Adam John Street v The Queen
[2013] ACTCA 47
•15 November 2013
ADAM JOHN STREET V THE QUEEN
[2013] ACTCA 47 (15 November 2013)
APPEAL – Appeal against conviction – miscarriage of justice by denying appellant fair hearing according to law – s 37O(2)(a)(iii) of the Supreme Court Act 1933 (ACT) – whether prosecutor’s closing address was unfair to the appellant – whether prosecutor put to the jury matters that did not have evidentiary basis or were contrary to evidence – whether prosecutor put matters to jury which were not put to appellant – whether prosecutor made comments which belittled or ridiculed appellant’s evidence– counsel for appellant failed to raise concerns with trial judge – unfairness not made out – no miscarriage of justice – appeal dismissed.
Supreme Court Act 1933 (ACT) s 37O
Bugeja v The Queen (2010) 30 VR 493; [2010] VSCA 321
Whitehorn v The Queen (1983) 152 CLR 657
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 60 of 2012
No. SCC 370 of 2009
Judges: Penfold and North JJ and Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 15 November 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 60 of 2012
) No. SCC 370 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ADAM JOHN STREET
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Penfold and North JJ and Nield AJ
Place: Canberra
Date: 15 November 2013
THE COURT ORDERS THAT:
The appeal is dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 60 of 2012
) No. SCC 370 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ADAM JOHN STREET
Appellant
AND:THE QUEEN
Respondent
Judges: Penfold, North JJ and Nield AJ
Place: Canberra
Date: 15 November 2013
REASONS FOR JUDGMENT
THE COURT:
Introduction
The appellant, Adam John Street, was found guilty on 17 August 2012 by a jury of aiding and abetting an aggravated robbery. The robbery occurred at the Weston Creek Labor Club (the Club) on 27 February 2008. On 10 December 2012, the appellant was sentenced to six years and six months imprisonment. A non-parole period of three years and ten months was set.
On 21 December 2012, the appellant filed a notice of appeal against the conviction. The single ground of appeal was that the conviction constitutes a miscarriage of justice as the appellant was denied a fair hearing according to law.
Only one of the particulars stated in the notice of appeal of this ground was pursued at the hearing of the appeal; that the Crown failed to put to the appellant crucial matters which it then relied upon in its closing address to the jury. The written submissions filed by the appellant did not particularise the ground with any specificity. However, the written submissions filed by the Crown helpfully brought some coherence to the appellant’s contentions. Those written submissions stated that the particulars of the appellant’s ground of appeal had been reformulated and in the end they could be stated as follows:
a) submissions [of the prosecutor were] based upon material that was not in evidence
b) submissions [of the prosecutor were] based upon matters which had not [been] put to the appellant in cross examination and which in fairness should have been put to him
c) comments [were made by the prosecutor] which belittled or ridiculed the appellant’s evidence and case.
This statement of the reformulation was then the basis for the oral argument. The appellant did not suggest that the reformulation was inaccurate, and the Crown took no point that the particulars relied upon were not reflected in the particulars set out in the notice of appeal. Consequently, we address the submissions as so reformulated.
The circumstances of the robbery
The following account of the circumstances of the robbery, taken from the written submissions of the Crown, reflects matters that were not in dispute at the appellant’s trial.
The appellant was on the evening of 27 February 2008 employed as a security guard by Secor Protective Security to provide security services at the Club.
Shortly before 11pm the last customer left the Club, leaving only employees Mr Timothy Pike working as a bar man, and Ms Kathryn Reimer working as the office manager, and the appellant, at the Club. The appellant commenced locking the external doors.
Just after 11pm, two men, Mr Roland Chauveau armed with a baseball bat and Mr Matthew Turner armed with a rifle, and both wearing balaclavas, entered the Club. Mr Turner told Mr Pike, who was cleaning down the bar, to get on the floor, which he did. As this was happening, the appellant who was near the door that the offenders had entered through, crawled towards them on the floor and lay near Mr Pike.
Ms Reimer was in the office counting the day’s takings. The safe was open. She was confronted by Mr Chauveau holding a baseball bat. She was pushed into the area where Mr Pike and the appellant were situated.
Mr Chauveau and Mr Turner commenced to tie the victims’ hands behind their backs with cable ties, starting with Ms Reimer, followed by Mr Pike and finally the appellant. Mr Chauveau pulled the money out of the safe and put it in a cricket bag, while Mr Turner tied up the victims and the appellant and stood guard over them.
Mr Chauveau and Mr Turner left the Club taking Ms Reimer’s car keys and car to get away and over $124,598.70 cash. The car was found abandoned later that evening. The appellant broke free of his ties after the offenders left, pressed the duress alarm and called 000. Police attended.
The Crown case at trial
The Crown alleged that the appellant planned the robbery. It relied on the evidence of Mr Chauveau, Mr Paul Sloan, a former colleague of the appellant, telephone records, CCTV evidence, and the .22 calibre bullets found at the appellant’s house. The evidence was to the following effect.
Mr Chauveau pleaded guilty to the robbery and was sentenced by the ACT Supreme Court. He said that:
(a) He met the appellant in 2007 through security work which they both did.
(b) At the time of the robbery both he and the appellant were employed by the same security firm.
(c) He (Mr Chauveau) had worked at the Club about three times before the robbery occurred.
(d) The appellant was the “inside person” who had the idea of which door to enter and what to do inside the Club.
(e) There were phone conversations between the appellant, Mr Chauveau and Mr Turner in the month or two before the robbery about when the robbery should occur and who would be present.
(f) The appellant told Mr Chauveau and Mr Turner to go in through the back door, because he locked this door last on his security round.
(g) The appellant told Mr Chauveau and Mr Turner to take a car after the robbery.
(h) The appellant told Mr Chauveau and Mr Turner that one of them should cable tie the staff and the other should go to the manager’s office and get the money.
(i) He (Mr Chauveau) was armed with a baseball bat.
(j) Mr Turner was armed with a gun provided by the appellant.
(k) The appellant provided Mr Chauveau and Mr Turner with a cricket bag used in the robbery.
(l) The day after the robbery the appellant came to his (Mr Chauveau’s) home in Queanbeyan and they split the money three ways, each receiving approximately $40,000.
(m) He agreed that pleading guilty was taken into account in his sentence but denied that the prospect of receiving a lighter sentence was his motivation for giving evidence against the appellant.
Mr Sloan said that:
(a) The appellant told him that he organised the robbery, that he provided the gun, that Mr Turner and Mr Chauveau carried it out, that they took the car keys belonging to a member of staff and took the car, and that the police had searched his house and found a bag, but it was not the bag that was used in the robbery although it was similar to it.
(b) He (Mr Sloan) had not met Mr Chauveau and Mr Turner until after the robbery and the only person who told him about it was the appellant.
(c) He (Mr Sloan) was sentenced in 2009 in relation to an armed robbery in New South Wales. He provided a statement in relation to the present robbery and this was taken into account in his New South Wales sentence.
The phone records relied upon by the Crown indicated four calls were made on the day of the robbery between the appellant and either Mr Chauveau or Mr Turner. Three calls were from Mr Turner to the appellant at 3.53 pm, 10.13 pm and 10.43 pm. One at 10.06 pm was from the appellant to Mr Chauveau.
The Crown also relied upon the vision on the CCTV footage of the robbery at the Club as supportive of its case.
Finally, the Crown relied on .22 calibre bullets seized from the appellant’s home on 4 June 2008 by the police pursuant to a search warrant.
The appellant’s defence at trial
The appellant gave evidence in his defence. He denied organising the robbery or having anything to do with it. He said he did not know that it was to take place. He said Mr Turner and Mr Chauveau were friends and they had frequent phone contact. He did not know what the calls on the afternoon and night of the robbery were about.
The submissions on appeal
The appellant’s argument apparently relied on s 37O(2)(a)(iii) of the Supreme Court Act 1933 (ACT) to the effect that an appeal may be allowed if the Court considers that “on any other ground there was a miscarriage of justice”. This involved a two-step consideration. The first step was for the court to determine whether the appellant was denied a fair trial as a result of the prosecutor’s conduct in presenting his closing address to the jury. If so, the second step was to determine whether the unfairness resulted in a miscarriage of justice. We note also that s 37O(3) permits the Court to dismiss an appeal if it considers that the point made by the appellant might be decided in favour of the appellant but that “no substantial miscarriage of justice has actually occurred”.
Initially, these reasons for judgment will consider the first question, namely whether the prosecutor’s closing address was unfair to the appellant. The written submissions of the Crown helpfully provide an analytical framework rather lacking in the appellant’s submissions. The Crown divided the appellant’s complaints into two broad categories.
The first was whether the prosecutor put to the jury matters which did not have an evidentiary basis or were contrary to the evidence. The second was whether the prosecutor put matters to the jury which had not been put to the appellant.
These two categories largely cover the scope of the appellant’s arguments and we adopt them in these reasons for judgment. The appellant also complained that the prosecutor made comments which belittled or ridiculed the appellant’s evidence in an unfair way and this will also be considered.
The principles to be applied
The principles applicable to the role of the prosecution are well known. They are captured in the judgment of Deane J in Whitehorn v The Queen (1983) 152 CLR 657, at 663-4 as follows:
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered.
The approach was similarly expressed in Bugeja v The Queen (2010) 30 VR 493; [2010] VSCA 321.
It was not in dispute that if the alleged faults in the prosecutor’s closing address to the jury were made out, then the prosecutor would have acted in breach of his obligation to act fairly. In other words, there was no argument about the principles to be applied, but rather how the principles were to be applied to the circumstances of this case.
No evidentiary basis
The phone call
The prosecutor commenced his closing address as follows:
“Is it still a good night?” “Yes.” It was with words to those [sic] effect that the accused answered Chauveau’s and Turner’s questions when they called him, each time within an hour, before the robbery.
Then in the course of showing the jury the CCTV footage the prosecutor said:
So what do we see from the video? Does the accused react appropriately? Probably. Maybe a little theatrical but he – you’ve got to remember it’s his role at least. The others, unfortunately not. What else? Well, we’ve said they don’t check any of the other rooms to see if anyone else is in the club. What inferences can you draw from that? They already know that no one else is in the club. How do they know? They’ve spoken to the accused on the phone.They’ve rung him three times, “Is it on?Is it on?Is it on?”“Yes,”“Yes,”“Yes.” They don’t want to get it wrong, they want to make sure it’s a good night. They didn’t check to see whether or not there were any stragglers still playing the pokies. They didn’t need to check, they knew there wouldn’t be. Didn’t check to see if there was fourth staff member on tonight for some reason, didn’t need to check, they knew. The accused had told them.
[Emphasis added]
The appellant contended that there was no evidence to support these statements. The statements, so it was argued, represented to the jury that there was evidence that these very words were spoken in the phone conversation, whereas, in fact, the evidence about what was said was vague, and there was no evidence that those actual words were spoken.
In evidence in chief Mr Chauveau said:
Was there any discussions closer to that day of 27 February 2008?---I think there was two or three conversations.
When were they?---On the evening of the event.
And how did you have those conversations?---Mobile phone.
Who had them?---Either myself or Matthew Turner.
Do you remember speaking to Mr Street on that day?---I might have had one conversation with him.
Do you remember what you said to him and what he said to you?---Just would have been in regards to whether it was busy and suitable for –for that evening.
Whether what was suitable?---To – to do it on that night.
Do the robbery?---Yes
What did he say?---That [it] was in his mind suitable to happen that night.
Did you hear the conversations between Mr Turner and Mr Street?---I think I would have been present at the time.
But could you hear what was being said over the phone?---From Matthew’s side [Turner], yes.
Do you remember what he was saying when he spoke to Mr Street?---His would have been along the same lines as my conversation.
Do you remember when he got off the phone to Mr Street what did he say to you?---That he wanted it done.
In cross examination the following exchange occurred with Mr Chauveau:
The question was: this is a conversation that takes place when you and Mr Turner are outside ready to do the robbery. Is that right or not?---In the lead-up to that night there’d been a number of occasions where we had rang and it was either suitable or not suitable. On that evening we were told it was suitable.
In the passage at the commencement of the prosecutor’s address (at [26] above) he made it clear that the words he used were not the actual words used but the effect of the words used by the appellant.
Both in that passage and in the second reference in the closing address (at [27] above), the prosecutor captured the effect of the evidence Mr Chauveau had given in cross examination that the night when the phone calls were made was a night suitable for the robbery and the appellant wanted the robbery to occur that night.
The appellant’s argument that there was no evidence to support the prosecutor’s statement should not be accepted.
The location of the safe
This argument concerned two references made by the prosecutor in relation to the safe on the premises of the Club.
The first reference was in a passage when the prosecutor showed the jury through the CCTV footage. He said:
[I]t’s as the two armed men are approaching that back door. So they don’t seem to have any care for self-preservation to make sure no one else in there, straight in the back, straight to the safe, know where the safe is, know what they’re doing.
The second reference was as follows:
Now, you heard leading suggestions from the accused’s counsel that, you know, patrons might have had some information on when the club was closing or how the safe was going to be open because they’d see the money going out to the safe and the time that this would have occurred or possibly it was even Mr Chauveau that had the inside knowledge because he might have swapped a shift with someone else before. Again, it doesn’t past [sic] the commonsense test. The only person that had inside knowledge that night was the accused. Roland Chauveau, you’ve seen from the records, hadn’t worked there for six weeks earlier. He didn’t know these people. And you’ve got Kathryn Reimer who tells you that she doesn’t know a Roland Chauveau. Matthew Turner hasn’t been a security guard, he hasn’t worked there though. Would they have done this without some sort of planning? Would they have been as quick and as effective without some sort of planning?
The appellant contended that the prosecutor said in these passages that the appellant was the only person who knew where the safe was. In fact, so it was argued, the evidence was that Mr Chauveau knew of the location of the safe from having worked at the Club on several previous occasions.
Mr Chauveau’s relevant evidence about his knowledge came from an exchange in cross examination as follows:
And in it you acknowledge that you knew where the safe was?---I had been to the office once, on one occasion.
Well, you knew that the break – sorry, the note breaking machine canisters were taken to the safe for counting didn’t you?---Yes, on one occasion.
Well, in your record of interview you said that was common knowledge. That was your term, common knowledge?---Well, it is common knowledge but for me personally it was one occasion which was which you asked.
Mr Chauveau said in examination in chief:
Did you know where the manager’s office would be at that stage?---Yes
How did you know that?---Previously worked there.
…
You said that you were there to take money?---Yes
How did you know that there would be money there?---I think on previous occasions he [the appellant] had helped carry money from the club into the office.
The first reference about which complaint was made was an observation about the CCTV footage. It did not reflect on the source of the knowledge of the safe but only that Mr Chauveau and Mr Turner seemed to know where it was. The prosecutor did not suggest at this point from where their knowledge came.
The second reference asserted that the only person who had inside knowledge was the appellant. But this reference did not suggest that the inside knowledge referred to was knowledge of the location of the safe. Rather this was a reference to the knowledge of the circumstances existing on the evening, including information of the kind referred to in the passage extracted at [27] above, such as whether there were customers still on the premises or whether there was an additional staff member on duty, but also information about closing time or how the safe was going to be opened on that particular night (at [36] above).
Thus, the appellant’s argument fails at the first hurdle because the prosecutor was not asserting that the appellant was the only person with knowledge of the location of the safe.
The identification of voices
The prosecutor said in his closing address:
The accused would have us believe that he didn’t know anything about the robbery. On his version he didn’t recognise the voices and nothing clicked during the robbery or in the days afterwards. Again – well, he said it, but again using your own commonsense, this would have been a frightening experience. You might think he would have recognised those voices.
[Emphasis added]
The appellant contended that there was no evidence to support the assertion that the appellant would have recognised the voices of Mr Chauveau and Mr Turner. They were wearing balaclavas. It was argued that their voices could have been muffled or that they could have tried to disguise their voices. The suggestion that the appellant would have recognised the voices of Mr Chauveau and Mr Turner was thus based on an assumption that the voices were not muffled and that they were speaking with their normal voice.
This argument should not be accepted. There was undisputed evidence that the appellant was friends with Mr Chauveau and Mr Turner. At the trial there was no challenge that Mr Chauveau and Mr Turner committed the robbery. These facts were a sufficient evidentiary basis on which the prosecutor could support his suggestion that the jury might think the appellant would have recognised the voices of Mr Chauveau and Mr Turner.
This argument was also put on two other related bases. One such basis was that the prosecutor acting properly was bound to put to the appellant that he was lying when he denied that he recognised the voices.
This argument is not sustained. The appellant claimed that he knew nothing about the robbery before it occurred and had nothing to do with it. The Crown case was that this denial was false.
The issue of identification of the voices was an issue raised as an element of the fundamental challenge to the appellant’s credibility. There should have been no doubt in the appellant’s mind that the Crown’s case challenged his credibility. The prosecutor was not obliged to do more in the circumstances.
Finally, it was said that the prosecutor unduly belittled the appellant. This was alleged to have contravened the proper bounds of prosecutorial conduct. The alleged undue denigration was said to lie in the suggestion that it was contrary to commonsense that the appellant would not have recognised the voices of Mr Chauveau and Mr Turner.
This contention is baseless. The prosecutor made a measured comment about the denial made by the appellant in the face of the evidence of his friendship with Mr Chauveau and Mr Turner.
In any case, a suggestion by the prosecutor that the jury might think the appellant would have recognised the voices of Mr Chauveau and Mr Turner is only a suggestion rather than an assertion about what did happen, and as such is clearly something that the jury is specifically equipped to deal with, using, as jury members are routinely invited to do, their common sense and their ability to judge their fellow citizens.
The appellant is tied up last
In the course of playing the CCTV footage to the jury the prosecutor said:
Now, we’re just up to the stage where they’re already in the club and just watch them and particularly pay attention of how they’re getting zip-tied and the order that they’re getting zip-tied in and keep in mind whether you think the most – the person that you’d probably want to get first would be the security guard, the guy who’s trained. Watch what they do. That’s Mr Pike in blue. The first person they tie up, the barman. Next person they tie up is the office manager. Look how close that second person is standing to the accused. Would you stand that close to the accused if he wasn’t in on it? Isn’t he a threat to you still at that stage? Look how close he is. Then we come and tie up the security guard. Why do we “tie up him” last?He’s not a threat.
[Emphasis added]
The appellant submitted that the evidentiary basis for this statement was not established because it was not put to Mr Chauveau that the appellant was tied up last because he was not a threat.
This submission should not be accepted. The CCTV footage showed that the appellant was tied up after Mr Pike and Ms Reimer. This was despite the appellant being on the floor before either of them, and despite the appellant being a security guard in uniform.
Further, the three being tied up was raised in examination in chief as follows:
Do you remember what order ... people were zip tied in?---Not that I can recall.
Do you remember who did the zip tying?---As far as I can recall I think it was Matthew [Turner].
You said you went back into the office. What did you do in there?---Emptied the safe into the bag.
The prosecutor was explaining to the jury the inferences they could draw from the CCTV footage. The trial judge told the jury that the case was one of both direct and circumstantial evidence. The jury was told that it was for them to decide what weight to give to the evidence and whether to draw inferences from the facts.
In all these circumstances the prosecutor did not act unfairly on this aspect of the trial.
Matters not put to the appellant
Each of the instances relied upon as matters not put to the appellant occurred whilst the prosecutor played the CCTV footage to the jury. In some of these instances, the appellant also complained that the prosecutor had belittled the appellant’s evidence in a way which was unfair.
Did the appellant act appropriately?
In a passage extracted earlier in these reasons but repeated for convenience at this point the prosecutor said:
So what do we see from the video? Does the accused react appropriately? Probably. Maybe a little theatrical but he – you’ve got to remember it’s his role at least. The others, unfortunately not. What else? Well, we’ve said they don’t check any of the other rooms to see if anyone else is in the club. What inferences can you draw from that? They already know that no one else is in the club. How do they know? They’ve spoken to the accused on the phone. They’ve rung him three times, “Is it on? Is it on? Is it on?” “Yes,” “Yes,” “Yes.” They don’t want to get it wrong, they want to make sure it’s a good night. They didn’t check to see whether or not there were any stragglers still playing the pokies. They didn’t need to check, they knew there wouldn’t be. Didn’t check to see if there was fourth staff member on tonight for some reason, didn’t need to check, they knew. The accused had told them.
[Emphasis added]
These comments were made following the CCTV footage which showed Mr Chauveau and Mr Turner with a gun entering the Club. The footage showed the appellant approaching a rear door as Mr Chauveau and Mr Tuner entered. The CCTV footage also showed the staff being tied up and Mr Chauveau and Mr Turner leaving with the money.
The prosecutor put to the appellant in cross examination that when the offenders entered the room they moved past him and he turned around.
However, the appellant contended that the prosecutor did not put to the appellant that his conduct was inappropriate or take the appellant through the CCTV footage. Consequently it was submitted that the prosecutor failed to give the appellant an opportunity to refute the allegation that he had not acted appropriately.
This argument takes no account of the fact that the prosecutor answered the rhetorical question which he posed by saying that the appellant probably did react appropriately. That is, there was no such allegation.
The appellant also argued that the prosecutor’s suggestion that the appellant’s reaction was “a little theatrical” belittled the appellant’s evidence in a way which was unfair.
This contention has no substance. The case put by the Crown was that the appellant was involved in the robbery and that his denials were false. In that context, the allegation that the appellant’s reaction was a little theatrical was a part of that case and was expressed in an appropriately measured way.
The appellant turning around
The prosecutor said after he first stopped the CCTV footage that Mr Chauveau and Mr Turner ignored the appellant when they entered the Club. When the prosecutor next stopped the CCTV footage he said:
You can see the accused’s reaction straightaway. Watch what the armed men do. If we pause it there; one’s facing straight towards the bar, the second one’s coming behind. The accused has done a complete turnaround and has his back to them. Next still: still going to the bar, not worried about the accused. That’s the last one in this – from this angle. Not paying him any attention at all. And you might ask yourself, why wouldn’t you pay someone attention, he’s not a threat.
The appellant accepted that the prosecutor put to him in cross examination that he had turned around. However, it was argued that the prosecutor did not put to him that this showed that he was involved in the robbery, the prosecutor did not elicit evidence from Mr Chauveau that would provide the foundation for such a submission, and the prosecutor failed to provide the appellant with the opportunity to refute the suggestion.
The appellant’s argument should not be accepted. The prosecutor did no more than point out what could be observed from the CCTV footage. That footage showed that Mr Chauveau and Mr Turner entered the Club and walked right past the appellant. This was corroborative of Mr Chauveau’s evidence that the appellant was involved in the robbery. The appellant should have been in no doubt that this was the Crown case again him. There was no unfairness to the appellant in the statement made by the prosecutor in relation to this part of the CCTV footage.
The appellant could have left the Club
The prosecutor stopped the CCTV footage at one point and said:
Is there enough time for him to go out the doors at that stage? Probably not, it all happens very quickly.
The appellant said that the prosecutor did not put to the appellant in cross examination that he could have left the Club at this moment. Consequently, it was argued that it was unfair to the appellant to make this statement to the jury.
This argument is without foundation, because the prosecutor answered the rhetorical question favourably to the appellant by saying there probably was not time for the appellant to leave the Club.
Showing the job as an inside job
The prosecutor stopped the CCTV footage at the point where Mr Chauveau and Mr Turner are shown approaching the bar, and then the prosecutor said:
What do you take from that? The armed men looked confident in their stride and purposeful, they know where they’re going, they’ve got a plan. Maybe they were too confident, maybe they were too nervous. The accused seems to play his part, he has a bit of theatrical reaction; but unfortunately his co-offenders don’t: they forget about him. It’s only actually when they get to the bar that they realise, “We can’t show this as an inside job”.
The appellant contended that he was not given an opportunity to answer this suggestion.
The prosecutor’s statement related to the conduct of Mr Chauveau and Mr Turner, not the appellant. The prosecutor was saying that where the footage showed that Mr Chauveau and Mr Turner did not check the rooms, walked past the appellant, and tied up the appellant last, it demonstrated that they were not concerned about the appellant. That behaviour indicated that they knew the appellant would not intervene. In turn it supported the Crown case that the appellant was involved. This was the essence of the Crown case.
The appellant was cross-examined extensively on the basis of the Crown case, namely, that he organised the robbery with Mr Chauveau and Mr Turner.
Furthermore, the prosecutor’s suggestion related to the motivation of Mr Chauveau and Mr Turner. The appellant could not give evidence about what they were thinking. To the extent that the appellant could give evidence on the issue, he had the opportunity to explain his position. There was no unfairness in the prosecutor’s address on this aspect.
Miscarriage of justice
The alleged miscarriage of justice was said to have arisen from the unfairness in the prosecutor’s address. These reasons for judgment have explained that the alleged unfairness in the prosecutor’s address has not been made out. Consequently, the basis for the allegation that there was a miscarriage of justice falls away.
However, even if the alleged faults in the prosecutor’s closing address had been made out, our view is that s 37O(3) would have been applicable, in that we would have been satisfied that “no substantial miscarriage of justice has actually occurred”.
The Crown case was overwhelming. Mr Chauveau gave evidence that the appellant organised the robbery. The phone calls within the hour before the robbery, the evidence of Mr Sloan that the appellant admitted that he organised the robbery, and the CCTV footage made the verdict unassailable.
Furthermore, counsel for the appellant at trial, who also appeared for the appellant on the appeal, did not raise any objection to the prosecutor’s address before the trial judge. When challenged on appeal with his failure to object, counsel responded that he did not wish to draw attention to the points by asking the trial judge to correct the failings in the prosecutor’s address. The appellant, through his lawyer, made a forensic choice to leave the alleged shortcomings uncorrected. It is not open to use the appeal process to revisit a forensic choice made in the course of the trial.
Additionally, in most of the instances of alleged unfairness, counsel for the appellant at the trial put the shortcomings to the jury himself. By way of example, on the question of the identification of voices, counsel for the appellant said to the jury:
But at no stage did the Crown put to Mr Chauveau any questions about whether he, or Mr Turner, were speaking in their normal voice, whether their voices were muffled, whether they used a high-pitched voice or a gruff voice or anything. Nothing was put. I suggest that when you look at the actual evidence that point is simply unanswerable. That is there’s no evidence to enable you to reach the conclusion the Crown asks you to reach. If the Crown was going to make that submission it needed to have elicited from Mr Chauveau the fact that they weren’t scared that night…They weren’t worried they weren’t anxious, they weren’t changing their voice. They didn’t seek to cover up their voice. They spoke in a normal voice. That evidence wasn’t elicited.
A further example can be seen on the subject of why the appellant was tied up last. Counsel for the appellant told the jury:
The Crown also put to you that Mr Street was tied up last because he wasn’t a threat because he was in on it. Again, in order to make that submission the Crown was required to ask Mr Chauveau about that. No question was put to Mr Chauveau about that and once again there’s no evidence that enables you to find beyond reasonable doubt what the Crown is asking you to find.
Finally, in many of the examples relied upon by the appellant, the trial judge explained the appellant’s position in the course of his charge to the jury. Thus, for instance on the subjects of why the appellant was tied up last, and on the identification of the voices of Mr Chauveau and Mr Turner, the trial judge said:
Also, you will recall the Crown submission that the robbers tied up the accused last. The Crown suggests that one would have thought that a security guard would be the first person who would be taken care of, who would be incapacitated so as not to provide any potential danger to the robbers. Again, that is a matter for you as to whether you think that is a reasonable hypothesis. The Crown also placed significance upon the fact that the accused says he did not recognise the voices of the robbers as being the voices of his friends.
Now, you will recall that Mr Thomas [counsel for the appellant/applicant] said that there were no questions directed towards Mr Chauveau about whether he used a different voice or in some way changed his voice or whether it may have been muffled by the balaclava and those are legitimate issues that you need to take into account in determining what weight you will give to the submission made by the Crown that the accused would have recognised the voices of Mr Chauveau and Mr Turner.
Counsel for the appellant did not ask the trial judge to correct his charge on any of the issues of the alleged unfairness.
Conclusion
It follows from these reasons that the appeal must be dismissed.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 15 November 2013
Counsel for the appellant: Mr R Thomas
Solicitor for the appellant: Wilson Phillips Lawyers
Counsel for the respondent: Ms M Jones
Solicitor for the respondent: Office of the Director of Public Prosecutions
Date of hearing: 7 August 2013
Date of judgment: 15 November 2013
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