Barker v The Queen - [2002] WASCA 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BARKER -v- THE QUEEN [2002] WASCA 127

CORAM: WALLWORK J
MURRAY J
ANDERSON J

HEARD: 3 MAY 2002

DELIVERED : 16 MAY 2002

FILE NO/S: CCA 104 of 2001

BETWEEN: GARRY JOHN BARKER
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal - Jury noticed fibre on exhibit whilst considering verdict - No evidence about it at trial - Asked Judge if they could take it into account in deliberations - Judge said "yes" - Whether miscarriage of justice - Decided on facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr B S Hanbury
Respondent: Mr D Dempster

Solicitors:

Appellant: Beau Hanbury
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Buller v The Queen [2002] WASCA 90
Hodge v Williams (1947) 47 SR (NSW) 489
Kozul v The Queen (1981) 147 CLR 221

Case(s) also cited:

Nil

WALLWORK J: On 22 June 2001 the appellant was convicted of a number of very serious sexual offences in the District Court at Carnarvon. He now appeals against those convictions on one ground of appeal arising from a question which the jury asked the learned trial Judge concerning the fact that they had noticed a piece of blue fibre on a piece of silver sticky tape. The Crown had alleged that the sticky tape had been used by the appellant to bind the wrists of the complainant when he first attacked her.
The question from the jury was:
"We have noticed blue fibre on the tape of the same material as the top that was worn by [the complainant] and that the Judge told us there was no evidence of blue fibre on the tape according to the forensic report. The forensic report after studying did not even test for the fibres. Are we to take the blue fibre into account?"
The learned Judge told the jury that:
"…the tape and the top are obviously exhibits and you can make of them what you will. The short answer to your question is 'Yes'. …You may continue deliberating."
It was after that direction that the jury convicted the appellant.

The Trial

The complainant who was 22 years of age at the time of the trial had told the jury that she had known the appellant whilst she had been living in Mullewa where she was then working as a barmaid. Having been dismissed from her employment in Mullewa she had gone to stay with her grandmother in Geraldton. A few days after that the appellant had brought her some of her belongings from her car which had broken down west of Mullewa. The appellant had mentioned that he was on his way to Carnarvon to get some work on a boat.
The complainant said in evidence that she told the appellant that she was having trouble finding work in Geraldton and if it was alright with him, she would accompany him to Carnarvon. On the same day they had left for Carnarvon. The appellant had been drinking beer. The complainant was driving. Just before they arrived at Carnarvon they had pulled in at a parking bay, just on dusk. The appellant, according to the complainant, had then been rather intoxicated. She said that while they were at the parking bay the appellant had punched her in the face when she was seated in the driver's seat of the vehicle. Following on that he had held a knife below her eye. The knife had a red handle. The complainant said that the appellant had told her that if she moved he was going to cut her eye out. He had then told her to get in the back seat. He told her to lie on her stomach and put her hands behind her back. He had then reached into the front of the car and obtained some silver tape which he had used to tie her hands behind her back. The appellant had then got into the driver's seat and driven back towards Geraldton. He had told her that if she was good he was going to let her live. Otherwise he was going to kill her slowly.
Without going into all the details, the complainant said that the appellant had threatened her in quite a frightening manner, including threatening to cut her heart out and to cut her throat. He had stopped the car. He told her if she was good he would let her live and if she was not "…he was going to bury me with the rest of the girls." The appellant had then turned the car around and headed back towards Carnarvon. He had stopped in a parking bay and started to sexually assault her. He had cut the tape off her hands and told her to take her clothes off. He had cut the tape off with a knife. Thereafter he had sexually assaulted her. In general terms those sexual assaults had continued until a considerable time later when they had reached Exmouth.
The complainant said that they had stayed the night at a motel at Exmouth. On the next morning the appellant had driven off and left her in the motel room. She had then reported the matter to the police. The appellant had later been apprehended and questioned by police officers. He had denied that he had assaulted the complainant in the manner she had described. The appellant did not give evidence at the trial but relied on his record of interview in which, in general terms, he had agreed to having had sexual relations with the complainant but denied that he had threatened or assaulted her in any way against her will.
At the trial the "jumper" of the complainant was put into evidence. The complainant pointed out that the sleeve of the jumper was cut "…from when he cut the tape." She said that tape had been wrapped around her wrists. Also put into evidence was a Foodland rubbish bag in which there were some pieces of silver tape which had obviously been cut. The complainant said that these pieces of tape had been stuck to her jumper when she got her clothes out of the car at Exmouth. They were the pieces of tape that had been cut off her hands. Some of it had stuck to her clothing. She had put the pieces of tape into the plastic bag and put it in a bin in the motel room. The plastic bag with the tape inside it became Exhibit 7 at the trial.
In cross‑examination at the trial the complainant said that the appellant had taped her hands together and had taped her jumper to her hands. He had later used a knife to cut the tape from her at the time of some sexual assaults. It was put to the complainant that the tape which had been found in the plastic bag in the motel room had never actually been in contact with the jumper. The complainant said it had been.
It is not necessary to go into the details of the alleged assaults on the complainant. Suffice it to say that they were said to have continued from the time she was assaulted in the car park until the night before the appellant had left her at the motel at Exmouth and driven away.
A senior scientist in forensic biology gave evidence that he had conducted DNA tests on some of the exhibits which were produced by the Crown. He had had samples from the appellant and also from the complainant. He said there were seven pieces of cut, silver coloured, plastic adhesive tape, ranging in length from approximately 5cm to 24.5cm in a Foodland plastic bag. The pieces of tape were slightly soiled. He had located a short brown hair which was adhered to one of the pieces of tape. He had submitted that hair for DNA analysis. He did not mention any coloured fibre from the victim's jumper.
On two of the pieces of tape there were DNA profiles for which the major component was the complainant. On tape 6 there was a mixed DNA profile. In that profile there were components from both the appellant and the complainant. The expert had also examined a sample of mixed DNA profile from the rear car seat of the vehicle in which the two had travelled. The major component of that DNA profile from a blood stain on the rear car seat had matched the complainant's. That was the car seat on which the complainant said she had initially been forced to lie down while her wrists were bound. Various exhibits from the vehicle and the complainant's clothing were put in evidence.
The complainant was extensively cross‑examined as to her credibility, including drug taking on her behalf prior to the time of the alleged offences. She was cross‑examined as to why she had not escaped at various times during the journey. Generally she told the jury that she had been too scared to try and escape because she had thought the appellant had a gun. She knew he had a knife which he had used to threaten her with and to cut the tape from her hands. She said she had not been able to tell anybody what had happened until after the appellant had left her in the motel room and driven off. Even then she had been under the influence of certain drugs that he had made her take. It was some time before she could tell a coherent story to the police officers.
At the conclusion of the trial defence counsel told the jury that the relevant pieces of sticky tape had been very sticky but there had been no jumper fibres on the tape. There was also no adhesive on the jumper. There had been no‑one to interpret the cuts on the jumper except the complainant. Counsel said that the appellant had denied that he had any such tape.

The Judge's Directions

At the conclusion of counsel's addresses the learned trial Judge told the jury that the complainant had said she had been threatened with a knife and been drugged. She had been put into a situation of intimidation during which, according to the complainant, the appellant had virtually kept her a prisoner by threatening her, intimidating her, drugging her and subjecting her to sexual acts. The Judge told the jury that the complainant had said that the tape was actually around her jumper as well as her wrists and that when the appellant had cut it off he had also cut her jumper. There were cuts on the jumper.
The Judge said there had been no expert evidence about what sort of instrument could have been used to cut the jumper. The Judge pointed out that the pieces of tape had been found in the rubbish bin at the Pot Shot Hotel in the Foodland bag. That a senior scientist in forensic biology had said that in relation to tape No 2, it had contained a mixed DNA profile from at least two individuals and that could be separated into major and minor components. The major component matched the complainant's. The probability of a finding that the DNA profile, if the material on the tape had come from someone other than the complainant, was approximately one in 3.7 million. With respect to tape No 6 there had been a mixed DNA profile on it from at least three individuals. If it was assumed that there were three people contributing to the mixture then it was approximately 86.9 million times more likely to find this mixed DNA profile if it had come from the appellant and the complainant and one unknown than if it had come from three unknowns.
The learned Judge said:
"…if you are satisfied beyond reasonable doubt that the tape was found in the rubbish bin and if you are satisfied beyond reasonable doubt that the tape, particularly No 6, contained DNA of the accused and the complainant and one unknown person then an inference would be open to you to draw that the accused had had some contact with the tape. When the police asked him about the tape the accused said that he had no silver tape in the car when he left Geraldton. He had no tape in the car and he referred to other tape that he might have had there. If I can just deviate for a minute, Mr Smith said to you that the accused said 'What am I supposed to have done, taped her hands?' and said 'Well isn't that interesting?' Well, is it interesting in the sense that a few questions before the police officer specifically put to him that he had taped her hands? So that was just a confirmation of what the police officer had said."
The learned Judge also said:
"In relation to the tape the prosecution says, 'Well, have a look at the tape. Unseal it from the plastic bag and you will see that most of the pieces are 25cms long and that is consistent with it being the length that would bind somebody's wrists and being cut."
The Judge told the jury that the complainant had said she had been wearing the blue jumper when she was tied up; that she had pulled the tape off the jumper when she went to get her clothes out of the car and she had put the tape in the bin:
"The prosecution is saying this is, if you will excuse the expression, the weak link in the accused's story because he seemed to have got rid of everything else, but in fact he didn't because her doonas and a couple of towels or blankets were still in the car. He had got rid of most of her things but wasn't aware that the tape was in the bin and that was his undoing."
When commenting on the DNA on the pieces of tape, the Judge said that defence counsel:
"…submits to you the DNA which was found on the two tapes, particularly tape No 6, is really only evidence of a fleeting touching of this tape and it doesn't mean that the accused lied about possession of the tape or used it in the way alleged. Counsel also points to the fact that there is no evidence of any fibres on the tape which was wrapped around her blue sweatshirt. You might think that that is a telling matter because the forensic examination of everything that was found was meticulous. They even examined a hair, I think, a single hair, that was found somewhere. I am not sure where it was found, but a single hair was submitted for analysis. The fact that there is no evidence of any fibres on the tape indicates that this tape wasn't used in the way that [the complainant] says it was used. As well there is no expert evidence as to the cut on the jumper, which you can examine yourself, as to how that cut could have been caused, what sort of implement could have been used, whether the utility knife could have caused that cut in the circumstances as outlined by [the complainant], but that is entirely in your court, ladies and gentleman. You have got the knife. You have got the jumper. So you can determine whether what the complainant is saying is the truth."
In due course the jury retired and then sent the question to the Judge which was:
"We have noticed blue fibre on the tape of the same material as the top that was worn by the complainant and that the Judge told us there was no evidence of blue fibre on the tape according to the forensic report. The forensic report after studying did not even test for the fibres. Are we to take the blue fibre into account?"
After discussion with counsel, the learned Judge answered the question:
"…the tape and the top are obviously exhibits and you can make of them what you will. The short answer to your question is 'Yes' …You may continue deliberating."
It is that question from the jury and the answer by the Judge which the appellant says has resulted in a miscarriage of justice.
The appellant contends that there was no evidence presented in the course of the trial as to the existence or presence of the alleged "blue fibre" on the tape and that the jury was not asked to specify which piece of tape it was on. It was further contended that there had been no evidence presented as to what the material on the tape was and no evidence as to where the material on the tape had come from.
It was submitted that the learned trial Judge had effectively told the jury that they could attach whatever significance to each of the exhibits that they determined and that the Judge had given an insufficient direction to the jury as to the way in which the exhibits were to be used.
The leading decision on this question is Kozul v The Queen (1981) 147 CLR 221. That decision was concerned with directions given by a trial Judge to a jury as to what they could do with a revolver which was in evidence. Evidence had been given by an expert, as to what would be required to make the revolver fire, both when it was not cocked and after it had been cocked. The trial Judge told the jury certain things about that, including that they were entitled to examine the revolver and have regard to it in reaching their verdict.
Gibbs CJ said that counsel had submitted before the High Court that it had been wrong to invite the jury to conduct an experiment, the object of which was to discover whether the finger of a person holding a revolver will clench when a blow is struck to his hand. This was because such an experiment would be conducted in the absence of the applicant who would thus be prevented from revealing any weaknesses in the manner in which it was carried out. Secondly, because it would proceed on a false basis since the person holding the revolver in the experiment would not be in a state of emotional stress and would be expecting the blow.
Gibbs CJ said that the jury were entitled to examine the revolver and to have regard to it in reaching their verdict. He said that juries trying issues of fact are not restricted merely to looking at material objects which have been produced in evidence. They may, if necessary, touch and handle them and they may, within limits that are readily understood in practice, if difficult to define with precision, engage in a limited amount of experimentation with them. The Chief Justice said at 226:
"For example, if the question was whether a piece of paper found in the possession of the accused had been torn from a letter found at the scene of the crime, the jury might fit the two pieces together. If the question was whether one container held less than another, the jury might pour water from one to the other. If the weight of an object were in question, members of the jury might lift it. And, to come to the present case, it would have been perfectly proper for the members of the jury to pull the trigger of the revolver, both when it was cocked and when it was not, so that they might judge for themselves how much pressure was necessary to cause it to discharge. In experimenting in this way the jury are doing no more than using their own senses to assess the weight and value of the evidence."
At 227 Gibbs CJ referred to the decision in Hodge v Williams (1947) 47 SR (NSW) 489 at 493 where Davidson J after saying that the Tribunal may "with its own powers of observation and general knowledge" estimate the value of the evidence of witnesses directed to issues concerning articles in evidence as exhibits, and if necessary refuse to accept that evidence, went on:
"Nevertheless it is not permissible for the Judge or the jury, in the absence of the parties, to gather by extraneous evidence or experiments of their own, anything in the nature of additional evidence, and apply it in the determination of the issue, unless the facts so obtained are ventilated and submitted to the comment of the parties or their counsel."
Gibbs CJ said:
"When the experiments conducted by the jury go beyond a mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible."
In the same decision at 236 Stephen J said:
"Particular difficulties arise in areas which are essentially matters for expert evidence. Handwriting comparison is an instance of this; the English Courts have stressed the difficulties which arise when there is no expert evidence yet the jury has before it examples of handwriting and much turns upon whether each is the product of the one hand. When there is expert evidence the jury must be told not to substitute for that evidence its own inexpert view; when there is none the jury must be warned that they must not attempt a task requiring expert skills - Reg v O'Sullivan [1969] 1 WLR 497; [1969] 2 All ER 237; 53 Crim App Rep 274."
In Kozul v The Queen (supra) Mason J agreed with the reasons of Gibbs CJ. Murphy J agreed with the views expressed by Stephen J.
With respect to the decision Hodge v Williams (supra) Stephen J said that he would agree with the observations of Glass JA in the Court of Criminal Appeal regarding it. Glass JA when speaking of the trial judge's direction in Kozul v The Queen (supra) said:
"The experiment which he proposed they might carry out in the jury room fell on the authorised side of the use which the jury might make of the exhibits which they took with them having regard to the exposition of that topic in Hodge v Williams (supra). In other words, what they were recommended to do was to use their own powers of observation with respect to the pistol to estimate the value of the testimony before them and not to carry out experiments of their own for the purpose of gathering additional evidence."

In the present case the matter is complicated by the fact that defence counsel had expressly told the jury that there were no jumper fibres on the tape and there was no adhesive on the jumper. Having heard that the learned trial Judge told the jury that defence counsel had pointed to the fact that there was no evidence of any fibres on the tape which was wrapped around the complainant's blue sweatshirt. The Judge said:
"You might think that that is a telling matter because the forensic examination of everything that was found was meticulous. They even examined a hair, I think, a single hair, that was found somewhere. I'm not sure where it was found, but a single hair was submitted for analysis. The fact that there is no evidence of any fibres on the tape indicates that this tape wasn't used in the way that the complainant says it was used."
It was with that comment in mind, that the jury advised that they had noticed a blue fibre on the tape of the same material as the top which had been worn by the complainant and that although the Judge had told them there was no evidence of blue fibre on the tape, according to the forensic report, the expert had not even tested for the fibres. It was against that background that they asked were they to take the blue fibre into account and were told by the Judge that they could make of the exhibits of the tape and the top "…what you will. The short answer is 'Yes'".
In deciding this appeal it is significant that before the learned Judge told the jury that they could take the fibre into account her Honour had read out the question from the jury to counsel and told them:
"The answer to that which I intend to tell the jury is 'yes'. They are entitled to make whatever they see fit of the exhibits."
The Judge asked the prosecuting counsel whether he agreed with that approach and received an affirmative answer. Her Honour then asked defence counsel. He said:
"Yes. I think that is the correct answer to the question. Whether they ought to be warned about reaching conclusions where there may be other reasonable inferences to be drawn - perhaps some kind of a warning along those lines might be appropriate if that answer is to be given to the question."
The learned Judge replied:
"That might be reading too much into the question. I think the appropriate procedure is simply to answer the question and if further elaboration is needed, then the request can be made."
On a fair reading of the Judge's summing up in this case it is my opinion that the Judge did everything possible to achieve a fair trial for the appellant. The summing up was very favourable to the defence. It is against that background that defence counsel's qualified decision to agree to the Judge's direction allowing the jury to take the fibre into account was made. Counsel could have asked that the trial be adjourned to enable further tests to be carried out. He did not do so cf Buller v The Queen [2002] WASCA 90. Counsel may have had good reason for taking that course because in my opinion the evidence against the appellant was overwhelming. Further examination of both the fibre and the cut in the jumper could probably only have improved the Crown case against the appellant. There is no suggestion now that the fibre has been examined by anybody and found to have been of a different material. The cut in the jumper, the way the tape was cut and where it was found, when taken with the complainant's evidence concerning how she got the tape from the car and put it in the bin, comprised compelling evidence against the appellant - without the fibre.
In my opinion, the appellant has not established that there has been a miscarriage of justice in this case. On the contrary, as stated above the evidence was overwhelming against the appellant.
The appeal should in my view be dismissed.

MURRAY J: I agree entirely with the reasons of Wallwork and Anderson JJ. The appeal should be dismissed.
ANDERSON J: I have had the advantage of reading in draft the judgment of Wallwork J and I agree with it.
The trouble began when, in his address to the jury, counsel for the appellant told the jury:
"There's no jumper fibres on the tape."
There was no basis in fact for that statement. The question whether the adhesive tape which, on the Crown case, the appellant had used to strap the complainant's wrists behind her back contained fibres from the sleeves of her jumper was never explored in evidence. The scientist who had given evidence on behalf of the Crown was a DNA expert and his evidence was confined to the results of DNA analysis of the pieces of tape themselves and a short, brown hair adhering to one of them. It is quite obvious from the expert report that only material likely to yield a DNA profile was tested. That the report is silent concerning the presence of other material, including jumper fibre, did not provide the justification for counsel's statement.
In her summing up to the jury, the learned trial Judge instructed them in the following terms with respect to this matter:
"Mr Bodeker also points to the fact that there is no evidence of any fibres on the tape which was wrapped around her blue sweatshirt. You might think that that is a telling matter because the forensic examination of everything that was found was meticulous. They even examined a hair, I think, a single hair, that was found somewhere. I am not sure where it was found, but a single hair was submitted for analysis. The fact that there is no evidence of any fibres on the tape indicates that this tape wasn't used in the way that [the complainant] says it was used."
That direction goes further than the statement made by counsel, and would have left the jury with the impression that there had been a "forensic examination" of the adhesive tape for the presence of fibres from the complainant's jumper or "sweatshirt", as her Honour called it; and that this "meticulous" examination was negative as to the presence of fibres.

It is in this context that the note which was sent out by the jury falls to be considered. That note said:
"We have noticed blue fibre on the tape of the same material as the top that was worn by [the complainant] and that the judge told us there was no evidence of blue fibre on the tape according to the forensic report. The forensic report after studying did not even test for the fibres. Are we to take the blue fibre into account?"
This is a neat illustration of the strength of the jury system. So far as appears from the transcript, neither counsel called for the exhibit to examine it and neither did the trial Judge. There appears to have been simply an acceptance of the accuracy of the jury's observations. It was open to defence counsel to call for the exhibit, and if there was any doubt as to the accuracy of the observation that there was "blue fibre on the tape of the same material as the top that was worn by [the complainant]", it was open to counsel to make such application as might have been appropriate. This may have included an adjournment to conduct scientific examinations of the fibre in the hope that this would establish that it was not fibre from the complainant's jumper. No such step was taken and it must be assumed that this was a deliberate decision. To subject the tape to further tests might have produced most unwelcome results for the appellant and give to this piece of circumstantial evidence greater prominence than would otherwise be the case.
In his submissions to us, counsel for the appellant, Mr Hanbury, went so far as to say that the jury should have been discharged immediately. I cannot accept that submission. The jury was entitled to examine the exhibits for themselves and arrive at conclusions in accordance with their own observations. Whilst there might not have been any scientific basis for the conclusion which they reached that the "blue fibre on the tape" was "of the same material as the top that was worn by [the complainant]" it is obvious that all 12 jurors (a) observed that there was a blue fibre on the tape, and (b) were satisfied that it appeared to be of the same material as the complainant's jumper. No doubt it was open to defence counsel to ask the trial Judge to warn the jury that they could not reach a scientific conclusion on it and to remind them that no scientific evidence had been given about it. Once again, he chose not to do so and there might have been very good forensic reasons for adopting that "least said, soonest mended" course. The trial Judge discussed with counsel how she should respond to the jury's note and to the question whether they were to "take the blue fibre into account" and the direction which her Honour gave to the jury was in accordance with counsel's wishes.
In my opinion, it is impossible to say that there was an unfairness to the appellant in the way in which the matter was dealt with and disposed of.