Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Proud v R (No 2) [2016] NSWCCA 44 Hearing dates: 11 March 2016 Decision date: 21 March 2016 Before: Basten JA at [1]; Johnson J at [5]; R A Hulme J at [6] Decision: 1. Appeal against conviction upheld. 2. The appellant's conviction and sentence for the murder of Katherine Foreman are quashed. 3. Pursuant to s 8 of the Criminal Appeal Act 1912 there be a new trial. Catchwords: CRIMINAL LAW – conviction appeal – murder – joint criminal enterprise – jury warned about potential unreliability of appellant's evidence as someone who might reasonably be supposed to have been criminally concerned – warning erroneous where evidence not relied upon by Crown against co-accused – misdirection had capacity to deflect jury from its task – attempted clarification ineffective – conviction quashed CRIMINAL LAW – conviction appeal – no error in not directing as to "participation" in joint criminal enterprise – verdict not unreasonable or unsupported by evidence – ground of appeal added in anticipation of possible reconsideration by High Court of requisite mental state for extended joint criminal enterprise – court presently bound by existing authority – new ground rejected Legislation Cited: Crimes Act 1900 (NSW) ss 345, 346, Pt 9 Criminal Appeal Act 1912 (NSW) ss 6(1), 8 Criminal Appeal Rules r 4 Criminal Code (Qld) s 668E(1) Evidence Act 1995 (NSW) s 165 Cases Cited: Alford v Magee [1952] HCA 3; 85 CLR 437 ARS v R [2011] NSWCCA 266 Hargraves v The Queen; Stoten v The Queen [2011] HCA 44; 245 CLR 257 Huynh v The Queen; Duong v The Queen; Sem v The Queen [2013] HCA 6; 87 ALJR 434 Jones v R [1997] HCA 56; 191 CLR 439 Libke v The Queen [2007] HCA 30; 230 CLR 559 M v R [1994] HCA 63; 181 CLR 487 McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 MFA v R [2002] HCA 53; 213 CLR 606 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Palmer v The Queen [1998] HCA 2; 193 CLR 1 Picken v R [2007] NSWCCA 319 Proud v R [2016] NSWCCA 41 R v Abusafiah (1991) 24 NSWLR 531 R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979 R v Henning (Court of Criminal Appeal (NSW), Gleeson CJ, Campbell and Mathews JJ, 11 May 1990, unrep) R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 329 R v Spicer [2015] NSWSC 519 Robinson v The Queen [1991] HCA 38; 180 CLR 531 RPS v The Queen [2000] HCA 3; 199 CLR 620 SKA v R [2011] HCA 13; 243 CLR 400 Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41 Wilde v The Queen (1988) 164 CLR 365 Category: Principal judgment Parties: Michelle Sharon Proud (Appellant) Regina (Respondent) Representation: Counsel: Ms C Loukas SC (Appellant) Ms M Cinque SC (Crown) Solicitors: Blair Criminal Lawyers Solicitor for Public Prosecutions File Number(s): 2011/410458 Decision under appeal Court or tribunal: Supreme Court Citation: [2014] NSWSC 979 Date of Decision: 3 July 2014 Before: Harrison J File Number(s): 2011/410458 Judgment 1. BASTEN JA: I agree with R A Hulme J in respect of each of the grounds of appeal. It follows that the appellant's conviction must be set aside: as a retrial is appropriate, there is no reason not to direct it. 2. There are two issues which arise from these conclusions which may be thought to warrant brief comment. First, there is at least a superficial inconsistency between the rejection of the proviso with respect to ground 1 and the rejection of ground 3. The inconsistency is superficial, because the onus was on the prosecutor to establish that, despite the error constituted by ground 1, no substantial miscarriage of justice had actually occurred. On the other hand, the onus was on the appellant, in support of ground 3, to establish that the verdict was unreasonable or could not be supported having regard to the evidence. However, there was a more basic reason why the proviso did not apply in the present case. The misdirection, which, most unfortunately, may have left a cloud over the appellant's evidence, constituted an irregularity which can be described as "such a departure from the essential requirements of the law that it goes to the root of the proceedings": Wilde v The Queen (1988) 164 CLR 365 at 373 (Brennan, Dawson and Toohey JJ); see also Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [6]-[8] (Gleeson CJ); [35]-[36] (Gummow and Hayne JJ); [105]-[109] (Kirby J) and [158] (Callinan and Heydon JJ). The effect of the proviso would depend upon this Court's assessment of the explanations given by the appellant for her apparently damning admissions, in circumstances where she had been deprived of her right to have the jury assess her evidence without warnings as to its possible unreliability. Although the scope of the principle articulated in Wilde is not capable of precise description, this is a case where it cannot be said that no substantial miscarriage occurred; the miscarriage arose from the significant departure from the principles governing a criminal trial with a jury. 3. The second matter concerns the directions given in relation to the involvement of the appellant in what may colloquially be described as a joint criminal enterprise. I specifically agree with the statements of R A Hulme J concerning the manner in which questions of accessorial liability are left to the jury. The submissions in the present case provided a lucid example of the risks of using language which departs from the basic principles of the criminal law. Because the appellant was said to have engaged in a "joint criminal enterprise" it was suggested that the jury had to be satisfied that there was some form of "agreement" between the co-offenders, the scope of which was to be identified, together with "acts of participation" which were to be particularised for the jury. 4. The principles of accessorial liability are set out in Pt 9 of the Crimes Act 1900 (NSW). While it is true that some of the language such as the reference in s 345 to a "principal in the second degree" and in s 346 to an "accessory before the fact" may be opaque to a lay juror, the factual requirements as to state of mind and level of involvement are well-established by the cases and can be explained with reasonable clarity in ordinary language. It is at least in part the departure in recent times from those established concepts which led the UK Supreme Court to revisit the directions required in R v Jogee [2016] UKSC 8. 5. JOHNSON J: I have had the advantage of reading the judgment of R A Hulme J and the additional comments of Basten JA. I agree with the reasons and orders proposed by R A Hulme J. In addition, I agree with the conclusion of Basten JA at [2] with respect to the proviso. 6. R A HULME J: Michelle Sharon Proud was tried before Harrison J and a jury for the murder of Ms Katherine Foreman at Corrimal on 27 October 2011. She was jointly indicted with Bradley Max Rawlinson and Bernard Justin Spicer. A co-offender, Wendy Evans, had earlier pleaded guilty. 7. On the 28th day of the trial Bernard Spicer made an application to be discharged so as to be tried separately from his co-accused on account of certain evidence that had been given by Ms Proud. The learned trial judge acceded to that application. Mr Spicer was subsequently tried and convicted. 8. On 11 April 2014 the jury returned verdicts of guilty in respect of Ms Proud and Mr Rawlinson. On 3 July 2014 Ms Proud was sentenced to imprisonment for 20 years with a non-parole period of 14 years. 9. Ms Proud appeals against her conviction but not her sentence. The grounds of appeal are: 1 A miscarriage of justice occurred as a result of his Honour's warning to the jury to regard with "considerable caution" the evidence of the appellant as a result of her being a person who "might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings". 2 His Honour erred in not properly directing the jury as to the element of participation in the joint criminal enterprise. 3 The verdict was unreasonable or cannot be supported by the evidence. 1. Ms Proud was granted leave at the hearing on 11 March 2016 to add a further ground (see Proud v R [2016] NSWCCA 41 at [17]): 4 His Honour erred in directing the jury on extended joint criminal enterprise and the requisite mental state. The prosecution case 1. Katherine Foreman died at her home in the early hours of 27 October 2011 when the upstairs bedroom in which she was sleeping was set alight. Petrol had been poured inside the bedroom and ignited. Ms Foreman's body was found lying on the landing at the top of the stairs. The Crown case was that this was the culmination of a joint criminal enterprise between Evans, Rawlinson, Spicer and the appellant to either kill or at least cause serious harm to Ms Foreman. 2. The relationships between the participants in the joint criminal enterprise were complicated: see the description provided by Harrison J in sentencing Evans, Rawlinson and Spicer (R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979 ("the sentence judgment")) at [6]-[11]. It will suffice for present purposes to note that Mr Rawlinson and Ms Evans were in a relationship as were Mr Spicer and the appellant. Ms Evans, a former court officer, was a friend of the deceased, a solicitor, they having met through their work. The appellant was a friend of Ms Evans; on the Crown case a close and loyal friend. Mr Spicer was a friend as well but to a lesser extent. 3. There was evidence of various events which occurred from July 2011 which indicated that Ms Evans and Mr Rawlinson bore the deceased a considerable degree of animosity which developed to the point when the plan was formulated which led to the murder. The prosecution contended that the appellant was motivated by her loyalty to Ms Evans to assist with the plan; from what she had heard from Ms Evans she adopted a similar degree of animosity towards the deceased. 4. It was the prosecution case that in the early hours of the morning of 27 October 2011 Wendy Evans and Bernard Spicer entered Ms Foreman's home using keys that had been provided by Bradley Rawlinson. Spicer spread petrol around the bedroom and Evans lit the fire. 5. Harrison J found that Spicer, Evans and Rawlinson had an intention to kill (sentence judgment at [120], [168]; R v Spicer [2015] NSWSC 519 at [38]). Rawlinson was not present when the fire was set but was involved in planning for it to occur. He was described by the judge as "the principal and driving force behind the conception and consummation of the offence" (sentence judgment at [157]). 6. The Crown case against the appellant was that she acted as an intermediary between Evans and Spicer. She was also involved in arranging payment by Evans to Spicer and herself for their involvement. Harrison J found the appellant to have been "a willing and enthusiastic contributor in the plan to cause very substantial harm to the deceased" but, as a party to "an agreement to cause grievous bodily harm", her culpability was distinguished from the others (sentence judgment at [173]-[174]). 7. The principal evidence against the appellant included a covertly recorded conversation she had with another person seven weeks after the murder in which, on the Crown case, she spoke of the instructions she had given her partner, Bernard Spicer, as to what he was to do. There was also evidence of her involvement in the transfer of money by Wendy Evans prior to the murder and later following up on the payment of an outstanding amount. Admission to Danielle Gallagher 1. The appellant had a conversation with a friend, Ms Danielle Gallagher, at the appellant's home on 15 December 2011. Unbeknown to her it was being recorded. (Exhibit AAAE at p267) 2. The appellant asked Ms Gallagher if she could "keep a really, really, really big secret". She said she was being investigated by the Homicide Squad and proceeded to tell Ms Gallagher how Ms Foreman had been killed. She made various disparaging comments about the deceased but claimed that what occurred was intended to be "a warning thing for her to back off"; "they weren't supposed to kill her". She told Ms Gallagher of a plan to provide police with a story that would exclude Spicer from involvement. In the course of this conversation the appellant said: "And it wasn't supposed to kill her, it was only supposed to warn her to back off. See, all BJ [Spicer] was supposed to do, like I said to BJ all you do is, is you go in there, you mess her up a bit, I said damage her face, because she thought she's this crash hot … Just bash her a bit and that, put her in hospital to the point her face can't be fixed and no one will want her after that … … [S]o Wendy went asked if we knew anyone that could do the job and like she'd pay them. And BJ said, 'Well, we need the cash' cause we wanted to get another car. And she rang us before I lost me licence and we were going to get another car with it and then um, yeah, so BJ said, 'I'll do it for you, Wendy' but it wasn't supposed to kill her, it was just supposed to scare her …" (Emphasis added) The appellant's evidence 1. The appellant said in her evidence in chief that Wendy Evans rang her on the night of 25 October 2011 and "asked me if I knew anyone that could do something to Katie". She replied, "No". She told Mr Spicer of the request and "that I didn't want him getting involved in it". 2. The appellant said that she later heard Mr Spicer on the telephone saying "I will do it". He later "told us we were going on a holiday" to Wollongong and that Wendy Evans would drive them there. On 26 October 2011 Ms Evans collected her and her three children from their home at Whalan and drove them to the Oasis Motel at Windang. On the way she asked Ms Evans what Mr Spicer had meant when he said "he will do it". Ms Evans explained that "she was getting BJ to scare Katie"; "she wanted someone to go in there … mess her up to the point she didn't look pretty anymore, bash her to the point she was put in hospital because she thought she was crash hot". The appellant said that she told Ms Evans, "If BJ said he'll scare, he'll just scare her". She also said that she (the appellant) did not want to get involved in it. 3. The appellant said that after arriving at the motel, Ms Evans left and went back to pick up Mr Spicer and her step-daughter. Late that night Ms Evans returned to the motel and Mr Spicer went away with her. The appellant claimed that "she was taking him to Kmart" although she did not know why. Mr Spicer returned sometime in the early hours the following morning. He told her what had occurred: "He said that he went and bought petrol from the servo and Jiffy Firelighters. He then went around to Katie's house with Wendy. He went upstairs, poured the petrol around the bed. Katie woke up screaming, and he doesn't understand why she didn't get up and run, and then he left after that – and Wendy lit the cloth but couldn't go through with it and threw it away. He re-picked it up and threw it towards the bed." 1. The appellant claimed that she did not become aware that Ms Foreman had been killed until the following afternoon (27 October). She told Mr Spicer who said "It wasn't supposed to happen like that". 2. The appellant's counsel asked her about the conversation she had on 15 December 2011 with Danielle Gallagher. She said she had been trying to concoct an untruthful story to conceal Mr Spicer's involvement. She denied that she had any prior knowledge of what was to occur aside from the conversation she had in the car with Ms Evans on the way to Windang. 3. She was taken specifically by her counsel to the part of the conversation with Ms Gallagher that included her saying "like I said to BJ, 'All you do is … go in there, you mess her up a bit'". She explained: "When I tell a story or relay a story I tend to use those words. That's just a saying I use." 1. She maintained that she did not give instructions to Mr Spicer. She was simply conveying what Wendy Evans had told her. 2. The appellant maintained the essence of this account in the course of cross-examination by the Crown Prosecutor. She explained that when she told Ms Gallagher that "we wanted to get another car" she meant "he [Mr Spicer] wanted to get another car". 3. She maintained that when she said to Ms Gallagher "I said to BJ" she was not conveying something that she herself had said to Mr Spicer. What she meant to be conveying was that, "Wendy said to BJ". And where she was recorded as having said "I said 'damage her face'" she meant that "Wendy said, 'damage her face'". 4. The appellant said in her evidence in chief that sometime after returning home to Whalan she had a conversation by telephone with Wendy Evans in which she asked Ms Evans "what the hell had happened". She said Ms Evans replied: "[I]t wasn't' supposed to be like that, all BJ was supposed to do was go in there, mess her face up a bit to the point she didn't look pretty anymore, bash her to the point she was in hospital because she thought she was crash hot." 1. In cross-examination, she said (with obvious reference to the conversation with Ms Gallagher): "[A]fter I got off the phone from Wendy after it happened, I went out to BJ and said, 'BJ, what you were supposed to do was go in there, mess her up a bit'. That's why I said here, 'Like I said to BJ, 'Go in there, mess her up' because I said to BJ, 'You were supposed to do this, not kill her'. That's why I said it." Payment of money 1. Ms Peggy Case is the sister of Bernard Spicer. Ms Case was employed by the TAB and she had a TAB account which she allowed her brother to use. On 26 October 2011, an amount of $1000 was deposited into her account after the appellant telephoned her and said that her friend Wendy was going to put money into the account. Ms Case asked her why and the appellant explained that she was going to Wollongong for a few days because she was stressed out. Ms Case said that she withdrew the money from the account and gave it to her brother. There was evidence that the deposit occurred at 11.57am and Ms Case made the withdrawal at 12.33pm on 26 October 2011. 2. Ms Case also gave evidence of another sum of $1000 deposited to her account which she understood was money from Wendy. Her brother asked her to withdraw it and he came and collected it. This occurred on 8 November 2011. 3. A sum of $350 was deposited to Ms Case's account on 25 November 2011 which she withdrew and gave to her brother. 4. There was evidence that the appellant and Mr Spicer were angered because Ms Evans had not paid the full amount promised. Ms Aimie Hull, who had known the appellant since school, gave evidence that after the appellant had returned from her trip to Wollongong she complained that "Wendy dogged on us". A few days later the appellant told her that she was waiting on Wendy to put "a couple of thousand" dollars in her account. A couple of days after that the appellant told her that Wendy had not paid the money and said "if she didn't pay the money they were going to bash her". 5. The pursuit by the appellant and Mr Spicer of the money owed by Ms Evans was vividly illustrated by a voice message the appellant left for Ms Evans on 18 November in which she said: "I want my fucking money bitch and this is Michelle. Where is my fucking money? I'll come down and I'll hunt you down. I know where Brad lives so don't fucking stuff me around. I'm nearly kicked out of my fucking house." (Exhibit AAAE p 111) (Emphasis added) 1. The appellant denied in her evidence that she had any knowledge or involvement in the transfer of money from Ms Evans (and Mr Rawlinson) to Mr Spicer prior to the death of Ms Foreman. She only found out later when Mr Spicer told her. She explained that contact between Ms Case's phone and her home landline phone between the deposit to and withdrawal from Ms Case's TAB account on 26 October 2011 did not involve her as she was out shopping at the time. Ground 1 – error in warning the jury that the appellant's evidence may be unreliable 1. The appellant gave her evidence in chief on the 25th day of the trial (24 March 2014). The day's evidence concluded after counsel for Bradley Rawlinson had cross-examined her. After the jury were released for the day, counsel for Bernard Spicer made an application for a separate trial on the basis that he had been taken by surprise by evidence of Ms Proud that was damaging to his client's case. The judge ruled on the application the following morning; it was refused: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 329. The continuation of the evidence was deferred by a day to allow Mr Spicer's counsel to obtain instructions as he was next to cross-examine. 2. It is of some significance for present purposes to note that in the course of submissions on Mr Spicer's application the Crown Prosecutor referred to the admission he had made, according to the appellant's evidence, as "very important evidence in the case against Mr Spicer". He also referred to it as "important admissible evidence coming out during one of the defence cases". 3. Counsel for Bernard Spicer cross-examined the appellant on the 27th day of the trial (26 March 2014). Suffice to say that her credibility was seriously questioned. It was in the course of that cross-examination that the appellant said various things which were unfairly prejudicial to Mr Spicer (e.g. a reference to his past criminality; he was not working because he was on parole) which prompted a further application to separate his trial which was granted. 4. After the jury departed at the conclusion of the evidence that day there was a short preliminary discussion about the directions the judge would be required to give the jury in his summing up. The Crown Prosecutor listed a number of matters including: "There will be s 165 warnings about the various categories of evidence that that applies to." 1. The learned judge's summing up to the jury commenced on Tuesday 8 April 2014. A juror was absent the following day and the summing up concluded the next afternoon. In the absence of the jury on 9 April the opportunity was taken for there to be some further discussion about directions which included the following: "HIS HONOUR: Are there any matters that we can deal with? TERRACINI [Counsel for Rawlinson]: We have your Honour's directions on joint criminal enterprise. We still ask your Honour to add that sentence that I made application about last week. That was opposed by the Crown and the fact that it's not in your Honour's directions – HIS HONOUR: Before you say anything, Mr Terracini, I can indicate the fact that it's not in the written directions has not yet foreclosed my concern or decision about whether or not to include it in oral directions. TERRACINI: I just re-agitate that; I don't put it any higher. HIS HONOUR: I understand. I'm aware of that. TERRACINI: Upon reflection, I think I should ask for a 165 direction on [Name of witness], the escort. HIS HONOUR: I was proposing to give one in relation to Ms Proud. TERRACINI: The only basis that we could mount an application for a 165, I think, would be the history of drug use, reliability and memory. HIS HONOUR: Having recently reviewed once again your submissions concerning [Name of witness], Mr Terracini, there was little about her credit, or lack of it, that could be said that you failed to say. TERRACINI: No, it was all encompassing. HIS HONOUR: It was all encompassing, and then some, I suspect." (9.4.14 at T82) (Emphasis added) 1. It would seem that no-one heard or noticed what the judge said in the italicised portion of that exchange. 2. During the course of the continued summing up the following day his Honour gave the following direction that is the subject of this ground of appeal (as extracted from the revised transcript): "Section 165(1)(d) and (2) – evidence given by a witness being a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding [357] Now, in the events that have occurred in this case, although obviously not called by the Crown in its case as a witness, the Crown relies upon the evidence of Ms Proud in some respects, who is asserted by it to be a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the present proceedings. Indeed, that is obvious because she is an accused person in this trial. [358] The law requires me to give you certain warnings and directions concerning this evidence. They are given in every case in which the Crown relies upon the evidence of a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings before the Court. They are not given in this case because of any view that I have formed concerning Ms Proud's evidence. [359] The need to give such directions arises because the courts have, over the years, accumulated a great deal of experience concerning the reliability of evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events that give rise to the proceedings before the Court, and that experience would not readily be known to general members of the public. Experience has shown that the evidence given by such a witness is often unreliable. In saying that, I do not intend to suggest, however, that such evidence is always unreliable. [360] 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 should approach that evidence with considerable caution in the way that I will shortly outline. [361] There are, no doubt, many reasons why the evidence of such a person may be unreliable. I will give you some possible reasons. [362] It is only natural, you may think, that a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings may want to shift the blame from himself or herself on to others and to justify his or her own conduct. In the process, the witness may construct untruthful stories, which tend to play down his or her part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people. [363] Persons reasonably supposed to be involved in the commission of an offence may make false claims as to the involvement of others out of motives of revenge or feelings of dislike or hostility. [364] There may be reasons why such a witness has given false evidence. However, it is not for the accused to establish the reason or reasons why such a witness may have been lying. [365] Experience has shown that once such a witness has given a version to the police, for example, inculpating an accused, he or she may feel locked into that version, even it contained inaccuracies or even if it was substantially untrue. [366] In this case when assessing the evidence of Ms Proud, you must remember those warnings and directions that I have just given to you." 1. The jury were sent out for lunch a short time later and the following exchange occurred: "PULLINGER [Counsel for the appellant]: Your Honour gave an unreliability warning under the terms of 165 in relation to the evidence of Ms Proud. HIS HONOUR: But you wanted me to give it in relation to— PULLINGER: My recollection, your Honour, is that no one has made a request of your Honour to give any such warning. Your Honour gave it on the basis as suggesting that the Crown relied upon her evidence and then gave the warning in that regard. That puts the accused Ms Proud in this invidious position that it may have the effect of undermining her evidence on the basis that the Crown wants to rely upon it and it would be unfair in my submission to have her tainted with an unreliability warning on that basis, particularly bearing in mind nobody has requested it. HIS HONOUR: My mistake. Mr Crown? CROWN PROSECUTOR: Yes, your Honour, 165 does become operationally, it would appear, pursuant to a request by a party, that's 165(2), "if there is a jury and a party so requests" and my learned friend didn't request that warning. It is open for a trial judge to give a 165 warning in relation to an accused who gives evidence and becomes a witness. "Witness" is defined to include a defendant but, in the absence of a request, it would seem that 165 doesn't become operational. I had understood your Honour was going to give the 165 warning in relation to the ERISP of Wendy Evans insofar as it was hearsay, so I don't oppose the application by my learned friend. HIS HONOUR: What's the application? Do you want me to tell them to disregard what I have said? PULLINGER: Yes. HIS HONOUR: I can do that in fulsome terms. I'm not sure about the ERISP. CROWN PROSECUTOR: The Crown would submit your Honour gave that direction but I don't know what your Honour means by "fulsome". HIS HONOUR: Well, that's a word that's often misused or misinterpreted. CROWN PROSECUTOR: Perhaps your Honour might want to consider it over lunch as to how you deal with it. HIS HONOUR: I suppose I was merely indicating that anything I say to the jury ought to be adequate to satisfy Mr Pullinger's concern that any harm caused by it has been salved. That's all I mean. CROWN PROSECUTOR: I have no objection to that. TERRACINI: Your Honour could say that was the Crown's case and you're not trying to suggest to the jury that's your view; you're not giving them a direction but that's what the Crown case is. CROWN PROSECUTOR: Yes, I have no problem with that. TERRACINI: As long as your Honour takes away your Honour's imprimatur, that is the Crown's case but it's not your Honour's view. HIS HONOUR: I certainly said that, I think you will find, in the course of the direction. I think Mr Pullinger's concern is slightly different though. PULLINGER: I think my concern, if I have expressed it correctly, your Honour, is that in giving the warning, your Honour adverted to the Crown's reliance on Ms Proud's evidence and then went on to deliver a warning. HIS HONOUR: You're absolutely correct about that. Mr Pullinger, I will turn my mind to that. Do you want to give me your version of what you say would be a satisfactory recitation from me to deal with the matter? PULLINGER: Yes. HIS HONOUR: If you can get that to me in chambers as soon as you can, that would be appreciated. PULLINGER: It will probably be handwritten, your Honour. HIS HONOUR: Are there any other matters that anyone wanted to raise apart from that? TERRACINI: No, your Honour. PULLINGER: No, your Honour. LUNCHEON ADJOURNMENT CROWN PROSECUTOR: Your Honour, I have the draft proposed additional direction that your Honour suggested in relation to the 165 warning. The Crown submission is that where your Honour has "The Crown has submitted that Ms Proud is a witness whose evidence may be unreliable", the Crown submits your Honour should say instead, "The Crown has submitted that Ms Proud is a witness whose evidence is unreliable." HIS HONOUR: And the rest is all right? CROWN PROSECUTOR: Yes. HIS HONOUR: What about the third sentence, that is proposed by Mr Pullinger - that's all right, that is a general comment. Are you happy with that, Mr Pullinger? PULLINGER: Yes, your Honour. HIS HONOUR: I had your written direction but I thought I should go a bit further. PULLINGER: I am happy with the way your Honour has done it. HIS HONOUR: We will have the jury back, I will give that direction and then we will have the ballot. CROWN PROSECUTOR: Your Honour is just giving the formal last directions as to return of verdict? HIS HONOUR: I am going to do that after we have the ballot. I thought it was slightly impertinent to those who are released. You didn't want to have any input, Mr Terracini, into the direction I am about to give? TERRACINI: No, your Honour, I was present when Mr Pullinger sent me a draft so I read it." (10.4.14 at T142-4) 1. It is apparent from this exchange that the appellant's counsel sent the judge a written suggested direction during the luncheon adjournment. A copy was not marked for identification and the parties have been unable to locate it on the court file or elsewhere. 2. It is also clear that the judge's first reaction was to suggest that he should tell the jury to disregard what he had said about the potential unreliability of the appellant's evidence. However, senior counsel for the co-accused Rawlinson (who it would seem had no direct interest in the subject) suggested that he could tell the jury that he had not been expressing a personal view or giving a direction but simply conveying that it was the Crown case that the appellant's evidence was unreliable. As it turned out, that is the substance of what the judge ultimately said. 3. The jury returned to court and the judge gave the following further direction (again, extracted from the revised transcript): "Reliability of Ms Proud's evidence [394] I just need to clarify something that I said during the course of my summing-up to you before lunch concerning Ms Proud. In the course of my summing-up, I indicated that the Crown relied upon the evidence of Ms Proud. The law on occasion has found that the evidence of a witness involved in a criminal offence may be unreliable. The Crown has submitted that Ms Proud is a witness whose evidence is unreliable. I want to make it clear, however, that I have no view or opinion about that, and you should not proceed upon the basis that I do. Ms Proud is entitled to be considered and assessed by you in the same way as any other witness. [395] The fact that the Crown has submitted that you should not believe Ms Proud is no more and no less than a part of the way the Crown has presented its case against her. It is a matter for you whether you accept or reject what the Crown says about Ms Proud's reliability. I direct you as the trial judge that I am not offering an opinion that in this case you should regard Ms Proud's evidence as being in a class that may be unreliable." Appellant's submissions 1. Ms Loukas SC on behalf of the appellant acknowledged that r 4 of the Criminal Appeal Rules applies so that leave is required for her to raise this ground. 2. It was submitted that the clarification of the warning later given by the trial judge was not effective in withdrawing it. The substance of the clarification was that the potential unreliability of the appellant's evidence was something for which the Crown contended and it was something about which the judge was not offering his opinion. In written submissions the following matters were listed as having not been withdrawn by the redirection: "That courts have 'experience' that may not be obvious to members of the public in relation to such witnesses. That in this experience, such witnesses may be 'unreliable', 'want to shift the blame from himself or herself on to others', construct untruthful stories, which tend to play down his or her part in the crime', 'give false evidence', and may 'feel locked into' a false version given to police. That the jury should approach the evidence with considerable caution'. That in assessing the evidence of Ms Proud, the jury must 'remember those warnings and directions'." Crown submissions 1. The Crown in this Court accepted that the warning about the potential unreliability of the appellant's evidence was erroneous. However, the fact that no complaint was made about the clarification later given by the trial judge was indicative of it being considered adequate in the atmosphere of the trial. 2. The Crown also emphasised that the judge had given the jury directions about the onus and standard of proof. These directions included that the appellant was presumed to be innocent unless and until the Crown persuaded the jury of guilt beyond reasonable doubt. The fact that the appellant had given evidence did not alter the burden of proof. It was for the Crown to persuade the jury that the evidence of the appellant (as well as what she had told police) together with the evidence of the witnesses she called should not be accepted as a version that could possibly be true. 3. So, the Crown submitted, the position left to the jury was that it was the Crown alone who was saying that the appellant's evidence was unreliable. Even if the jury disbelieved her evidence entirely, it remained for the Crown to prove her guilt beyond reasonable doubt. 4. In written submissions, the Crown submitted that even if error be found, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should apply as "no substantial miscarriage of justice has actually occurred". However, when pressed at the hearing of the appeal, senior counsel conceded that there was "arguably" a fundamental defect in the trial that would render application of the proviso inapt. Rule 4 1. In relation to the operation of r 4 of the Criminal Appeal Rules, Hunt J (as his Honour then was), with the agreement of Gleeson CJ and Mahoney JA, said in R v Abusafiah (1991) 24 NSWLR 531 at 536 that the rule is "no mere technicality which may simply be brushed aside". One of its purposes is "to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury". That did not occur in the present case. 2. However, there is no suggestion that the acquiescence of trial counsel to the "clarification" direction was explicable by counsel hoping to gain some forensic advantage. More significantly, the ground is concerned with the judge having given the initial warning about the appellant's evidence (to which, taking a broad view, objection was taken), not with the later attempt to clarify it. In any event, if the appellant establishes that she has lost a real chance (or a chance fairly open) of being acquitted the rule should not stand in her way: see, generally, ARS v R [2011] NSWCCA 266 at [59] (Bathurst CJ) and particularly Picken v R [2007] NSWCCA 319 at [20]-[21] (Mason P). Section 165 1. Section 165 of the Evidence Act 1995 (NSW) provides (relevantly): "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." 1. As noted by both trial counsel and the Crown Prosecutor, the section was not engaged because there had been no request by a party for the judge to give the direction. That is not determinative, however, given the judge was empowered by sub-s (5) to give a warning, if appropriate, regardless of any request. The question is whether a warning was appropriate and, if not, whether it was productive of a miscarriage of justice. Caselaw 1. Robinson v The Queen [1991] HCA 38; 180 CLR 531 concerned a trial of a rape charge in which the issue was consent. The trial judge directed that when assessing the evidence of witnesses the jury should consider whether a witness had an interest in the outcome of the case, adding: "You might think – it is a matter solely for you – that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely." 1. It was noted that the judge had directed the jury in unexceptional terms about the Crown bearing the onus of proof, including in the event that the jury disbelieved the accused and his witnesses. Notwithstanding such directions, the Court held (at 535-6) that there had been a serious misdirection affecting the fairness of the trial. It had the effect that "the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused". The direction was described as having the effect that "the appellant was to be treated as a 'suspect witness'". The presumption of innocence had been undermined. 2. The direction in the present case did not make any reference to the appellant's interest in the outcome of the trial. It did, however, require the jury to approach her evidence with "considerable caution" because she was one of the persons accused of the murder with which the trial was concerned. 3. In Hargraves v The Queen; Stoten v The Queen [2011] HCA 44; 245 CLR 257 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) took the opportunity to consider what had been decided in Robinson v The Queen. It was noted that it had been held that the trial judge's directions "had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused" and that "virtually had the effect that the appellant was to be treated as a 'suspect witness'". However it was noted that the Crown had conceded that there had been a misdirection and the appeal was allowed without argument. In those circumstances, it was considered (at [34]) that there were difficulties in treating the case as having established some new rule or principle. 4. It was noted that in both Robinson v The Queen and the present case "the immediate question was … whether on any ground whatsoever there was a miscarriage of justice" (i.e. one of the grounds of appeal in s 668E(1) of the Criminal Code (Qld) as it is in s 6(1) of the Criminal Appeal Act 1912 (NSW)). The decision in the former was described (at [38]) as stemming from the fundamental features of a criminal trial which were described in the following way in RPS v The Queen [2000] HCA 3; 199 CLR 620 at [22]: "[A] criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt." 1. The same point was made in Robinson v The Queen (at [535-6): "If [the presumption of innocence] is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts." 1. The plurality continued: "[41] … These being the fundamental features of a criminal trial, it follows that the judge's instructions to the jury must accord with them and departure from them would be a miscarriage of justice." 1. After some general remarks about features of a summing up, they continued: "[42] … But informing and underpinning all of these requirements is that the judge's instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury's attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty." 1. Three examples were given (at [43]-[45]) to demonstrate that a jury's attention can be deflected from its fundamental task in various ways. RPS v The Queen involved inappropriate comment by a trial judge on the failure of the accused to give evidence. Palmer v The Queen [1998] HCA 2; 193 CLR 1 involved a person accused of sexual offences being asked whether the person could offer any reason or motive for the complainant to lie. And Robinson v The Queen itself involved an invitation to the jury to test an accused's evidence according to his interest in the outcome of the trial and a suggestion that his evidence should be scrutinised more carefully than that of other witnesses, thus deflecting the jury from applying the requisite onus and standard of proof. 2. The plurality judgment concluded on the subject (relevantly): "[45] … The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt. [46] The principle that is identified is expressed at a high level of abstraction: did the judge's instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt? … Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge's instructions to the jury deflected the jury from its proper task." Analysis 1. Before turning to the terms of the warning and the effect of the "clarification" it is appropriate to consider whether there was any need for a warning at all. 2. Prior to the discharge from the trial of Bernard Spicer there was clearly evidence that was damaging to his case that had been given by the appellant in respect of which the Crown Prosecutor had indicated the Crown might or would rely. If he had remained in the trial it could well have been necessary for the judge to say something in fairness to Mr Spicer about the reliability of the appellant's evidence. As to the care with which this issue would have to have been approached, see R v Henning (Court of Criminal Appeal (NSW), Gleeson CJ, Campbell and Mathews JJ, 11 May 1990, unrep) and Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41. 3. Bernard Spicer had departed the trial before the evidence had concluded. The Crown did not rely upon any of the evidence of the appellant in the case concerning the remaining co-accused, Bradley Rawlinson. Counsel for Mr Rawlinson cross-examined the appellant but only to obtain her agreement that she had never met him before the death of Ms Foreman, let alone spoken to him or seen him in the company of Mr Spicer or his sister or Ms Evans. In these circumstances, the appellant's evidence should have been the subject of assessment by the jury in the ordinary way. 4. Given the warning about the possible unreliability of the appellant's evidence was not called for, the question is whether it had the capacity to deflect the jury from its task of deciding whether the Crown had proved the essential elements of the charge against her beyond reasonable doubt. 5. I am satisfied that the attempted clarification by the judge did not remove the damaging aspects of the earlier warning from the jury's consideration. 6. The appellant's evidence represented the essence of her defence to the incriminating aspects of the Crown case. Her credibility was seriously questioned in cross-examination by the prosecutor. The effect of the warning was that the jury were given a variety of reasons why her evidence might be unreliable over and above what the jury might have considered when assessing her evidence on its merits. These further reasons were extraneous and irrelevant because this was not a "case in which the Crown relies upon the evidence of a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings before the Court". Rather than relying upon it, the Crown vigorously disputed the appellant's evidence. 7. The proviso in s 6(1) of the Criminal Appeal Act should not be applied for the reasons given by Basten JA at [2]. Accordingly, ground 1 should be upheld. Ground 2 – error in not directing as to the element of "participation" in a joint criminal enterprise 1. The success of the appellant under the previous ground would result in an order for retrial and the same would be the result if she succeeded under this ground. I am not persuaded that this ground has merit and, in the circumstances, will deal with it only briefly. 2. In what follows I propose to confine my reference to a joint criminal enterprise but it should be taken that I am also referring to an extended joint criminal enterprise which was the alternative way the Crown case was left. 3. The judge directed the jury on the concepts of joint criminal enterprise in textbook terms in conformity with the authorities and modelled on the suggested directions in the Criminal Trials Bench Book published by the Judicial Commission of New South Wales. The directions were settled with the input of counsel. The appellant's counsel raised no objection nor sought any redirection. 4. In this Court, Ms Loukas sought to draw a distinction between a joint criminal enterprise where the accused was present at the scene of the crime and one where the accused, as in this case, was not. She referred to Huynh v The Queen; Duong v The Queen; Sem v The Queen [2013] HCA 6; 87 ALJR 434 where it was held that the participation by a party to a joint criminal enterprise may be established by no more than their presence at the scene of the crime. The submission was that where a party to such an enterprise was not present, then the Crown was required to prove not only that the person was a party but also that the person performed some act in furtherance of the enterprise. 5. The merits of the point are dubious but it is unnecessary to dwell upon them. The simple answer is that in this case what was capable of proving that the appellant was a party to the enterprise also proved that she participated in it – for example, her instruction to Mr Spicer: "all you do is, you go in there, you mess her up a bit … just bash her a bit … put her in hospital to the point her face can't be fixed". 6. Before departing, I observe that the appellant's role would more accurately be described as being an accessory before the fact than a participant in a joint criminal enterprise. However, for practical purposes these are different legal descriptions of criminal complicity that would not make any difference to the necessary matters the Crown was required to prove in order to establish the appellant's guilt beyond reasonable doubt. 7. I also take the opportunity to observe that the avoidance of technical legal arguments on appeal that have little or no regard to the factual issues a jury was called upon to decide would be fostered if directions in a summing up were posed, wherever possible, in terms of factual questions for the jury to decide. It is an understatement to say that there would also be the benefit of jurors being more readily able to understand the directions. 8. The language that is often used in directing a jury on complex legal issues such as whether an accused was criminally complicit in an offence that was the product of a joint criminal enterprise, adapted from technical concepts discussed in appellate cases, might be well understood by experienced criminal lawyers and judges but it does not necessarily lend itself to ease of comprehension by lay jurors. The challenge for judges is to provide the jury with only so much of the law as is necessary in order to guide the jury to a decision on the real issue(s) in the case: Alford v Magee [1952] HCA 3; 85 CLR 437 at 466. In the present case, the real issues for determination in relation to the appellant were: whether she had prior knowledge of a plan to cause the deceased really serious harm (alternatively to cause some harm with foresight of the possible infliction of really serious harm) and, if so, whether she assisted, encouraged or facilitated the execution of that plan. 1. In very recent times, New South Wales judges have had the benefit of seminars presented by New Zealand judges on a more enlightened approach taken in that jurisdiction to the distillation of the real issues falling for jury determination. It is a matter that requires serious reconsideration of the approach taken here. 2. Leave pursuant to r 4 of the Criminal Appeal Rules should be refused in respect of this ground. Ground 3 – the verdict is unreasonable or not supported by the evidence 1. Ms Proud requires leave to raise this ground as it does not involve a question of law alone (s 5(1) Criminal Appeal Act). For convenience, however, I will continue to refer to her as "the appellant". 2. The principles concerning the determination of a ground of appeal that a verdict of guilty is unreasonable, or cannot be supported, having regard to the evidence, are well known and there is no need to recite them again in this judgment. In short, the question is whether, upon independently assessing the evidence, this Court is of the view that it was open to the jury (in the sense explained by the High Court) to conclude beyond reasonable that the appellant was guilty: M v R ]1994] HCA 63; 181 CLR 487 at 493; Jones v R [1997] HCA 56; 191 CLR 439; MFA v R [2002] HCA 53; 213 CLR 606; Libke v The Queen [2007] HCA 30; 230 CLR 559 and SKA v R [2011] HCA 13; 243 CLR 400. 3. There is no need to survey the evidence in the trial in any further detail than I have already. Whatever might be made of the other incriminating evidence the prosecution relied upon, the most telling evidence was the covertly recorded conversation between the appellant and Ms Gallagher on 15 December 2011: see above at [19]. If the jury accepted that the appellant did in fact instruct Mr Spicer as to what he should do – that is, intentionally inflict grievous bodily harm upon the deceased, then, given that is what in fact occurred (at least), the jury were required to return a verdict of guilty of murder. Was it open to the jury to accept that this is what the appellant was conveying to Ms Gallagher? 4. I have earlier set out the appellant's attempt to explain what she said to Ms Gallagher as "a manner of speech". It is an explanation that is distinctly lacking in credibility. Moreover, the appellant's credibility was seriously damaged by the overwhelming body of uncontested evidence that she had devoted considerable effort to the concoction of false accounts to give to police during the course of their investigation. In addition, there was the appellant's police interview of 21 December 2011 in which she maintained a false version, only to be forced to concede the falsity of some of its elements after she was confronted with some of her recorded conversations. 5. In my view, there was nothing unreasonable about the appellant's conviction. It was well open to the jury to be satisfied beyond reasonable doubt of her encouragement and facilitation of the plan to have the deceased hospitalised and seriously disfigured. 6. This ground must be rejected. Ground 4 – error in directions on extended joint criminal enterprise and the requisite mental state 1. Senior counsel for the appellant acknowledged that this ground was put forward to protect her client's position should the High Court reconsider established authority that is binding on this Court such as McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 in the light of the recent joint decision of the Supreme Court of the United Kingdom and the Privy Council in R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7. 2. As accepted by the appellant, this ground must be rejected. (Proud v R [2016] NSWCCA 41). Orders 1. I propose the following orders: 1 Appeal against conviction upheld. 2 The appellant's conviction and sentence for the murder of Katherine Foreman are quashed. 3 Pursuant to s 8 of the Criminal Appeal Act 1912 there be a new trial. ********** 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: 10 October 2017