Walford v R

1. [1]

   HOEBEN CJ at CL: I agree with Bellew J and the order which he proposes.

2. [2]

   BELLEW J: On 8 October 2013 Dayna Irene Walford (“the applicant”) was arraigned jointly with Trudy Anne Sheldon (“the co-offender”) and pleaded not guilty to an indictment containing the following counts:

   1. (1)

      Between 3 October 2009 and 6 October 2009 at Heckenberg in the State of NSW being in the company of each other, Steven Mackie and a person unknown did rob Colin Hayne of property, namely a sum of money and jewellery items, the property of Colin Hayne and at the time of the robbery did wound Colin Hayne: Crimes Act 1900 (NSW) s. 98; and

   2. (2)

      Between 3 October 2009 and 6 October 2009 at Heckenberg in the State of NSW did detain Colin Hayne without his consent with the intention of obtaining an advantage, namely, the facilitation of obtaining property from Colin Hayne and in circumstances of aggravation in that at the time of the detention, actual bodily harm was occasioned to Colin Hayne and in circumstances of special aggravation in that at the time of the detention they were in the company of each other, Steven Mackie and a person unknown: Crimes Act 1900 (NSW) s. 86(3).

3. [3]

   Following a trial before his Honour Judge Bozic SC and a jury both the applicant and her co-accused were found guilty. On 17 February 2014 the applicant was sentenced to a non-parole period of 3 years imprisonment with an additional term of 3 years and 6 months.

4. [4]

   The applicant now seeks an extension of time in which to appeal against her conviction, on the grounds set out below. Two affidavits of the applicant’s current solicitor, Jason Hanna, sworn on 12 August and 18 November 2016 were read in support of the application for an extension.

5. [5]

   The discretionary power of this Court to extend the time limit is a legislative recognition that the interests of justice may, in a particular case, favour permitting an appeal, or application for leave to appeal, to be heard, notwithstanding that it was not brought within time. The principle of finality does not provide a discrete reason for refusing to exercise the power. Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33].

AN OVERVIEW OF THE CROWN CASE

1. [6]

   Colin Hayne (“the victim”) is a disabled man who, at the time of the alleged offending, resided at 22 North Liverpool Road, Heckenberg. He had been involved in a serious motor vehicle accident in 2000 which left him with a number of injuries, including permanent brain damage.

2. [7]

   It was the Crown case at trial that on 4 October 2009 the victim was attacked by four people in his home. In respect of the first count in the indictment, the Crown alleged that the assailants hit the victim on the head with beer bottles, and robbed him of a quantity of jewellery and cash. In respect of the second count, the Crown alleged that the assailants “hog-tied” the victim in the lounge room of his premises before leaving him there. The victim’s father found him in the premises the following day.

3. [8]

   Three people were arrested in relation to incident:

4. [9]

   Mackie pleaded guilty to two charges of robbery in company causing wounding, and one charge of especially aggravated kidnapping arising out of the incident. He was called by the Crown to give evidence at the trial of the applicant and the co-offender. His evidence implicated the co-offender but not the applicant. When called to give evidence, Mackie was cross-examined by the Crown Prosecutor pursuant to a grant of leave under s. 38 of the Evidence Act 1995 (NSW) (‘the Act’).

5. [10]

   It was the applicant’s case at trial that she was not a participant in the offending, and indeed was not at the victim’s premises at the time. The principal issue for the jury was the victim’s identification of the applicant as one of the assailants.

The evidence of the victim’s father

1. [11]

   The victim’s father, Harry Hayne, gave evidence (commencing at T62 L15) that he visited the victim’s home on the morning of 5 October 2009 (i.e. the day following the incident) for the purposes of wishing him a happy birthday. He said (T62 L22-23) that prior to attending the victim’s premises he had tried to telephone him but he had not responded. He said that when he arrived at the premises they were unlocked, which he regarded as unusual (T62 L36-40). He said that when he walked into the premises he noticed that the victim “was tied up and the phone was pulled off the wall” (T62 L24-25).

2. [12]

   Commencing at T63 L6 the applicant’s father was asked to expand upon what he saw when he walked in:

3. [13]

   The victim’s father explained (commencing at T63 L32) that he obtained a knife to cut the ties on the victim. He said that he noticed at that time that the victim was bleeding from the head and described him as being in a “terrible condition”. He said (T64 L1) that the victim was laying on a bloodstained quilt. He described (T64 L15-18) the state of the premises as a “mess’ compared to their usual presentation. He referred, in particular, to the presence of broken bottles, ashes and “everything all over the place” (T64 L20-23).

4. [14]

   Mr Hayne was then asked the following (commencing at T64 L25):

5. [15]

   At that stage of Mr Hayne’s evidence, an application was made that he be permitted to refresh his memory from a statement that he had made to the police. That application was refused.

6. [16]

   In cross-examination Mr Hayne agreed (at T73 L16-18) that the victim was “childlike in his behaviour” before giving the following further evidence (commencing at T73 L20):

The triple 0 call

1. [17]

   Evidence of a call made by the victim’s father to triple 0 on the morning of 5 October was before the jury. Having informed the emergency operator of the prevailing circumstances, the following exchanges took place in the course of that call between the operator, the victim and the victim’s father:

2. [18]

   The exchange between the operator and the victim then turned to the question of whether or not an ambulance was required, before the following was said:

The evidence of the victim’s sister

1. [19]

   The victim’s sister, Karen Hayne, gave evidence that she had acted as the victim’s carer since 2009. She described him as having suffered “50 percent brain damage” as a result of a motor vehicle accident in 2000 (T46 L34-39). Ms Hayne gave evidence (commencing at T47 L46) that on the morning of 4 October 2009 (i.e. the morning of the incident) she had attended the victim’s premises, bathed and dressed him, cleaned his house, prepared a meal, and purchased some beer for him, before leaving at about lunch time. That was the last occasion on which she saw the victim on that day.

2. [20]

   At about 10am the following day, 5 October 2009, Ms Hayne went to the victim’s premises in the company of two of her grandchildren to wish the victim a happy birthday. When asked what she observed upon her arrival she said (T48 L32):

3. [21]

   Ms Hayne gave evidence (commencing at T48 L37) that she walked inside and saw the victim sitting on the lounge. She said that when the victim saw her he started crying. She saw blood dripping down the side of his head and observed that his head was “quite swollen” and that he had a black eye (T48 L37-45). She said (T49 L1-4) that his right arm was “swollen about three times the normal size” and that “his legs were really red and swollen”. She said (T49 L18-21) that when she walked over to cuddle the victim she observed “two like bigger cuts on the top of his head”. Ms Hayne was then asked (commencing at T49 L23):

4. [22]

   In the absence of any objection, Ms Hayne was given leave to refresh her recollection from a statement that she had made to the police. She then gave the following evidence (commencing at T50 L19):

5. [23]

   When cross-examined by counsel for the applicant at trial, Ms Hayne agreed that she had made no reference in her statement to the police to the victim having named, or otherwise identified, his assailants (commencing at T53 L22):

6. [24]

   Ms Hayne was then cross-examined about the possibility that the victim had not mentioned the name “Dayna” or “Gayna” until some later time (commencing at T55 L43):

The evidence of nearby residents

1. [25]

   Residents of premises near to those of the victim were called by the Crown to give evidence.

2. [26]

   Abraham Hamidan gave evidence (commencing at T86 L23) that on 4 October 2009 he saw “two boys and two girls” in the vicinity of the victim’s premises. He said that he was not able to see their faces but remembered that “one of them had blonde hair one of them had red hair and the two guys were wearing hats” (at T87 L2-3). He said that those persons with blonde and red hair respectively were female. He said he thought that he had seen these persons between about 4:00 and 4:30pm that afternoon (at T87 L30-32). When cross-examined he agreed that in his statement he had nominated the time at which he had seen them as being between 11:00am and 1:00pm (T88 L20-32).

3. [27]

   Ross Cassone, the victim’s next door neighbour, said (commencing at T78 L18) that he had been waiting outside his premises at about 3.45 pm on 4 October 2009 and noticed that the shutters on the victims’ premises were down, that there were no lights on and that there was no noise coming from the premises, all of which he found unusual. His wife, Natalie Cassone, gave evidence (commencing at T82 L46) of similar observations.

The evidence of investigating police

1. [28]

   Detective Senior Constable Kneipp attended the victim’s premises at about 11:30am on the morning of 5 October 2009. At the time of his arrival, there were other police already present (T92 L18-22). He described what he saw upon arrival (commencing at T92 L41):

2. [29]

   Officer Kneipp then went to the hospital and spoke with the victim. His evidence of that conversation (commencing at T93 L42) was as follows:

3. [30]

   When cross-examined by counsel for the applicant at trial, Officer Kneipp confirmed that the name given to him by the victim as being the name of one of his assailants was “Jenna” (T10 - T17).

4. [31]

   As noted in [29] above, the victim identified “Jenna” to Officer Kneipp partly by reference to the fact that “Jenna” had previously lived next door to his (i.e. the victim’s) friend, Dennis Jones, at Minto. As set out in [34] below, the victim confirmed this information when later interviewed by the police (at Q.98 – 105) stating (inter alia) that Mr Jones had lived at Murphy Way, Minto. Det. Senior Constable Adams (who was the officer in charge of the investigation) gave evidence (commencing at T226 L49) that police enquiries confirmed that Mr Jones was previously connected with the premises at 3 Murphy Way, Minto, and the applicant was previously connected with premises at 5 Murphy Way, Minto.

The evidence of the victim

1. [32]

   Officer Adams was one of the police who attended the victim’s premises on the morning of 5 October 2009. The victim was hospitalised for some days following the incident. After the victim’s release from hospital, and specifically between 20 October 2009 and 22 October 2009, officer Adams made a number of attempts to have the victim provide a statement. On 22 October 2009 the victim participated in an electronically recorded interview with police. On account of his vulnerability, the recording of that interview constituted the victim’s evidence in chief at the trial.

2. [33]

   Commencing at Q. 12 the victim was asked what had occurred on 5 October 2009:

3. [34]

   Commencing at Q. 98, the victim was asked about “Dayna”:

4. [35]

   In cross-examination the victim was asked the following (commencing at T25 L21):

5. [36]

   The cross-examination then continued (commencing at T27 L31):

The victim’s identification of the applicant

1. [37]

   On 19 August 2010 the victim participated in a process of photo identification. In the course of that process he identified the person in photograph 5 as one of those responsible for assaulting him. The applicant was the person depicted in that photograph (T6 L1-35).

Expert evidence of the victim’s state of health

1. [38]

   The Crown read a report dated 21 May 2001 of Rebecca Bowen, Neuropsychologist to the jury, which sets out the injuries sustained by the victim in the accident in 2000, and the sequelae arising from those injuries (commencing at T260):

2. [39]

   The applicant was arrested by police on 11 January 2012 and was interviewed on two separate occasions on that day. In the first of those interviews (at Q21 and following) the applicant agreed that she knew the victim and that she had “met him through a bloke from the pub”. She was then asked:

3. [40]

   The applicant was subsequently informed by police (at Q129-130) that the victim had identified her in a photograph. She replied:

4. [41]

   Subsequently the applicant was asked the following questions (commencing at Q132):

5. [42]

   Subsequently commencing Q145 the applicant was asked:

The directions given by the trial judge

1. [43]

   Prior to the commencement of the summing up, the trial judge raised with counsel the directions to be given in the summing up to the jury. Counsel then appearing for the applicant (commencing at T2 L36 on 17 October 2013) sought a warning under s. 165 of the Act in respect of the victim’s evidence “both as to ID and for the mental illness”. There followed a lengthy discussion between the trial Judge and counsel which was directed (as the trial judge put it) towards identifying “the content of the warning”.

2. [44]

   At T3 L25 and following the trial judge enquired of counsel as to what particular matters were said to give rise to the unreliability of the victim’s evidence so as to justify such a warning. Having identified the fact that the victim suffered from “a significant brain injury”, counsel for the applicant said (commencing at T3 L36 and following):

3. [45]

   Subsequently (commencing at T4 L39) counsel made reference to the evidence given by the applicant’s father and sister to the effect that the applicant was “highly suggestible”. Counsel also pointed to the evidence given by the victim’s sister of the victim having given what counsel described as “a different version of the whole thing” to his sister. It was submitted that all of these considerations supported the giving of a warning under s. 165.

4. [46]

   Having commenced the summing up, the trial judge adjourned briefly and in the absence of the jury, returned to the issue of the content of the warning to be given to the jury under s. 165 of the Act. In doing so he said (commencing at SU7):

5. [47]

   Counsel for the applicant generally agreed with the proposition that the victim’s evidence contained “elements of both”. After further discussion, the following exchange took place (commencing at SU9):

6. [48]

   Counsel for the applicant took no issue with these observations.

7. [49]

   Upon resumption, his Honour directed the jury in the following terms (commencing at SU11):

8. [50]

   His Honour then directed the jury in respect of what he referred to as “the second aspect” of the victim’s evidence to which the jury were required to give special consideration (commencing at SU13):

9. [51]

   His Honour then directed the jury specifically in relation to the victim’s identification of the applicant from a photograph (commencing at SU14):

10. [52]

    Against a background of these directions, the trial judge then summarised the respective submissions of the parties as to the issue of the victim’s reliability (commencing at SU15):

11. [53]

    In the context of giving the jury directions specifically in relation to the applicant’s case, the trial judge again reminded the jury about the necessity to approach the evidence of the victim with caution (commencing at SU19):

12. [54]

    It is to be emphasised that trial counsel took no issue with these directions and importantly, sought no further direction(s) in relation to the victim’s evidence.

Submissions of the applicant

1. [55]

   Counsel for the applicant before this Court (who did not appear for the applicant at trial) expressly acknowledged that the failure of trial counsel to take issue with his Honour’s directions engaged rule 4 of the Criminal Appeal Rules. However he submitted that leave should be grated to argue ground 1 because the ground was not being utilised as a basis to seek an order for a new trial by reference to a new set of issues which could or should have been raised at the trial, but were not so raised. He further submitted that this was not a case in which the failure of trial counsel to raise any issue was explicable by the fact that counsel’s failure was deliberate, with a view to gaining some later advantage.

2. [56]

   Counsel expressly conceded that the directions of the trial judge complied with s. 165(2)(a) and (b) of the Act. However, he submitted that there had been a failure on the part of the trial judge to comply with s. 165(2)(c) because there had been no reference in the summing up to “the need for caution in terms of determining whether to accept the (victim’s) evidence, and the weight to be given to it”. He submitted that although the trial judge had directed the jury that the victim’s evidence may be unreliable, he did not specifically direct them that such unreliability gave rise to the need for caution.

3. [57]

   Counsel submitted that as a consequence of that omission the applicant had lost a real chance, or at least some chance, which was fairly open to him, of being acquitted. Counsel submitted that the impact of the victim’s brain injury was a significant issue in the trial and that because the jury were not informed of the need for caution in determining whether to accept his evidence in that context, a real chance of acquittal had been lost.

Submissions of the Crown

1. [58]

   The Crown pointed out that in the course of giving extensive directions concerning the evidence of the victim, the trial judge had:

2. [59]

   The Crown also emphasised that it in the course of his directions, the trial judge had specifically pointed out to the jury, by reference to Ms Bowen’s report, the various cognitive deficits from which the victim suffered. The Crown also pointed out that the trial judge had directed the jury of the necessity to exercise caution because of the fact that the Crown case against the applicant depended almost exclusively on the victim’s evidence. Finally, the Crown pointed to the fact that in summing up the defence case, the trial judge had made reference to the submission by trial counsel to the jury that they could not be satisfied of the applicant’s guilt beyond reasonable doubt because satisfaction to that standard would require them to rely on the evidence of a person who had a significant brain injury.

3. [60]

   It was submitted that in all of these circumstances, there had been no failure to comply with s. 165(2)(c) of the Act.

CONSIDERATION

1. [61]

   Section 165 of the Act is in the following terms:

2. [62]

   As I have already noted, counsel for the applicant before this Court expressly conceded that the directions given by the trial judge complied with sub-paras (a) and (b) of subs-sec (2). The essence of his submission was that the directions did not comply with sub-para. (c).

3. [63]

   A consideration of the competing positions of the parties in respect of this ground must necessarily commence with a reference to what preceded the directions being given to the jury. The proposed direction under s. 165 was the subject of lengthy discussions between the trial judge, the Crown, and trial counsel both before and during the summing up. Further, after the directions set out at [49]-[53] above had been given, trial counsel appearing for the applicant took no issue with them. As counsel for the applicant before this Court properly conceded, those circumstances attract the application of Rule 4 of the Criminal Appeal Rules which is in the following terms:

4. [64]

   The requirements of Rule 4 are not mere technicalities: ARS v R [2011] NSWCCA 266 at [148]. In my view, the fact that trial counsel took no objection to his Honour’s directions, and sought no further direction(s) is entirely unsurprising.

5. [65]

   When his Honour’s directions are viewed in their totality, the jury could not possibly have been left in any doubt as to:

6. [66]

   A warning under s. 165 is to be given in terms which are appropriate to the particular case, rather than in the form of a standardised direction which slavishly adheres to the terms of the section: R v LAH [2005] NSWCCA 400 at [26] per Sully J. In R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462 Wood CJ at CL said at [297]:

7. [67]

   In the present case his Honour properly identified the matters which might have caused the victim’s evidence to be unreliable. No issue is taken on behalf of the applicant with that aspect of his Honour’s directions. In the course of doing so, and within those passages of his Honour’s summing up which are extracted above, his Honour:

8. [68]

   The overwhelming effect of his Honour’s directions was that, for the reasons identified, it was necessary for the jury to approach the evidence of the victim with caution in determining whether to accept it and, if so, in determining the weight which was to be given to it. The proposition that his Honour’s directions failed to comply with s. 165(2)(c) is, in my view, completely untenable. The proposition advanced by counsel for the applicant before this Court that the jury were not informed of the need for caution in determining whether to accept the victim’s evidence on account of his brain injury is completely at odds with the directions which were given. It is particularly at odds with the fact that in the passages of the summing up I have set out above, not only did his Honour specifically identify the victim’s brain injury as a factor which might render his evidence unreliable, he reminded the jury, at some length, of the nature and extent of that injury by reference to the report of Ms Bowen.

9. [69]

   The directions of the trial judge were, on any view, comprehensive. The jury could not possibly have been left in any doubt that there was a need for caution in terms of determining whether to accept the victim’s evidence, and if it was accepted, in determining the weight which was to be given to it.

10. [70]

    This ground has no merit.

Submissions of the applicant

1. [71]

   Counsel for applicant emphasised that in order to convict the applicant, it was necessary for the jury to be satisfied beyond reasonable doubt that the victim was not only an honest witness, but an accurate and reliable one as well. Counsel for the applicant cited the various sequelae to the applicant’s brain injury, all of which, it was submitted, were such as to affect the accuracy and reliability of any evidence that he gave.

2. [72]

   In written submissions, counsel for the applicant argued that the evidence of the victim was neither accurate nor reliable because:

3. [73]

   It was further submitted that the evidence of the victim’s identification of the applicant from a photo did not advance the Crown case because of the fact that the victim had said that he had known the applicant “for years” and would see her “once a month”.

4. [74]

   In oral argument before this Court, counsel for the applicant paid particular attention to the evidence of the victim’s sister. Counsel emphasised that part of her evidence (set out at [23] above) in which she said that the victim had told her that the offenders were wearing balaclavas. It was submitted that in circumstances where the victim’s sister was a reliable and honest witness, the only conclusion which could be reached was that this is what she had in fact been told by the victim. Accepting that to be the case, counsel submitted that it would obviously have been impossible for the applicant to have been in a position to identify the applicant in circumstances where she was wearing a balaclava.

5. [75]

   In summary, counsel for the applicant submitted that the victim’s brain injury necessarily affected his reliability as a witness and that there were “grave inconsistencies” in the evidence that he gave before the jury. It was submitted, in particular, that the evidence was consistent with a reasonable possibility that in circumstances where he had known the applicant previously, he had simply assumed that the applicant was involved in the offence, based on her hair colour.

6. [76]

   It was submitted that although the jury had the advantage of seeing and hearing all of the witnesses, there was no contention concerning their credibility and reliability, other than the credibility and reliability of the victim. In these circumstances, it was submitted that the convictions should be quashed, and the verdicts of acquittal entered.

Submissions of the Crown

1. [77]

   The Crown submitted that if the evidence of the victim was accepted (that being a matter entirely for the jury) it was open to convict the applicant of both charges. The Crown pointed out that the victim had adopted his interview on oath, and had identified the applicant from a photo array.

2. [78]

   The Crown further submitted that victim’s evidence at trial was supported by the fact that (inter alia):

3. [79]

   The Crown submitted that the jury were entitled to reject the hypothesis that the victim had made an assumption as to the red haired female assailant being the applicant. The Crown pointed out that the victim had ample opportunity to observe the female assailants, given his evidence that he had invited them into his home prior to being attacked, at a time when he was not under threat. It was submitted that the jury were entitled to infer that the victim invited the females into his home because he knew at least one of them.

4. [80]

   The Crown acknowledged that there were inconsistencies in the evidence of the victim, both as to the time at which the incident is said to have occurred, as well as in respect of the evidence of his conversation with Officer Kneipp. However, the Crown submitted that the jury were entitled to consider that those inconsistencies were of limited significance, and were explicable on the basis of the victim’s limited verbal skills and his difficulty in recalling names. It was submitted that the jury’s assessment of the victim’s demeanour was critical in the present case, not because the jury was in a better position to assess how certain the victim appeared to be, but because the jury were in the best position to assess whether the inconsistencies arose because of defects in his memory, or as a result of his having misunderstood questions asked of him.

5. [81]

   In summary, the Crown submitted that:

6. [82]

   In these circumstances it was submitted that the jury’s verdict was well open and not unreasonable.

CONSIDERATION

1. [83]

   Before considering the competing submissions of the parties, it is appropriate to set out the principles which apply to the court’s function in considering and determining this ground. Those principles may be summarised as follows:

2. [84]

   As I have indicated, considerable emphasis was placed by counsel for the applicant in oral argument on the evidence of the victim’s sister. It was submitted that her evidence of her conversation with the victim was demonstrative of the fundamental lack of reliability of the victim’s evidence generally, and of his evidence which purported to identify the applicant in particular.

3. [85]

   In my view, on a proper analysis, the significance which counsel sought to attach to the evidence of the victim’s sister was misconceived. It is clear that the evidence given by the victim’s sister about the assailants wearing balaclavas amounted to her understanding of what the victim told her, not what the victim actually said. So much is clear from that part of the evidence of the victim’s sister extracted at [23] above. Further, the suggestion that the victim told his sister that all of the assailants were wearing balaclavas is fundamentally inconsistent with his unchallenged evidence (at Q144 – 145 of his interview) that upon her arrival at his premises, and at a time prior to the incident giving rise to the offending, “Dayna” and he were drinking in each other’s company. It would seem most unlikely for this to have taken place whilst “Dayna” was wearing a balaclava. It is also important to emphasise that the evidence of the victim’s sister was only part of the evidence in the Crown case.

4. [86]

   There were inconsistencies between some aspects of the victim’s evidence. The resolution of those inconsistencies was a matter for the jury. Moreover, whilst there was a potential, for the reasons articulated by the trial Judge, for the victim’s evidence to be unreliable, this does not lead to the conclusion that any unreliability was such that the jury were precluded from returning a verdict of guilty. The task of assessing the evidence was one for the jury, to be carried out in accordance with the comprehensive directions of the trial Judge.

5. [87]

   The evidence of the matters set out at [78] and [81] above, along with the fact that the victim identified the applicant from a photograph, provided a clear evidentiary basis upon which it was open to the jury to find the applicant guilty. In all of these circumstances, I am unable to come to the conclusion that the jury must have entertained a doubt about the applicant’s guilt.

6. [88]

   Accordingly, ground 2 is not made out.

ORDERS

1. [89]

   As noted at [5] above, the prospect of success of a proposed appeal, should an extension of time be granted, is relevant to the determination of whether the interests of justice favour such an extension.

2. [90]

   For the reasons that I have outlined neither ground is made out. In these circumstances I propose the following order:

   1. (1)

      The application for an extension of time is refused.

3. [91]

   HIDDEN AJ: I agree with Bellew J that the application for extension of time should be refused, for the reasons his Honour has given.

4. [92]

   As to ground 2, there is no doubt that there were inconsistencies in the evidence of the victim which the jury had to assess, bearing in mind the effects of his brain damage. The factors emphasised by the Crown Prosecutor in this Court, summarised in his Honour’s judgment at [78], were of crucial importance. In the light of those factors, it cannot be said that the jury must have had a reasonable doubt.