Robinson v R

SPIGELMAN CJ : In this matter I have had the advantage of reading the judgment of Johnson J in draft. I agree with his Honour’s reasons and orders. I wish to add a few observations with respect to Ground 4.

This ground of appeal was based on the proposition that the trial judge erred in failing to give a direction that, in the absence of substantial confirmation by independent evidence, it would be “dangerous to convict” upon the evidence of prison informers. This was part of the form of direction approved by this Court in R v Clough (1992) 28 NSWLR 396 at 406. The full direction proposed was: “The direction to be given must be moulded to fit the circumstances of the particular case, and not follow any set formula. It should, however, include warnings: (a) that the experience of the courts over the years has demonstrated that the evidence of such witnesses is potentially unreliable, together with the explanation as to why that is so; (b) that it is for that reason necessary to scrutinise the evidence of the particular witness in question with great care; (c) that, in the absence of substantial confirmation provided by independent evidence that the confession was in fact made, it is dangerous to convict upon the evidence of that witness; (d) that such independent evidence is unlikely to be provided by a fellow prisoner, because he is likely to be motivated to concoct his evidence for the same reasons; and (e) that, having regard to the potential unreliability of the evidence, there is a risk of a miscarriage of justice if too much importance is attached to it.”

Cases at common law about potentially unreliable evidence must be treated with considerable caution by reason of the fact that this entire area of the law has been fundamentally altered by s.164 and s.165 of the Evidence Act 1995 (NSW) . These sections are: “164(1) It is not necessary that evidence on which a party relies be corroborated. (2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence. (3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge: (a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect, or (b) give a direction relating to the absence of corroboration. 165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (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, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (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. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B.”

At common law the requirement to give directions in particular cases, including in the form that it was “dangerous to convict” on the uncorroborated evidence of certain categories of witnesses, had started off as rules of practice but had hardened into rules of law. (See Davies v Director of Public Prosecutions [1954] AC 378 at 399; Tripodi v The Queen (1961) 104 CLR 1 at 9; Jenkins v The Queen [2004] HCA 57; 211 ALR 116 at [27]).

Section 164 of the Evidence Act has swept aside these rules of law. They have been replaced by a new regime in s.165 which both mandates a form of warning (s.165(2)) and preserves the discretion to give additional warnings (s.165(5)).

The s.165 regime applies to a range of quite disparate matters that had been treated in significantly different ways at common law including: hearsay evidence, identification evidence, children’s evidence, evidence of the mentally handicapped, accomplice evidence and prison informer evidence. The very diversity of the pre-existing rules at common law, upon which a single regime has been overlain, indicates that prior case law with respect to each individual matter must be treated with considerable reserve. The intention of the Parliament was to enact a fresh start with respect to these matters. (See Papakosmas v The Queen (1999) 196 CLR 297 esp at [10], [46] and [88]; R v Stewart (2001) 52 NSWLR 301 at [2]-[14]; Cross on Evidence, 7th Australian edition, 2004, at [1560]. The significance of the change, in the context of accomplice warnings, was affirmed by the High Court in Conway v The Queen (2002) 209 CLR 203 esp at [53]-[55] and now see Kanaan v R [2006] NSWCCA 109 esp at [210]-[217].)

The experience with particular categories of unreliable evidence acquired by the courts over many years of applying the pre-existing common law rules will be relevant to the nature of the direction that a trial judge ought make under s.165. In particular, prior case law may inform the direction that a trial judge is obliged to make, in accordance with s.165(2)(b), by way of informing the jury of “matters that may cause [the evidence] to be unreliable” . The nature of the direction to be given in this respect is a warning as to “the need for caution” in deciding whether to accept or to give weight to evidence in accordance with s.165(2)(c). This required warning, which does not require particular words (s165(4)), does not go far beyond (a) and (b) of the direction in Clough set out above. What additional warnings are appropriate must depend on the circumstances of the case.

As the High Court pointed out in Conway supra at [55], nothing in the Evidence Act forbids a trial judge giving directions in accordance with prior practice, including using such terminology as “dangerous to convict” . That s165(2) is not a code in this respect is affirmed by s165(5), which expressly states that the section ”does not affect any other power of the Judge to give a warning to, or to inform, the jury” . Accordingly, as this Court pointed out in Kanaan supra at [217], a warning in terms of the formulation “dangerous to convict” may be given but a judge is “never under a duty to do so” . This conclusion was based in large measure on the judgment of the High Court in Conway where, the Court pointed out, because such a warning is a warning in favour of an accused it is unlikely to arise by way of an appeal (at [55]).

Insofar as Clough established, as a matter of practice, let alone as a rule of law, that a “dangerous to convict” warning should be given in the case of a prison informer, that practice or rule has been set aside by s.164(3). In my opinion, that part of paragraph (c) of the direction in Clough , set out in paragraph 2 above, which refers to “the absence of substantial confirmation provided by independent evidence” encompasses a “warning to the same or similar effect” as a warning about acting on “uncorroborated evidence” within the meaning of s.164(3)(a).

The observations of Brennan J in Bromley v The Queen (1986) 161 CLR 315 with respect to the necessity and scope of a warning have been frequently cited. His Honour referred to the three categories in which a “dangerous to convict” on uncorroborated evidence was required to be given at common law, i.e. accomplices, children and sexual assault victims. His Honour said: “The courts have had experience of the reasons why witnesses in the three accepted categories may give untruthful evidence wider than the experience of the general public, and the courts have sharpened awareness of the danger of acting on the uncorroborated evidence of such witnesses” (324). “The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer [[1986] AC at p135] ‘partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to the lay mind’. If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given” (324). “When a warning is needed to avoid a miscarriage of justice, it must be given; when none is needed to avoid a miscarriage, none need be given. The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content” (325).

Brennan J’s reasoning in Bromley was appropriately summarised in the joint judgment in Longman v The Queen (1989) 168 CLR 79 at 86: “ [T] he general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.”

Sections 164 and 165 of the Evidence Act enable directions about unreliable evidence to come into alignment with the approach, which has come to the fore over recent decades, of avoiding formulaic incantations in directions to the jury. As Lord Hailsham put it in R v Spencer [1987] AC 128 at 135: “… Modern cases … are reluctant to insist on any magic formula or incantation, and stress instead the need that each summing up should be tailor-made to suit the requirements of the individual case.” (See also in Spencer at 141 per Lord Ackner.) This passage has been cited with approval. (See eg Carr v The Queen (1988) 165 CLR 314 at 321.) There are numerous other statements decrying formulaic directions. (See e.g. Kelleher v The Queen (1974) 131 CLR 534 at 553.) (Except possibly the Longman warning discussed below.)

The principle to be applied under s.165 of the Evidence Act with respect, relevantly, to prison informers, is that stated by the High Court, with respect to cases which fell outside the three categories in which there had developed a firm rule of law as to the content of direction, in Bromley supra at 319 per Gibbs CJ, with whom Mason and Wilson JJ agreed: “What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence.” The formulation requiring a direction about the “dangers of convicting” was applied to prison informers in Pollitt v The Queen (1992) 174 CLR 558 at 599 per Dawson and Gaudron JJ and to identification evidence in Domican v The Queen (1992) 173 CLR 555 at 561-562.

I am aware of expressions of opinion to the effect that there is no material difference between a direction about the “dangers of convicting” and a “dangerous to convict” direction. (See R v Clarke (1997) 97 A Crim R 414 at 423-424.) However, from the perspective of a jury there is, in my opinion, a considerable difference between a warning about the “dangers of convicting” , which identifies, without necessarily using that form of words, what those dangers are, on the one hand, and the use of a formula such as “dangerous to convict” , on the other hand. Identifying the “dangers of convicting” is not equivalent to directing the jury, in terms, that it is “dangerous to convict” . The former does not and the latter can, and, in my opinion, frequently does, intrude into the fact-finding process that is the province of the jury.

The actual declaration made by the House of Lords in Spencer supra at 146, referred to by the High Court in Bromley supra at 318-319, was that: “While it may often be convenient to use the words ‘danger’ or ‘dangerous’, the use of such words is not essential to an adequate warning so long as the jury are made fully aware of the dangers of convicting on such evidence.”

The formulation “dangerous to convict” has given rise to difficulties in other areas of the law. It is part of the content of the full Longman warning, required in the case of substantial delay in sexual assault cases. ( Longman supra at 91.) This has led to disagreement about the necessity to use the particular form of words between this Court and the Full Court of the Supreme Court of Western Australia. (Cf R v BWT (2002) 54 NSWLR 241; R v SJB [2002] NSWCCA 163; 129 A Crim R 572 and R v WSP [2005] NSWCCA 427 with Attorney General’s Reference No 1 of 2001 [2001] WASCA 316; Crisafio v R [2003] WASCA 104; 27 WAR 169; 141 A Crim R 98; RBK v The Queen [2004] WASCA 216; Angliss v Western Australia [2005] WASCA 162 and Kemp v Western Australia [2006] WASCA 6.)

The overriding principle is the principle of a fair trial and such a trial must be fair to both sides, i.e. fair not only to the accused but also to the prosecution. (See Barton v The Queen (1980) 147 CLR 75 at 101; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630; Jago v District Court of New South Wales (NSW) (1989) 168 CLR 23 at 49-50; Phillips v The Queen (1985) 159 CLR 45 at 62, 64, 67; McKinney v The Queen (1991) 171 CLR 468 at 488; Dietrich v The Queen (1992) 177 CLR 292 at 335; Carter v Northmore Hale Davy and Leake (1995) 183 CLR 121 at 156, 166; R v Fuller (1994) 34 NSWLR 233 at 240E-F; R v Wilson [2005] 62 NSWLR 346 at [24]; R v NZ [2005] 63 NSWLR 628 at [4]; Spigelman “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78 ALJ 29 at 44-45)

Notwithstanding numerous statements to the effect that no specific form of words was required, the familiarity occasioned by frequent repetition in criminal practice has led practitioners to overlook the impact that the formulation may have on persons not so frequently exposed to it.

In my opinion, the prior use of the terminology “dangerous to convict” has failed to give sufficient weight to the danger that a jury will regard the formulation as, in substance, an instruction by the judge to acquit. The formulation “dangerous to convict” is a powerful direction, capable of being understood, and in my opinion, is frequently understood, by a jury as, in effect, a direction by the judge to acquit the accused. It is a formulation that is best avoided, save in exceptional circumstances.

SIMPSON J : I agree with the orders proposed by Johnson J and with his Honour's reasons therefor. I also agree with the additional observations of the Chief Justice.

JOHNSON J: On 17 September 1998, John Thomas Kennett was a sentenced prisoner detained at the Junee Correctional Centre (“the Centre”). He had been sentenced to a term of imprisonment for child sexual assault offences. On the evening of 17 September 1998, Mr Kennett was beaten severely in his cell. He died within minutes as a consequence of injuries sustained in the beating.

The Appellant, Harry Robinson, was a prisoner detained in the Centre. He was charged with the murder of Mr Kennett. Following a trial before Barr J and a jury, he was convicted of murder on 20 April 2000 and sentenced to imprisonment for a term of 22 years with a non-parole period of 15 years: R v Robinson [2000] NSWSC 541. This trial followed an earlier trial in the preceding March which culminated in the discharge of the jury.

Following an appeal against conviction to this Court, the appeal was allowed, the conviction quashed and a new trial was ordered: R v Robinson [2003] NSWCCA 188. Following a trial before Greg James J and a jury, the Appellant was convicted of murder on 12 March 2004 and sentenced to a term of imprisonment of 22 years with a non-parole period of 14 years: R v Robinson [2004] NSWSC 465. That sentence commenced on 12 December 1999 and will expire on 11 December 2021. The Appellant will be eligible for release on parole on 11 December 2013.

The Appellant appeals to this Court against his conviction for murder. No challenge is made to the sentence imposed by Greg James J. Grounds of Appeal

Six grounds of appeal were contained in a document filed on the Appellant’s behalf. They were: (1) The learned trial judge erred in leaving to the jury, as a possible basis of conviction, a case not relied on by the Crown at trial and not supported by the evidence. (2) The learned trial judge erred in his directions to the jury on the meaning of grievous bodily harm. (3) The learned trial judge erred in that his directions on manslaughter were not in accordance with Wilson v The Queen (1991-1992) 174 CLR 313. (4) The directions to the jury as to the manner in which the evidence of the various prisoners should be treated were inadequate. (5) The learned trial judge erred in declining to direct that a view be held. (6) The verdict of the jury is unreasonable.

At the hearing of the appeal, Mr Game SC, for the Appellant (who did not appear at trial), informed the Court that Grounds 2 and 5 were abandoned. The Appellant placed particular reliance upon Grounds 1 and 4 and, to a lesser extent, Ground 3. The Crown Case

The Appellant and the deceased were both inmates housed in B Pod at the Centre in September 1998. It was the Crown case that it became known amongst the inmates at the Centre that the deceased was serving a sentence for sexual offences against young boys. There was discussion amongst the inmates, including the Appellant, about bashing the deceased in order to have him removed from B Pod. The body of the deceased was discovered in his cell by prison officers at about 7.35 pm on Thursday, 17 September 1998. The cause of death was blunt force head injury. It was the Crown case that the Appellant was a participant in an attack on the deceased involving kicking and stomping on the head and upper portion of the deceased’s body. Witnesses at the Trial

It is appropriate to refer, in some detail, to evidence given at the trial. This is of particular importance to Ground 1, the central ground of appeal.

As will be seen, it was the Crown case at trial that the Appellant and another prisoner, Mark Brazel, were seen to enter the deceased’s cell and to attack him.

The Crown opened and closed the case to the jury on the basis that the Crown’s eyewitness evidence ought be accepted and that the evidence was that the Appellant and Mark Brazel had entered the deceased’s cell and attacked him. The trial judge instructed the jury that it was open to them to convict on one of several scenarios, including one where the jury was satisfied that the Appellant alone entered the deceased’s cell and attacked him. The Crown had not advanced this alternative argument in opening or closing addresses. The Appellant now submits that the course taken by the trial judge was unfair and that a miscarriage of justice has resulted.

The Crown called three witnesses who were inmates housed in B Pod at the time of the offence - Matthew Digby, Noel Roach and Franciscus Soonius. The evidence of a further inmate, Leendert van Hofwegan, given at the first trial was admitted in the Crown case.

The Crown adduced technical evidence from Malcolm Le Conte, a maintenance technician employed at the Centre in September 1998, with respect to the location and operation of security cameras within B Pod. As will be seen, video evidence of events on the evening of 17 September 1998 assumed particular significance at the trial and to the first ground of appeal before this Court.

A Correctional Officer, Phillip Bouffler, was called by the Crown.

Detective Senior Constable Coleman and Detective Sergeant Wayne Jones gave evidence in the Crown case.

Finally, Dr Paul Botterill, Forensic Pathologist, was called by the Crown.

The Appellant did not give evidence at his trial. The transcript of evidence of a prisoner, David Young, given at the first trial was tendered in the Appellant’s case. The Crown’s Prisoner Witnesses

Matthew Digby was serving a sentence on 17 September 1998 at the Centre for the offence of larceny of a motor vehicle. He occupied Cell B25 in B Pod. He had been in prison for a couple of months at that time and was released on 25 June 1999, his expected date of release. He gave evidence about the layout of the Centre and, in particular, B Pod. Cells were located on two levels and there were two sets of stairs providing access to the upper level. There were two telephones on the lower level and he described the procedure for making a call. He described the normal procedure in B Pod as it operated in September 1998.

Mr Digby gave evidence of the names of other inmates within B Pod and their respective cell numbers. These included Terry Johnson, the Appellant, Mr Roach and others.

Mr Digby testified that, in the late afternoon and early evening of 17 September 1998, he and other prisoners were playing cards in Cell B27. Following a discussion, Mr Johnson went to the deceased’s cell (Cell B20) and returned with a document (the deceased’s statement). Mr Digby stood on the verandah whilst Mr Johnson went into the cell, the deceased at that time being in the shower. A number of prisoners, including the Appellant, Mr Johnson and others, looked at the deceased’s statement and a conversation ensued concerning the deceased’s offences and position as a “rock spider” . According to Mr Digby, somebody said that they should get rid of the deceased from B Pod by giving him “a couple of clippings” (T138). Mr Digby believed that such action would result in the deceased making an application to move or the prison officers moving him straight away (T139). Prisoners spent about five to 10 minutes talking about this course of action before walking out of the cell (T139).

The Crown Prosecutor asked Mr Digby (T139.23): “Q. What happened? Did you all stay there or did some people go, was something said? A. Braz - Harry said that to get rid of him, get him out of the unit. We all walked out of the cell and everyone just hung around. Harry went to the cell. I stood out on the verandah with Braz and the other boys and Harry come out and that’s when they went into the cell. Q. Which cell did they go into? A. I think it was 21. As I said before I’m not sure which one it was. Q. You mean the cell occupied by the deceased? A. Yeah.” “Harry” is the Appellant and “Braz” is Mark Brazel, another prisoner.

Mr Digby testified that he observed the Appellant and Mark Brazel, go to the Appellant’s cell where the Appellant entered and Mr Brazel remained outside (T140). The Crown Prosecutor asked Mr Digby what he observed after the Appellant came out of his own cell (T140.46): “Q. After Harry came out, what happened? A. Him and Braz went towards the victim’s cell. Q. Was the door open or closed? A. It was open. Q. When they went to the door what happened? A. To the victims’ door? Q. Yes? A. Closed it. Q. Did both of them go inside? A. Yeah. Q. You say the door closed? A. Yeah. Q. What did you do? A. I waited a couple of seconds and went up and had a look through the window. Q. Was the light on inside? A. Yeah. Q. Are you able to turn the lights on and off in those cells if you want to? A. Yeah. Q. What did you see when you looked through the door? A. Just the victim lying on the ground. Braz was punching into him and Harry was punching into him and then they stopped punching and started stomping and Braz started kicking into him. Q. Did the deceased move at any time whilst you were observing these things? A. No. Q. Did he make any attempt to protect himself or defend himself? A. No. Q. Did you hear him say anything or call out? A. No. Q. Did you hear either of the other men saying anything? A. No, not at that time, no. Q. Did you see any blood at that time? A,. No, I didn’t pay any attention. Q. What part of the body did you see the accused punching or kicking? A. The top part, the head and up near the shoulders and that was it. Q. What about Braz, what part of the body did you see him kicking? A. The stomach, the bottom part of the body. Q. How many times did you see the accused- that’s Harry - punching him before he started kicking him? A. It was a few times. Q. Whereabouts did he punch him? A. In the face and the top part of him. Q. When he was doing that what was Braz doing? A. He was either punching or kicking him. Q. After that you say Harry started to stomp on him? A. Yeah. Q. How many times? A. It was a few times. Q. What part of his body did he stomp on? A. The head and the top part of him. Q. Did you see whether or not his foot made contact with the deceased’s head? A. Kind of, yeah. Q. What part of his head was it, are you able to say? A. I think it was on the side, I’m not sure; I didn’t really see it, that part. Q. Could you describe how he stomped on his head? A. Just like his foot up and down. Q. Do you remember which foot it was? A. No. I know he had a sore leg but I don’t know which one. Q. You don’t remember which leg he was using? A. No. Q. How high did he raise it before bringing it down? A. Just about that high off the ground, like from there. Q. Would you stand up and do it again? A. It was that far, like that. HIS HONOUR: Indicating your knee up to about waist height? A. Yeah, there. CROWN PROSECUTOR: Q. What happened after that? Did they stop? A. Yeah. Q. What happened? A. They door got buzzed open and they walked out. Q. Did you hear the door get buzzed open or how do you know it got buzzed open? A. You can hear it, it makes a clicking noise. Q. After that what happened? A. They walked out and told me to, you know, move away from the cell. Q. Had you been there the whole time looking through the window or not? A. I missed a bit of the start of it. I think I did anyway. Q. Once the door was opened did they both come out together? A. Yeah, I think Braz walked out first and then Harry. I’m not sure on that; it’s been a while. Q. How quickly did they move when they came out of the door? A. Just walked out, not slow but not fast either. Q. What about you? Did you move away from the door? A. Yeah, they told me to, I should move away from there and I did.”

Mr Digby said that he walked down stairs. Shortly after, he sat down with the sweeper and “Braz” came over and said “He’s worried about him dying” (T143.17). According to Mr Digby, it was five to 10 minutes between the time that the two men came out of the deceased’s cell and the time when the body was discovered (T144).

Following the discovery of the body, Mr Digby said that the prisoners were locked in their cells. His cell (Cell B25) was next to that of the Appellant (Cell B26). Whilst the prisoners were locked in their cells, the Appellant had a conversation with Mr Digby through the windows at the back of the cells. Mr Digby told the Crown Prosecutor that the following exchange took place (T145.34): “Q. What was said? A Just not to worry when they come around and question because they come around and question you about what happened and that and not to say anything. Q. Who comes around? A. The police and the screws come and get you before they come and take you up to interview you. Q. Is that something that he said to you? A. Yeah. Q. What did you say? A. Yeah, sweet, no worries.”

Mr Digby alleged that the Appellant passed a note through the window to him about the same time as this conversation took place. He could not remember what was on the note (T146). He later disposed of the note.

The next day, Mr Digby learned that the Appellant had been taken away. He did not see the Appellant again. Soon after, Mr Digby was transferred from the Centre to Kirkconnell Afforestation Camp where he remained until his release (T148).

Much of the cross-examination of Mr Digby was directed to the suggestion that Mr Johnson was the person responsible for the murder. This was denied by Mr Digby. He said that he had known Mr Johnson for a month in 1995 and met up again with him in 1998 when they were both incarcerated at the Centre. He agreed that Mr Johnson was a man who tried to form sexual relationships with other prisoners in custody and had shown a sexual interest in the deceased (T158). He agreed that certain prisoners were telling Mr Johnson that his new friend (the deceased) was a paedophile and that people were winding Mr Johnson up about his sexual advances towards the deceased (T159). He agreed that it was this type of humiliation that caused Mr Johnson to enter the deceased’s cell to locate the statement (T159). He denied that Mr Johnson had asked him to keep an eye out for the deceased (who was in the shower block) whilst Mr Johnson went to the deceased’s cell to get the statement, although he said that he probably would have told Mr Johnson if he had seen the deceased returning (T159). Mr Digby agreed that Mr Johnson was a “fairly violent character” and had bashed people in gaol, although not his mates (T160).

During the course of cross-examination by the Appellant’s Counsel (who did not appear on the appeal), Mr Digby was asked (T181.4): “Q. I suggest this: You did do something in that when a person went into Kenneth’s [sic] cell at about 7.15, you went and followed that person and acted as a lookout whilst the assault took place. What do you say to that? A. No, I was just standing there. You asked me if I could see him and I said yes, I could. Q. Sorry? A. You asked me if I could see him when in the shower and I said yes, I could, from where I was standing. That is what I said. Q. Why, then, on what you tell us, did you follow the accused and Mr Brazel around to Kenneth’s [sic] cell that evening? A. Just to see what was going on. Everyone was out the front of the verandahs and that. Q. You, I suggest, were the only one that followed whoever went into that cell and remained around close by that doorway whilst the assault took place, isn’t that the case? A. Yeah, I had a look, yeah.”

Mr Digby was reminded that in evidence on an earlier occasion (3 April 2000), he had said that the Appellant and Mr Brazel were “walking single file” as they entered the deceased’s cell (T211).

According to Mr Digby, Mr Johnson and other prisoners were drinking home brew prior to the attack upon the deceased and he thought that Mr Johnson was intoxicated (T212-3). Mr Digby denied that he had been drinking home brew (T213.16).

In cross-examination, Mr Digby was asked if he knew of the whereabouts of Mr Johnson when the Appellant and Mr Brazel entered the deceased’s cell (T213.29): “Q. Do you know where Mr Johnson was when you say you saw the accused and Mr Brazel entered cell B20? A. No, I can’t remember. Q. What is your first recollection of Mr Johnson after the two men came out of cell B20? A. He walked past the cell at one stage and spat on the victim as he walked past his cell and said ‘sucked in’. I can’t remember what the words were but it had to do with cursing him and stuff like that. Q. From what direction did he walk towards the cell? A. I’m not sure. I just remember him walking past and spitting. Q. This was very shortly after the two men, you say, left cell B20? A. Yeah, within five minutes or something, I think. Q. Would it be fair to say to spit on this man, he had to enter cell B20? A. No, he just walked straight past. The door was open. Q. The door was open? A. Yeah, I think so, yeah. Just spat in the room, like not over him. (Witness indicated.) As he walked past, spat in there. Q. You saw him physically do that? A. Yeah. Q. At the time he did that, you say he said something? A. Yeah, he cursed him, some words. Q. Would those words have been, ‘sucko Rocky.? A. Yeah, could have been. Something like that anyway. Q. Disparaging words? A. Yeah.”

The video of the cell door view (Exhibit B1) was played to Mr Digby in cross-examination (T234). In re-examination, Mr Digby said that he had not seen the video before it was played to him during cross-examination on 26 February 2004 (T274). After being shown a portion of the cell door video, Counsel for the Appellant asked Mr Digby in cross-examination (T236.16): “COUNSEL: Q. At around 19.15 though to 19.16 I suggest that two persons walking in single file approached from the left towards the open door of cell B20. What do you say? A. It’s hard to tell if it was two or three. Q. You told us today that Brazel and the accused were walking single file? A. Yeah, that’s what I thought they were doing, yeah. Q. Did you not see two persons walking single file approaching cell B20? A. Yeah, I seen two people. Q. One person entered cell B20; is that not so? A. I’m not sure. I must have been wrong about them walking single file, sir. Q. One person remained outside B20? A. Yeah, that’s correct. Q. That person had moved away from B20, came back to B20, moved away again and then a person exited B20: is that not so? A. Yeah, I seen him move away once, yeah. Q. The person that you saw outside B20 and move away once, was that person you? A. Yeah, I think so. Q. Who was the person that went into B20? A. Braz and Harry went into B20. Q. Did it not appear to you that only one person entered B20? A. It could have been two people walking side by side there, I don’t know, it’s not a very good video. Q. You told us today that they were walking single file? A. Yeah, well, I was wrong. I was as wrong as the way I went to the cell. It happened a long time ago. Q. How did you get to the cell? A. I obviously followed them. Q. So this whole version that you have given today and to the police about going up and downstairs is incorrect? A. Yeah, it is. Q. Why did you tell the police that you went downstairs and upstairs? A. Because that’s what I thought I’d done. Q. Was it to suggest to them that you were not acting as a lookout and you had come upon this scene by chance? A. No. Q. Did you say it to the police to distance yourself from this crime? A. No. Q. Did you today have any memory of walking down and upstairs to view into B20? A. Yeah, that’s that I thought I’d done. Q. Just like you think that two men entered the cell, is that right? A. No, I know that two men entered that cell. Q. You told us today that Terry Johnson, after this event passed, by the cell and spat towards the body of the deceased? OBJECTION. Q. Spat into the cell? A. Yeah. HIS HONOUR: Mr Crown, both versions have been given by the witness. CROWN PROSECUTOR: If they have, I won’t object. HIS HONOUR: They have. COUNSEL: Q. To do that, the door to cell B20 must have been open at that time: A. Yeah, I suppose so, yeah. Q. Indeed you said the door was open when Johnson spat? A. Yeah, I said I thought it was, yeah. Q. If it wasn’t, he wouldn’t have been able to either spit in the cell or spit on the deceased, is that true? A. Yeah. Q. The door had to be open for that to have happened? A. That’s right. Q. And you say that it happened after the accused and Brazel left the cell? A. Yeah, some time after it, yeah. Q. When whomever left the cell at around 7.16 to 7.17, the door was closed, was it not? A. I don’t know. Q. At the stage of the assault? A. No. Q. I suggest to you that the door remained closed until prison officers attended; what do you say to that? A. I don’t know about it, I don’t know. Q. You were there? A. Yeah, I can’t remember if it was closed but I know he still walked past and spat there. Q. I’m suggesting to you the only time that Mr Johnson, after the men approached at around 17.14, could have spat into the cell was if he was the person that entered the cell at 17.15 with you outside; what do you say to that? A. I say he wasn’t the one who entered the cell.”

Towards the end of the cross-examination, Mr Digby was asked (T261.35): “Q. Did Mr Johnson go into the cell? A. At what stage? Q. I suggest to you that only one man went into the cell and one man waited outside? A. I suggest to you two men went in. Q. You have been given clear evidence prior to being shown that video here in court in front of the jury -- A. That’s right. Q. -- your evidence was you say two men approached single file? A. That’s right. Q. And isn’t that what you see on that video, sir? A. Yeah but there’s three men there. Q. Where is the other one? OBJECTION. A. Next to him obviously. HIS HONOUR: I over rule the objection. COUNSEL: Q. They are in perfect unison as they walk, they are synchronised -- HIS HONOUR: Page? It may or may not be that it is open, depends on a lot of things. COUNSEL: Q. Does it appear to you that there are two men walking single file towards unit B20? A. Yes. HIS HONOUR: He has answered that a number of times. What you want to put, does it not appear to you, looking at the video, that there are only two men? Now would you put it that way so everyone can understand what you mean? COUNSEL: Q. It appears to you I suggest that there are only two men? A. Yes. Q. Walking single file towards cell B20? A. Yeah, it looks like that but there’s three people there. Q. It looks like that but there are three people there? A. Yeah, that’s right. Q. But it looks like that? A. Yeah. Q. I suggest it looks like that because there were only two people single file, one in front of the other, and not three people? A. No there wasn’t. Q. And I suggest to you that the accused was not one of those people? A. No, I think he was.”

It was put to Mr Digby in cross-examination (T263.14): “Q. I suggest to you that it appears that only one person came out of the cell with you remaining outside? A. All I knew two people went in and two people come out. Q. I understand that. I am suggesting on the video it appears only one person came out of the cell with you standing outside? A. Yeah, that’s what it looks like in the video. Q. That is what it looks like in the video and I suggest it looks like that because that is what happened. What do you say to that? A. That’s not what happened. Q. And the person who came out of the cell was [not] the accused. What do you say to that? A. It was the accused. He was one of them.”

The re-examination of Mr Digby commenced with the following questions (T274.6): “CROWN PROSECUTOR: Q. Up until yesterday when my friend showed you part of the video film that was taken at Junee Prison in September 1998, had you ever seen that video film? A. No. Q. Having watched it, were you able to recognise anybody what was shown in the video film? A. A couple of people but it’s pretty like blurred out. Q. How many times did you watch it? A. Three times, I think. Q. Who are the people that you believe you recognised? A. I could see Harry at one stage. I’m not sure if it is or not but Terry Johnson at one stage and myself at one stage, I think.”

Mr Digby said that he thought that a person wearing light-coloured long pants who appears at 19.17.22 hours on Exhibit B1 was Terry Johnson (T277-8). He indicated that a figure that comes from the upper left-hand portion of the screen (at 19.20.55) moving to the bottom left-hand portion was the Appellant (T278). Mr Digby identified a figure in the middle of the screen (at 19.32.56 hours) who was wearing a black knee brace on his left leg, shorts and a light-green top as being the Appellant (T279).

Noel Raymond Roach was then called as a witness for the prosecution. In September 1998, he was serving a sentence of 12 months’ imprisonment for break, enter and steal and balance of parole for an armed robbery offence (T287). He had known the Appellant for about six months as at September 1998. Mr Roach was accommodated in Cell B24 within B Pod, next door to Mr Digby’s cell.

Mr Roach said that, on the afternoon of 17 September 1998, he was playing cards in Cell B28 which was occupied by Mr Collier. During that time, other inmates came into the cell including Mr Digby and Mr Johnson (T290). Mr Johnson came into the cell with some rolling tobacco which he said he had got off his boyfriend, Mr Kennett (T291.34). When the topic arose of Mr Johnson paying back the deceased for the tobacco, Mr Roach testified that Mr Johnson said, “I don’t think I’m going to pay him back because I believe there’s word around that he’s a rock spider” (T291-292). Someone said to Mr Johnson, “If you are going to accuse this person of being a child molester, prove it” . Mr Johnson said, “I believe John’s got paperwork under his bed” and he was asked to go and get it (T292.16). Mr Johnson returned five or six minutes later with some papers and a number of persons, including the Appellant, were present when the papers were examined (T292).

The Crown Prosecutor asked Mr Roach (T292.57): “Q. Was there any conversation after people started to read it? A. A short way through the paperwork I said - I’d gathered that the card game is over, the card game is finished. There was talk about fixing up Mr Kennett as far as getting him out of our unit, we didn’t want him in there. Q. What was said about fixing him up or getting him out of the unit? A. The first conversation of it was from Matt. Q. What did he say? A. He said, ‘Do you want me to just go over there and bash him’? I believe Terry Johnson or Terry or someone else said, ‘No, not right away because he’s outside his cell on the landing’. I can’t recall anything else of that conversation. Q. Were they the only people who spoke about fixing him up or getting rid of him out of the unit? A. Terry and Matt. Q. The two that you have just told us about? A. Yeah, in the conversation, yes. Q. Was the accused there at the time? A. Yes. Q. Did you hear him saying anything whilst this was being discussed? A. Harry was getting upset from what was in this writing, from the file papers. From what I can remember we were going to fix him up but I can’t recall how he stated that he was going - Harry was going to get involved but I can’t recall Harry saying anything about beating him up. Q. You said you saw Harry getting upset? A. Yeah. Q. What was it that he said or did that caused you to think he was becoming upset? A. Just the movement and the discussion with what’s happening in these papers. There was pretty explicit things of what was in these papers. Q. Could you explain what you saw? A. What I saw through the papers was -- Q. If you could just tell us what you saw about Harry that caused you to think he became upset? A. Agitated. A lot of people became agitated. Q. How were they showing their agitation? A. Talking angry. I can’t really describe it.”

The card game stopped and Mr Roach went to the door of the cell where he looked across and could see the deceased outside his cell. He thought that, at that time, Mr Digby said, “Do you want me to go and belt him” ? The others said, “No, because he’s outside there” (T294.8). Mr Roach left the group and went to his own cell and walked downstairs to make a phone call. He walked down the stairway outside the deceased’s cell and saw the deceased standing alone against the rail on the landing at that time (T294-295). Mr Roach returned to his cell (B24), made a cup of coffee, smoked a cigarette and watched television (T296). Whilst he was doing that, he heard five very loud thumps coming from the landing between Cells 17 and 23 (T296). After hearing these noises, he went to his doorway and looked out the window. He saw Mr Digby in the doorway of the deceased’s cell holding the door which was slightly open (T297-298, 303). Mr Roach did not see anyone else. He sat back down on his cell bed. He heard some more thumping noises coming from the same direction and he waited a short while and then went downstairs to use the telephone again using a different staircase outside Cell B27. He did not see anyone outside Cell B20, but there were people standing alongside the walkway between the cells of the Appellant and Mr Collier (T298). He remembered seeing a number of people in that area, including Mr Johnson and Mr Brazel (T299).

Mr Roach gave evidence of hearing a conversation concerning the deceased. He went back to Mr Collier’s cell to see if there was to be a further card game. Someone said, “the cunt wouldn’t get up” and the Appellant said, “I don’t care if he doesn’t get up” (T301.3).

Franciscus Karois Joseph Soonius , a Dutch national, was called by the Crown. In September 1998, he was incarcerated at the Centre having been sentenced in May 1997 to 11 years’ imprisonment with a non-parole period of seven years for importing a prohibited drug into Australia. His sentence was reduced on appeal to a term of imprisonment of nine years with a non-parole period of five years and three months with the non-parole period to expire on 14 October 2001. He told the Crown Prosecutor that representations were made on his behalf to Commonwealth authorities for leniency to be afforded to him for his assistance in relation to the murder of Mr Kennett and the disappearance of Samantha Knight. As a result of this co-operation, Mr Soonius was released from custody some 14 months early on 9 August 2000 (T319-320).

Mr Soonius said that, between 5.00 pm and 6.00 pm on 17 September 1998, he was watching television in his cell (B22) which was two doors from that of the deceased (T323). He left his cell and went to that of Mr Van Hofwegan, another Dutch national (Cell B29). A number of prisoners were gathered there and were discussing whether the deceased was a child molester (T324).

A short time later, Mr Soonius observed the Appellant and Mr Brazel approach the deceased in front of the deceased’s cell. The Crown Prosecutor asked Mr Soonius (T327.44): Q. And what did you see happen? A. Well, there was a very short conversation and I saw Mr Kennett walking inside his cell. Q. Did you hear anything said by either of the men? A. No I couldn’t, it was too far away. Q. Was there anything obstructing your view? A. At that time? Q. Yes? A. No. Q. What’s the next thing that you saw happen? A. Well, I saw him going inside and then the door closed. Q. When you say you saw these men walk up to Mr Kennett do you remember whether or not his cell was open or closed? A. It was halfway open. Q. And do you remember who went in the cell first? A. Mr Kennett himself. Q. And who followed him? A. I can’t remember who was the first one, no. Q. And after they all went into the cell what happened to the door, did it remain open or closed? A. No, it closed. Q. Did you see anybody else at that time on the landing in the vicinity of that cell? A. I can’t remember. Q. What’s the next thing that you can remember happening? A. We got some scraping off the chair. Q. Scraping I think is the word that you used? A. Yeah, that’s what I’m trying to use; and some noises. Q. Where were those noises coming from? A. From Mr Kennett’s cell. Q. Did you hear any voices coming from the cell? A. No. Q. Did you hear anything else coming from the cell? A. No, only that there was something going on in that cell. Q. Did you hear something, apart from the scraping of the chair? A. You could hear something falling really loud, on the floor or something hard. Q. Did you keep your attention focussed on that area from the moment you saw the accused approach Mr Kennett up until the time they went into the room or not? A. No, not really. Q. What’s the next thing that you can remember happening? A. You could see through the window that somebody walked up to the window to open the door but the door was already fell into the lock [sic] so some people were saying, ‘use the buzzer,’ and so you have to walk back to the front of the cell to open the door again. Q. You heard some people say, ‘use the buzzer’? A, Yeah, something like that. Q. Who said that? A. The people who were standing at the landing. Q. Where were those people standing in relation to you? A. To the left. Q. How many people were there? A. Maybe two or three. Q. And you saw a face, did you, in the window? A. Yeah. Q. Of the door? A. Yeah. Q. That’s the door to the deceased’s call, Mr Kennett’s cell, is it? A. Yes. Q. For how long did you see that face? A. Very short because they had to walk back to open the door. Q. Did you recognise the face? A. Yeah, I thought it was Brazel. Q. Thought it was? A. Brazel. Q. Did you hear anybody from within the cell say anything at that time when you saw the face? A. No I couldn’t. Q. And after the face disappeared what’s the next thing that happened? A. Could hear the buzzer and the door opened. Q. What’s the buzzer, what do you mean? A. The button where you push at the window and if you push the button the door opens so you can always lock yourself in and can lock yourself out. Q. And you could hear that, could you? A. You could hear that. Q. When you heard that what’s the next thing that you saw or heard? A. I saw Brazel and Mr Robinson come out of the cell. Q. And when they came out did the door remain open or closed or what was the situation? A. Halfway open, a little bit open.”

Mr Soonius said that he observed Mr Johnson outside the deceased’s cell, but that he did not see anyone apart from the Appellant and Mr Brazel enter the deceased’s cell (T330). Some time later, the Appellant entered Mr Van Hofwegan’s cell and said, “Leo, can I have some coffee? I’m nervous” . Mr Van Hofwegan said words to the effect, “What’s up? What did you do” ? The Appellant replied, “I did it, I hit him. He’s unconscious” (T335). Mr Soonius said that the Appellant appeared “really nervous” and was “walking around and looking” (T335). Mr Soonius said that the Appellant was “always very relaxed” and he could see that he was different on this occasion (T335).

Under cross-examination, Mr Soonius said that he thought that the Appellant and Mr Brazel were one behind the other as they entered the deceased’s cell (T345). After the last man went in, the deceased’s cell door closed (T345.40). When the deceased’s cell door opened, Mr Soonius said that Mr Brazel came out first followed by the Appellant “one by one but very quickly” (T347).

In cross-examination, Mr Soonius said that he had heard the name Matthew Digby but that he did not recall him (T351).

Mr Soonius denied that he had a conversation with police about an early release at the time he made a statement to them on 18 September 1998 (T472). He did speak to the Consul for the Netherlands by telephone around 18 September 1998, but did not discuss the possibility of early release for giving a statement to the police. He had a conversation with his Consul about his own safety when the Consul visited him at Berrima Correctional Centre within four weeks of his making the statement (T472-473). Mr Soonius agreed that he wrote a letter to the Commonwealth Attorney-General’s Department on 3 October 1998 asking to be returned to Holland. He agreed that in that letter he wrote (T474): “Because of the seriousness of the crime the police agreed that for our safety we will be sent to Holland after we make an official statement. On the morning of the 18th we called the consul and together with the police we all agreed that after the statement we would be sent to Holland …” Mr Soonius agreed that he was not being truthful in that letter as there had not been a discussion in which the police had offered to send him back to Holland (T475).

Mr Soonius agreed that once he came to prison, he was desperate to return to Holland. He looked at getting transferred from Australia to Holland to serve the rest of his sentence, but he did not explore all avenues open to him to get out early (T522). He denied that he knew his best chance of getting out of gaol was to offer assistance to the authorities so he could claim some benefit (T524). He denied that he was lying about the Appellant because he wanted to get a benefit to go home to Holland early (T534).

In re-examination, Mr Soonius said that he was living in Holland and had not been subjected to any pressure nor given any benefit to return to Australia to give evidence in the Appellant’s trial (T534). Mr Soonius was employed in the Netherlands and was experiencing a financial loss in coming to Australia to give evidence (T536-537). He had not been to prison in any country apart from the sentence he served in Australia (T537).

The evidence given by Leendert Van Hofwegan at the first trial before Barr J and a jury on 5 April 2000 was read in the Crown case. He was a Dutch national who was serving a sentence in September 1998 for importing ecstasy into Australia. He knew Mr Soonius, a fellow Dutch national, quite well (T581). He was housed in Cell B29. In the early evening of 17 September 1998, he was in his cell with Mr Soonius and another prisoner, David Young (T583). Mr Van Hofwegan heard “a big bang” at a time when Mr Young was in his cell and Mr Soonius walked in afterward (T583-584). About 30 seconds after hearing the big bang, Mr Van Hofwegan said that the Appellant entered his cell alone (T584). The Appellant asked for a coffee and said, “I just bashed a rock spider” and that “the cunt is unconscious” (T584.40; T587.40). Mr Van Hofwegan saw the Appellant again that evening when he came to Mr Van Hofwegan’s cell and asked for some tobacco. Mr Van Hofwegan gave him some tobacco and asked him if the man was dead. The Appellant punched the wall and said, “Fuck” (T585-586).

Mr Van Hofwegan spoke with the Dutch Consul and then was interviewed by police (T588-9). He returned to the Netherlands where he was living at the time of giving evidence at the first trial (T589). In cross-examination, he said that he was due to be released on 3 October 2000, but was in fact released on 13 January 2000 (T597). He said that he was released 10 months’ earlier for compassionate reasons relating to his daughter (T597). He denied enquiring about an early release date before making his statement to police (T597). He asked the Dutch Consul when he spoke to him on the morning of 18 September 1998 about the possibility of getting back to Holland for his own safety (T597). He agreed that in his written application for early release he gave two reasons; one being compassionate grounds relating to his daughter and the other being s.21E Crimes Act 1914 (Cth) concerning his preparedness to give evidence in this matter (T605-606). He said that he was not aware of a possibility of getting a reduction in sentence prior to making his statement to police (T606). He wrote to the Commonwealth Attorney-General to review his application for early release in a letter dated 21 December 1998 (Exhibit K). In that letter, he stated, “I hope that your review has good result for me because the Wagga detectives promised me and Mr Soonius that after we made a statement we will be sent back to Holland” (T607-608). He said that he first became aware of the possibility of getting his sentence reduced a couple of days after making his statement (T608). He said that, as far as he knew, his early release was for compassionate reasons relating to his daughter in Holland (T609). Police Witnesses

The Crown called two police officers in the prosecution case. Given the nature of the issues which are relevant to the present appeal, the evidence of these officers may be touched upon briefly.

Detective Senior Constable Coleman was stationed at the Forensic Services Group at Wagga Wagga in 1998. He attended the Centre on 17 September 1998 at about 10.50 pm. He described his observations and investigatory steps at the scene of the crime in Cell B20. He described the position of the deceased on the cell floor. He saw signs of medium velocity blood splatter in the cell. He said that the majority of this blood splatter was one to four millimetres in diameter and had travelled only approximately 550 millimetres up the wall (T63). This indicated that the blood splatter was close to the ground and consistent with the deceased lying on the floor at the time when some of the injuries were inflicted upon him (T64).

Detective Sergeant Wayne Jones gave evidence that he attended the Centre with Detective Nix on 17 September 1998 after receiving a telephone call at about 8.30 pm. He described his observations and the investigatory steps taken by him thereafter. He was shown the video surveillance film which became Exhibit B1 at the trial. He said that he had viewed the video several times and that it was of “quite poor quality in terms of resolution” (T563.17). He was asked by the Crown Prosecutor during examination in chief about what he saw in the video (T563.38): “Q. Were you able to see anybody enter cell B20? OBJECTION. OBJECTION WITHDRAWN. HIS HONOUR: Were you able to see anybody … . CROWN PROSECUTOR: --- go in or come out of cell B20? A. I was able to see a shape enter the cell. Q Was that one, the shape of one person, what appeared to be one person? A. Yes, it was difficult because of the … . HIS HONOUR: Q. Because of the? A. Because of the quality of the video.” Medical Evidence

Dr Paul Botterill , Forensic Pathologist, gave evidence in the prosecution case. He performed the autopsy upon the deceased on 19 September 1998 and described his findings. According to Dr Botterill, the injuries observed were consistent with blunt force head injury although the number of them was suggestive of more than one contact resulting in all of the injuries. He could not say how many contacts were made to the deceased’s head to cause the injuries sustained other than to say that there were multiple contacts (T427). Under cross-examination, Dr Botterill said that the injuries required moderate to severe force and that more than one blow was involved (T433-435). Technical Evidence

The Crown called Malcolm Le Conte , a maintenance technician located permanently at the Centre in September 1998. He was responsible for all the electrical equipment and the preventative maintenance program. He gave evidence concerning the location of cameras throughout the Centre, including those contained in B Pod (T80-81). He gave evidence about the two video tapes taken from the two cameras in B Pod on the evening of 17 September 1998 which he recorded for the police both in slow time and real time. The actual time lapse is three hours at normal pace, but he slowed the pace down. There is a separation between each frame of “anything up to 2 or 3 seconds” (T82.13).

The two videos (Exhibits B1 and B2) were played to the jury simultaneously commencing at about 19.07.06 hours (T93). Before Exhibits B1 and B2 were played during the evidence of Mr Le Conte, his Honour sought clarification from the Crown Prosecutor, in the presence of the jury, as to the Crown case with respect to the images depicted on the video (T94.11): “HIS HONOUR: So this evidence in the Crown's submission amounts as to the movements to a figure which other evidence, not the video will establish was the deceased. CROWN PROSECUTOR: And taking account what is shown. And we're going to ask Mr Le Conte when the video reaches about 19.15, quarter past 7, we're going to ask the jury to pay particular attention to what is seen because there will be some figures that will appear from the left, come down, some activity at the entrance to cell 20, and there will be a question for you ultimately to determine between that time 19.15 and about 19.16 and some seconds, that's a critical period on the Crown case. At about 19.16 it's possible to see some figures or figure leaving the cell and moving away. HIS HONOUR: And on your case, although you may not put a name to those figures, who do you say they are? CROWN PROSECUTOR: On the Crown case, those figures are the accused, the man Brazel and the man Digby. HIS HONOUR: They have just done what? They are doing or have just done what? CROWN PROSECUTOR: On the Crown case, they've walked across and entered the deceased's cell. It's in there that the Crown alleges the acts occurred causing the death. They then left the cell, and left that area. HIS HONOUR: You do not contend that anyone acting properly can identify those persons solely from what's on the video screen? CROWN PROSECUTOR: No your Honour. HIS HONOUR: Your case, as I understand it, is a different sort of case. Had it been the case that there could have been an identification on the video screen, I would have to give the jury specific instructions as to the dangers of identification attempting after the event to try to identify people's features from a photographic representation, but that is not your case? CROWN PROSECUTOR: No. HIS HONOUR: Your case is that this merely shows figures moving at particular locations at particular times and in particular ways which other evidence that you're intending to call, might establish were the assailant and those who were accomplices with them. So that one would take what is shown on this screen at that point as one circumstance to be taken in conjunction with the other evidence, so that a total picture will be produced which will enable one to say what they were doing at that time and who they were. But that would have to be established by other evidence, not just this video; is that your position, Mr Crown? CROWN PROSECUTOR: Yes.”

Whilst the videos were played to the jury, Mr Le Conte gave a running commentary (T97-100). The Crown Prosecutor asked Mr Le Conte (T98.5): “Q. Would you call out when we get to 19:15 please. If the jury would watch now from 19:14? A. It is 19:15 now and Kennett just re-entered his cell at 19:15:05. Q. The cell door is open or closed? A. The cell door is still open. There is some activity starting up in this corner now (indicated). There has been two inmates standing there for quite some time. Q. Time? A. Is 19:15:37. He is moving along the walkway and there appears to be a large man who entered the cell. The door is closed and another smaller man outside looking through the window slot. Q. Time? A. Is 19:15:56. Q. Door open or closed? A. The door is still closed and the man looks from the inside to the outside or a face appears at that window. Q. Time? A. 19:16:09. The cell door is now open and the larger man comes out and they go back over here (indicated).”

After the videos were played to the jury during examination in chief, the learned trial judge gave the jury the following direction (T100.56): “What you can see on the screen is the real evidence. In addition , because it is indistinct , because it is on a time lapse system and because much of what you might be seeing is hard to interpret unless you have the assistance of a person who, by long acquaintanceship with the things that can be seen, is able to give you some assistance. The evidence given by this witness can assist you interpret what you see on the screen. From time to time during the witness's evidence the Crown has asked the witness to let you know what are the relevant times on one screen or another. That is for the purpose of you having specific cues. There may well be further evidence to show that those times were accurate or at least were within minutes of what was in fact true, presumably at that stage Eastern Standard or Daylight Saving time, I am not quite sure which, but the purpose of calling out those times was to let you have cues as to the relevant matters to which the Crown might wish to refer. Mr Crown, would it be possible to let the jury have a table of the cue times so that they are able to relate that to what the witness has been able to say, which might assist them as to what they are looking at on the tape. CROWN PROSECUTOR: Yes your Honour, we will do that from the transcript.”

In due course, an aide memoire containing the cue times which had been prepared by the Crown was tendered (Exhibit L; T635-638). Correctional Officer

The Crown called Phillip Bouffler in the prosecution case. He was a correctional officer working at the Centre on 17 September 1998. His evidence related to the response to a call for assistance over the radio received at 19:33 hours on that day. The Appellant’s Case

The Appellant did not give evidence at his trial. He had declined to be interviewed by investigating police so that there was no account from him which was before the jury.

The evidence of David Young given on 17 April 2000 at the first trial was tendered in the Appellant’s case. Mr Young was a prisoner housed in Cell B14 at the Centre on 17 September 1998. He gave evidence that at about 7.30 pm that evening, he was in Mr Van Hofwegan’s cell with Mr Soonius also present. The Appellant came in and asked for a cup of coffee. The Appellant said, “I think a rocky has just been crushed, belted” . Mr Soonius asked the Appellant, “Who did it” ? The Appellant replied, “I don’t know” . Mr Soonius asked, “Did you do it” ? The Appellant replied, “No” (T617-618). Mr Young said that when the Appellant came into the cell at 7.30 pm, he had on a pair of thongs, a knee guard, shorts and a shirt (T618). The Crown Case - How Many Men Entered the Deceased’s Cell?

Before turning to the submissions made in support of the first ground, it is appropriate to refer to submissions of Counsel and directions of the trial judge concerning the number of men who were alleged to have entered the deceased’s call and beaten him to death. The Crown Opening

In the course of his opening address to the jury, the Crown Prosecutor said (T30.36): “He died on 17 September 1998 after two men went into his cell and bashed him, using their hands and their feet, causing injuries to him principally to his head and from which he later died. Indeed, he died inside the cell before any help could usefully be summoned to assist him. It’s the Crown case that it was the accused, although he was assisted by another person, it’s the Crown case that it was the accused who caused the man’s death by kicking him and stomping on his head causing those fatal injuries.” Later in the opening, the Crown Prosecutor touched upon the cell area video which became Exhibit B1 (T35.56): “The next category of evidence that the Crown has available is this; technical evidence. That is, the evidence about the closed circuit television. There will shortly be played to you a tape that will show you part of the events that occurred inside that pod at about 7.15 on the night that Mr Kennett died. It will be a matter for you to determine what you will from these tapes. They will become the evidence. The Crown contends that if you look at them carefully you will see that at 19.15 and 46 seconds - that will be marked on the video film itself - at that time, that is, at 19.15 and 46 seconds - that’s 46 seconds past 7.15 in the evening - two figures appear to enter the deceased’s cell and that at about 23 seconds later, at 19.16.09, which is 9 seconds past 7.16pm, a figure - possibly two - are seen to emerge from the deceased’s cell and walk away, possibly being followed by another man. It’s the Crown case that those two figures seen entering the cell are, in fact, the accused and the man Brazel and it will, of course, be a matter for you to view that film and to assess it and draw what you will from it. That is the primary evidence.” Towards the end of his opening, the Crown Prosecutor said (T37.25): “I would anticipate that the real issue for your consideration would be whether or not the accused was responsible for his death. That is, was he one of the two men that went into the cell and stomped on his head and, perhaps to a lesser extent, there may be an issue as to what his intentions were.” The Defence Opening

Following the Crown’s opening address, Counsel for the Appellant made an opening address to the jury for the purposes of s.159 Criminal Procedure Act 1986 . In the course of that address, Counsel said (T40.13): “Mr Digby has stated that he saw, as it were, two men enter cell 20. The Crown says that the video is consistent with two men entering the cell. I would ask you to look at that video closely. It is the submission of the defence that in reality that video would depict only one man entering the cell at a time when a second man was closely behind him. Was at the cell door on the outside, had walked a short distance away, and walked back to the cell door. In other words, the man outside was, in the vernacular, a cockatoo, a lookout, a watch.”

Counsel submitted that the jury may conclude that Mr Digby was the “cockatoo” (T40.24). Counsel played portions of the cell video to the jury in the course of his opening address. Before doing so, he told the jury (T42.29): “What I envisage the video will show is at some stage earlier Mr Kennett comes back to his cell. He goes in an [sic] out a number of occasions, stands around the doorwell, goes back in. Then we would say two people, one lookout, one who never went into the cell, comes from the left. Unfortunately the left, towards the left-hand corner of the yard, is not clear on the video. That is just the way it is. But it is people coming from the left, a number of people, and what happens at the door which is of critical importance. When that time comes I would hope to be able to alert you in sufficient time that it is happening. It is something, once its tendered - and I make this to you in all seriousness - that needs to be watched again and again and again. From the defence point of view it is, in our submission, the pivotal piece of evidence because it is not influenced by motive, by dishonesty. What it depicts as best it can is what happened. So I’d ask at this stage that it be played.” Submissions Before Closing Addresses

At the conclusion of the evidence, Greg James J sought from Counsel submissions concerning areas to be touched upon in addresses which may affect directions to be given to the jury during the summing up. During this discussion, which took place in the absence of the jury, the following exchange occurred between his Honour and the Crown Prosecutor with respect to possible directions concerning manslaughter (T643.44): “ CROWN PROSECUTOR: The second basis would be, that he and Brazel were engaged in a joint enterprise to assault the deceased, they shared that agreement, and that one of them, but we do not know which one, caused the injury that led to death. This would be on the basis that the jury were satisfied that he was one of the men who went into the cell but were not satisfied on Digby's evidence -- HIS HONOUR: Let me short circuit it for you. Unless the jury is satisfied beyond reasonable doubt that this accused was one of the two men who assaulted the deceased and at the time of that assault he had an intention by that assault that the deceased would be occasioned grievous bodily harm, the jury cannot convict him of murder. CROWN PROSECUTOR: Can't convict him of murder? HIS HONOUR: Yes. CROWN PROSECUTOR: I am sorry, I must have missed something there. HIS HONOUR: I will repeat that. Unless the jury is satisfied beyond reasonable doubt that this accused was one of two persons who engaged in an assault, i.e. an unlawful attack upon the deceased, and at the time of the assault this accused intended that the victim should suffer, whether at his hand or at the hand of the other man or both or it didn't matter, grievous bodily harm, they cannot convict this man of murder. CROWN PROSECUTOR: Correct your Honour. … HIS HONOUR: That way your client is not fixed with any intent by Mr Brazel to inflict grievous bodily harm or intent to kill. COUNSEL: Yes. HIS HONOUR: If anything that direction is overly favourable to your client on a technical basis, but on a practical basis represents the Crown case and how this case has been fought. COUNSEL: Yes your Honour. HIS HONOUR: Mr Crown? CROWN PROSECUTOR: Yes, thank you.” Closing Addresses

In the course of his closing address to the jury, the Crown Prosecutor said (T646.37): “The Crown case is that the accused, Harry Robinson, was one of two men who went into the cell of the deceased on the evening of 17 September 1998 and therein participated in an attack upon him that led to Mr Kennett suffering serious head injuries from which he died about twenty minutes or so later. So much is clear, so much you will appreciate at this stage. It is the defence case that the accused was not one of those persons who went into the cell who inflicted any assault upon the deceased and so far as any Crown witness that has been called to give evidence in this trial is concerned who says that he was one of those who went into the cell, they are lying or they are just so unreliable by virtue of their background and the fact they were in prison, you would not place any reliance upon anything they said. The bottom line being he was not the person or one of the persons who went into the cell of the deceased and caused him these injuries. That is where the two lines are drawn and it is appropriate that I remind you at this stage that the accused is under no obligation to prove that he is innocent.”

Shortly after, the Crown Prosecutor said (T647.23): “If you find at the end of the day that you think it is reasonably possible that someone else, not the accused, but someone else went into the cell and participated in this attack, then you must find him not guilty. It is only if you are satisfied beyond reasonable doubt that he is one of the two men that went into the cell when Mr Kennett was attacked, that you can find him guilty of either murder or manslaughter.”

Later, the Crown Prosecutor told the jury (T648.34): “As I indicated on the evidence you might think it is more likely that the accused, if you are satisfied that he was one of these men, had an intention to at least cause him really serious physical injury. … Again, depending upon the way you evaluate the evidence, it would be open to you if you were not satisfied as to murder, to find the accused guilty of manslaughter. You could do that in one of two ways in my submission: firstly, if you were satisfied that the accused did go into the cell and he did participate in an attack upon the deceased with those [sic] other man Brazel, and that was an unlawful attack, then it would not matter whether it was the accused or Brazel who inflicted the wound, the kick that caused the brain injury that led to his death, provided you were satisfied they were each engaged in an unlawful attack upon the deceased and that unlawful attack was both unlawful and dangerous.”

The Crown Prosecutor addressed the jury concerning the evidence of Mr Digby. He said (T654.15): “Digby then says he saw the accused and Brazel go to the deceased's cell. They went in, he said he went up, looked through the window and he saw them attacking Mr Kennett. He described how Brazel was at the lower end, the accused at the upper end and described how he had seen the accused kicking the deceased in the head, stomping on him, they then came out of the cell and the accused, said something along the lines ‘move along’ or ‘don't say anything" and they went their separate ways.”

The Crown Prosecutor referred to the cell area video in the course of submissions to the jury concerning Mr Digby’s evidence (T656.45): “It has been submitted to you already that the video does not support him. Indeed it is submitted to you it contradicts his evidence. His evidence is two men went into the cell, whereas on the video you can only see one go into the cell and one come out. You might think it would be extraordinary for Mr Digby to give a false account or fabricate an account of two people going in when in fact one went in. I also submit his evidence that two went into the cell is supported by a number of other pieces of evidence and I will come to that shortly. The video, whether it supports him or supports the Crown case or is neutral, is a matter for you. Let me say this, the video is the primary evidence. What you see, what I see, what his Honour sees, what my friend sees - what you see on the video is the evidence and I respectfully ask that you look at the video again, look at it as many times as you need to, but if you are careful it is my submission that it is possible to see more than one person going in and out of the cell. Whether you think that is so is a matter for you because I am not giving evidence, it is merely a suggestion that you look very carefully at the video and I submit to you it is possible to perhaps see more than one person go in and come out, bearing in mind the quality is poor and it skips two or three seconds, so that between each frame there is a gap of two to three seconds. Consequently you will not see the door to the cell being opened and closed because it happened in the interval of three to four seconds.”

The Crown Prosecutor addressed the jury concerning the evidence of Mr Soonius (T658.21): ''You remember Mr Soonius told you that he was standing on the landing looking across towards the cell and he saw the accused and the man he didn't know by name but described him as a man with blond hair who later learnt was Paul Brazel, where he said from the landing from Van Hofwegan's cell he could see the accused and the blond headed man walk up to the cell. He said there was a short conversation between the accused and the deceased, it appears there is no confirmation of that happening, and he said that both men went into the cell. He heard certain sounds and he saw them come out. Brazel he said went towards the stairs and the accused went back the other way. He thought he saw Johnson standing on the landing in the area near the deceased's cell before seeing the accused and Brazel go in and after they came out he thought you saw Johnson. His evidence was, a short time later the accused came into the cell and asked for some coffee. Van Hofwegan asked him something along the lines ‘What's the problem, you look nervous.’ and that the accused said to him that he had done it, that he had hit him and the man was unconscious. So there is two features of Mr Soonius' evidence upon which the Crown of necessity must rely and they are: firstly, his observation of seeing the accused and the blond headed man go into the cell and come out. Secondly, his evidence in relation to the accused coming into the cell and saying those words which the Crown submits, if you find that he did say those words, amounts to an admission by the accused that he had been a party to the attack upon the deceased only seconds before.”

The Crown Prosecutor touched upon the knowledge of prisoners concerning the video surveillance system (T659.25): “But it does seem to be common ground the inmates were aware there was video surveillance in operation there and there is some evidence from one of the witnesses, Mr Roach, that they commonly used to throw blotting paper up to block the cameras.”

Towards the close of his address, the Crown Prosecutor told the jury (T664.52): “Finally the Crown does submit in this case that Mr Digby, who is an important witness, critical witness, does receive support from other sources. Albeit that they are witnesses who will attract the same cautious approach as he requires, but nevertheless he does derive support from his other witnesses. He is supported by Mr Soonius, who sees the men go into the cell and come out, by Mr Roach, by Mr Soonius, and by Mr Van Hofwegan, both as to the terms of the admission made by the accused. And further he is supported in my submission by the video evidence that shows a figure outside the cell looking in walking back looking in.”.

Early in his closing address to the jury, defence counsel said (T665.56): “And it would be patently apparent to you that the essential issue in this trial is did the accused go into cell B20 with another man in - the man alleged principally by the person Digby, and in a subsidiary or roundabout way, by the person Soonius.”

During the course of his address to the jury, defence counsel placed heavy emphasis upon what was depicted in the cell area video (Exhibit B1) in contrast to the oral evidence of Mr Digby and Mr Soonius. He submitted that an examination of the video revealed one person only exiting the deceased’s cell at around 17:16 hours and one person waiting outside (T675.12). This was a recurring theme in the defence address to the jury. The Summing Up

At the conclusion of addresses, the trial judge discussed with Counsel a number of factual and legal issues which were relevant to the summing up. At no stage during this discussion did the trial judge indicate to Counsel that he proposed to leave to the jury in the summing up a scenario that it was open to the jury to convict the Appellant upon the basis that he alone entered the deceased’s cell and inflicted injuries upon him.

Greg James J commenced his summing up to the jury on 9 March 2004. Early in the summing up, his Honour told the jury (SU9): “It is common ground that the Crown cannot succeed in this case and I direct you as a matter of law the Crown cannot succeed in this case on either the charge of murder or the charge of manslaughter unless the Crown proves beyond reasonable doubt that the accused, either on his own or with someone else, whether it be Mr Brazel, Mr Johnson or anybody else , went into the cell of the deceased and participated in the attack upon the deceased occasioning to the deceased the injuries that caused the deceased’s death. Therefore, if you consider that there is a reasonable doubt that the accused so entered the cell and did those things, then you cannot find the accused guilty of either offence. The reference to Mr Johnson merely is put forward as such a possibility as would lead you to have a reasonable doubt that it was the accused on his own or in company with another who did the things that caused the deceased to die.” (emphasis added)

In directing the jury concerning the ingredients of the crime of murder, his Honour said (SU12-13): “The essential ingredients, therefore, of the crime of murder in this case are: That the accused, whether on his own, or together with another, or others , participated in an attack on the deceased causing him the physical injuries which occasioned his death, and that the accused at the time at which he participated in the attack on the deceased intended that the deceased would be killed or really seriously injured.” (emphasis added)

Soon after, his Honour told the jury (SU13-14): “You can have regard to statements the persons who participated in the attack might have made or agreed to before the event as to what they intended to do. When I say in that context ‘they’, I am referring to the persons who entered the cell and participated in the attack. There is no issue in this case but that some one or more persons did enter into the cell and attack the deceased by blows of heavy to moderate force, in particular to the deceased’s head region, occasioning the injuries to the deceased that Dr Botterill gave you evidence about.” (emphasis added)

There were further passing references in the summing up to scenarios involving one or more persons being involved in the attack upon the deceased. His Honour adverted to the “state of mind of the person or persons who attacked the deceased” (SU18). In the course of further directions concerning murder, his Honour said (SU25): “If you are in doubt as to whether it was the act of the accused, and you would be so in doubt if you are not satisfied that the accused either on his own or with another entered the cell and attacked the deceased, or if you are in doubt as to whether the accused had that intention, they being the two crucial issues for murder in this case, you would acquit the accused of murder.” (emphasis added)

Soon after, his Honour told the jury (SU28): “You are being asked on their [Soonius and Van Hofwegan] evidence to reach a conclusion that the accused had gone into the cell of the deceased, either on his own or with another , at the time at which the assault occurred, so that you would conclude that it was the accused who had participated in the attack on the deceased.” (emphasis added)

In the course of directions concerning the drawing of inferences, his Honour referred to the video exhibits (SU29-30): “You are entitled to take into account the videos, as [defence counsel] has urged you to do so. You can take the videos into account to see whether you are of the view that they add support to the oral evidence, contradict the oral evidence, or are merely consistent with the oral evidence. You can consider the videos and see what support the oral evidence gives to them. It will be for you to make what you decide is appropriate of the videos, though you would of course when considering the reliability of the video evidence, bear in mind the evidence concerning the images being somewhat indistinct and the frames being taken on a time delay basis so as to be two or three seconds apart. You would bear in mind what the eye witnesses or persons claiming to be eye witnesses have said concerning what is depicted in the video.”

His Honour gave the jury the following direction (SU32): “In this case in particular the question arises of whether you are satisfied beyond reasonable doubt that it was the accused who, whether on his own or with others, entered the cell of the deceased at about that time, about 7.16, because if so it would seem on the whole of the evidence that the accused had the opportunity to participate in the attack which was said to have caused the death.” (emphasis added)

Soon after, his Honour said (SU32-33): “Now, the way in which the case has been fought the principal question though, as I hope I have made very clear to you, not the only question, is: Was the accused one of those persons that went into the cell and attacked the deceased?”

Further passing reference was made by his Honour to the question, “Whether the accused did go into the cell and attack the deceased with another or on his own” (SU59).

During a break in the summing up and in the absence of the jury, defence counsel expressed concern about his Honour’s direction that it was for the jury to consider whether the Appellant entered the deceased’s cell on his own or with another person (SU64-65): “ [COUNSEL] : Your Honour keeps saying that in relation to the accused they could find that he either went with another or on his own. That is not this case in my submission. The Crown case is he went with the person Brazel. The video evidence - if the video to the minds of the jury raises a doubt that only one man went in, in my submission this man cannot be convicted on the evidence of Digby, Soonius etc etc. HIS HONOUR: Mr Crown, it is fairly late in the day for this to be raised. CROWN PROSECUTOR: I do not remember you saying those precise words. It was put by the defence that it is possible it was one man. HIS HONOUR: I have to direct the jury, do I not, if it is one man they have to be satisfied beyond reasonable doubt it is the accused? CROWN PROSECUTOR: Of course. HIS HONOUR: But [defence counsel] says I have to direct the jury it is one man. I have to tell the jury it is not the accused because that is not the way the Crown case is. CROWN PROSECUTOR: I submit that is not correct, the facts ultimately are for the jury. HIS HONOUR: The way [defence counsel] is putting it is, if you reach a conclusion that it is only one man, you would be bound to have had doubts concerning the evidence of Mr Digby and Mr Soonius. If that is so, you could not be satisfied beyond reasonable doubt because a doubt in effect about one or two would flow over to it being the accused that was seen to go in, is that right? COUNSEL: Yes, that is the way I opened and that is the way I addressed the jury. HIS HONOUR: No it wasn't and indeed I raised, in the Crown case, that it might have been the accused on his own or with another, and I have raised it a number of times and nothing has been said until now. But I understand the point you seek to make and, Mr Crown, is there any reason why I should not put it? CROWN PROSECUTOR: No reason why your Honour should not put it. HIS HONOUR: Video, one man or two.”

When his Honour resumed the summing up to the jury, the following was said (SU70-71): “There is one other matter which is very important when it comes to the reliability of the testimony of the witnesses. I have directed you as a matter of law that if it was the accused that entered the cell, and participated in the attack on the deceased, he is liable to be convicted of either murder or manslaughter, depending on what you might determine was his state of mind, or whether you determine that such an attack was dangerous in the sense I have referred to. Now the witnesses have said that there were two people. You will recall the references are to the accused and Mr Brazel. Digby in particular says that they both went into the cell. Although the accused would be liable to be convicted of murder, if the accused had entered the cell alone and perpetrated the attack alone, nonetheless questions arise as to whether you could be satisfied of any such prospect, when the witnesses are giving evidence that two people went in. The video, as you will recall, is argued by the defence to show that neither of those witnesses are reliable because they refer to two people, and it is said that the video incontrovertibly shows there was only one person. The argument is mounted that you would not believe the witnesses on the issue when they say the accused went into the cell with another because if the video only shows one person going into the cell that is contrary to what the witnesses say, and hence they are unreliable, and it might well be possible that that person was not the accused. It is a matter for you what you make of that argument when you examine the video. You understand that it is an argument as to why you should not accept the evidence of Digby and of Soonius. It is an argument that says that far from there being independent confirmation of what the witnesses say, there is contradiction. But it is for you as judges of the facts to make up your mind as to whether you think the video shows only one person, having regard to all the various deficiencies of which the evidence speaks in the video, and as to whether you conclude that if it does, it shows such damage to the credibility and reliability of those two witnesses that they should not be accepted on their evidence that the accused went into the cell and participated in the attack.”

In the course of summarising the evidence of Mr Digby to the jury, his Honour said (SU74): “And the Crown urged you to look at the video carefully. Does it exclude that two persons went in? Does it leave Digby’s account as reliable, particularly bearing in mind that there are multiple frames and that they are two or three seconds apart?” Submissions After Retirement of the Jury

The jury retired to consider its verdict at 11.07 am on 10 March 2004. Immediately after the jury retired, defence counsel raised again the question of his Honour’s leaving to the jury an alternative factual basis for conviction involving the Appellant alone entering the deceased’s cell (SU127.19): “COUNSEL: Your Honour, I asked for a specific direction, the accused must be acquitted unless it - the possibility of Mr Johnson being the attacker was excluded beyond reasonable doubt. I know what your Honour said, but in my submission it is not to the same effect and it does not have the same impact. Enough said on that. That is as far as your Honour is going to go, but the problem that I have now, this trial has been run from woe to go that Brazel and the accused were the attackers, and for your Honour to now say, well, if he went with Johnson, that’s good enough, if that is the case, then how can Digby and Soonius be accepted . They are the planning, which the Crown bases their case to put the accused in the room. I raised this matter yesterday your Honour. This case has not been conducted on the basis that the Crown point of view one man went into the room, that was the accused, it has been run on the basis that it was the accused and Brazel . HIS HONOUR: [Defence counsel] this is the first time you have said that the case has been run on that basis. You had, however, drawn my attention yesterday to the effect, you say a rejection of the prospect that it might have been Brazel might have had upon the credit the jury might ascribe to the evidence of Digby, and Soonius, and I had directed the jury as to that. Throughout this case I have made it perfectly plain that your client was liable in law to be convicted if he was one of the participants in the attack upon the deceased, and again and again I have said so, and at no point have you suggested that they could only be convicted if Brazel too was a participant in the attack. The evidentiary question is a different question from legal liability . COUNSEL: I agree with your Honour, I’m not - HIS HONOUR: As I understand what you are now talking about, and what you said about Johnson, you were talking about legal liability. If so, I have directed the jury as to your client’s liability . It is common ground, as I understand it, between you and the Crown, confirmed by the video that if Johnson is the person in the video doesn’t show him going into the cell, and indeed, doesn’t show him in the presence of your client. COUNSEL: If that person is Johnson. HIS HONOUR: That’s right, otherwise we’re dealing with more conjecture. As to legal liability, however, as opposed to a matter of evidence, it is quite open, is it not, for the jury to reach the view that a witness could be mistaken as to Brazel, and entirely reliable as to it being your client . COUNSEL: That would be dangerous your Honour. That would be dangerous. HIS HONOUR: I know your submission, but that submission might have [sic] given in another place at another time as to whether there is some inconsistent verdict or something of that order. COUNSEL: Mr Digby is wrong on something as essential as Brazel and the accused that went into the cell. HIS HONOUR: The jury might simply be of the view that they haven’t heard enough about Brazel in this case, that they have heard a lot about your client. Anyway, is there any other submission. COUNSEL: No. HIS HONOUR: Anything further. COUNSEL: No.” (emphasis added)

At 12.31 pm on 10 March 2004, Counsel for the Appellant made application for discharge of the jury upon the basis that the directions were misleading and unfair. Counsel for the Appellant submitted (SU129.24): “In this trial the direct evidence of participation comes from Digby. His version is that the accused went with Brazel to the relevant cell. The person Soonius states that it was the accused with Brazel that went to the cell. In my submission, whilst legally the jury may come to a view that it was the accused with someone other than Brazel, the way the evidence has been presented and the issues of credibility in relation to Digby and Soonius, if the jury were to doubt the version that each of them gave that it was the accused and Brazel, then in my submission they would have a reasonable doubt as to the allegation that it was the accused. Just as I submitted yesterday, if they were to view the video and conclude that only one man entered the cell and one man exited the cell or to doubt that it was two men who entered and two men who exited, again, in my submission, that would raise a reasonable doubt on the guilt of the accused in the context of this trial. The importance those two witnesses play in maintaining the case against the accused and, in my submission, that last direction would have caused confusion and in my submission would have diverted the jury from the assessment of the essential pieces of evidence that go to make the elements from which they could or need to conclude that it was the accused who went to the cell.”

The Crown opposed the application for discharge of the jury (SU139.4).

In the course of a judgment refusing the discharge application, the trial judge said (Judgment, 10 March 2004): “5 That video evidence was tendered by the Crown in the Crown case and the Crown relies upon it. It may be, as I directed the jury yesterday, that they would be of the view that that video evidence throws doubt upon the evidence of Messrs. Digby and Soonius, such that the jury do not accept that it was the accused that entered the cell, but it remains a matter for them. I did not see then, and I do not now see, that the accused should not be liable to conviction if the jury, rejecting or being doubtful of other evidence as to whether the accused was accompanied, should still be satisfied beyond reasonable doubt that the accused participated in the attack which caused the deceased's death . 6 Today, what apparently is sought, is that I direct the jury that, if one of the persons or the person that entered the cell was Mr. Johnson, the accused must, as a matter of legal entitlement, be found not guilty. 7 That would apply if the jury were of the view that only one person entered the cell and it was not the accused, or they were in doubt as to whether it was the accused, and I have directed the jury to that effect, but it does not apply as a matter of legal entitlement or liability if the accused assaulted the deceased in combination with Johnson, rather than Brazel, and the jury were satisfied of the accused's participation. 8 The application seems to be dealing with a question of how the jury might regard the evidence rather than legal entitlement. The application is not that I re-direct the jury in some appropriate fashion, the application is that the jury be discharged. It is opposed by the Crown. 9 I do not see any basis, upon which the jury should be discharged, has been disclosed. I refuse the application.” (emphasis added)

Following his Honour’s refusal to discharge the jury, Counsel for the Appellant made the following submissions (SU130.24): “My submission is, in the way the matter has been conduced the essential Crown witness alleges that it was Brazel and the accused. The ancillary or second matters the important Crown witness alleges that it was the accused and Brazel who approached-- HIS HONOUR: [Defence counsel] , what happens if the jury believe the evidence of Mr Soonius and Mr Van Hofwegan that you client confessed to having done it, ‘he's unconscious’ or ‘bashes or crushes the rocky, he's unconscious’ and after being persuaded beyond reasonable doubt that it was your client and your client alone that entered the cell but reject the rest of the witness' evidence? COUNSEL: In my submission that would be profoundly unsound. HIS HONOUR: And that is a matter for the Court of Criminal Appeal on an unsafe and unsatisfactory basis not a matter for me. As a matter of legal liability there remains a case which I have to leave to the jury. Boney v The Queen, isn't that correct? COUNSEL: In my submission not in this case for the reason that - your Honour says, in effect, that if the jury accept Soonius and Van Hofwegan on the confession-- HIS HONOUR: Yes. COUNSEL: --and therefore use that to convict the accused, discounting, as it were, the evidence of Digby and Soonius the two men entered the cell -- HIS HONOUR: No, merely having a doubt about its reliability and relying on the video. COUNSEL: In my submission they should not be invited to even consider that course because --- HIS HONOUR: Nobody has expressly invited them to consider that course. I have in fact gone to a deal of trouble to put your submission as to the impact on credibility and reliability, but that does not mean that I should deprive the jury of the legal entitlement to accept part of what a witness says, even if they reject another part. I have not expressly drawn attention to that basis in the evidence because the Crown did not expressly put it. COUNSEL: Yes, that is correct. HIS HONOUR: But right through the case the case has been run by the Crown and I have directed the jury as to the issues and I have dealt with your submissions on the basis of, it was your client that participated in the bashing, your client was liable to be found guilty of one or other of the two offences charged. COUNSEL: Yes. HIS HONOUR: Notwithstanding whether he did it with anyone else or who that anyone else might have been. Now, is there anything more you want by way of directions or other --- COUNSEL: No. On what your Honour says, then I would not get the directions I seek, so yes.”

Following a question from the jury requiring clarification of the options in relation to verdicts, his Honour said in the absence of the jury (SU178-179): “HIS HONOUR: You have already put your submissions concerning the evidentiary basis. That is you have put that it is not open on the evidence. COUNSEL: Yes. HIS HONOUR: For the jury to find the accused guilty even if they were of the view that it was the accused who entered the deceased's cell alone or with Mr Terry Johnson. I understand that. I have put to the jury that unless your client is found beyond reasonable doubt to be the person who entered the cell and assaulted the deceased, or one of the persons who entered the cell and assaulted the deceased, he cannot be found guilty of either crime. COUNSEL: That is true. HIS HONOUR: If he is found to have been one of those persons or that person he is liable for murder if he had an intent to kill, or an intent to cause really serious bodily harm. COUNSEL: Yes.”

The trial adjourned at 4.00 pm on 11 March 2004 with the jury to resume its deliberations the next day.

On the morning of 12 March 2004, defence counsel informed the trial judge that his instructions and those of his instructing solicitor had been withdrawn (SU181). The Appellant himself voiced concerns of bias and misdirection (SU182). The Appellant made the following submission (SU183): “THE ACCUSED: The other reason is the way the trial has been conducted, in my opinion it has been wrong. On your Honour's summing-up it has been the complete opposite of the actual Crown case in regard to two people entered the cell, Mr Digby standing outside the cell, and your Honour instructed the jury that maybe I am by myself and Mr Digby stood outside. To me that is a miscarriage of justice because that is a complete-- HIS HONOUR: That is a matter , if you are convicted, you can take up with the Court of Criminal Appeal”.

His Honour refused the Appellant’s application for an opportunity to obtain independent legal advice. Defence counsel continued to appear on his behalf and the jury retired once again to consider its verdict at 10.51 am on 12 March 2004 following further directions concerning options in relation to the verdict (SU196). A further application was made for the discharge of the jury which was opposed by the Crown and rejected by the trial judge (SU197-199).

The jury requested “clarification of the definition of murder and manslaughter” (SU200). Further directions were given and the jury retired at 3.22 pm on 12 March 2004 (SU202-208). The jury returned with a verdict of guilty of murder at 3.50 pm that day (SU211). Ground 1 - The Learned Trial Judge Erred in Leaving to the Jury, as a Possible Basis of Conviction, a Case not Relied on by the Crown at Trial and Not Supported by the Evidence Appellant’s Submissions

Senior Counsel for the Appellant submitted that the Crown opened its case upon the basis that two men had entered the deceased’s cell and beaten him to death. It was submitted expressly to the jury that “the Crown case [is] that those two figures seen entering the cell are, in fact, the accused and the man Brazel” (T36.15). Defence counsel had opened, following the Crown address, and submitted that the Crown could not exclude the reasonable possibility that only one man had entered the cell and the reasonable possibility that the man who did so was Terry Johnson (T39-41).

Mr Le Conte expressed the opinion that the video showed one “large man” entering the cell at the time of the attack and the same man exiting the cell shortly afterwards (T98.15). The officer-in-charge of the investigation, Detective Jones, was also able to see only the shape of one person entering the cell (T563.50). It was observed that this opinion evidence was not objected to by the defence because it assisted the defence case that there was only one person who entered the deceased’s cell.

Mr Game SC submitted that the Crown Prosecutor in his closing address had maintained that the Crown case was that two men had entered the deceased’s cell and beaten him. The Crown had maintained this submission knowing the defence case on this issue. Mr Game SC submitted that the Crown Prosecutor, no doubt for good forensic reasons, submitted that the jury ought accept the evidence of Mr Digby and Mr Soonius that two persons, the Appellant and Mr Brazel, had entered and then left the deceased’s cell. The Crown Prosecutor submitted that the cell area video lacked clarity and omitted certain parts. It was the Crown submission that the video supported the evidence of Mr Digby and Mr Soonius or, at least, was not inconsistent with it.

At no time during the Crown closing address was an alternative scenario submitted whereby the jury ought find that the Appellant alone entered the deceased’s cell and beat him to death.

The closing address of defence counsel emphasised the contrast between the evidence of Mr Digby and Mr Soonius that two persons, the Appellant and Mr Brazel, had entered and then left the deceased’s cell and the images which were said to be contained in the video indicating that one person only had entered and left the cell. This argument was advanced, together with a number of others, in support of a submission that a jury would not be satisfied beyond reasonable doubt of the account given by Mr Digby and Mr Soonius.

Mr Game SC submits that it was the trial judge who introduced, for the first time, an approach to fact finding in the case which invited the jury to consider whether the Appellant, either on his own or with someone else, had entered the cell and attacked the deceased. Despite objection by defence counsel, his Honour maintained this direction which was given on several occasions to the jury. Mr Game SC emphasises that his Honour declined to withdraw this aspect of the summing up and rejected an application to discharge the jury arising from this aspect of the summing up.

Mr Game SC submits that this approach by the trial judge in summing up gave rise to procedural irregularity and unfairness to the Appellant. The trial had been conducted by both the Crown and defence counsel on a particular basis which was different from the several possible bases ultimately left to the jury as alternative scenarios under which the Appellant could be convicted. It was submitted that the Appellant had no opportunity to address the alternative bases for conviction either in cross-examination or in Counsel’s closing address. Mr Game SC relied upon a number of authorities where complaint was made that the trial judge had left to a jury a basis for conviction which had not been advanced by the Crown at trial: R v Solomon (1980) 1 NSWLR 321; R v King (1985) 17 A Crim R 184 at 187; King v The Queen (1986) 161 CLR 423; R v GAS (1998) 3 VR 862 at 863, 877-8; R v Carr (2000) 117 A Crim R 272 and R v Franco (2003) 139 A Crim R 228.

Mr Game SC submitted that his Honour’s approach to the summing up was unfair to the Appellant in that he was deprived of the opportunity to deal with this suggested basis of fact finding in the defence case and, in particular, in his closing address. Had the Crown chosen to advance submissions in support of this alternative approach to fact finding, it would have been open to the Appellant’s trial counsel to make a strong attack upon the Crown case and the alternative ways in which it was put. Defence counsel could have submitted with some force that a factual scenario involving the Appellant entering the cell alone would have been destructive of the evidence of Mr Digby and Mr Soonius in the Crown case. No doubt, considerations of that type had led the Crown Prosecutor to confine his submissions to a case based upon the evidence of Mr Digby and Mr Soonius that two persons, the Appellant and Mr Brazel, had entered the deceased’s cell and beaten him. The sting that arose from his Honour raising this scenario for the first time during the summing up was that the Crown was saved from advancing different and inconsistent scenarios and defence counsel was deprived of the forensic opportunity of attacking the Crown case as a result of the Crown adopting such an approach. Mr Game SC submitted that this constituted a serious procedural irregularity and unfairness to the Appellant in the context of a criminal trial for a serious offence.

Further complaint was made for the Appellant that apart from this procedural irregularity, a conviction based on reasoning that one person entered the cell and killed the deceased and that this person was the Appellant was not, in any event, supported by the evidence. It was submitted that the trial judge did not clearly leave to the jury the evidence in the trial that could support a conviction on this basis. Insofar as it could be suggested that a conviction might be open on this basis by reference to the alleged admissions made by the Appellant to Mr Soonius and Mr Van Hofwegan, Mr Game SC points out that the learned trial judge did not point to such a basis in the summing up.

Mr Game SC submits that a miscarriage of justice has resulted from this procedural irregularity which gave rise to unfairness to the Appellant. Crown Submissions

The Crown submits in this Court that this ground of appeal ought be rejected. The Crown submits that the prosecution case, as opened to the jury, was that the Appellant was a principal in the first degree in the murder of the deceased and that the Appellant, although assisted by another person, caused the fatal injuries by kicking and stomping on the head of the deceased. The Crown acknowledges that Mr Brazel was nominated as the person who assisted the Appellant in this regard and that this arose from the evidence of Mr Digby. The Crown submits that the Appellant was directly involved in the act causing death and that his liability was not dependent upon whether he was assisted by any other person and, if so, by whom. It was the Appellant’s case at trial that he took no part in the act causing death and did not know who was responsible, although Mr Digby was cross-examined to suggest that he had acted as a lookout for Mr Johnson who had entered the cell.

The Crown submits that the essential case that confronted the Appellant at trial was that he personally was involved in the bashing of the deceased in the cell and that this case did not change throughout the trial. The Crown seeks to distinguish King v The Queen , submitting that a fundamental change of direction occurred in that case involving the basis of liability of the accused. It was submitted that, in the present case, the fundamental basis for the conviction of the Appellant did not change. There was no alternative basis of liability raised during the summing up of the type involved in King v The Queen .

The Crown points to the fact that, during submissions by defence counsel in support of his application for discharge of the jury, it was not contended that prejudice had been suffered from the manner in which counsel had conducted the trial. The Crown pointed to directions given by the trial judge during the summing up concerning the potential impact of the video (which the Appellant argued depicted only one person entering the cell) on the credibility of the witnesses, Mr Digby and Mr Soonius.

The Crown points to the comments of this Court expressed in the appeal arising from the first trial ( R v Robinson [2003] NSWCCA 188 at paragraph 166-167) to the following effect: “The video tapes, Exhibits J and K, reproduced images from some of the security cameras within the Correctional Centre. A technician explained in evidence that the surveillance system digitalized the images from each unit and recorded them on videotape from one camera after another. The viewer sees a frame from each camera, updated every couple of seconds. Images of people are too blurred to enable any individual to be identified. Of the two video tapes in evidence the more important is Exhibit K, derived from two cameras in B Pod, in which can be seen the deceased’s cell and the area around it. It was the Crown case at the trial that the movement of inmates seen on this video was consistent with Digby’s account. Defence counsel contended that it was not. Having viewed the video ourselves, we can understand the basis of the defence argument. However, the video is not a continuous photographic representation of movement in the relevant area, as a normal videotape would be, and, in our view, it could not be relied upon either in support of the Crown case or in contradiction of it. Its probative value appears to us to be slight. In any event, his Honour dealt adequately with this aspect of the evidence.”

It was the Crown submission that the Appellant had suffered no unfairness at the trial and that the first ground of appeal ought be rejected. Relevant Legal Principles

Where a ground of appeal against conviction asserts that a miscarriage of justice has occurred arising from the trial judge leaving to the jury a possible basis of conviction which had not been relied on by the Crown, a number of principles arise for consideration and application.

Firstly, a criminal trial is conducted as adversarial litigation: Whitehorn v The Queen (1983) 152 CLR 657 at 682; Nudd v The Queen (2006) 80 ALJR 614 at 618 [9]. An accusatorial process is involved in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt and in which the prosecution must put its case fully and fairly before the accused is called on: The Queen v Carroll (2002) 213 CLR 635 at 643 [21]; R v Ronen (2004) 62 NSWLR 707 at 722-3 [67]; Weiss v The Queen (2005) 80 ALJR 444 at 455 [43].

A cardinal principle of adversarial litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue: Nudd at 618 [9].

Secondly, the judge’s role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn at 682. The fundamental task of a trial judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at paragraph 76. Trial judges should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. There are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case - first, it is inconsistent with judicial impartiality and secondly, to do so denies the prosecution and the defence the opportunity either to disavow, or to meet the argument: R v Meher at paragraphs 87-93.

Thirdly, the obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence, but to indicate, in conceptual terms, the nature of the Crown case to assist the trial judge, counsel for the accused and the jury: R v Tangye (1997) 92 A Crim R 545 at 556. Although there are no formal pleadings as such in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case: Tran v The Queen (2000) 105 FCR 182 at 203 [133].

If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final addresses: Tangye at 556. Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Tran at 206 [148].

Fourthly, a trial judge is obliged to leave to the jury defences which appear to the judge to be reasonably open, notwithstanding that they have not been canvassed by defence counsel. This forms part of the obligation of the trial judge to ensure that the accused person has a fair trial according to law. There is, however, no corresponding obligation on the judge to give directions upon matters tending towards conviction: Solomon at 327. However, where the Crown has elected to formulate and present its case in a particular way, a question may arise as to whether there are other matters of fact or law which the trial judge, in the discharge of the duty to ensure a fair trial according to law, considers it necessary to put to the jury even though the matter was not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will be evaluated by the trial judge and will be to the forefront in the decision as to how far, if at all, new considerations will be put to the jury: Solomon at 327-328, 336.

A trial judge who is considering instructing the jury concerning a basis for conviction which is not relied upon by the Crown must consider the fairness of such a course and, in particular, any tactical disadvantage which it may create for the accused: Solomon at 328, 333-334, 336; R v Pureau (1990) 19 NSWLR 372 at 377.

Relevant unfairness will ordinarily be looked for in procedural considerations. The judge will be appreciative of the tactical considerations which have governed counsel in the conduct of the case for the accused, including objections to evidence, lines of cross-examination, decisions concerning the tender of material and the content of the final address to the jury on behalf of the accused: Solomon at 328. Where it appears to a presiding judge that the evidence in the case leaves open a finding of guilt on a basis not opened by the Crown, the better course is to raise the matter with counsel prior to final addresses and then, according to the responses of counsel, a decision can be made whether it is appropriate that the direction be given. If it is to be given, the jury will have the benefit of the submissions of both counsel upon the question: Solomon at 336. The accused then will not be deprived of the opportunity of having submissions made on his behalf on that issue: Solomon at 336; GAS at 863, 877-8; R v King at 187; King v The Queen at 432-3; Carr at 285 [49]; R v Whitfield [2002] NSWCCA 501 at paragraph 67.

Unfairness to the accused in the conduct of the trial resulting from the trial judge’s direction to the jury upon a basis for conviction not relied upon by the Crown may arise from a range of tactical disadvantages, including an inability to cross-examine Crown witnesses, adduce evidence in the defence case and make closing submissions to the jury on the matter: Solomon at 328, 336; GAS at 863; Carr at 285 [49]. Even if the prejudice to the accused was confined to the inability to address the jury upon the question, that itself is capable of being a most significant area of prejudice: R v RTB [2002] NSWCCA 104 at paragraphs 55-61; Meher at paragraphs 113-116, 130; Carr at 285 [49].

A miscarriage of justice may arise where the Crown elects to confine the basis for conviction to acceptance of critical Crown witnesses with no alternative and inconsistent factual scenario being advanced by the Crown. In such circumstances, defence counsel will address the jury to answer the Crown’s case theory advanced in the closing address. If then, for the first time, the trial judge advances an alternative factual scenario based upon rejection of significant parts of critical Crown witnesses, the conduct of the trial may have altered. The Crown has been saved from the need to advance bases for conviction which are inconsistent. The defence counsel is deprived of the opportunity of addressing the jury upon the basis that the Crown is advancing inconsistent bases for conviction. The participants in the trial, including the Crown, the accused and the jury will hear, for the first time, the alternative basis for conviction being advanced by the trial judge in the summing up. Unfairness of this type leading to a miscarriage of justice was found to exist in Carr at 285 [49].

Fifthly, where the trial judge raises in the summing up a basis for conviction which was not relied upon by the Crown, there is the added difficulty that the direction carries particular force because it is coming from the judge and not the Crown: RTB at paragraphs 57, 60. It may produce positive mischief if the judge raises arguments which could have been, but which were not put or requested by counsel: R v Heuston (1995) 81 A Crim R 387 at 393.

Sixthly, the question to be considered by the Court of Criminal Appeal is whether there has been an unfairness to the accused which gives rise to a miscarriage of justice by reason of the conduct of the trial and which requires the Court’s intervention: Solomon at 328, 336; R v King at 187; Carr at 285 [49]. Application of Principles to this Appeal

It is necessary to apply these principles to the present appeal.

The course of relevant events at the trial are set out, in some detail, earlier in this judgment. It is apparent that the Crown Prosecutor had made a clear and conscious decision to confine the Crown approach to the trial to one where the jury were told that they ought be satisfied beyond reasonable doubt that the Appellant and Mr Brazel had entered the deceased’s cell and attacked the deceased and beaten him to death. The principal Crown eye witnesses, Mr Digby and Mr Soonius, were to give evidence to this effect. It may be inferred that the Crown Prosecutor had given careful consideration to the relevance of the video tape and the forensic use which the defence would seek to make of it at the trial. This was a retrial and the defence had relied upon the video tape to challenge the evidence of Mr Digby and Mr Soonius in the first trial. Against this background, it ought be concluded that the Crown determined to rely upon one factual scenario only at the trial, namely that two persons entered the cell and attacked the deceased and that those persons were the Appellant and Mr Brazel. Such an approach had the consequence that the Crown did not need to advance an alternative scenario based upon partial rejection of the eyewitness evidence of Mr Digby and Mr Soonius, but relying heavily upon evidence of what were alleged to be admissions by the Appellant. The tactical and forensic considerations for not presenting the Crown case in this way were understandable. However, using the words in Tran , the Crown Prosecutor had “nailed the Crown’s colours to one version of events in opening” and, indeed, in closing to the jury.

Although it was possible for a conviction to follow from the acceptance by the jury, beyond reasonable doubt, of both the fact and the truth of the admissions allegedly made by the Appellant to Mr Soonius and Mr Van Hofwegan, coupled with partial acceptance of the eye witness evidence of Mr Digby and Mr Soonius, the Crown had not advanced such a case in its opening or closing addresses.

An examination of the transcript of the trial reveals that the Crown maintained consistently a single factual scenario which it contended ought lead to conviction of the Appellant. This was so even though defence counsel opened in some detail to the jury and relied expressly upon the video tape and the accompanying submission that the jury, relying on the video tape, would not believe the evidence of Mr Digby and Mr Soonius that two persons had entered the cell of the deceased.

Although there was some discussion between the trial judge, the Crown and defence counsel concerning aspects of the case and issues arising for inclusion in the summing up, it does not appear from the trial transcript that the trial judge foreshadowed prior to the commencement of the summing up the giving of directions to the jury involving an alternative factual scenario that the accused alone had entered the deceased’s cell. Accordingly, the Appellant is correct in submitting that the alternative scenario was raised for the first time in the summing up.

For such a scenario to be advanced, for the first time, by the trial judge in the summing up had a real and substantial tendency to cause unfairness to the Appellant. The jury had not heard the Crown advance these various (and inconsistent scenarios) in its opening or closing addresses. Trial Counsel for the Appellant did not have the opportunity to address the jury upon the basis that the Crown was advancing different and fundamentally inconsistent scenarios in support of its case. The scenarios emerged for the first time through the trial judge in summing up with the added weight and authority attaching to this intervention by a judicial officer.

Defence counsel at trial did object to the trial judge leaving the alternative factual scenario to the jury when it had not been relied upon by the Crown. The Appellant himself asserted that a miscarriage of justice had occurred (see paragraph 119 above). The contemporaneous objection to the course taken by the trial judge points to a perception on the part of the Appellant and his counsel, in the atmosphere of the trial, that he had been prejudiced and that unfairness had resulted from his Honour’s directions. There was an objective foundation for this perception.

As the authorities referred to above make clear, the capacity of the trial judge to direct the jury with respect to matters not advanced by the Crown or defence is an incident of the function of the trial judge to ensure a fair trial. To advance a factual basis for conviction which had not been relied upon by the Crown did not operate fairly towards the accused in this case. Although it is difficult to see that the Appellant’s trial counsel could have cross-examined Crown witnesses or adduced evidence in the defence case to meet the scenario advanced for the first time in the summing up, there was significant forensic unfairness to the Appellant arising from his counsel’s inability to address the jury on this question and the added authority of this scenario being advanced by the trial judge.

The Appellant has demonstrated unfairness in the conduct of the trial and that a miscarriage of justice occurred in this case. The first ground of appeal ought be upheld.

This conclusion is not inconsistent with the observations of this Court in R v Robinson [2003] NSWCCA 188 at paragraphs 166-167 which are set out in paragraph 135 of this judgment. Indeed, those paragraphs point to the difficulty which the video tape posed for the Crown case where reliance was placed upon a single scenario involving complete acceptance of the evidence of Mr Digby and Mr Soonius. The conviction giving rise to the present appeal followed a trial where the Crown advanced the same case as at the earlier trial, involving a single factual scenario, and the defence sought to meet that case. However, the new feature in the present appeal is that the trial judge advanced, for the first time in the summing up, a second and alternative scenario which could lead to conviction. Ground 4 - The Prison Informer Warning

Given the conclusion reached with respect to the first ground, it is not essential to determine Ground 4. However, as the matter was fully argued, it is appropriate to refer briefly to the submissions made and conclusions reached. A further reason for confining consideration of this ground in this appeal is that, following the hearing of the matter, this Court delivered judgment in Kanaan and Ors v Regina [2006] NSWCCA 109, a decision to which the Crown has drawn the present Court’s attention since judgment was reserved. At any retrial, the formulation of directions to be given to the jury will involve consideration of the decision in Kanaan and the application of relevant principles to the circumstances of this case.

Mr Game SC submitted that the directions to the jury concerning reliance upon prisoner evidence did not comply with s.165 Evidence Act 1995 . It was submitted that the proper construction of that section, in the context of prison informer witnesses, must have regard to statements in pre- Evidence Act cases such as R v Clough . Reliance was placed upon the decision of the High Court of Australia in Jenkins v The Queen at 123 [30] where, in an appeal from Victoria, the Full Court emphasised the practical application, in the circumstances of the particular case, of a warning about the danger of convicting upon the evidence of an accomplice unless it is corroborated. It was submitted for the Appellant that a “dangerous to convict” direction was required in the circumstances of the present case, even though the provisions of the Evidence Act 1995 contain no such requirement.

The Crown submitted that his Honour gave extensive warnings to the jury in accordance with s.165, concerning reliance upon the evidence of the Crown witnesses, Mr Digby, Mr Roach, Mr Soonius and Mr Van Hofwegan. His Honour gave the jury repeated directions that it was necessary to look carefully at the evidence of these witnesses and to examine that evidence with great caution. The jury was directed that there may be particular reasons for the evidence of these witnesses to be unreliable and that there was a capacity on the part of such persons to concoct evidence and falsely accuse. The directions extended to a motive to secure benefit for the witnesses and the possibility of Mr Soonius and Mr Van Hofwegan putting their heads together. Express reference was made to the pressures of the prison environment. Directions of this type were given on more than one occasion with respect to the prisoner witnesses.

The Crown submitted that a “dangerous to convict” warning was not required under the Evidence Act 1995 and that no error was demonstrated by his Honour’s refusal to give such a direction.

In Kanaan , the Court (Hunt AJA, Buddin and Hoeben JJ) considered s.165 in the context of an accomplice warning and said at paragraph 217: “The judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but the judge is never under a duty to do so.”

This statement from Kanaan supports the Crown submission in this case. His Honour gave extensive warnings to the jury concerning the prisoner witnesses. His Honour was not under a duty to give a “dangerous to convict” direction in the present case and no error has been demonstrated in his Honour’s failure to do so. Ground 4 is rejected.

Since preparing this judgment, I have had the advantage of reading the additional observations of the Chief Justice with respect to Ground 4. I agree with the Chief Justice’s observations. Ground 3 - Directions on Manslaughter

Once again, this ground of appeal may be addressed briefly.

The Appellant submitted that the directions concerning manslaughter were not in accordance with Wilson v The Queen . In particular, it was submitted that his Honour, from time to time, directed the jury in terms of a risk of “injury” and not an appreciable or real risk of “serious injury” as required by Wilson (at 333-335).

It was acknowledged by the Appellant that this objection had not been taken at trial and that leave was required under Rule 4 to argue the ground.

The Crown submitted that his Honour’s directions to the jury included the words “real risk of serious injury” on at least two occasions. His Honour’s reference, at one stage, to “real risk of injury” (SU207) ought be understood as a comment made in the context of contrasting the objective manslaughter test with the subjective murder test and was not directed to the level of injury.

It is appropriate to view the summing up as a whole. No error has been demonstrated in this respect. The fact that no redirection was sought at trial tends to confirm the conclusion that the jury had been left with an accurate direction on this element of manslaughter. In any event, as the Crown points out, the suggestion misdirection was confined to manslaughter and the jury convicted the Appellant of murder.

Ground 3 is rejected. Ground 6 - The Verdict of the Jury is Unreasonable

The Appellant relied upon written submissions in support of this ground and no submission was developed orally at the hearing of the appeal. The Appellant submitted that, on the whole of the evidence, the conclusion should be reached that it was not open to a reasonable jury to be satisfied of the guilt of the Appellant.

The Crown submitted that the guilty verdict was reasonably open to the jury on the combined effect of the evidence. The acceptance (or otherwise) of the evidence was quintessentially a jury matter. There was direct evidence from the prosecution witnesses, Mr Digby, Mr Soonius, Mr Roach and Mr Van Hofwegan. Apart from the evidence of alleged observations of the witnesses, there was evidence capable of constituting admissions of murder on the part of the Appellant. The mere fact that prisoners were the source of the evidence did not render the verdict unreasonable: R v Clough at 403.

I am not satisfied that this ground of appeal has been made out. Although there were features of the Crown case, some of which have been referred to in the context of the first ground, which caused difficulties for the Crown, I am satisfied that the guilty verdict was open to a reasonable jury: MFA v The Queen (2002) 213 CLR 606 at 614-615 [25].

I reject Ground 6. Conclusion

The first ground of appeal ought be upheld. A miscarriage of justice has resulted. I propose the following orders: (a) appeal allowed and conviction quashed; (b) a new trial is ordered.