Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CHAND v R [2011] NSWCCA 53 Hearing dates: 14 March 2011 Decision date: 01 April 2011 Before: McClellan CJ at CL at 1 Blanch J at 2 Hoeben J at 3 Decision: Appeal dismissed Catchwords: APPEAL - appeal against conviction - conviction on count of reckless wounding - allegation that motor vehicle intentionally driven at victim - whether Judge put defence case adequately to jury - whether admission of "complaint" evidence caused miscarriage of justice - whether adding of alternative statutory count in course of trial gave rise to a miscarriage of justice - admission of unfairly prejudicial evidence contrary to section 135 and 137 Evidence Act 1995 - application of s6(1) Criminal Appeal Act 1912 (ie the proviso). Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: AS v Regina [2010] NSWCCA 218 CC v Regina [2010] NSWCCA 337 Coumbe v The Queen (1990) 101 FLR 466 De Gruchy v The Queen (2002) 211 CLR 85 Healy v Regina [2006] NSWCCA 235 R v Chai [2002] NSWCCA 512 R v Davis [1999] NSWCCA 15 R v King [2004] NSWCCA 20, (2004) 59 NSWLR at [110] R v Lykouras [2005] NSWCCA 8 R v Meher [2004] NSWCCA 335 Weiss v The Queen [2005] HCA 81, (2005) 224 CLR 300 at [35] Category: Principal judgment Parties: Hem Chand - Appellant Regina - Respondent Representation: Counsel: Mr P Lowe - Appellant Mr J Pickering - Crown Solicitors: S Singh - Appellant S Kavanagh, Solicitor for Public Prosecutions - Crown File Number(s): 2008/9327 Decision under appeal Date of Decision: 2009-09-25 00:00:00 Before: Neilson DCJ File Number(s): 2008/9327 Judgment 1McCLELLAN CJ at CL: I agree with Hoeben J. 2BLANCH J: I agree 3HOEBEN J: Nature of appeal The appellant faced a trial at the Campbelltown District Court commencing 25 May 2009 before Neilson DCJ and a jury of twelve on an indictment containing two counts as follows: Count 1: On 5 December 2007 at Miller in the State of New South Wales did maliciously wound Hasan Abouschmiess with intent to do grievous bodily harm contrary to s33 Crimes Act 1900. Count 2: On 5 December 2007 at Miller in the State of New South Wales, did use an offensive weapon with intent to commit an indictable offence of assault occasioning actual bodily harm contrary to s33B(1)(a) Crimes Act 1900. 4These counts on the indictment were put forward in the alternative. At the beginning of the third day of the trial (27 May 2009), the Crown advised that it would also be relying upon the statutory alternative to the s33 count, i.e. a count of reckless wounding contrary to s35(4) of the Crimes Act 1900. That count was only to be considered if the jury found the appellant "not guilty" on the first two counts. 5After a 5 day trial the jury delivered its verdict on the afternoon of 29 May 2009. The jury acquitted the appellant of the first and second counts on the indictment, but returned a verdict of guilty in relation to the statutory alternative count of recklessly wounding contrary to s35(4) of the Crimes Act. 6His Honour passed sentence on 25 September 2009. He sentenced the appellant to imprisonment for a period of 18 months, commencing 2 October 2009 and expiring 1 April 2011 with a non-parole period of 12 months expiring 1 October 2010, such sentence to be served by way of periodic detention. The appellant was also disqualified from driving until 4 December 2010. When the appeal was heard, the appellant had completed the periodic detention part of his sentence and was at liberty on parole. 7The appellant appeals against his conviction on the following grounds: Ground 1: The learned Judge erred in relation to his directions to the jury in that he: (a)Failed to adequately put the defence case to the jury. (b)Gave a direction regarding the "effective cause of the collision". (c)Failed to direct the jury at all regarding motive; and (d)Failed to direct the jury at all about the COPS material. Ground 2: A miscarriage of justice was occasioned in that the trial of the appellant was rendered unfair by: (i) The admission into evidence in the Crown case of the COPS material; (ii) By the trial judge failing to exclude evidence led by the Crown in proof of motive. (iii) By the trial judge failing to exclude evidence of the notebook conversation between Constable Girdham and Mr Abouschmiess. (iv) By the alternative statutory count of reckless wounding being left to the jury. Crown case 8The victim, Hasan Abouschmiess, gave evidence that he had lived in Southdown Street with his wife and three children for 8 years before the accident. He had met the appellant about 7 years before when he spoke to him following an incident where the appellant had sworn at his daughters. The victim had knocked on the appellant's door and told him to leave his daughters alone. Other than at that time, the victim had not spoken to the appellant. 9The victim said that at about 9.30am on 5 December 2007 he had taken a motorbike for a brief test drive outside his home. As he was driving the bike back towards his home, he observed a red Corolla reversing out of the appellant's driveway. He said that the engine was revving as the car reversed onto its incorrect side of the road and drove straight in his direction. He said "it did not veer in any way, just came straight at me". The victim said he was stopped at the kerb when he saw the red vehicle coming towards him. The victim said that everything happened suddenly and he thought the driver would veer away, but he did not. The victim said that the car came straight towards him and hit him on his right side, injuring his right leg. His wife and neighbours then came to his assistance. 10It should be noted that in the trial there was no dispute that the appellant was the driver of the red Corolla in Southdown Street after he reversed out of his house. There was no dispute that a traffic accident occurred in that street, between his car and the motorbike being ridden by the victim. It was the circumstances under which the collision took place which was at issue. There was no dispute that the victim received injuries to his right leg as a result of the collision which constituted a wounding or actual bodily harm in terms of the indictment. 11The victim was cross-examined to the effect that the accident occurred with the Corolla on its correct side of the road and that he had driven his motorbike into the Corolla. 12The victim's wife gave evidence. She did not see the accident but heard it. When she came out of the house, she saw the victim in a prone position half on the road and half in the gutter. She said that she saw the appellant's car stationary next to the victim. 13A neighbour, Mr Howman, gave evidence. He did not see the accident but heard it. When he left his house he observed the victim lying on the footpath near the edge of the gutter. 14Another neighbour, Ms Warburton, gave evidence. She did not see the accident but she heard it. She saw the victim go into the air and land "half on the road and half on the footpath". She thought the Corolla was on the wrong side of the road at the time. She called triple O to report the accident and during that call was heard to say, "He was hit on purpose, head on by one of the neighbours". 15Another neighbour, Ms Kelly, gave evidence. She was outside her house at the time of the accident. Her view of the accident was obscured by a tree but she heard it. She said that the Corolla was on the wrong side of the road and that the motorbike rider was actually on the road at the time of impact. Following the accident, the Corolla waited a few seconds and then drove back to the appellant's house. She took over the triple O call from Ms Warburton, who was extremely upset. 16Ms Crotty, a neighbour, gave evidence. She said that she saw the appellant reverse out of his driveway and drive onto the wrong side of the road. She heard a loud bang and turned around to see that the appellant's car had stopped and was not on its correct side of the road. She saw the appellant's car turn into her driveway, reverse out and return home. When she offered help to the victim, he said "He come straight for me". Ms Crotty did not see the accident. 17Constable Vucetic gave evidence. He was a crime scene investigator but not a traffic crash investigator. He did, however, attend the scene, take measurements and make observations. He provided the only scientific evidence at trial. He was unable to provide an exact point of impact, but estimated that the motorbike was 2 metres from the southern kerb in the middle of the lane at the point of impact. There were gouge marks indicating that the motorcycle slid over the road surface. He was not able to determine whether the motorcycle was stationary or moving at the time of impact. He concluded that the appellant's car was "wholly on the wrong carriageway at the time of impact". 18A statement from Mr Halim, a motor vehicle examiner, was in evidence. That statement was to the effect that an examination of the appellant's car following the accident indicated that there were no mechanical defects or failures which might have contributed to the accident. His report described damage to the front offside and front grille of the car. 19Constable Girdham gave evidence. She spoke to the victim at the accident scene and later at the hospital. She gave evidence as to her observations of the victim and about what he had told her concerning the accident which she had recorded in her notebook. 20Detective Sergeant Flood gave evidence. He was in charge of the investigation. His evidence covered the ERISP made by the appellant. He said that the appellant made a triple O call following the accident. The motorbike driven by the victim was neither registered nor insured. He also gave evidence concerning 20 COPS entries involving the appellant. The effect of this evidence was: "First COPS report 25 March 2003 - complaint by appellant and daughter regarding racial harassment while living at Parramatta. Second COPS report 2 June 2003 - complaint by appellant that an unknown person had broken into his premises and defaced some Hindu religious items. Third COPS report 26 June 2003 - complaint by the appellant about being followed by unknown persons and telephone being bugged. Further complaint that his neighbour had been spying on him. Fourth COPS report 25 August 2003 - complaint by the appellant that a person had been gaining access to his home and tampering with his property. Fifth COPS report 9 November 2003 - complaint by the appellant about ongoing problems with the CIA. Sixth COPS report 6 January 2004 - complaint by the appellant that he was being stalked and followed by his unidentified next door neighbour's car and another unknown car. Seventh COPS report 12 October 2005 - complaint by the appellant about being threatened by Ms Warburton's son which he videotaped. Eighth COPS report 23 November 2005 - complaint by the appellant to police regarding unknown persons spying on him and his family. Complaint that persons fly overhead in aeroplanes and helicopters while he and family members are using the bathroom. Ninth COPS report 18 January 2006 - complaint by wife of the appellant to police regarding empty Coke bottle found near mailbox smelling of petrol and patch of burnt grass to front lawn. The appellant told police he believed damage was caused by a neighbour he had been having problems with. Tenth COPS report 3 April 2007 - complaint by the daughter of the appellant to police about two bricks thrown through the lounge-room window. Eleventh COPS report 11 November 2007 - complaint by the appellant regarding damage sustained to his car. Twelfth COPS report 24 November 2005 - complaint by the appellant that planes were still flying over premises. Thirteenth COPS report 5 December 2005 - complaint by appellant regarding two of his neighbours concerning intimidation, harassment and threat to his family. Fourteenth COPS report 19 December 2005 - complaint by appellant regarding planes flying over his house and spying on him and his family while they were in bathroom. Fifteenth COPS report 22 December 2005 - complaint by appellant regarding planes flying over his house whilst wife was in shower. Sixteenth COPS report 27 December 2005 - complaint by appellant regarding planes flying over his house and spying on him. Seventeenth COPS report 7 January 2006 - complaint by appellant about a car driving past his house dropping two people. Eighteenth COPS report 25 January 2006 - complaint by appellant regarding planes flying low over his house. Nineteenth COPS report 13 November 2007 - complaint by appellant regarding next door neighbour attempting to goad him to fight. Twentieth COPS report 13 November 2007 - complaint by appellant by phone claiming persons unknown were entering his house to watch him sleep." The actual COPS reports did not go into evidence but were marked for identification. The defence case 21The only evidence called in the defence case was that of the appellant. At the time of the accident he was aged 49. He was working as a trainer and teacher of taxi drivers and also drove taxis for a living. He said that at all times he was driving on the correct side of the road. He said that after he had reversed from his driveway, the motorcycle drove onto its incorrect side of the road and struck his car on the right side. He said that after the collision he drove down Southdown Street into a driveway, reversed and went back to his house. He then called the police and the ambulance. He denied that he had ever driven on the wrong side of the road and that he had driven into the motorcycle whilst it was stationary in the gutter. He denied driving in a manner whereby he deliberately hit the motorcycle. He said that he did not stop following the accident because he was scared. He said that he thought the victim may have been a "bikie". 22He was cross-examined about the COPS entries and was asked whether he thought the victim had something to do with aeroplanes flying over his home and spying on him and his family. He said that he did not think the victim had anything to do with that. It was suggested that he did not get on well with his neighbours. He replied that he did not get on well with some of them. Appeal Ground 1(a) - The learned judge failed to adequately put the defence case to the jury 23The appellant submits that his Honour did not sum up on any of the facts before the jury was sent out to deliberate. He submits that the only time that his Honour referred to the facts was incidentally when explaining issues of law which arose. He submits that at no time did his Honour set out in clear terms the defence case which was being put. 24The appellant submits that even if a summary of the facts in the case was not necessary, considerations of fairness required that the respective cases for the prosecution and for the defence should be accurately and fairly put to the jury (AS v Regina [2010] NSWCCA 218 at [21]). 25The appellant relies upon the following statement of principle: R v Meher [2004] NSWCCA 355 at [76] where Wood CJ at CL said in relation to the task of a trial judge: "76 ... requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt.... So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v The Queen (1971) 124 CLR 107. 26There is no issue that his Honour did not summarise the evidence given in the trial. There is no issue that his Honour did not summarise in terms the arguments of counsel for either the Crown or the appellant. 27His Honour foreshadowed this on 28 May 2009 (T.292.1) when he said: "Ladies and gentlemen, that completes the evidence in this case. You will not hear an address from Mr Crown followed by an address from Mr Singh. Can I ask you to listen very carefully and closely to what they have to say. Part of my job, theoretically, is to sum up the evidence and the arguments of counsel but, if I were to do that, two things would happen, firstly as you may have appreciated, I haven't been very well. I picked up an infection from my son which I have managed even to pass on to my Associate. If I talk for too long I get hoarse. So I will try and keep what I need to tell you to a minimum tomorrow, so please listen carefully to what the submissions of the counsel are, listen to the evidence they tell you about and the arguments they are putting forward so that I don't have to repeat it all tomorrow." 28When his Honour foreshadowed that he did not intend to sum up the evidence in the trial or the arguments of counsel, there was no objection taken to this course by either counsel. When his Honour concluded his summing up there was no application made on behalf of the appellant for any further direction. 29This case was quite unlike the sort of case where unfairness arises because a trial judge sums up in favour of the prosecution. A good example of that kind of case is CC v Regina [2010] NSWCCA 337. Because his Honour did not outline the evidence in either the Crown case or the appellant's case, there was not the imbalance and unfairness that occurred in CC v Regina. 30The problems which arise in CC v Regina were succinctly summarised by Blanch J when he said: "24 At the end of the day the question is whether the summing up was balanced enough to afford a fair trial. Section 161(1) of the Criminal Procedure Act 1912 states that a judge need not summarise the evidence in a trial if it is not necessary. In this case the judge did choose to summarise the evidence in the Crown case fully. So far as the defence case was concerned, he referred only to aspects of it. On the important aspect of the text message he referred to the appellant's account but to disparage it. On another important aspect of the meeting with CW, no direction was given to assist the jury. As to another important aspect of the defence case, namely the credibility of the complainant and the mother, there was no reference in the summing up." 31In any determination about whether a fair trial has taken place, it is important to consider the way in which the trial was conducted. This trial lasted five days in total, with the evidence taking up a little over 3 days of that time. The appellant's counsel addressed the jury on the fourth and fifth days of the trial and his Honour summed up immediately after. The jury retired before lunch on the fifth day. 32Not only was the trial relatively short, but the fundamental issue in the trial was a simple one and was clear to the jury. That the jury understood the issue is apparent from the question which they asked. The Crown case was that the appellant had deliberately driven his car at the victim. The appellant's case was that although he did strike the victim with his car, it was an accident. If there were any reasonable doubt that the actions of the appellant were simply a traffic accident then he was to be found not guilty of all charges. If the Crown could establish that he deliberately drove at the victim, then the second issue in the trial was what was his intent regarding the level of injury. 33While his Honour did not in terms purport to summarise the appellant's case, he did in effect do so when setting out what it was that the Crown had to prove. This is because, as already indicated, the question confronting the jury was a relatively simple and straightforward one. At para [45] of the summing up his Honour said: "45 ... Here, in this case you must exclude as a reasonable possibility the version of the events given to you by the accused himself. That is, that he was driving on his correct side of the road and that essentially Mr Abouschmiess drove his motorcycle into the accused's vehicle. However, you must also consider any other reasonable possibility. You must exclude, for example, as a reasonable possibility the fact that the accused was driving on the incorrect side of the carriageway and was not watching where he was going but he did not realise he was on the incorrect side of the carriageway and that he did not see Mr Abouschmiess on his motor vehicle. You must exclude the possibility that this collision was a real accident in the sense that it was due not to the deliberate act of the accused but merely to a negligent act of the accused. You must exclude that as a reasonable possibility." 34It is difficult to see what more his Honour would have needed to say to encapsulate the appellant's case than that which is set out in that paragraph of the summing up. 35Clearly his Honour could have gone into more detail, both in outlining the relevant evidence called by the appellant and the evidence in the Crown case challenged by the appellant and could have outlined and repeated the arguments of the appellant's counsel. That, however, is not the test. The test is fundamentally one of fairness. As Wood CJ at CL (with whom the other members of the Court agreed) said in R v Meher. "76 It is trite law that the fundamental task of a trial judge is to ensure a fair trial. That will involve not only instructing the jury about the law. It extends to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment, or of any alternative offence open upon that indictment. It also requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt ... 77 There is no obligation to go beyond those matters that are of direct relevance for the trial, nor is there a need for a judge to painstakingly read all of the evidence to the jury, or even to analyse all of the conflicts in it: Domican v The Queen (1992) 173 CLR 555 at 560-61. What is required is a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence." 36Of relevance to the circumstances of this trial are the comments of Wood CJ at CL on an earlier occasion in R v Davis [1999] NSWCCA 15 where his Honour said: "Where the summing up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary of the evidence and of the submissions, than the Judge proposes." 37The circumstances of this trial accorded closely with the example given by Wood CJ at CL in Davis . There was no application for a further direction on behalf of the appellant. No piece of evidence or proposition has been identified which should have been put before the jury so as to indicate that in its absence the appellant was disadvantaged by the summing up. It follows that no miscarriage of justice has occurred. 38In the circumstances of this trial, and given the failure to ask for any further direction, I would apply rule 4 and not grant leave to rely upon this ground of appeal. Even if leave were granted to the appellant to rely upon this ground of appeal, I am not satisfied that the ground has been made out. Ground 1(b) - The learned judge erred when he gave a direction regarding the "effective cause of collision" 39The background to this ground of appeal is a note received from the jury in the course of their consideration as follows: "Could we please have Senior Constable Vucetic's transcript? We need to verify whether the red car hit the bike or the bike hit the car. The jurors seek further clarification on this matter." 40In responding to that request, his Honour made available to the jury a transcript of the evidence of Senior Constable Vucetic and then commented as follows: "Now, the two vehicles came into collision. It is very easy to answer a question of the type you asked if one object is immovable. You can talk about a car hitting a tree because trees do not move, but it is up to you in this case to make a finding or to consider whether the motorcycle was stationary or whether it was still moving, because if it were still moving they hit each other. And if it were stationary, then you can say the car hit the bike. It appears to me to be not essentially crucial to your inquiry because it is where they collided is the important thing, because if they collided on the incorrect side of the carriageway for the driver of the car, that is on the southern lane, then the effective cause of the collision was the car being driven by the accused. If, however, they collided on the northern lane, and the car was on the correct side of its carriageway, then you could talk about the bike hitting the car, but it is up to you to find where the car was. And you will be guided on that, I have no doubt, by the evidence of Senior Constable Vucetic, but also look at the plan and see where the debris is on the roadway from the accident. And look where the gouge marks made by the bike are as it went across the road. Where do those gouge marks commence? Do they commence not at the centre line and not on the northern side of the road, but about two metres from the kerb on the southern side?" 41The appellant submits that his Honour erred in making this comment because the jury would have been left with the impression that they would be entitled to convict if they were satisfied that the "effective cause" of the collision was the appellant driving on the incorrect side of the carriageway. 42The immediate and obvious answer to that proposition is that his Honour did not implicitly or expressly proffer the conclusion sought to be extracted from those words by the appellant. A reasonable reading of those words makes it clear that what his Honour was seeking to do was to point out to the jury that the important issue was not whether one or other of the vehicles or both of them were moving, but where the impact took place. Before making that comment to the jury, his Honour discussed the matter with the legal representatives of the parties and the question of the importance of where the collision occurred was endorsed by both of them. 43Far from misleading the jury, the comment which his Honour made was designed to assist the jury by indicating to them that the more important issue was where the impact occurred. On the facts of this trial, that proposition is self evidently correct. If the car were on its correct side of the road, then the appellant's version that the bike hit him was likely. If the appellant's vehicle was on its incorrect side of the road at the time of impact, then (irrespective of what his intent was and whether the charges could be made out) the cause of the collision, or as his Honour said "the effective cause of the collision" was the car driven by the appellant. 44In considering this ground of appeal, it needs to be kept in mind that his Honour had already given clear directions to the jury that it was necessary to exclude accident as a possibility, even if the appellant were driving on the wrong side of the road. 45Since his Honour's response was endorsed by the appellant, I would apply rule 4 and not grant leave to the appellant to rely upon this ground of appeal. Even if leave were granted, this ground of appeal has not been made out. Ground 2(iii) - A miscarriage of justice was occasioned in that the trial of the appellant was rendered unfair by the trial judge failing to exclude evidence of the notebook conversation between Constable Girdham and Mr Abouschmiess 46The appellant raises two issues about the evidence of Constable Girdham which she gave by reference to her notebook. In that regard it was common ground that the entries in her notebook had been made by her on the day of the accident and on the evening of the accident when she attended Liverpool Hospital to speak to the victim. 47The first issue is that the evidence of what the victim told her in the ambulance at the accident scene should not have been admitted since it was not complaint evidence. The second issue is that no basis was established for the admissibility of Constable Girdham's evidence in re- examination concerning the conversation which she had with the victim at the hospital. That conversation recorded in her notebook and which she recounted in evidence related to the victim's version of what had occurred prior to and after the accident. The appellant submits that the evidence should not have been led in re-examination and accordingly was not rendered admissible by s108 of the Evidence Act 1995 (the Act). 48No objection was taken to either piece of evidence at the trial. In relation to the first issue, that stance by the appellant was appropriate. The evidence "that the Indian man across the road just ran over him deliberately" was clearly admissible pursuant to s66(2) of the Act as an exception to the hearsay rule. At the time that the victim said those words to Constable Girdham, the incident was fresh in his memory since he was then in an ambulance at the scene of the accident which had occurred only a short time before. The evidence was relevant and important in that the victim was making immediate complaint that the appellant had deliberately run over him. The appellant has failed to establish any basis for why that evidence should have been rejected. 49In relation to the second issue, it is necessary to understand the way in which the trial had progressed up to the point in time when Constable Girdham gave her evidence. The victim had been extensively cross-examined on behalf of the appellant concerning the notebook statement he made to Constable Girdham at the hospital. The notebook was shown to the victim and marked MFI 2. The forensic point sought to be made in that cross-examination was the existence of inconsistency between the victim's evidence at trial as to what happened and the reference in the notebook statement to being involved in a "head-on collision". 50When Constable Girdham was cross-examined, the cross-examination focused on the circumstances in which she took the notebook statement from the victim at the hospital. She confirmed that she had accurately recorded what was said by the victim and that he had signed the notebook. 51In those circumstances, a clear basis was established for the admissibility of the whole of the notebook statement. As a matter of fairness, the jury was entitled to have before them the whole of the statement so that they could be satisfied that there was a genuine inconsistency between the victim's evidence at trial and what he told Constable Girdham at the hospital, rather than being referred merely to a part of that statement which may have been out of context and may have been misleading. 52In any event, the contents of the notebook statement were admissible under s66(2) of the Act. The statement was taken only a matter of hours after the accident when the circumstances of the accident would still have been fresh in the victim's mind. The content of the statement was also admissible pursuant to s108(3)(a) of the Act in order to deal with the suggestion of a prior inconsistent statement. 53Finally, no prejudice has been identified as flowing from the admission of the contents of the notebook statement. In submissions the appellant relied upon what the victim said at the hospital to challenge the veracity of the evidence given by him at trial. 54It follows that pursuant to rule 4 the appellant should not be allowed to rely upon this ground of appeal and that leave to do so should not be granted. Even if leave were granted, the ground of appeal has not been made out. Ground 2(iv) - A miscarriage of justice was occasioned in that the trial of the appellant was rendered unfair by the alternative statutory count of reckless wounding being left to the jury 55The appellant does not submit that the statutory alternative count was not available as a matter of law to be left to the jury but that the trial was rendered unfair and a miscarriage of justice was occasioned because the Crown did not raise this issue in its opening address. 56In making that submission, the appellant relies upon the comments of Smart AJ in R v King [2004] NSWCCA 20, (2004) 59 NSWLR 515 at [110] where his Honour sought to impose limits on the use of alternative counts: "(d) If the Crown wishes the jury to consider the alternative offence in the event of them finding the accused not guilty of the principal offence, the Crown must open the alternative offence to the jury." 57In the alternative, the appellant submits that just because an alternative verdict may theoretically be open or possible, this is not enough to require that an alternative verdict be left to the jury. The appellant submits that the alternative verdict "must be reasonably open" or "fairly and practically open" or "a viable rational result" on the evidence before the jury. The appellant submits that in this case there was simply no evidence capable of sustaining a verdict such as was given on the alternative count and as a result a miscarriage of justice has been occasioned. 58The difficulty with the appellant's first submission is that no objection was taken when the Crown raised the matter at the beginning of the third day of the trial. This was almost certainly because no prejudice to the appellant could be identified in the alternative count being added. There is no suggestion in the appellant's submissions that if the Crown had opened on the statutory alternative, he would have suffered any prejudice. 59There is no evidence before the Court as to why the appellant's legal representative did not object to the addition of the alternative statutory count. The appellant's legal adviser may well have formed the view that having the lesser count on the indictment was actually in the appellant's best interests and as such was a tactical decision on his part. 60In the absence of any prejudice being proved, the observations of Smart AJ need to be considered against the background of the pragmatic considerations identified by Howie J in R v Lykouras [2005] NSWCCA 8. There Howie J said: "22 If during the course of a trial, the Crown seeks to prove that the accused committed the offence charged in some way other than was opened to the jury or other than is set out in the particulars, the question that arises is whether the new allegation has caused the trial to become unfair because, for example, the accused has been deprived of the opportunity of meeting it by the late raising of the new allegation. If the unfairness cannot be addressed by, for example, witnesses being recalled or a short adjournment being granted to the accused, the trial judge will abort the trial and discharge the jury. 23 There is, of course, a rule of practice that precludes the Crown from raising an alternative count late in a criminal trial. But this rule is concerned with ensuring a fair trial and not with limiting the manner in which the Crown can proceed against an accused. The most recent discussion of this constraint upon the Crown's right to conduct the prosecution as it chooses is found in R v Gulliford [2004] NSWCCA 338. In that case the trial judge formulated an alternative verdict during the defence case. The Crown had not opened to the jury on the availability of such a verdict and it goes without saying that the alternative count was not set out in the indictment. Nevertheless the alternative was left to the jury on the basis that it was capable of being proved by the evidence and the jury might not have been satisfied of all of the elements that made up the principal offence charged in the indictment. 24 In upholding the conviction on the alternative count Wood CJ at CL, with whom the other members of the Court agreed on this point, stated: "91 While it is generally inadvisable for a trial judge to raise an alternative count, which has not been suggested by trial counsel, R v Pureau (1990) 19 NSWLR 372 and R v Cameron [1983] 2 NSWLR 66 at 71, it is not forbidden. Much will depend upon the timing, whether counsel have had a proper opportunity to deal with it, and whether the defence has been prejudiced, for example in the way that the case was conducted: R v Quinn (1991) 55 A Crim R 435." It was clear in Gulliford that the appellant had suffered no prejudice by the addition of the alternative count and, therefore, there was no miscarriage of justice by it being raised so late in the proceedings." 61It follows from those observations by Howie J and Wood CJ at CL that it would be a rare case, where those elements of unfairness were absent, that this Court would find that it was unfair or oppressive for the Crown to rely upon an alternative count simply because it might deprive the accused of a chance of an acquittal on the principal charge. While clearly it would have been desirable for the Crown prosecutor to have opened to the jury on the statutory alternative, the late raising of the alternative count created no prejudice to the appellant. Indeed, it had the capacity to actually provide fairness to the appellant in leaving a rational possible basis for conviction on a lesser count. This was in fact the background to the observations of Smart AJ in R v King. 62The reason why there was no unfairness for the appellant in the leaving of the statutory alternative of s35(4) to be considered by the jury (and probably why no objection was taken) is because the elements of s35(4) are identical to those in the principal charge under s33 except for the intent to do grievous bodily harm. 63The legal advisers of the appellant would have known prior to trial that in order for the Crown to establish the principal charge pursuant to s33, it had to prove that the act was done maliciously. Maliciously at the relevant time was defined in s5 of the Crimes Act 1900 as: "Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or body corporate, or in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and every indictment and charge where malice is by law an ingredient in the crime." 64It was therefore open to the Crown to establish "malice" pursuant to s33 through a reckless act. This was acknowledged by his Honour when he gave his directions on the element of "malice" in respect of the s33 count at para [25] of his summing up. The definition of recklessness in order to prove malice for the s33 count was identical to the subsequent direction of recklessness needed to establish the s35(4) count. 65It follows that it was not open to the appellant to show that he had suffered prejudice as a result of the addition of the alternative statutory count since the legal advisers of the appellant knew that the Crown could establish malice by recklessness and therefore came to the trial in the knowledge that the appellant had to confront this issue. The fact that the appellant then had to face the identical issue for the s35(4) charge, created no prejudice. The only difference between the s33 count and the s35(4) count is the element of specific intent, i.e. that the act was done with the intention to cause grievous bodily harm. In leaving the alternative, his Honour was complying with R v King since it was a reasonably open alternative that the appellant, when he did the relevant act, had not formed the specific intent required. 66The above analysis answers the second submission by the appellant under this ground of appeal. There was no question but that the alternative statutory count was "reasonably open" on the evidence before the jury. Recklessness in the context of s35(4) can be established through a deliberate act (s4A Crimes Act 1900). The difference between a count pursuant to s33 and pursuant to s35(4) has nothing to do with whether the act was deliberate or intentional but whether it was done with the intent to cause the specific injury as pleaded. 67Since no objection was taken at trial to the alternative statutory count being left to the jury, pursuant to rule 4 the appellant should not be allowed to rely upon this ground of appeal and leave to do so should not be granted. Even if leave were granted, the ground of appeal has not been made out. Ground 1(c) - The learned judge erred in relation to his direction to the jury in that he failed to direct the jury at all regarding motive. Ground 1(d) - The learned judge erred in relation to his direction to the jury in that he failed to direct the jury at all about the COPS material. Ground 2(i) - A miscarriage of justice was occasioned in that the trial of the appellant was rendered unfair by the admission into evidence in the Crown case of the COPS material. Ground 2(ii) - A miscarriage of justice was occasioned in that the trial of the appellant was rendered unfair by the trial judge failing to exclude evidence led by the Crown in proof of motive. 68The above four grounds of appeal are considered together in that they raise the same issues. 69The appellant challenges the admissibility of the evidence concerning the COPS reports on a number of bases. In doing so he accepts the following propositions. He accepts that no objection was taken to the evidence when it was given at trial. He accepts that the Crown sought to justify the admission of the material on the basis that it was relevant to motive. He accepts that in his address to the jury, the Crown only sought to rely upon that evidence in relation to establishing a possible motive for the appellant's actions. 70The primary position of the appellant is that the COPS material was not admissible because: (a)It was not relevant and therefore inadmissible under s56(2) of the Act. (b)It had nothing to do with motive. (c)It related to the credibility of the appellant and the evidence was prima facie inadmissible under ss102 and 104(2) (cross- examination of an accused without being granted leave) of the Act. (d)The evidence related to the character of the appellant and was prima facie inadmissible under s112 of the Act. 71The appellant submits that even though no objection was taken to the evidence, it has long been held that a failure by a trial judge to disallow inadmissible evidence may give rise to a miscarriage of justice (R v Chai [2002] NSWCCA 512 at [41]). 72The appellant submits that the COPS material had no relevance to a fact in issue in the proceedings but had everything to do with his mental state in years past up to the time of the collision. He submits that what the evidence shows is not malice (in terms of maliciousness in count 1), but that if the appellant had a problem he went to the police for assistance. He submits that it does not support the proposition that he bore ill-will, harboured a grudge or that he was prepared to take the law into his own hands against his neighbours. 73The appellant submits that the effect of the COPS evidence was gravely prejudicial and that the trial judge should have exercised his discretion to reject its admissibility under ss135 or 137 of the Act. The appellant submits that because of the nature of the evidence, no jury would form a favourable impression of his reliability as a witness if they were exposed to evidence of delusional aspects and bizarre behaviour on his part. The appellant submits that his trial was rendered unfair as a result of the admission of this evidence and cross-examination upon it. 74The appellant submits that no attempt was made by the Crown to obtain leave under s104(2) and s 192 of the Act for the evidence to be admitted. The appellant submits that the Crown, by failing to seek leave, shifted the focus of the trial from the issue on the indictment to whether the appellant could ever be believed on his oath, given that he acted bizarrely and made what the jury could only assess as unfounded assertions against his neighbours. 75The appellant submits that even if the COPS material were admissible, the trial was unfair because his Honour failed to provide the jury with any guidance as to how the evidence could be used and more importantly, how the evidence could not be used. He submits that his Honour should have given directions to the jury concerning motive so that the jury was not left in any state of uncertainty as to what was being put forward as a motivation for the act, the subject of the indictment. 76The appellant submits that the combination of these matters has occasioned a miscarriage of justice such that his conviction should be set aside. 77The Crown prosecutor made his position clear when in relation to adducing evidence of the COPS material, he said: "CROWN PROSECUTOR: They're not matters that go in my considered opinion to propensity or character. Unless he raises character, that seems unlikely. They do, however, go to motive. ..." (T.238.31) 78The Crown prosecutor did not further elaborate by identifying the particular motive to which he said the COPS material was relevant. That having been said, it would seem from his address to the jury that the motive he had in mind was animosity and ill will on the part of the appellant towards his neighbours generally and not specifically directed at the victim. On that approach, his neighbours would constitute a class of which the victim was one. 79Such evidence did go to motive and as a result was relevant to the issue of intention. The Crown was seeking to establish that the appellant intentionally drove his motor vehicle at the victim with an intention to cause serious bodily injury. Evidence that helped to establish that intention was probative. Equally, evidence or lack of evidence that suggested that the appellant had no motive to do the act alleged was likely to be important for the jury when considering what his intention was. 80I accept that part of the COPS material was capable of demonstrating to the jury that the appellant was a person who had a dislike and distrust of his neighbours as a class. A difficulty for the Crown is that of the 20 COPS reports in relation to which evidence was given, at most only 13 related to possible conduct on the part of his neighbours. The other 7 related to problems with the CIA, and with planes flying over his house and making observations of him and his family. Those 7 COPS reports were not relevant to any issue in the trial and the evidence in relation to them should have been rejected as irrelevant. 81Accepting that the evidence relating to the other 13 COPS reports was relevant, it clearly had the potential to have a prejudicial impact on the appellant's credibility. The evidence was capable of leading the jury to believe that the appellant was (i) a vexatious complainant to the police about his neighbours and other people; (ii) a person who perhaps suffered from paranoia or some other form of undiagnosed mental illness; (iii) a person who felt victimised by various neighbours in the street and others and (iv) a person whose credibility due to his beliefs was diminished. 82Accordingly, the balancing exercise required by ss 135 and 137 of the Act needed to be carried out. The fact that no application was made on behalf of the appellant under s137 did not remove that obligation on the part of the Court. This Court in R v Chai [2002] NSWCC 512 made that clear: "43 Evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted. In Ambrosoli [2002] NSWCCA 386, Mason P (Hulme and Simpson JJ agreeing) cited what he had said in GK (2001) 53 NSWLR 317 at [30]: Section 137 requires the exclusion in criminal proceedings of evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The key term is "unfair prejudice" in the sense of evidence creating "a real risk that the evidence will be misused by the jury in some unfair way": RvBD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL; see also Papakosmas v The Queen (1999) 196 CLR 297 at 325- 326; Ordukaya v Hicks [2000] NSWCA 180; R v Lisoff [1999] NSWCCA 364 at [52]; R v Toki (2000) 116 A Crim R 536 at 548. Merely because evidence points overwhelmingly to guilt does not make it unfair to adduce. And even if evidence carries a prejudicial overlay its genuine probative value must be put in the scale."" 83While the evidence of the COPS reports (at least the 13 reports relating to possible activities by neighbours) was capable of assisting the Crown in the establishment of an intention of the appellant by showing motive, the evidence also raised potential unfair prejudice in that there was a risk that the jury would use it to diminish the credibility of the appellant's version, both in the ERISP and at trial when he gave evidence. While the jury would have been entitled to use the evidence to diminish the appellant's credibility in relation to a denial that he felt any hostility towards his neighbours, they would not have been entitled to use the material to decide that he was a person who could not be believed because he possibly suffered some form of paranoid mental illness. 84The competing considerations in ss135 and 137 of the Act are often finely balanced. In this case, however, I am of the opinion that the probative value of the evidence was outweighed by its unfair prejudicial effect and it should not have been admitted. 85This problem was exacerbated because his Honour did not give additional directions to the jury as to the admission of the evidence concerning the COPS reports to make clear to them the basis on which that evidence could be used, in particular that the evidence was not admissible on a character or credit basis. The absence of such a direction increased the risk that the evidence would be misused by the jury in some unfair way. 86It follows that the appellant's submissions in respect of ss135 and 137 of the Act have been made out. 87As an alternative submission, the appellant relied upon ss102 and 104(2) of the Act to render the evidence of the COPS reports inadmissible. That submission is misconceived. It is clear that this evidence was not led for a credibility purpose only. Section 102 will not lead to evidence being excluded if the evidence is relevant to a fact in issue (in this case intention) even if that evidence also affects an accused's credibility. Section 102 is purely designed to exclude evidence that is relevant to credibility only and this evidence was not led by the Crown for credit reasons only. 88Similarly, there was no need for the Crown prosecutor to seek leave pursuant to s104(2) to cross-examine the appellant on the COPS material as the evidence had not been led or admitted for a credibility purpose. The Crown made it clear that the evidence was led as motive going to the question of intent and that was the basis on which his Honour allowed the evidence. Irrespective of whether the evidence also affected the appellant's credibility, it did not require the Crown to seek leave pursuant to s104(2) as the purpose of the cross-examination was to challenge the appellant as to whether he had a motive based on ill-will against his neighbours. 89It follows that the submissions by the appellant in relation to ss102 and 104(2) of the Act have not been made out. 90In relation to whether a direction was required from his Honour as to motive, Coumbe v The Queen (1990) 101 FLR 466 is not authority that a motive direction needs to be given in every case that motive evidence is led. De Gruchy v The Queen (2002) 211 CLR 85 is to similar effect. What those cases make clear is that the question of whether a direction as to motive should be given depends upon the particular facts of the case. 91In De Gruchy Kirby J said: "52 Judicial instructions on motive: It follows from the foregoing that a number of general propositions can be accepted to guide judges in the consideration of whether they should give instructions to a jury concerning motive, where that issue has arisen as a live one in the course of the trial, and if so in what terms: (1) No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessential^ a task for the jury, viewing questions about motive in the context of the evidence as a whole. (2) Where the prosecution has not sought, or has failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive and that the absence of a proved motive cannot as a matter of law be fatal to its case. Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation. (3) Where a motive of some kind is proved by the evidence, but it appears a trivial one, disproportionate to the crime alleged, it may be proper for the judge to draw such disproportion to the notice of the jury, in fairness to the accused, given that "[t]he stronger the motive the more influence it is likely to have [on the jury]". On the other hand, the judge may also point out that proportion in such matters will sometimes be absent. To reasonable and law abiding citizens many serious crimes appear to have been committed upon trivial motives, wholly disproportionate to the gravity of the wrong. (4) Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime. (5) Where there is no evidence that the accused had a motive to commit the crime alleged, that is "always a fact in favour of the accused". There is some authority to suggest that a trial judge need not draw that fact to the notice of the jury. However, especially in circumstances of a heinous crime, if a judge gives any direction about motive, it would generally be fair and prudent to draw to the jury's notice the absence of proved motive as a consideration favouring the accused. As Griffith CJ observed: "the more heinous the act... the more important becomes the question of motive." If none is proved, that is a consideration that the jury will need to weigh in judging whether the prosecution has proved the guilt of the accused to the criminal standard. (6) Nonetheless, if any such comment is made, it should be balanced by drawing attention to the obvious fact that, in a particular case, "there may be a motive, and perhaps a strong one, but no evidence of it available". In Pointer v United States, the Supreme Court of the United States put it this way: "The absence of evidence suggesting a motive for the commission of the crime charged is a circumstance in favour of the accused, to be given such weight as the jury deems proper; but proof of motive is never indispensable to conviction."" 92On the facts of this case, the Crown appropriately accepted that his Honour should have given a direction on motive. That having been said, it is necessary to consider the form of such a direction. 93Had his Honour given a motive direction, it would have been necessary for him to inform the jury that the Crown did not have to establish motive in order to establish the charges. His Honour would then have needed to say that if they found that the evidence of the COPS entries did indeed establish motive on behalf of the appellant, they could use that evidence in determining whether the appellant had the requisite intent both within the meaning of intent in maliciousness and recklessness, and the specific intent as to injury. His Honour would have needed to direct the jury that if the Crown did not establish motive, it would not be fatal to its case. 94His Honour might also have given a direction that even if they thought the motive was trivial, many serious crimes are committed with trivial or indeed no motive. His Honour should then have balanced the directions in favour of the Crown by saying that, if the jury were not satisfied that the COPS entries established motive on behalf of the appellant, then they could use the lack of any evidence of motive in considering whether the Crown had proven its charges, particularly on the issue of intent (subject of course to the limitations outlined by Kirby J in de Gruchy). 95When one considers the content of those directions, it is clear that they would have significantly assisted the Crown had they been given at trial. It follows that the appellant cannot claim to have suffered an injustice because those directions were not given. I have concluded that on this issue, there was no miscarriage of justice through the failure of his Honour to give a direction on motive. 96It follows from the above analysis that the evidence of the COPS reports was wrongfully admitted in the trial. Does that mean that the appellant's conviction should be set aside, or should the conviction nonetheless stand? 97In that regard s6(1) of the Criminal Appeal Act 1912 relevantly provides: "6(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. ..." 98In relation to the Victorian equivalent of that section, the High Court in Weiss v The Queen [2005] HCA 81, (2005) 224 CLR 300 at [35] said: "35 The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a "substantial miscarriage of justice has actually occurred". 99Further guidance was provided by the High Court in Weiss as follows: "41 ... The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record , the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. 42 It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration." 100I have concluded that on the whole of the evidence in this case, there has been no substantial miscarriage of justice in the conviction of the appellant on the statutory alternative count. The crucial issue of where the accident occurred did not depend upon whom out of the victim or the appellant was believed. The evidence placing the appellant on his incorrect side of the road was overwhelming. 101Similarly, the question of intent in relation to the statutory alternative count, i.e. that the wounding occurred "recklessly", involved an objective assessment by the jury of the circumstances which existed once they were satisfied beyond reasonable doubt that the collision had occurred on the appellant's incorrect side of the road. Accordingly, allowing for the "natural limitations" that exist when proceeding wholly on the record of the proceedings I am satisfied that the accused was proved beyond reasonable doubt to be guilty of the alternate statutory offence. 102The circumstances of this trial were not such as to give rise to that other situation described by the High Court in Weiss: "... What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind." This was not such a case. 103Accordingly, notwithstanding that the COPS material should not have been admitted, I have concluded that this is an appropriate case for the proviso to s6(1) of the Criminal Appeal Act to be applied. 104The order which I propose is that the appeal 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. Decision last updated: 02 June 2011