Clohessy v The Queen
[2001] WASCA 314
•15 OCTOBER 2001
CLOHESSY -v- THE QUEEN [2001] WASCA 314
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 314 | |
| COURT OF CRIMINAL APPEAL | 15/10/2001 | ||
| Case No: | CCA:38/2001 | 14 JUNE 2001 | |
| Coram: | WALLWORK J STEYTLER J MILLER J | 14/06/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowedConviction quashed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL ANDREW CLOHESSY THE QUEEN |
Catchwords: | Criminal law Two charges heard together Whether sufficient separation of the evidence relating to the two charges Whether direction concerning circumstantial evidence sufficient Whether jury sufficiently warned concerning selling of drugs (not charged) by accused person |
Legislation: | Nil |
Case References: | Barca v The Queen (1975) 133 CLR 82 Butler (1989) 44 A Crim R 215 Cooke v The Queen [2000] WASCA 78 Domican v The Queen (1992) 173 CLR 555 Gavin v The Queen (1991) 6 WAR 195 Leary v R [1975] WAR 133 Mraz v The Queen (1955) 93 CLR 493 Brennan (1998) 101 A Crim R 214 R v Buckland [1977] 2 NSWLR 452 Butler (1989) 44 A Crim R 215 R v J [1998] 3 VR 602 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : CLOHESSY -v- THE QUEEN [2001] WASCA 314 CORAM : WALLWORK J
- STEYTLER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Two charges heard together - Whether sufficient separation of the evidence relating to the two charges - Whether direction concerning circumstantial evidence sufficient - Whether jury sufficiently warned concerning selling of drugs (not charged) by accused person
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Conviction quashed
Category: B
Representation:
Counsel:
Applicant : Mr S W O'Sullivan
Respondent : Mr D Dempster
Solicitors:
Applicant : Ian R Farquhar & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Barca v The Queen (1975) 133 CLR 82
Butler (1989) 44 A Crim R 215
Cooke v The Queen [2000] WASCA 78
Domican v The Queen (1992) 173 CLR 555
Gavin v The Queen (1991) 6 WAR 195
Leary v R [1975] WAR 133
Mraz v The Queen (1955) 93 CLR 493
Case(s) also cited:
Brennan (1998) 101 A Crim R 214
R v Buckland [1977] 2 NSWLR 452
Butler (1989) 44 A Crim R 215
R v J [1998] 3 VR 602
(Page 3)
1 WALLWORK J: On 20 September 2000, the applicant was found guilty in the Supreme Court at Perth of stealing with threats of actual violence, whilst armed with a syringe. The armed robbery had taken place on 15 November 1999 at a delicatessen at Cooloongup. On 14 June 2001, having heard the argument on behalf of the appellant and the respondent, the Court quashed the conviction and ordered a retrial. I now set out my reasons for concurring in that decision.
Proceedings at the trial
2 At the time of the trial there was no dispute that a robbery at the delicatessen had occurred. The question was whether or not the appellant was responsible for it. At the same time as he was tried for that offence, the appellant was also tried for a similar offence, being a robbery on a pharmacy a few days earlier. The jury were unable to reach a verdict with respect to the pharmacy charge and, on a retrial, the appellant was acquitted of that charge. I mention that as background to these reasons dealing with the appellant's alleged offence of robbing the delicatessen.
3 In the delicatessen trial, which was heard at the same time as the pharmacy trial, there was a certain amount of circumstantial evidence admitted. The learned trial Judge had this to say about inferences:
"The final evidentiary rule that I wanted to touch upon is this: apart from taking into account direct evidence from witnesses, that is, what they have said from the witness box, you are also entitled to draw inferences from facts which are established. In law there is a particular law in relation to inferences in a criminal trial and that is that you can only draw an inference adverse to or against the accused if it is the only reasonable inference open on the facts. So if there are competing inferences that are equally open on the facts you couldn't draw the inference adverse to the accused. All I'm really saying to you there is that any ambiguity in the evidence is to be resolved in favour of the accused. They are the general matters that I wanted to tell you about before dealing with the particular legal rules that relate to these two charges."
4 The learned trial Judge then discussed the elements of the alleged offences.
5 When directing the jury as to the evidence concerning the robbery at the delicatessen, the learned Judge said that Ms Easdown "told you that
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- the person who came into the shop was a guy with a fleecy windcheater, with a hood attached to the top which was tied around his face, and black pants. She told you that he had black sunglasses on and he had blond, light brown, a little bit of goatee, very short on his bottom lip and counsel has referred to that. Ms Easdown described the offender as being in his early twenties."
6 His Honour said that the younger assistant, Miss Baker, who was in Grade 7 at school: "… saw him with his hands in the front of his belly in the pockets and she said it was like where you put your hands so they stay warm, and that will give you an indication as to where she saw this person's hands as being, and she told you that on his face he had a goatee, on his chin below his mouth".
7 Importantly, the learned Judge said:
"You also heard from Mark Robinson, who described himself as a mate of the accused and said he was involved in a robbery and obtained morphine which he described as being worth about 'five grand'. He said that he gave that morphine to the accused and that the accused was to set him up with a TV and that, but the accused told him that he had disposed of the morphine."
8 The learned Judge also directed the jury concerning evidence of a tape of a phone call which was made while Mr Robinson was in prison and concerning which Mr Robinson had "agreed that the voices were his and the accused".
9 When directing the jury with respect to some of the other evidence, his Honour said:
"I remind you of the police evidence of finding the items in the garage of the accused's house and the DNA evidence from the front of the jacket, which you will have in evidence when you retire, which was consistent, the experts said, with the DNA profile of the accused. Although there are different versions as to that. The accused and his father said:
'Well, look, the industry he was in was such that he was always cutting himself and that could easily account for the blood on the inside of his garment which he had worn to work.'
The Crown on the other hand is saying:
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- 'The man who went into the deli was wearing this particular garment with a blood filled syringe held probably on the inside of it,'
- which is how the Crown would say you could account for the finding of the blood on that garment."
10 His Honour said that another witness, Mr Bajramovic, had said:
"In relation to the jacket, he said he wasn't completely sure if the accused had worn that jacket but he did remember at times seeing a jacket like that when the accused had it. He said: 'He had a jacket like that on once, yeah', but he wasn't sure if it was the same one."
11 With respect to the evidence concerning the sweater, his Honour said:
"In relation to the creamy, fleecy sweater that you will have with you when you retire, the accused said that it could well have been taken out of his garage which was left open by someone and in relation to the blood on the front of it, he said he frequently got cuts with his work as a machinist which could explain the finding of the blood on the inside of it."
12 In his summing up to the jury in relation to the two offences, the learned Judge did not strictly separate the evidence concerning the first offence from the evidence concerning the second offence. His Honour reminded the jury of the evidence which had been given by the various witnesses but did not, in my view, make it sufficiently clear as to what evidence could be used with respect to each charge.
13 The Judge said at one stage:
"So the Crown's case essentially relies upon the admissions said to have been made by the accused to the two people to whom I have referred, the presence of the items of clothing which were in the accused's possession which the police took possession of, that is, the jacket and the cap and the cream sweater and the identification from the photos and the video footage and the circumstances of the case I think generally the Crown rely on. They rely on the phone call said to be made to Robinson and the debt which they say existed between the accused and Robinson."
(Page 6)
14 In the last passage quoted above, his Honour was dealing with both offences. However, it should be noted that the video footage related to the pharmacy robbery only, which was the first in time. Secondly, his Honour referred to the police taking possession of the jacket and the cap and the cream sweater. The jacket was not found in the accused's possession. Thirdly, it is important that nobody from the delicatessen had identified the relevant cream sweater as being the sweater which had been worn by the robber at the delicatessen.
15 His Honour then discussed the alibi evidence which the appellant had called at the trial. After reminding the jury of the onus and the standard of proof and instructing them to consider each of the two counts on the indictment separately, he sent the jury out at 3.44 pm.
16 At 7.52 pm, the jury came back, having indicated that at that stage they were unable to agree upon a verdict. His Honour sent them out again to continue their deliberations. Then later, having been asked if the jury was permitted to return a 10:2 result on one count if they could not agree on the other, his Honour brought the jury back at 8.48 pm. At that time he read some of the evidence which the jury had requested in the following terms:
"We would like to hear from the transcript of the evidence from the deli assistant Sara Easdown, the older Sara, in particular in relation to the identification of the jumper."
17 His Honour read from the transcript and the jury retired again at 8.51 pm. At 9.51 pm they returned and convicted the appellant of the second charge concerning the delicatessen, but said they were unable to reach a verdict concerning the first robbery on the pharmacy.
Appeal
18 At the hearing of this appeal, it was conceded by counsel for the respondent, quite properly in my view, that the evidence which had been given concerning the sweater had been circumstantial evidence. It was conceded that there had been no direction concerning with how the evidence with respect to the sweater could be used by the jury when coming to their conclusions. The learned Judge had given a general direction concerning inferences, which has been set out above, but he did not explain to the jury that the evidence concerning the sweater was circumstantial evidence or advise the jury how to use that kind of evidence.
(Page 7)
19 It is usual for Judges to tell juries that circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded and that before a jury can convict on circumstantial evidence, that evidence must not only be consistent with the guilt of the accused but inconsistent with any other reasonable explanation. The jury should be told that it must be satisfied beyond reasonable doubt that the circumstantial evidence from which the prosecution asks it to draw an inference of guilt is trustworthy evidence and is inconsistent with any other reasonable conclusion than that the accused person is guilty.
20 In Barca v The Queen (1975) 133 CLR 82, at 104, Gibbs, Stephen and Mason JJ said:
"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen (1963) 110 CLR 234 at 252; see also Thomas v The Queen (1960) 102 CLR 584 at 605-606. However, an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence (Peacock v The King (supra)). These principles are well settled in Australia."
21 In this case the learned Judge did not give a direction which was consistent with the authorities discussed in Barca insofar as he did not identify the circumstantial evidence and direct particularly on it. In my view, in all the circumstances, the appellant may thereby have lost a chance of being found not guilty.
22 In Mraz v The Queen (1955) 93 CLR 493, at 514, Fullaghar J said:
"It ought to be read and it has in fact always been read in the light of the long tradition in English criminal law that every
(Page 8)
- accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eyes of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried."
23 There was another aspect of the evidence which could have led to a miscarriage of justice in this case, and that was the evidence of Miss Mahon, who gave evidence that she had spoken to the appellant and that he had told her that he had boxes of morphine at his house. He had allegedly told her that the morphine had come from an armed robbery which Mr Robinson had committed. Miss Mahon said that the appellant had told her that he intended to sell the morphine and put half of the proceeds into Mr Robinson's bank account. She said this conversation had taken place whilst Mr Robinson was in the remand centre. Miss Mahon was asked, "Did you ever get any morphine tablets from the accused?" She answered, "No, I didn't but my ex-boyfriend did". She was also asked had she ever tried to get morphine or did she ever send someone to get morphine, and she said she had. When asked from who, she said "Michael Clohessy". She said that Mr Matthew Ross had got the morphine and that she had used the morphine by injecting it.
24 The learned trial Judge did not warn the jury that evidence tending to show that the appellant had sold morphine could not be used as part of the prosecution case to establish that he was guilty of robbing the delicatessen. This again, in my view, left a dangerous situation for the appellant as the jury had been told that he was dealing illicitly in morphine.
25 A third matter complained of on the appellant's behalf was that the jury were not told directly that they must not supplement the evidence against the appellant concerning the delicatessen robbery with other evidence tending to connect him with the robbery on the pharmacy - Cooke v The Queen [2000] WASCA 78 at [56].
26 Fourthly, at the hearing of the appeal, it was conceded for the DPP that the learned trial Judge gave no warning, whether general or particular,
(Page 9)
as to the dangers involved in identification evidence - Domican v The Queen (1992) 173 CLR 555.
27 In Leary v R [1975] WAR 133, at 137, Jackson CJ said:
"It was submitted for the Crown that notwithstanding any defects and irregularities in the trial which we might consider had occurred, the verdicts should stand as there had been no substantial miscarriage of justice. I cannot agree with this. It is probably true that not each matter raised in the grounds of appeal would call for the convictions to be set aside; but taken together they lead to the conclusion, in my opinion, that the applicants have not had in all respects the fair trial to which the law entitles them. And "aggregate of faults" may properly lead to a conclusion that a trial as a whole has miscarried: R v Ireland (1970) 126 CLR 321 at 331."
28 Although the application for leave to appeal against conviction was filed approximately five months late, it was conceded by the respondent that the question of the extension of time rested upon the merits of the appeal - Butler (1989) 44 A Crim R 215 at 216; Gavin v The Queen (1991) 6 WAR 195.
29 The other grounds of appeal concerned with alleged failures by the learned Judge to direct the jury that they could not draw any conclusion from the appellant's failure to call certain witnesses and his Honour's directions in connection with the alibi evidence, in my view, were not sustained and it is not necessary that they be discussed in these reasons.
30 In view of the abovementioned defects, I was of the view that the applicant's appeal should succeed and I concurred in the order that the time in which to appeal be extended and the appeal be allowed.
31 STEYTLER J: I have had the advantage of reading the reasons for decision to be published by Wallwork J. I agree with them and have nothing to add.
32 MILLER J: I have had the advantage of reading in draft the reasons published by Wallwork J. I am in agreement with those reasons and have nothing further to add.
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