Brown, Steven John v The Queen

BROWN v. THE QUEEN (1983) 69 FLR 282
Evidence

COURT

FEDERAL COURT OF AUSTRALIA

Forster(1), Sheppard(1), Neaves(1) JJ.

CATCHWORDS

Evidence - Testimony of accomplice - Danger of convicting on un-corroborated testimony of accomplice - What constitutes corroboration.

HEADNOTE

The appellant was convicted on one charge of supplying a prohibited drug contrary to s.5(c) of the Prohibited Drugs Act 1977 (N.T.). The principal evidence against the appellant was the testimony of one G. who testified that he purchased the prohibited drug from the appellant and sold it to one R.G. testified that he left two tool boxes at the residence of the appellant as security for the payment of the balance of the price of the drugs. G. was prosecuted and convicted for his activities in relation to the drugs. Enquiries by the police revealed two tool boxes at the residence of the appellant. The appellant told the Police that the tool boxes belonged to "a mate". In a statement to the Court the appellant said that the tool boxes had been sold to him by G., but that as the appellant feared them to have been stolen by G. he did not answer police questions frankly. The trial judge directed the jury as to the danger of convicting the appellant on the uncorroborated testimony of the accomplice, G. The trial judge gave the jury three examples of what may constitute corroboration. One of these was withdrawn from the jury. The appellant appealed as to the other two examples. The first example was to the effect that the jury could find that the fact that the prohibited drug was found at R.'s place could corroborate the testimony of G. that G. obtained it from the appellant and gave it to R. The second example was to the effect that the conflicting explanations given by the appellant as to why G. left the tool boxes could corroborate the testimony of G. that G. left the tool boxes as security for payment of the balance of the price of the drugs. The full text of the directions to the jury appears in the judgment.

Held: (1) Before an accused can be convicted by the testimony of an accomplice that testimony must be corroborated. The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. But the evidence must implicate the accused in the crime.

(2) As to the first example given by the trial judge, the fact that a prohibited drug was found at R.'s place may corroborate the testimony of G., but it did not implicate the accused independently of the testimony of G.

(3) As to the second example given by the trial judge, the conflicting explanations given by the appellant as to the tool boxes did not in the circumstances corroborate the testimony of G. Rather it raised a conflict between the appellant and the testimony of G. Only by accepting the evidence of G. was the appellant to be disbelieved. Therefore the testimony of G. was not corroborated by the denials of the appellant.

(4) Therefore the conviction could not stand.

(5) As the Crown conceded that there was no evidence apart from that given at the trial there seemed little likelihood of the appellant being convicted in a new trial and thus no order for a new trial would be made.

HEARING

1983, September 23, 26; November 18. #DATE 18:11:1983

APPEAL.

Appeal from the Supreme Court of the Northern Territory.

G. James Q.C. and T. Pauling, for the appellant.

G. Hiley, for the respondent.

Cur. adv. vult.

JUDGE1

18 November 1983

FORSTER, SHEPPARD, NEAVES JJ. The appeal in this matter was allowed by us on 26 September 1983. We ordered that the conviction of the appellant for supplying a prohibited drug contrary to s.5(c) of the Prohibited Drugs Act 1977 (N.T.) be quashed. We made no order for a new trial. When announcing our decision we said that our reasons would be published at a later time. What follows are our reasons for our decision. (at p283)

On 12 May 1983 the appellant was arraigned before a jury on two charges under the abovementioned section. The first offence was alleged to have been committed on or about December 1981 and the second on or about 26 January 1982. The appellant was acquitted of the first charge by direction of the learned trial judge. On 13 May 1983 the jury found him guilty of the second charge. On 22 June 1983 he was sentenced to imprisonment with hard labour for a period of three years. A non parole period of sixteen months was specified. (at p283)
The prohibited drug was lysergic acid diethylamide commonly known as LSD. It was alleged that the appellant had supplied the drug to one Ian John Gilleard. (at p283)
The principal evidence given against the appellant was given by Gilleard, who was, of course, an accomplice. Because of his involvement Gilleard was prosecuted and convicted of certain offences in relation to the drugs which he claimed had been supplied to him by the appellant. He was sentenced to a period of imprisonment in the Northern Territory. The convictions were recorded and the sentences imposed prior to his giving evidence against the appellant. (at p283)
The substance of Gilleard's evidence was that he had a conversation with one Allan Rowe. He then went to the appellant's house in Darwin and asked him if there was any LSD available. The appellant said he would find out. He thought that a quantity of 500 tabs were involved and the price was to be two dollars for each one. (at p283)
A day or so later, after he had again spoken to Rowe, Gilleard returned to the appellant's house and told him that Rowe wanted to buy the drugs. He did not then identify Rowe by name because, according to his evidence, he did not at that time know his name. He said that 500 were required. There was discussion about how they would be paid for. According to Gilleard they were to be paid for by a payment of $500 in cash "and a tool box left as security until the fellow (that is, Rowe) brought the rest of the money". Gilleard said that the appellant had agreed to provide the drugs for the $500 in cash and the tool box. (at p283)
According to Gilleard, Rowe gave him the money and a tool box and certain tools. He took both to the appellant's house and left them with the appellant. He put the tool box in the back patio area. There is evidence that there were really two tool boxes, one a Sidchrome tool box and the other a cardboard box. Each contained tools. Notwithstanding that to be the case, there are a number of places in the evidence where only one tool box is referred to. (at p284)
Gilleard said the drugs were supplied to him and he in turn supplied them to Rowe. He, according to his evidence, did not make anything out of the transaction. (at p284)
The account we have given of Gilleard's evidence is necessarily shortened. In the submission of counsel for the appellant his evidence was vague and unsatisfactory, particularly when cross-examination of him was taken into account. We are inclined to agree with this observation but it is not material to the decision in the case. (at p284)
Gilleard's evidence was corroborated by that of Rowe. But he, of course, had no contact with the appellant. He confirmed that he had asked Gilleard to supply him with drugs and that he had offered the sum of $500 cash and the tool box as payment. He described the tool box and the tools as "a thousand dollars surety for the acid," that is, the LSD. He said he understood that the price was to be $1,500 made up of $500 paid then and $1,000 to be paid later. (at p284)
Rowe was apprehended at Halls Creek in Western Australia by Constable Revell. This apparently led to the arrest of Gilleard. (at p284)
On 30 January 1982 Sergeant Williams, who is an officer of police attached to the Combined Drug Enforcement Unit, visited the appellant's house in Darwin. The appellant was there. Sergeant Williams was accompanied by Detective Sergeant Taylor of the Australian Federal Police. The appellant was told that the police officers had a search warrant to search his house. They told him that they were looking for drugs. The appellant denied having any drugs on the premises. None was found. But the police did find the tool boxes on the back patio of the house. The appellant accompanied the police to the Customs House where a conversation ensued. Sergeant Williams asked him who the tools belonged to. The appellant replied, "They are mate's". Sergeant Williams said, "What is your mate's name"? The appellant said, "You know that I don't have to answer any of your questions". (at p284)
In summary, the evidence to which we have referred was the substance of the Crown case against the appellant. The appellant made a statement in which he said, amongst other things, that on the evening of 26 January 1983 he learned from his wife that Gilleard had called into his place and left a box of tools on the patio. He had told her that the tool box was for sale. According to the appellant, about 8 o'clock the following evening Gilleard came round to his house and told him the tool box was for sale. He assured him it was not stolen. The appellant gave him $500 in cash for it. He then referred to the visit of the police officers and continued,"On the back patio the tool box was still in the same position where Gilleard left it when I bought it from him on the Wednesday night. I was questioned by the police as to the ownership of the tool box and I told them that it belonged to a friend of mine. Being a bit suspicious at the time that may be Gilleard had sold me a box of tools that had been stolen and I wished to avoid being charged with receiving, so I just refused to answer any more questions about the matter". (at p284)
The appellant made a general denial of selling Gilleard the drug and added that he did not know why he had made the allegations against him. (at p284)
In support of his case the appellant called his wife. She referred to Gilleard's visit to the house with the tool box. According to her evidence, he said that he had some tools he thought would be suitable for the appellant's boat. He left them at the premises so that the appellant could consider whether he would buy them. She did not hear the later conversation between the appellant and Gilleard as to the tools but said that her husband had gone to the bedroom and procured $500 to pay for them. (at p285)
A principal ground of appeal concerned his Honour's directions to the jury about the danger of convicting upon the evidence of an accomplice unless the evidence was corroborated. The law on the subject is not in doubt. The rule of practice pursuant to which judges in former times warned juries of the danger of convicting on the uncorroborated evidence of an accomplice has become a rule of law. The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with it. But it must be such that it involves or implicates him in the crime; otherwise it will not be available to be relied upon by the Crown as corroborative of the evidence of the accomplice; R. v. Baskerville (1916) 2 K.B.658. It was not in contest that his Honour had given the jury a sufficient warning as to the dangers of convicting on the uncorroborated evidence of an accomplice, nor was it in contest that he had told them that evidence to be relied upon as corroborative of Gilleard's evidence, and also that of Rowe, must be independent evidence which connected or tended to connect the appellant with the offence. His Honour added:

"In other words, it must be evidence that implicates the accused; that is, which confirms in some material particular not only the evidence that the offence was committed, but also that it was the accused that committed it." (at p285)

So far there could be no complaint about his Honour's summing up. (at p285)

But it was when his Honour came to direct the jury as to what matters they were entitled to take into account as corroborative of the testimony of Gilleard, and perhaps Rowe, that in the submission of senior counsel for the appellant his Honour fell into error. The material part of his Honour's summing up was as follows:

"It is, as I've said, for you to weigh up all the evidence and to decide whether or not to convict. You've got to make your own assessment of the evidence and so far as Mr Gilleard's and Mr Rowe's evidence is concerned, you must consider whether that evidence is corroborated by any independent evidence. Let me just give you a couple of examples of the way that you might think, along those lines, I don't know. For example, Gilleard said - of course he got the LSD from the accused, and he gave it to Rowe; LSD was later found in Rowe's possession. You may think that corroborates or confirms or suggests that what Gilleard said was right. One other matter that you might think about, if you wish, when Gilleard said he went to get the drugs - you remember he said the accused went away in his car and was away for about half an hour, and Gilleard waited there and then the accused came back with the drugs. I suppose it's clear from that that if the accused did get the drugs they weren't in his house, they were somewhere else. That seems to me to be an inference that's open to you. You might think that was in fact confirmed when the police searched the house a few days later. There were no drugs there. You see, if Mr Gilleard had said yes, he went into the back room and got the drugs, you might think that would be inconsistent with the house being searched a few days later and no drugs being found there, but what he said is really confirmed, you may think, by the fact that the house was searched a few days later, no drugs were found, and indeed you'll recall the evidence that the accused and some friends were playing cards - backgammon, while the police were searhcing the house. What the police did find of course was the tool box and the box of tools. You may think perhaps whilst there was no embarrassment about finding drugs there there was some embarrassment about finding the tool box. That may be why the tool box is perhaps the central issue in the whole case. You may think so, I don't know. You may approach it altogether differently from this. I'm merely giving you some illustrations of how you might go about weighing the case up amongst yourselves. If the tool box got there because Gilleard went over to sell it to the accused, well that's pretty well the end of the Crown case, isn't it? The Crown case really rests on that, so if you think that is what happened, that's the end of it. If, on the other hand, you think it was given as part price for the drugs, well then that points the other way, doesn't it, very strongly?" (at p286)

His Honour went on to remind the jury of the standard of proof and said, amongst other things, if they were not satisfied of the appellant's guilt beyond reasonable doubt it was their duty to bring in a verdict of not guilty. (at p286)

After the jury had retired there was discussion between counsel and his Honour about some aspects of the summing up. Counsel for the Crown and senior counsel for the appellant were in agreement that his Honour should withdraw from the jury the material put by him as capable of providing corroboration of Gilleard's evidence in the second paragraph of the quotation above set out. His Honour later acceded to counsel's joint application and told the jury they could not rely on the matter referred to in that paragraph as corroboration. In that direction he was plainly correct. (at p286)
Senior counsel for the appellant submitted to his Honour that the matter put to the jury in the third paragraph was not capable of amounting to corroboration because it depended upon Gilleard's account of what had happened. Counsel for the Crown did not agree with that submission and his Honour rejected it. A number of other matters were discussed which we do not find it necessary to mention. Eventually his Honour brought the jury back. It was then that he withdrew from the jury the material in the second paragraph of the quotation from his summing up as material capable of corroborating Gilleard's evidence. (at p286)
The jury again retired. Later they sent a note which said:

"Please will you provide from the transcript of Rowe's evidence/ cross-examination, his exact words in relation to (1) the price agreed for the 500 tabs, (2) the tools - as to whether they were regarded as lodged for security (to be collected later), (3) the dates on which he saw Gilleard, (4) the time for which Gilleard was absent on the occasion when he returned with the drugs." (at p287)

There was discussion as to what evidence his Honour would read to the jury. In the course of that discussion senior counsel for the appellant said that he was anxious that the jury should not regard the evidence to which they referred as capable of amounting to corroboration of what Gilleard had said. He submitted that that evidence could not provide corroboration. The jury returned again and were read the evidence for which they had asked. His Honour did not direct them that the evidence was not capable of being regarded by them as corroborative of Gilleard's evidence. The jury later returned a verdict of guilty. (at p287)

We are of the firm opinion that there was no evidence capable of corroborating the evidence of Gilleard, or for that matter, Rowe. No evidence was led which was capable of providing independent evidence of the involvement of the appellant in the crime of supplying the prohibited drug. (at p287)
His Honour thought originally that there were three matters which were capable of providing corroboration of Gilleard's evidence. These are the matters referred to in the three paragraphs of his summing up earlier quoted. The second of these matters was withdrawn. That left the first and the third. The first was put by his Honour as follows, ". . . Gilleard said - of course he got the LSD from the accused, and he gave it to Rowe; LSD was later found in Rowe's possession". The problem about the matter relied upon by his Honour is that it depends entirely on what was deposed to by Gilleard. It is no corroboration of the case against the appellant that the LSD which Gilleard said he gave to Rowe was found in Rowe's possession. That is not evidence independent of that of the accomplice, Gilleard, implicating the appellant in the crime. (at p287)
We agree with his Honour that the conflicting evidence about the tool box raised the central issue in the case. But the fact that there was conflicting evidence about the tool box (or boxes) which was undoubtedly left by Gilleard on the appellant's back patio does not constitute corroboration of Gilleard's evidence. (at p287)
It is true that if an accused tells a lie when questioned after the alleged commission of a crime, the fact that he lied may in some cases be capable of providing corroboration; Eade v. R. (1924) 34 C.L.R. 154 at 158 and Tripodi v. R. (1961) 104 C.L.R. 1 at 10. If the appellant here had denied any knowledge of the tool box or had denied knowledge of Gilleard placing it there, there would have been material which the jury could have regarded as corroborative of Gilleard's evidence. But he admitted to the police that the tool box was there. (at p287)
We bear in mind that he also said that it belonged to a mate and refused to disclose his identity. At first sight it may be thought that corroboration of Gilleard's evidence is to be found in that statement. It could be said that it tended to support Gilleard's account of what happened because it is consistent with the tools belonging, not to the appellant as he claimed in his statement at the trial, but to someone else. That is consistent with Gilleard's testimony because, according to him, the tools were lodged as security for the sum of $1,000 still to be paid. But there are two reasons why the appellant's statement to the police was not material upon which the jury could rely as corroborative of Gilleard. First, he was not prepared to tell the police the full story. He made it clear to them that he would answer no further questions. Secondly, and more importantly, the statement by the appellant that the tools belonged to a friend is not, when analysed, consistent with Gilleard's evidence. According to him the tools belonged to a person (Rowe) whose identity had not then been disclosed to the appellant. If Gilleard's evidence were true it would not have been correct for the appellant to say that the tools belonged to a friend. Not only was Rowe a stranger to him; he did not then know his name. The Crown relied strongly on the appellant's admission in his statement at the trial that what he had told the police was incorrect. The tools were not "a mate's"; they were the appellant's, he having bought them from Gilleard. But it is not permissible to have regard to that part of the statement without taking into account the reason given by the appellant therein for misleading the police. He misled them, so he said, because he feared that he might be charged with receiving stolen goods. Once this explanation is taken into account the lie the appellant told the police could not implicate him in the crime of supplying a prohibited drug. Depending on the facts it might have implicated him in another crime, that of receiving stolen goods, but that is an irrelevant consideration for our purposes. (at p288)

The only effect of the statement was to raise squarely the issue between Gilleard and the appellant as to how he had come by the tools. Were they security for payment of the balance of the amount due to him for supplying drugs, or had they been purchased by him for $500? If Gilleard were to be believed, the appellant was guilty; if not, he was entitled to an acquittal. But the evidence of his guilt came entirely from Gilleard. Only by accepting Gilleard's evidence could the jury have been satisfied that the appellant was lying. There was, therefore, no evidence capable of providing corroboration of Gilleard's testimony. Nothing which the appellant said to the police or in his statement at the trial could amount to evidence independent of that of Gilleard which implicated the appellant in the crime. (at p288)
It was for these reasons that we decided that the conviction could not stand. His Honour, by telling the jury that they might rely on the two matters in the first and third paragraphs of his summing up earlier quoted, had led them to think that there was evidence which they might regard as corroborative of that of Gilleard. Since there was no such evidence, the likelihood is that the jury were misled by his Honour's direction. What the jury should have been told after his Honour had warned them that it was dangerous to convict the appellant upon the uncorroborated evidence of an accomplice, was that there was no evidence or material in the case capable of providing that corroboration. If that had been done, it seems unlikely that the jury would have convicted. (at p288)
Counsel for the Crown did not suggest that there was any further evidence which might be procured if a new trial were granted. There being little likelihood of the appellant being convicted again if a new trial were held, we decided not to order a new trial. (at p288)
Before we conclude we should mention that a number of other matters were argued. We do not find it necessary to deal with them except to say that we think it would have been wiser for his Honour to have told the jury, when he read them the evidence they asked for towards the close of their deliberations, that that evidence was not capable of providing corroboration of Gilleard's evidence. What significance that matter could have had if it had been the only matter relied upon by the appellant is not something upon which we find it useful to express a view. (at p289)

ORDER

For the above reasons we quashed the appellant's conviction and refused to order a new trial.

Solicitor for the appellant: Peter McQueen.

Solicitors for the respondent: Crown Solicitor for the Northern Territory.

T.V.H.

[1983] FCA 375

18 NOVEMBER 1983