and Michael Gaythorne Caldwell v The Queen
[2014] VSCA 277
•6 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0085 | |
| MICHAEL GAYTHORNE CALDWELL | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH, PRIEST and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 October 2014 | |
DATE OF JUDGMENT: | 6 November 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 277 | |
JUDGMENT APPEALED FROM: | DPP v Caldwell (Unreported, County Court of Victoria, Judge Montgomery, 12 March 2014) | |
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CRIMINAL LAW – Trial – Forensic decision not to seek separate trial from co-accused – Crown seeking to lead additional evidence of listening device recordings linking applicant to co-offender and co-accused – Whether unfairness arising from additional evidence to warrant discharge of jury – Observations as to permissibility of prosecution adducing additional evidence in course of trial to bolster its case – Application for leave to appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Bayles | Robert Stary Lawyers |
| For the Crown | Mr R A Elston QC with Ms K Argiropoulos | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
PRIEST JA
BEACH JA:
Following a 30 day trial in the County Court, the applicant was convicted of seven property offences and was sentenced to two years’ imprisonment with a non-parole period of one year, as follows:
Charge on Indictment Offence Maximum Sentence Non Parole Period 29. Obtain property by deception [Crimes Act 1958 s 81] 10 years 2 years’ imprisonment (aggregate)
1 year 38. Burglary [Crimes Act 1958 s 76] 10 years 39. Theft [Crimes Act 1958 s 74] 10 years 40. Obtain property by deception [Crimes Act 1958 s 81] 10 years 41. Obtain property by deception [Crimes Act 1958 s 81] 10 years 42. Obtain property by deception [Crimes Act 1958 s 81] 10 years 45. Handling stolen goods [Crimes Act 1958 s 88] 15 years Total Effective Sentence: 2 years’ imprisonment Non-Parole Period: 1 year
On each charge the applicant was indicted together with his sons Kelly Caldwell (‘Kelly’) and Jason Caldwell (‘Jason’). The Crown also alleged that one Anthony Twomey was a co-offender who was party to a joint criminal enterprise with the applicant and his sons in committing the offences the subject of charges 38–42. The applicant’s sons were also indicted and convicted on a large number of other charges of arson, theft, burglary and obtain property by deception.
The applicant seeks leave to appeal his conviction on the following grounds:
1.There was a substantial miscarriage of justice as the applicant should have had a separate trial.
2.Disc 8 Title 3 Chapter 1 was inadmissible and resulted in a substantial miscarriage of justice.
Between July 2009 and May 2010, Kelly and Jason committed a number of burglaries and thefts from commercial premises in the Dandenong and Latrobe Valley areas of Victoria for the primary purpose of stealing copper wire which would later be pawned for financial gain. We are concerned only with those offences which they committed jointly with the applicant.
On charge 29 the applicant pawned 456 kilograms of copper and received payment of $2,336. The copper had been stolen by Kelly and Jason and was the subject of another charge on the indictment.
The facts relevant to charges 38 to 42 are said by both parties in their written cases to be found in the Crown summary of facts. In the following passages from that summary the applicant is referred to as ‘Gaythorne’:[1]
[1]The relevant charges are inserted in parentheses.
On Sunday the 18th of April 2010, at approximately 7:45pm, KELLY and JASON, as well as their father GAYTHORNE, entered the white coloured Ford utility EIC-053. At this time on this day KELLY drove the Ford utility with JASON and GAYTHORNE from his residential premises situated at 2 Janette Street, Traralgon. KELLY, JASON and GAYTHORNE travelled Morwell, again to the premises of PRIMAWELD ENGINEERING situated at 20 Swan Road. KELLY, JASON and GAYTHORNE made observations of the secure boundary fencing and access gates. KELLY, JASON and GAYTHORNE made further observations of copper cable and secure shipping containers within the compound.
KELLY, JASON and GAYTHORNE then travelled from Swan Road, Morwell, to the east bound lanes of Princes Freeway at the intersection of Tramway Road, Morwell. KELLY, JASON and GAYTHORNE travelled east on the Princes Freeway before stopping at the rear secure boundary fence of PRIMAWELD ENGINEERING adjacent to the east bound lanes of Princes Freeway. JASON and GAYTHORNE left the vehicle and walked to the rear secure boundary fence of PRIMAWELD ENGINEERING. KELLY remained in the white Ford utility EIC-053 and a short time later travelled from the scene and returned to his residential premises situated at 2 Janette Street, Traralgon.
At this time JASON and GAYTHORNE climbed the rear secure boundary fence of PRIMAWELD ENGINEERING. Once inside the secure compound JASON and GAYTHORNE forced entry to a number of secure shipping containers within the secure compound. JASON and GAYTHORNE entered the secure shipping containers and removed a large quantity of copper and aluminium cable as well as a large quantity of copper and aluminium fittings. JASON and GAYTHORNE located a number of tools and equipment within the shipping containers including petrol driven generators, demolition saw and scales. JASON and GAYTHORNE located a single axel green coloured box trailer registered FT4461 within the compound. This trailer was pre-loaded with a large wooden cable spool containing a quantity of clean copper cable. JASON and GAYTHORNE pushed the trailer to the shipping containers and commenced loading the other copper and aluminium cable and tools and equipment they had accumulated from the shipping containers.
At approximately 1:30am on Monday the 19th of April 2010, KELLY entered the fawn / brown coloured Toyota four-wheel drive utility WJS-006. KELLY was in company with TWOMEY. KELLY and TWOMEY travelled from the residential premises situated at 2 Janette Street, Traralgon, to the township of Morwell. KELLY and TWOMEY travelled to the Swan Road, Morwell where they stopped and parked near the western side secure entry gates of PRIMAWELD ENGINEERING.
At approximately 2:02am on Monday the 19th of April, 2010, JASON walked to the secure front gates of PRIMAWELD ENGINEERING with the demolition cutting saw removed from the shipping containers. JASON walked to the secure front entry gates and driveway accessing Swan Road, Morwell. JASON then started the demolition saw and cut the secure padlock of the entry gates. Once the secure lock had been cut JASON returned to the shipping containers.
At this time KELLY and TWOMEY travelled from their location in Swan Road, Morwell near the western side secure entry gates of PRIMAWELD ENGINEERING in the Toyota utility WJS-006 and stopped at the access gates of PRIMAWELD ENGINEERING. At this time TWOMEY left the Toyota utility and opened the gates due to the secure lock being cut. KELLY drove the Toyota utility into the secure compound area and reversed the vehicle to the shipping containers. JASON, TWOMEY and GAYTHORNE then attached the green coloured trailer FT4461 to the Toyota utility WJS-006. JASON, TWOMEY and GAYTHORNE then loaded all of the accumulated copper cable, aluminium cable, tools and equipment into the trailer and Toyota utility.
KELLY, JASON, TWOMEY and GAYTHORNE then drove from the secure compound in the Toyota utility into Swan Road, Morwell, and travelled to the residential premises situated at 2 Janette Street, Traralgon. Upon returning to the residential premises of 2 Janette Street, Traralgon KELLY, JASON, TWOMEY and GAYTHORNE removed the wooden cable spool containing copper cable, along with the accumulated copper and aluminium cable and copper and aluminium fixtures. KELLY, JASON, TWOMEY and GAYTHORNE removed the tools and equipment accumulated, including the demolition saw, petrol generator and scales from the Toyota utility. KELLY, JASON, TWOMEY and GAYTHORNE removed the green coloured box trailer FT4461 from the Toyota four wheel drive utility WJS-006.
KELLY, JASON, TWOMEY and GAYTHORNE commenced painting the green coloured trailer FT4461 with light blue paint in an attempt to conceal the distinctive green paint and markings of the trailer. (Charges 38 and 39)
On Monday the 19th of April 2010, JASON and TWOMEY loaded 6 kilograms of bright ‘candy’ copper cable, 75 kilograms of ‘milberry’ copper cable and 29 kilograms of burnt copper cable all stolen from PRIMAWELD ENGINEERING into the white coloured Ford utility EIC-053. JASON and TWOMEY drove to the nearby township of Churchill. JASON and TWOMEY attended at SIMS Metal Management situated at 2-6 Webster St, Churchill. At this location:
·TWOMEY pawned 8 kilograms of bright ‘candy’ copper cable, 75 kilograms of ‘milberry’ copper cable and 29 kilograms of burnt copper cable;
·TWOMEY was paid $739.70 for this transaction;
·Vehicle details EIC-053 were recorded for this transaction;
·Signature and residential address of TWOMEY was recorded for this transaction; and
·TWOMEY supplied ABN 80028605944 for this transaction. (Charge 40)
On Wednesday the 21st of April 2010, JASON attended an engagement. In the absence of JASON the white coloured Ford utility EIC-053 was utilised by TWOMEY. TWOMEY attended at the residential premises situated at 2 Janette Street, Traralgon and loaded 127 kilograms of ‘milberry’ copper cable and 198 kilograms of burnt copper cable all stolen from PRIMAWELD ENGINEERING into the white coloured Ford utility EIC-053. He then travelled to the township of Churchill and attended at SIMS Metal Management situated at 2-6 Webster St, Churchill. At this location:
·TWOMEY pawned 127 kilograms of ‘milberry’ copper cable and 198 kilograms of burnt copper cable;
·TWOMEY was paid $2022.60 for this transaction;
·Vehicle details EIC-053 were recorded for this transaction;
·Signature and residential address of TWOMEY was recorded for this transaction; and
·TWOMEY supplied ABN 80028605944 for this transaction. (Charge 41)
Anthony TWOMEY then returned to the residential premises situated at 2 Janette Street, Traralgon and loaded 292 kilograms of aluminium cable stolen from PRIMAWELD ENGINEERING into the white coloured Ford utility EIC-053. He then travelled to the township of Morwell and attended at INDUSTRIAL METAL RECYCLERS situated at Lot 4J Southern Circuit, Morwell. At this location:
·TWOMEY pawned 292 kilograms of aluminium cable;
·TWOMEY was paid $335.80 for this transaction;
·Vehicle details EIC-053 were recorded for this transaction;
·Signature and residential address of TWOMEY was recorded for this transaction; and
·TWOMEY supplied ABN 80028605944 for this transaction. (Charge 42)
On charge 45 the facts were that upon the execution of a search warrant at the applicant’s property on 26 April 2010, police officers discovered stolen goods, namely two stolen trailers, three petrol driven generators, a number of large wooden cable spool ends, three sets of cable wire cutters and a large quantity of copper and aluminium fixtures.
Application for discharge of the jury
On day 17 of the trial the Crown sought to lead evidence related to a search conducted at Twomey’s premises. Counsel for the applicant objected to the evidence being led on the basis of relevance. He foreshadowed in the absence of the jury that he would eventually submit there was no evidence of the applicant’s involvement in the Primaweld offences (charges 38 and 39) and no link to Twomey and charges 40–42. The next day the prosecutor informed the Court that he had identified three listening device recordings, which were included in the hand-up brief and depositions but were excluded from the jury book, and which he intended to tender in evidence (‘the additional evidence’). One of these recordings was allegedly a recording of a conversation between the applicant and Twomey on 21 April 2010.
Counsel for the applicant made an application to discharge the jury on the basis that the additional evidence had not been referred to when the prosecutor opened the case nor had it been included in the jury book which contained the evidence upon which the prosecution intended to rely. He claimed that without the additional evidence he would be in a position to ‘no case’ the prosecution. Although he did not dispute that he had been aware of the additional evidence, he submitted that had the Crown given notice from the outset of its intention to lead such evidence, he would not have opened the defence case, following the prosecutor’s opening, by inviting the jury to scrutinise the evidence to see whether it showed that there was any agreement between the applicant and his sons or whether there was any connection between the applicant and Twomey. His primary contention was that he would have made a different forensic decision at the beginning of the trial and sought a separate trial from the applicant’s sons had he known that the Crown would seek to lead such additional evidence. We note that he did not renew his application for a separate trial or submit that the applicant could no longer receive a fair trial.
The trial judge observed that defence counsel, by his opening remarks and subsequent submissions, had provoked the Crown into leading the last of the recordings so as to rebut the proposition that there was no direct link between the applicant and Twomey. The trial judge found that there was no high degree of need to discharge the jury. In rejecting the application the trial judge said:
The material has always been in the brief. I do not understand the submission about a separate trial. I queried as to what this material would add to or subtract from any submission in relation to a separate trial. In my assessment of the brief there is a lot more material here that might have supported a separate trial application. This material directly relates to his client and it would be sought to be led by the prosecution in a separate trial. As I said, I do not understand that submission at all.
On appeal counsel for the applicant, who was not trial counsel, argued that it was unfair that the prosecution should have been permitted, without adequate notice, to adduce this additional evidence. He accepted however that the prosecution was not raising a new issue or seeking to change its case. He acknowledged that defence counsel had been offered preparation time if it was required. He submitted, as trial counsel had, that unfairness arose because an application for separate trials would have been made had it been known that the Crown would seek to rely upon the additional evidence.
Before addressing the submissions made under this ground it is convenient to deal with ground 2 which is also concerned with part of the additional evidence the subject of ground 1.
Admissibility of the recording
The applicant in his written case submitted that his Honour erred in admitting the evidence of the informant Pawson in relation to voice identification of the applicant and Twomey in the conversation of 21 April 2010 the subject of the additional evidence (referred to in the ground of appeal as Disc 8 Title 3 Chapter 1). It was further said that his Honour should have ruled the recording inadmissible as it did not have probative value and was unreliable and unfairly prejudicial.
Following the rejection of the above application for discharge of the jury, the trial judge heard argument over a number of days concerning the admissibility of the conversation which when transcribed was some nine lines. Counsel for the applicant objected to the evidence on the ground that it was not possible to identify the applicant’s voice from the recording and further on the ground that the conversation was indecipherable. The Crown initially contemplated that it would adduce identification evidence of the applicant and Twomey’s voices from the informant who said on the voir dire that he could recognise the applicant’s voice. As matters transpired he was not required to give that evidence. Ultimately the Crown accepted and the trial judge ruled that the recording was so unclear that only the last two lines of the conversation as transcribed should be admitted. They were: ‘It’s not my car, I’ll run. Alright Mick, see you later this arvo’. It was not contended that the applicant spoke these words. These words were attributed to Twomey.
Following this ruling, counsel for the applicant stated that he did not object to the quality of the recording of the final two lines and submitted that an edited recording and amended transcript of only those lines should be tendered. No voice identification evidence was thus given as to the voices on the recording. The amended transcript (two lines) was added to the jury book. Counsel for the applicant later conceded that no direction to the jury in relation to voice identification evidence was required.
On appeal, counsel for the applicant did not further press argument on ground 2 once it was pointed out that, contrary to the assertion in the ground, no voice identification was made. No argument was advanced that the additional evidence should have been excluded because the additional evidence was prejudicial. Ground 2 is without substance.
Returning then to ground 1, the applicant’s submission must be rejected. First, as can be seen from the above discussion of ground 2, the additional evidence concerning the third conversation did not contain any of the probative evidence which had led counsel to seek a discharge of the jury. Second, no new or persuasive explanation was proffered on appeal why the additional evidence would have led counsel to make a different forensic decision as to separate trials. The trial judge’s sceptical reaction to defence counsel’s suggestion was entirely understandable. It was not shown before his Honour or on appeal how the additional evidence could have made any difference to an application for separate trials. Third, the additional evidence was further circumstantial evidence from which it could be inferred, consistent with the way in which the prosecution put its case, that Kelly and Jason Caldwell, together with the applicant and Twomey, participated in the burglary at Primewald. It was evidence from which it could be further inferred that the four men were in the joint criminal enterprise the subject of charges 38–42. The introduction of this additional evidence did not give rise to any unfairness to the applicant or warrant the jury’s discharge. The ground is without merit.
Before leaving this ground we observe that it is not uncommon that as a trial unfolds and parts of the defence case become clear, the prosecution may, consistent with the way it puts its case, adduce additional evidence in support of the already known issues in order to bolster the case it is seeking to prove or in order to answer a defence argument. Such a course is permissible unless the defence is unfairly prejudiced by the introduction of the additional evidence.
Leave to appeal must be refused.
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