury, we refer to the principles set out at [68] above and express our conclusion that the refusal to discharge the jury has not occasioned the risk of a substantial miscarriage of justice. In our view, the appellant falls far short of demonstrating that a miscarriage of justice has occurred in this case by reason of the conduct of the trial. 83 In our opinion, these grounds of appeal are not made out. Ground 5 - The Combination of the Matters Complained of in Grounds 1 to 4 Resulted in a Miscarriage of Justice 84 The appellant has not made good any of the particular complaints contained in grounds 1 to 4. In our view, the cumulative effect of the matters complained of in those four grounds do not establish that a miscarriage of justice has occurred in this case. Conclusion and Proposed Orders 85 The appellant has not made good any of the grounds of appeal. It has not been demonstrated that a miscarriage of justice has occurred in this case. 86 Although we would grant leave to appeal, the appeal against conviction should be dismissed. ********** 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.