Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McGavin v R [2014] NSWCCA 171 Hearing dates: 10 July 2014 Decision date: 25 August 2014 Before: Basten JA at [1]; Price J at [49]; Fullerton J at [50] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW - direction to jury - multiple break and enters in company - co-offender received reduced sentence on undertaking to provide evidence against applicant - neither prosecution or defence proffered information as to effect of percentage of discount received by co-offender - co-offender not cross-examined as to whether motivated by possible resentencing for failure to fulfil undertaking - no warning sought that evidence of co-offender may be unreliable - judge warned about unreliability of co-offender's evidence with reference to percentage of discount afforded - whether warning on unreliability by the trial judge sufficient - whether the trial judge should have referred to the reduction of time the discount reflected - whether the trial judge should have warned the jury that co-offender would lose benefit of reduced sentence if he failed to fulfil undertaking - Criminal Appeal Rules (NSW), r 4 - Evidence Act 1995 (NSW), s 165 EVIDENCE - warning as to unreliability - witness gave statement to police - discount on sentence for assistance to law enforcement authorities - witness faced resentencing if he departed from undertaking to give evidence implicating his father - whether warning need to quantify effect of discount at risk - whether warning needed to explain liability to be resentenced if he departed from undertaking - Evidence Act 1995 (NSW), s 165 Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 Criminal Appeal Act 1912 (NSW), ss 5, 5DA, 20(4) Criminal Appeal Rules (NSW), r 4 Evidence Act 1995 (NSW), s 165 Cases Cited: Conway v The Queen [2000] FCA 461; 98 FCR 204 Domican v The Queen [1992] HCA 13; 173 CLR 555 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 R v Privett [2001] NSWCCA 518 R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 R v Sullivan [2003] NSWCCA 100 R v Yammine & Chami [2002] NSWCCA 289; 132 A Crim R 44 Category: Principal judgment Parties: Anthony Edward McGavin (Applicant) Regina (Respondent) Representation: Counsel: Dr B Lennon (Applicant) Ms T Smith (Respondent) Solicitors: David H Cohen & Co (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/207057 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-08-01 00:00:00 Before: Conlon DCJ File Number(s): 2011/207057 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was charged with five counts of break and enter and steal in circumstances of aggravation, namely being in company: Crimes Act 1900 (NSW), s 112(2). The offences covered a period of one month. Each involved breaking into a club or hotel to steal cigarettes and money; the applicant acted as driver and kept a lookout as two of his sons (only one son was involved in the third count) and his nephew carried out the break-ins. The son involved in only four of the offences received a discount of 25% on sentencing for undertaking to provide evidence against the applicant. Failure by the son to fulfil the undertaking would have provided grounds for resentencing: Criminal Appeal Act 1912 (NSW), s 5DA. At trial, counsel for the applicant questioned the reliability of the son's evidence because of the discount; how he considered the prospect of resentencing if he failed to adhere to his evidence, however, was not raised with him. No information was proffered by either the prosecution or defence that quantified the effect of the discount. Warning that the son's evidence may be unreliable, the trial judge mentioned the percentage of discount. No reference was made, however, to the reduction in time that afforded or to the possibility of resentencing. Counsel for the applicant did not request a further warning on unreliability under s 165 of the Evidence Act 1995 (NSW) which included these details. The appeal concerned whether the warning on unreliability was insufficient because it failed to specify both the actual reduction in time the discount reflected and the possibility of resentencing the son faced if he departed from his undertaking. The Court (Basten JA, Price J and Fullerton J) held, granting leave to appeal and dismissing the appeal: 1. There is no unfairness to the applicant simply in failing to quantify the effect of a specific discount in circumstances where neither party called evidence, or even troubled the trial judge with the information, as to the sentence in question: [33] R v Privett [2001] NSWCCA 518; R v Sullivan [2003] NSWCCA 100 considered 2. The son was never asked at trial whether he feared resentencing if he failed to give evidence against the applicant. There was thus no testimonial basis at trial for the direction now being mooted on appeal: [42], [47] Conway v The Queen [2000] FCA 461; 98 FCR 204; R v Stewart [2001] NSWCCA 260; 52 NSWLR 301; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 considered. R v Yammine & Chami [2002] NSWCCA 289; 132 A Crim R 44 referred to. Judgment 1BASTEN JA: On 20 May 2013 the applicant was convicted of five counts of break, enter and steal in circumstances of aggravation, namely being in company. The offences were committed between 17 February and 17 March 2011 and each involved breaking into a club or hotel and stealing cigarettes and money. The premises, with the exception of one near Jervis Bay, were in the Illawarra area. In each case the applicant was said to be in the company of Shane Welland, Steven Welland and Trevor Hanson, except with respect to count 3 involving the Albion Park Hotel, which did not involve Steven Welland. Steven and Shane Welland were brothers, and sons of the applicant. Trevor Hanson was their cousin. Steven Welland gave evidence for the prosecution. 2The application before this Court challenged the convictions of the applicant on two grounds, each of which concerned the evidence of Steven Welland. The grounds alleged a miscarriage due to the error of the trial judge in: (1) not telling the jury that Steven Welland could be resentenced as part of his deal with the authorities to give evidence against the appellant, and (2) not giving a warning to the jury as to the full details of the discount received by Steven Welland. Neither of these grounds involves a question of law alone and hence the applicant requires leave: Criminal Appeal Act 1912 (NSW), s 5(1)(a). Each of the grounds was arguable and the applicant should have leave to appeal. However, for the reasons set out below, the appeal should be dismissed. 3Although the grounds of appeal fall within a reasonably confined compass, it is desirable to set out briefly the nature of the prosecution case and the evidence relied upon in addition to that of Mr Steven Welland. Background to trial 4The places and locations of the premises broken into were as follows: Count 1: Bulli Bowling and Recreation Club - 1.35am, 17 February 2011 Count 2: Scarborough-Wombarra Bowling Club - 1.49am, 17 February 2011 Count 3: Albion Park Hotel, Albion Park - 2.40am, 28 February 2011 Count 4: Great Southern Hotel, Berry - 3.04am, 9 March 2011 Count 5: Cooee Hotel, St Georges Basin - 2.37am, 17 March 2011. 5The applicant was 56 years of age at the time of the offences. He did not enter any of the premises, but acted as driver and "cockatoo", keeping a lookout for police on nearby roads. Once a target had been identified, the younger men stole a vehicle and carried out the break-ins, removing cigarette vending machines, cash and alcohol. On some occasions they also attempted (unsuccessfully) to remove ATMs. The persons involved in the various events communicated by mobile telephone. An important part of the prosecution case involved records of calls made between mobile phones connected with the various co-offenders and recorded by mobile phone towers (referred to as "cell towers") in the vicinity of the target premises. 6A critical link in the records involved the mobile number "841". (It is convenient to identify the telephones by reference to three numbers only, although the records included the standard 10 number identifications.) On 8 June 2011 police executed a search warrant at a house in Kully Way, Warrawong, south of Wollongong. The applicant was in an upstairs room at the time the police entered. The prosecution case was that the applicant lived at that address with Ms Angela Jones and their two young daughters. The 841 telephone was in the house at the time of the search, being registered in the name of Ms Jones. The applicant telephoned Ms Jones on a land line while the search was being conducted and then, when going outside the house, picked up the 841 telephone. The phone was recovered by police; it had five relevant numbers in its memory, including another mobile number identified as "Ange1" and its own number (841) against the name "Bones", which was the applicant's nickname. It also contained telephone numbers for "Shane", "Steve" and "T", the last being the mobile number of Trevor Hanson. 7The police also executed search warrants at the homes of Shane Welland, Trevor Hanson and Steven Welland. A mobile telephone seized from Shane Welland had a contact for "Dad", being the 841 number, and one for "Steve W". The telephone seized from Steven Welland had two relevant contacts, "Shane" and "Trev", being the numbers of Shane Welland and Trevor Hanson respectively. 8It is not necessary to set out in detail the telephone call records and their locations. Suffice it to say that the records for 17 February placed Trevor Hanson and 841 in the vicinity of the premises broken into on that night at times proximate to the times of the break-ins as recorded by the activation of alarms at each of the premises. With respect to the Albion Park Hotel (count 3), which was close to the homes of Trevor Hanson and Shane Welland, calls between Trevor Hanson and 841 were identified by a tower in the vicinity of the area where the stolen vehicles used in the robbery were dumped, approximately one hour after the robbery. Similarly with respect to count 4, involving the Great Southern Hotel at Berry, there were calls between Trevor Hanson and 841 recorded by a cell tower at Moeyan Hill, approximately half way between Berry and the place where the stolen vehicle used in the robbery was dumped. Similarly with the Cooee Hotel at St Georges Basin, there were seven contacts recorded between Trevor Hanson and Steven Welland's mobile phone at a cell tower some 12 km north of St Georges Basin between 2.53am and 3.18am, the robbery having occurred at 2.37am. There were numerous further telephone calls and text messages between Trevor Hanson and Steven Welland over the ensuing hour and a half, including between Steven and Shane Welland and Steven Welland and Trevor Hanson between 5am and 6am, recorded through the Nowra cell tower (north of St Georges Basin). 9The second category of evidence linking the applicant and his sons with the break and enters related specifically to the Cooee Hotel offending. According to the prosecution case, after stealing a vehicle at Sanctuary Point, near St Georges Basin, Shane and Steven Welland and Trevor Hanson broke into the hotel at 2.37am, having arranged for the applicant to wait on the freeway to keep a lookout for police coming south from Nowra. The three younger men were seen emerging from the hotel and could hear police sirens coming from Nowra as they drove off. Having reached the freeway, they turned off into the bush, some five or six minutes' drive from the hotel and turned off the vehicle lights. The applicant was parked on the freeway a short distance from the hiding spot of the stolen vehicle. Shane and Steven Welland then left the stolen vehicle and ran towards the car with the applicant. Trevor Hanson stayed with the stolen vehicle, about 30 metres away in the bush. Some 20 seconds later, a police car, with its lights off, pulled up behind the applicant's car and questioned the applicant and the Wellands as to what they were doing. Having taken relevant details, the applicant was allowed to drive away. It was shortly thereafter that a number of calls were made to Trevor Hanson. Trevor told them that he would walk up to the closed petrol station where the others were waiting, which took him about 30 minutes. Shane Welland then went back to the stolen vehicle and drove it to Trevor Hanson's house at Albion Park. 10The significance of the encounter with the police was that it independently placed the applicant in the vicinity of the Cooee Hotel shortly after the break and enter. The excuse for being beside the road in a parked vehicle was that they had been taking the car for a drive "to see how it goes" and that they had stopped to allow Steven Welland to get out and urinate, as indeed he pretended to do when the police arrived. 11The third category of evidence involved a third party, Shane Adlington. The applicant had another son, Luke Andrews, who suffered from a disability as a result of a brain injury. Shane Adlington acted as his carer and became acquainted with other members of the family. He knew the applicant as "Bones" and visited him on a regular basis at the Kully Way house in Warrawong. He gave evidence of admissions made by the applicant in relation to the Cooee Hotel offending, including an account of being pulled over by the police when he was with Shane and Steven Welland, whilst Trevor Hanson was hiding in the bushes in the stolen four-wheel drive. Mr Adlington also described an occasion when he was driving home from Shoalhaven Heads with the applicant, who pointed out where a stolen cigarette machine had been hidden in bushes. Finally, after the applicant was charged, Mr Adlington saw him reading and highlighting parts of a two or three volume police brief; the applicant said that the charges were true and that he was going to try his best to get out of them. Evidence of co-offender 12Against that background it is convenient next to refer to the evidence of Steven Welland. He was involved in four of the five break and enters, not including the Albion Park Hotel on 28 February 2011. He gave evidence at the applicant's trial implicating the applicant in all of the offences. With respect to the Cooee Hotel at St Georges Basin, he confirmed the account of getting into the car on the freeway, the police pulling up behind them and him getting out of the car and saying he was going to the toilet. He said that the police noted the identity of all three persons in the car. 13There can be little doubt that, if the jury believed Mr Steven Welland's evidence, conviction of the applicant on all counts was almost inevitable. The attack on Mr Welland's credibility was twofold: first, there were inconsistencies between his evidence and previous exculpatory statements he had made to the police. He had clearly told lies to the police; the question for the jury was whether he had lied on earlier occasions or was lying in the witness box. The second challenge was based upon the fact that he himself had been charged and pleaded guilty to four of the five offences. The jury were invited to disbelieve his evidence on the basis that he had agreed to implicate his father in return for a significant discount on the sentence he was required to serve. The grounds of appeal were squarely directed at the alleged failure by the trial judge adequately to direct the jury with respect to the incentives for Steven Welland to give false evidence against his father. 14Before turning to the summing up to the jury, it is convenient to note how the evidence of Mr Welland was dealt with in the course of the trial. His evidence was referred to by the prosecutor in relation to each offence when he opened the case to the jury. Counsel for the applicant also addressed the jury by way of an opening statement. He noted that the prosecutor had made much of the anticipated evidence of Mr Steven Welland and said that "[o]ne of the most significant issues in this case is going to be your assessment as to the honesty and the reliability of Mr Steven Welland": Tcpt, 13/05/13, p 18(20). He then said that Mr Welland had in fact been sentenced for his involvement in a number of the offences and continued (p 18(29)): "In that regard then you might consider, well what was the deal that Mr Steven Welland struck in relation to his sentence? There might be some evidence I [anticipate] in relation to that, I'll be clear, I anticipate the evidence to be that he was afforded about a 25% reduction in his sentence for agreeing to give evidence against his father. He, you might consider the evidence will establish, received a very considerable benefit for merely saying 'Yeah, Dad was involved as well, I'll give evidence against him'." He told the jury that they would hear of the "very poor state of the relationship" between the applicant and Mr Welland and suggested they would ask whether he, Mr Welland, had an axe to grind with the applicant. 15The evidence began with the objective circumstances of the offences, which was unchallenged. The officer who spoke to the applicant and Shane and Steven Welland on the freeway near Tomerong, north of the Cooee Hotel on the night of the offence at that hotel, recounted their encounter at the roadside. The prosecution then called Steven Welland. He agreed that he was in custody having been sentenced on 18 October 2012 for a number of offences, having entered pleas of guilty to two such offences and having admitted his guilt to seven others, which were taken into account on sentence: Tcpt, 14/05/13, p 37. The following evidence was then led (p 38): "Q. When you were sentenced, were you given a discount of 25% for your undertaking to give evidence? A. Yes. Q. You're aware that if you fail to give evidence in accordance with your undertaking, you could be resentenced? A. Yes. ... HIS HONOUR: Just before you go on, I should indicate to you, ladies and gentlemen, that when a court has to pass sentence in respect of somebody who has pleaded guilty to offences, as the court did in this case, and in fact I was the presiding judge, following this particular offender giving an undertaking to give evidence in respect of any matters that might arise, being trial matters, this being one of them, it is the obligation of the court to make an assessment of the level of discount that should apply in the particular circumstances of the evidence and assistance that's being offered. That was done on this occasion and you heard that the assessment of the discount made was one of 25%." 16In cross-examination, Mr Welland agreed that he was in gaol on 16 May 2012 and had been for almost a year, in relation to the offences for which he was ultimately sentenced. He said that his first record of interview took place on 7 June 2011, when he was arrested. He agreed that he was aware that he would get a discount from any sentence if he pleaded guilty and if he provided assistance to the police: Tcpt, p 63. He agreed that by 16 May 2012 he was aware that he could get a discount for assisting police: p 65(18). (There was some uncertainty as to when he first learned that he could get a discount for pleading guilty.) He also agreed that on various occasions he had lied to the police. 17In cross-examination it was suggested to Mr Welland that he was not scared of his father (as he had said to police), but he denied that: Tcpt, pp 115-116. It was also suggested that his father was a "very easy person to nominate as being involved in these matters so that you can get your discount, and he really can't do anything to you", a proposition with which he disagreed. 18In re-examination, Mr Welland agreed that he did not initially tell the truth in relation to some matters because he was trying to minimise his role: Tcpt, p 121(5). He said that he was seeking to tell the truth in his interview on 16 May 2012. He was also taken to accounts he had given of other offences in which he did not seek to implicate his father. 19In addressing the jury at the end of the trial, the prosecutor referred to the attacks made on Mr Welland's evidence: Tcpt, 20/05/13, p 6. He referred to the discount obtained for assistance, noting that there was legislation supporting an entitlement to a reduction in a sentence and that it was a matter for the sentencing judge to determine the level of the reduction. There was no reference to the risk of being resentenced if he reneged on his undertaking. 20Counsel for the applicant addressed extensively on Mr Welland's evidence, highlighting his willingness to tell lies to protect himself and others to whom he was favourably inclined; the value of obtaining a discount on the sentences he was to receive for the offending; and the ease with which he could nominate a particular individual with whom he had a bad relationship, in order to obtain the discount: see, eg, Tcpt, 20/05/13, p 17(30)-(40). 21It may be noted that nowhere in his opening to the jury, in cross-examination of Mr Welland, or in his final address, did counsel for the accused refer to the actual sentence which Mr Welland had received, nor to the possible pressure to maintain any false statements he had made implicating the applicant, for fear of being resentenced to a lengthier sentence. Judge's summing up to jury 22In the course of summing up to the jury, the trial judge noted that arguments had been put by each counsel with respect to the evidence of Steven Welland: Tcpt, 20/05/13, p 12. He noted that counsel for the applicant had suggested the jury would have "some real doubts about the accuracy and reliability of his evidence". His warning continued (Tcpt, pp 13-14): "You also heard evidence that in respect of that interview in May 2012 he indicated that he would be prepared to give evidence in respect of what he had told the police in that interview. You have also been told that he ultimately pleaded guilty to a whole range of matters and that he has been dealt with in this Court in relation to those matters. In the course of being sentenced an assessment was made of the assistance that he provided to the authorities and he was given a 25 percent discount on his sentence for that assistance. A direction that the Courts must give to jurors in respect of witnesses who have received discounts for sentences is as follows and it is in effect a warning to you that you need to exercise considerable caution when making an assessment of the evidence of that witness. The need arises for these directions because the Courts over the years have experienced in respect of the reliability of evidence given by persons who had been involved in crimes, have been concerned in those crimes and that experience might not be readily known to members of the public. That experience has shown that on some occasions that evidence can be unreliable. Now I do not intend to suggest, however, that such evidence is always unreliable. My purpose in giving you these directions is only to warn you that the evidence of such a witness may be unreliable and for that reason alone you must approach that evidence with considerable caution in the way in which I will outline to you shortly. There are no doubt a number of reasons why the evidence of such a person may be unreliable. Possible reasons are that it is only natural you may think that a witness who might have been involved in a particular crime giving rise to these proceedings may want to shift the blame from himself or herself onto others and to justify his conduct. In the process the witness may construct untruthful stories which tend to play down his part in a crime and play up the part of others of the crime even going so far as to blame quite innocent people. Persons reasonably supposed to have been involved in the commission of an offence may make false claims as the involvement of others motives of revenge or a feeling of dislike or hostility. Such a person may be motivated to give false evidence in order to qualify for a reduction in his or her own sentence. There may be reasons why false evidence has been given by such a witness and it is not for the accused to establish the reason or reasons why that witness was lying." 23At the end of the summing up the judge invited counsel to indicate if there were any redirections sought, either in relation to law or to any question of fact: Tcpt, p 28. Neither sought any further direction. Grounds of appeal 24The applicant's challenge (taking both grounds of appeal together for present purposes) relied upon three propositions. First, the evidence of Steven Welland was evidence of a kind that may be unreliable and hence required a warning to be given to the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it: Evidence Act 1995 (NSW), s 165(1) and (2)(a) and (c). Secondly, the content of the warning should have included "full details of the discount", that is the actual reduction in time to be served and not merely the percentage. Thirdly, the warning should have included an explanation of the liability to be resentenced if he reneged on his undertaking. 25The applicant's argument relied primarily on judicial exegesis, but it is necessary first to identify the terms of s 165, so far as relevant. 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: ... (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, ... (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. 26There was no dispute that the section potentially applied to the evidence of Steven Welland as he was conceded to be criminally concerned in the events giving rise to the charges against the applicant. Although there was no request in terms, the judge gave a warning as set out at [22] above. Whilst s 165 is only engaged where a party requests a warning (subs (2)) the warning did not in any sense lack force because it had not been requested. Rather, the circumstances of the case were such that some form of warning was inevitable. However, to the extent that the warning was said to be insufficient, it is significant that there was no request for a further warning. There being no such request, there was no obligation imposed on the trial judge by s 165 to give a further warning. Nor is the requirement for a request a mere technicality. The obligation to give a warning is contingent in the sense that the judge has a broad discretion not to give a warning for "good reasons": subs (3). A request would properly focus on the terms of the proposed additional warning and, if the judge were minded not to comply with the request, the reasons for not so doing would no doubt be articulated and debated with counsel. Where the request is not made, none of that occurs, as it should, in the context of the trial between those involved in conducting the trial. As with a failure to comply with r 4 of the Criminal Appeal Rules (NSW), it will be difficult to establish a miscarriage of justice unless both the requirements of fairness to the accused and the absence of any reasons not to comply with the obligation were manifest. 27Beyond those general considerations, whether a further warning was required in the present case depends on the alleged deficiencies in the content of the warning actually given. The relevant legal obligation is founded upon the duty of the judge to ensure that the accused gets a fair trial, of which s 165 is a part but not a comprehensive statement: sub-s (5). It is convenient to start with the contention that the statement that a 25% discount had been allowed was not of itself sufficient to demonstrate the benefit obtained by the witness. Before turning to the authorities, it may be noted that the logic of that contention is by no means self-evident. The underlying assumption appears to be that, if the sentence were 20 years, the actual discount (namely five years) is so significant that it needs to be spelled out. Whether the same reasoning applies to a two year sentence is less clear. 28The early cases focused on the understanding that R v Privett [2001] NSWCCA 518 had held that evidence of actual sentences received by an accomplice was not admissible. That proposition was rejected by the Court in R v Sullivan [2003] NSWCCA 100: the point has no present relevance. However, Sullivan also considered whether the jury should have been told of the very substantial discount received by the co-offender who gave evidence against the accused, namely a discount of 50% on a sentence of 15 years. All members of the Court considered that there had been a failure to comply with s 165, but the Court divided (Hodgson JA in dissent) as to whether a failure to comply with r 4 precluded reliance on that ground. Hodgson JA dealt somewhat more briefly with what constituted a breach of s 165 in circumstances where there had been no reference to the possibility of resentencing for non-compliance with the undertaking, nor reference to the quantum of the discount. 29Buddin J in Sullivan commenced with a lengthy dissertation on the principles derived from accomplice cases under the common law, which required a warning of the danger of convicting in the absence of corroboration. In dealing with the operation of s 165, Buddin J addressed the two elements of the inadequate directions relied on by counsel for the applicant, Mr Sullivan. The principal focus was on the failure to explain to the jury the potential for resentencing. However, with respect to the quantum of the discount, Buddin J noted that the jury had been told that the sentence of witness had been "substantially" reduced, but considered that information inadequate: at [96]. His ultimate conclusion however rested on the failure of the prosecutor to lead relevant evidence. It appears that it was only in the course of argument that the Court was informed of the sentence in fact imposed on the witness and the level of reduction: at [93]. 30The third member of the court, Smart AJ, agreed with Buddin J and made "one additional comment": at [106]. He was concerned to indicate why Privett did not preclude evidence being given of the reduced gaol sentence for assistance to law enforcement authorities. Smart AJ stated at [108]: "Telling a jury that a person has received a significant reduction in his gaol term does not tell them a great deal. That lacks the impact and conviction which comes with the supply of detail. To tell a jury that an accomplice or other witness has had his sentence of imprisonment reduced from 15 years to 7½ years for giving evidence against the accused brings home to the jury the extent of the incentive that the witness has to stick to the story he told the Crown, whether true or false. This is cemented by further telling the jury that if the witness does not give the evidence he promised he will then become liable to lose his discount and to serve the full 15 years sentence." 31None of these judgments is authority (if there could be authority) for the factual proposition that a warning indicating the proportionate reduction in a gaol sentence is necessarily inadequate. It is only the statement set out above from the judgment of Smart AJ which could be taken to bear such an implication. However, as the following paragraph, [109], demonstrated, the purpose of the proposition was to illustrate why there was no justification for withholding from the jury "full details of the accomplice's situation." Further, it might be doubted whether it would be accurate to direct a jury in accordance with the unqualified terms of the last sentence set out in the extract from [108]. 32There is a further curiosity about Sullivan's case which suggests that the precise nature of the required direction was not fully articulated in circumstances where there was no evidence of the sentencing of the witness before the trial court. It is surprising, if not implausible, that a witness who had entered a plea of guilty to the offences with which he was charged had received a 50% discount for assistance to the authorities. If there were some separate discount for the pleas of guilty (as there usually would be pursuant to s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) it would be wrong to tell the jury that such a discount could be removed for failure to give evidence in accordance with an undertaking. 33The applicant's submissions in the present case have a similar curiosity: they do not identify the effect of the 25% reduction, presumably because there was no evidence at trial of the overall sentence imposed on Mr Steven Welland for which he received the discount. The Director submitted that the gravamen of the complaint must have been that the prosecutor had failed to adduce that evidence. However, that was not the ground relied upon and no question of the Director's obligations of disclosure or possible obligations to lead evidence need be further considered. There is no unfairness to the accused simply in failing to quantify the effect of a specific discount in circumstances where neither party called evidence, or even troubled the trial judge with the information, as to the sentence in question. This ground of challenge must be rejected. 34There remains the question of the scope of the obligation to tell the jury about the possibility of resentencing for failure to comply with an undertaking. Warning as to possibility of resentencing 35The statutory basis for resentencing an offender whose sentence was reduced because he or she undertook to assist law enforcement authorities, but wholly or partly failed to fulfil the undertaking, is to be found in s 5DA of the Criminal Appeal Act. One of the early cases discussing the obligation to include such information in a warning under s 165 was a judgment of the Full Court of the Federal Court, Conway v The Queen [2000] FCA 461; 98 FCR 204 (Miles, von Doussa and Weinberg JJ). After noting that the jury had been informed of the dangers of acting on the "uncorroborated evidence" of two accomplices (albeit without reference to s 165 of the Evidence Act), the Court continued at [207]: "In addition to what his Honour told the jury in the passages set out above, he had, earlier in the trial, used the expression 'Sword of Damocles' when referring to the threat of a Crown appeal against the sentences imposed upon [the accomplices] if they did not adhere to their statements implicating [the accused]. The concept of the 'Sword of Damocles' was canvassed thoroughly in cross-examination of the accomplices. It was dealt with also in counsel's addresses. The jury could hardly have failed to understand the danger that an accomplice might adhere to a story implicating others because of the threat of a Crown appeal against sentence." 36The next important case was R v Stewart [2001] NSWCCA 260; 52 NSWLR 301, where this Court dealt with a similar issue, although not speaking with one voice. In Stewart a warning had been given under s 165 which was described by Spigelman CJ as "a comprehensive warning which, save in one specific respect, was all that was required": at [23]. The matter omitted was any reference to s 5DA, being the mechanism by which the witness could lose the benefit obtained by the assistance to law enforcement authorities: at [24]. Spigelman CJ would have upheld the appeal, despite the absence of complaint at trial that the warning given was defective: at [28]. The majority, R S Hulme and Howie JJ, refused leave to raise the issue. 37Hulme J was satisfied that the omission involved a breach of s 165, and did not ultimately resolve a question which he himself raised as to whether a request for "a direction on accomplices", with no further request after the warning was given, constituted a sufficient request for the purposes of s 165(2): at [41]. However, because he referred to "the mandatory requirements of s 165" he must have assumed that it was sufficient. Nevertheless, not being satisfied that the failure was significant in respect of the fairness of the trial or the ultimate result, he refused leave to rely upon the ground: at [47]. 38Howie J addressed in some detail the requirements of the common law with respect to accomplice evidence, the terms of s 165 and the related but separate issue of obtaining a contingent benefit on sentence for undertaking to give assistance in a forthcoming prosecution. Noting the importance of determining the adequacy of directions and warnings in the context of a specific case, as explained in Domican v The Queen [1992] HCA 13; 173 CLR 555 at 561 - see Stewart at [116] - Howie J considered the course of the trial and reached the following conclusions in terms of principle: "[158] Provided that the consequences for the witness in failing to give evidence in accordance with his undertaking has been sufficiently placed before the jury so that they would understand the significance of the fact that a witness is still at risk of further punishment when giving evidence in the trial, I do not believe that the trial judge is always required to raise this matter with the jury and inform them of its relevance in order to ensure that a miscarriage of justice did not arise. Whether or not the failure to refer to the matter in the summing up gives rise to the possibility of a miscarriage of justice will depend upon the circumstances of the particular trial. In this case the summing up followed immediately after defence counsel's address and there was a single issue before the jury: Braddick's reliability when implicating the appellant in the offence. [159] I acknowledge that it is important that the jury understands that a witness, who has been given a sentence discount or some other benefit for giving evidence implicating an accused, has at the time of giving evidence before the jury an obligation to give such evidence on pain of further punishment. The jury should not be left to assume that the witness has no reason to give false evidence implicating the accused at the time of the trial. They should be made aware that the fact that the witness has been sentenced for his part in the offence did not necessarily diminish the likelihood that his evidence might be unreliable: Conway at [207]." 39Shortly after Stewart was decided, but not in ignorance of it, a differently constituted court gave judgment in R v Clark [2001] NSWCCA 494; 123 A Crim R 506. Heydon JA (with whom Dowd and Bell JJ agreed) gave careful consideration to the principles requiring warnings of unreliability in circumstances where the contingent requirements under s 165 had not been triggered because there had been no request for a relevant direction: at [22]. In the course of that discussion, however, there was continuing reference to "whether a s 165(1)(d) warning should have been given": at [52]. Clark had been convicted of murder. Critical evidence against him was given by an old friend, Mr Brown, to whom he had allegedly confessed. There was a somewhat vague suggestion that Mr Brown might himself have been implicated in the murder, a matter which was not put to him in cross-examination. Heydon JA dealt with this issue at [64] in the following terms: "If the trial judge were to be invited by Mr Stratton [counsel for the accused] to direct the jury that Mr Brown's evidence was of an unreliable kind because he was implicated in the killing and because he had received an indemnity against prosecution, it would have been necessary for Mr Stratton to address the jury along those lines, and nothing in the trial judge's summing up suggests that he did. More importantly, it would have been necessary for Mr Stratton to have elicited evidence along those lines, or at least put questions, the answers to which, if exculpatory of Mr Brown, could have been disbelieved by the jury. But ... Mr Stratton put no question suggesting that Mr Brown was guilty. So far as he put questions suggesting that Mr Brown feared being charged, they were of the briefest kind. He put no questions about the impact of the indemnity on Mr Brown's truthfulness. That is a fatal gap in view of the fact that the appellant now relies on R v Chai [(1992) 27 NSWLR 153], because a key element in the reasoning in that case is the question of the 'significance' the 'grant of immunity from prosecution' had in relation to the 'evaluation of the reliability of the witness' testimony'. For example, it was not suggested to Mr Brown that he would not get the indemnity unless he maintained in the witness box his lying story to the police about the confession, and that was the reason why he was lying about the confession on oath. The absence of any testimonial exploration of that question in the cross-examination of Mr Brown is extremely damaging to the present argument." 40These considerations are relevant in the present case. No doubt it is one thing to tell a false story to police and another to adhere to that story on oath in the witness box. That the witness has a material incentive to adhere to his story is by no means insignificant in assessing the reliability of his evidence. Nevertheless, the fact is that he had had an equal incentive to adhere to his account to the police, whether true or false. The primary challenge to the reliability of the evidence must inevitably have focused on the initial account. 41The jury in this case knew that Mr Welland had given the police an account implicating the applicant in the offences before he was sentenced. The question for the jury was whether his evidence was true or false: knowing that self-interest might well have led him to lie or at least exaggerate the involvement of the applicant, the jury had every reason to focus on the extent to which his evidence was consistent with the independent material which supported the conclusion that the applicant was involved in the offending with which he had been charged. 42Nevertheless, and accepting that the possibility of resentencing may have had considerable significance, there would have been a real question as to how that matter should have been dealt with by way of additional directions. As explained by Heydon JA in Clark, it would have been difficult to formulate an appropriate direction in the absence of a testimonial basis. If the judge had told the jury that Mr Welland had a strong incentive not to depart from the account he had given to police, for he might otherwise be resentenced and lose some or all of his discount, thus increasing the time he would serve in gaol, should he also have said that how he would have responded to such a suggestion could not be known because he was never asked the question? Counsel for the accused could not have invited the jury to assume that he would have recanted in the face of cross-examination which did not take place; nor that, if he dismissed the suggestion as unfounded, the jury would necessarily find his response implausible. Of course, counsel did not ask the jury to take that step, because he lacked the evidential basis to make the submission. At the very least, there would have been an anxious discussion between counsel and the judge as to what direction could properly have been given. The absence of a testimonial basis for the direction would have provided a good reason, within the terms of s 165(3), for the judge to decline to give a direction of the kind now mooted. 43In these circumstances, it should not be concluded that there was a breach of s 165: further, if there were a breach, it was not one which gave rise to a miscarriage based on the unfairness of the trial. Accordingly, the third limb in the attack on the conviction must be rejected. For the reasons explained in Domican and articulated in the context of s 165 by Howie J in Stewart, there are significant qualifications on the value of taking what appear to be general statements of principle from previous cases as constituting the basis for inferring error in a later case. The more closely such statements are bound to the circumstances of the case in which they are expressed, the less likely they are to provide assistance, let alone binding authority, in other circumstances. To the extent that they are expressed at a high level of generality, such statements must be treated as largely obiter. 44For completeness, it is appropriate to deal with a passage in the judgment of Buddin J in Sullivan upon which reliance was placed by the applicant. Thus, at [94] Buddin J stated: "What was critical in the present case was not just the fact that the witness had been given a discount on sentence by reason of his undertaking to give evidence against the appellant and others. The magnitude of the discount was also of critical significance because of its potential to bear upon the pivotal issue in the trial, namely the credibility of Mr Evans. Furthermore, it was only in re-examination that it emerged for the first time that the witness 'could be re-sentenced' in the event that he did not 'keep that undertaking'. It is far from clear that the jury would have understood precisely what that expression entailed. The evidence as to the consequence of not fulfilling the undertaking, was confined to the cryptic reference that the witness could be 're-sentenced'." 45Again, it is critical not to take these statements out of context. The first part of the paragraph dealt with the fact that the prosecutor had objected to counsel for the accused seeking to adduce evidence of the extent of the benefit the witness had received; the following paragraph (which it is not necessary to extract here) dealt with the duty of the prosecutor to reveal to the jury all matters relevant to the position of such a witness. Secondly, although the issue of resentencing was said to have emerged for the first time in re-examination, emerge it did. Thus, unlike the present case, there was some evidence which might have formed the basis of a direction. 46Thirdly, although decided some two years after Clark, there was no reference to Clark in Sullivan, nor to the principles discussed by Heydon JA as to the problems which would arise where the effect of a potential resentencing for failure to comply with an undertaking had not been explored with the witness, nor relied upon in submissions. 47It may well be a significant error for the jury not to be warned of the possibility of resentencing for failure to comply with an undertaking, in circumstances where such a direction is sought, the matter having been raised in evidence with the witness: but that is not this case. To the extent that some cases, such as R v Yammine & Chami [2002] NSWCCA 289; 132 A Crim R 44, have upheld such challenges, without discussion of the precise nature of the direction, nor of the testimonial basis for it, they do not contradict the conclusion reached in this case. Conclusion 48The applicant should have leave to raise both of the grounds of appeal identified in the notice of appeal dated 25 February 2014; the appeal must be dismissed. 49PRICE J: I agree with Basten JA. 50FULLERTON J: I agree with Basten JA. ********** 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: 25 August 2014