Daniels v The State of Western Australia
[2010] WASCA 200
•20 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DANIELS -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 200
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 3 SEPTEMBER 2010
DELIVERED : 20 OCTOBER 2010
FILE NO/S: CACR 16 of 2010
BETWEEN: RICHARD SCOTT DANIELS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WAGER DCJ
File No :IND 97 of 2009
Catchwords:
Criminal law and procedure - Evidence - Statement of deceased witness admitted pursuant to sch 3 cl 7 of Criminal Procedure Act - Did judge err in her decision to admit the statement - No error demonstrated
Legislation:
Criminal Appeals Act 2004 (WA), s 27(1), s 27(2)
Criminal Procedure Act 2004 (WA), s 158, sch 3 cl 4, cl 7
Sentencing Act 1995 (WA), s 37A
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms L B Black
Respondent: No appearance
Solicitors:
Appellant: Kate King Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chaudhry v The Queen [2007] WASCA 37
Hill v The Queen [2003] WASCA 177
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
McLURE P: I agree with Mazza J that leave to appeal should be refused and the appeal dismissed. I propose to shortly state my reasons for that conclusion.
All relevant background material is set out in the reasons for judgment of Mazza J. The appellant contends the primary judge erred in admitting into evidence an out of court statement in writing made by a co‑offender, Eugene Starkey, who died after a lengthy illness prior to the appellant's trial. The statement was signed by Mr Starkey on 26 September 2008. In his statement, Mr Starkey directly implicated the appellant in the offences with which both had been charged, being one count of cultivation of cannabis with intent to sell or supply to another and one count of possession of cannabis with intent to sell or supply to another.
Mr Starkey's statement was admitted under cl 7 sch 3 of the Criminal Procedure Act 2004 (WA) (the Act). It was accepted that the court had the power under cl 7(1) to admit the statement, all necessary statutory conditions for admission having been met. The substance of the appellant's claim is that the trial judge should have refused to admit Mr Starkey's statement under cl 7(5) of the Act which provides:
A court may refuse to admit a statement or recording under this clause if the court is satisfied that the admission of the statement or recording would be unfair to the party.
The trial judge was not satisfied that, with appropriate jury directions, the admission of Mr Starkey's statement would be unfair to the appellant.
The appellant makes no claim that the trial judge erred in her statement or application of the relevant legal principles which she derived from Chaudhry v The Queen [2007] WASCA 37. The appellant goes no further than to assert that the trial judge erred in admitting the statement.
In order to succeed in the appeal, the appellant has to demonstrate that it was not reasonably open to the trial judge to fail to be satisfied that the admission of the statement (even with appropriate directions) would be unfair to the appellant. There is no arguable basis for such a claim.
The unfairness to which cl 7(5) directs attention is that flowing from the fact that the jury is deprived of the opportunity of seeing and hearing the witness give evidence‑in‑chief and in cross‑examination at trial. The appellant contends that significant unfairness is created when, as in this case, the absent witness is an accomplice who has received a very favourable sentencing disposition because of his past and future cooperation with authorities (including an undertaking to give evidence for the State in the appellant's trial) and who was central to the State case.
The claim of unfairness can be tested by reference to the course of the trial. The State case against the appellant was both direct and circumstantial. Mr Starkey's statement was the sole source of the direct evidence against the appellant. Although, for that reason, Mr Starkey's evidence was important, it was not essential to the State case which relied in the alternative on the circumstantial evidence. The circumstantial evidence was capable of corroborating Mr Starkey's evidence. Moreover, it was open to the jury, in fact and in law, to convict the appellant on the circumstantial evidence alone.
Mr Starkey was present in the course of the execution of a search warrant at the appellant's premises on 4 April 2008 and made admissions to and generally cooperated with police. The search was the subject of an audio visual record, parts of which were tendered in evidence.
The defence attack against Mr Starkey's evidence was not confined to the appellant's closing address. The appellant cross‑examined a police officer, Detective Constable Almady, about matters relevant to the credibility and reliability of Mr Starkey's statement. The appellant's counsel cross‑examined the police officer concerning (1) the details of Mr Starkey's plea arrangement with police; (2) statements made by counsel for Mr Starkey at his sentencing concerning the nature and extent of his client's involvement in the offences; (3) the lenient sentencing disposition and the adverse consequences of any failure by Mr Starkey to depart from his undertaking to give evidence for the State in the appellant's trial; (4) inconsistencies between Mr Starkey's statement and (a) his admissions to police during the search of the appellant's premises and (b) the plea in mitigation at his sentencing; and (5) statements made by Mr Starkey to police relied on by the appellant as providing a motive for him to falsely accuse the appellant (Mr Starkey's impecuniosity caused by the appellant's failure to pay his agreed remuneration).
The evidence on those matters was elicited without the potential inconvenience of an explanation from Mr Starkey. It was not suggested that there were any other lines of cross‑examination which may have materially advantaged the appellant. Further, the appellant was able to give evidence concerning or affecting Mr Starkey without fear of contradiction.
Finally, the question of unfairness must be assessed in the context of the strong directions given by the trial judge both before Mr Starkey's evidence was read and in her summing up. They include the following:
Now, you haven't had [the] opportunity of seeing Mr Starkey under oath. You haven't had the opportunity of seeing Mr Starkey cross‑examined by Mr Noble and having Mr Daniels' instructions put to him for response in cross‑examination.
You haven't had Mr Starkey's versions of events tested so you can't make that particular assessment of him. The issue of whether you consider him to be a reliable, honest, credible witness is therefore a very difficult one. So I ask that you take the factors into account when you are assessing the weight of the evidence that you find the statement to have.
Now, the second reason why at law I ask you to assess Mr Starkey's statement with caution is this. On both the prosecution case and the defence position, Mr Starkey was involved in the offences. Mr Starkey has pleaded guilty and been sentenced for the charges that you must now consider in relation to Mr Daniels.
A person who's been involved in offences may have reasons of self interest to lie or to falsely implicate someone else in the offences. The evidence of such a person is of its nature potentially unreliable and it is therefore necessary for you to scrutinise the evidence carefully before acting on it.
Mr Starkey, having pleaded to his involvement in the offences, has admitted that he committed criminal charges. You might therefore think that he's a person of bad character and for that reason you may consider his statement to be unreliable or untrustworthy. It may also be that Mr Starkey may have tried to justify what he did or to minimise or reduce his involvement by shifting blame to Mr Daniels.
Perhaps Mr Starkey has sought to implicate Mr Daniels because Mr Starkey hoped for a better sentence for himself. He undertook to give evidence at Mr Daniels' trial and as a result of that undertaking he received a suspended term rather than having to go to gaol straightaway.
Now, whilst it's possible to identify these reasons as possible reasons why Mr Starkey may have made a false statement, there may be other reasons for making a false statement and promising to give evidence at Mr Daniels' trial which were only known to Mr Starkey.
Mr Starkey's statement, if it's not truthful, has an inherent danger. If it's false in whole or in part in implicating Mr Daniels it may still seem plausible because Mr Starkey would have had some familiarity with the details of the crime.
Subsequently the trial judge repeatedly directed the jury that it would be dangerous to convict the appellant on the statement of Mr Starkey
unless the jury found that his evidence was supported in a material way by independent evidence implicating the appellant in the offence (ts 444). The trial judge's directions more than adequately compensated for the admission of Mr Starkey's statement in his absence as a witness at trial.
I am satisfied that there was no unfairness to the appellant in the admission of Mr Starkey's statement.
BUSS JA: I would refuse leave to appeal and dismiss the appeal for the reasons given by McLure P.
MAZZA J:
Introduction
The appellant was convicted, after trial in the District Court, of one count of cultivation of cannabis with intent to sell or supply to another and one count of possession of cannabis with intent to sell or supply to another.
He now seeks leave to appeal against these convictions on one ground. That ground, omitting particulars, is:
The learned trial judge erred in ruling that the statement of an alleged co‑offender, Eugene Starkey, could be admitted into evidence by the prosecution in circumstances where the witness had died prior to trial.
This court must not grant leave unless it is satisfied that the ground has a reasonable prospect of success: Criminal Appeals Act 2004 (WA) s 27(1) and s 27(2). To have a reasonable prospect of success, a ground must have a rational and logical prospect of succeeding. In other words, a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] ‑ [61].
Background
At all relevant times, the appellant and his wife were the owners of an approximately 98 hectare rural property situated at Morangup. The property was not connected to scheme water. A windmill provided the property with water. The couple lived on the property with their five young children in a shed which had been converted into a home.
Mr Eugene Starkey was living on the property in another shed approximately 100 metres from the home. Approximately 30 metres from this shed was a sea container.
On 4 April 2008, a team of police officers executed a search warrant at the property. At the time the police first encountered the appellant, he was driving a Nissan Patrol vehicle which was towing a trailer. The police searched the vehicle. The police discovered a digital camera in the console of the vehicle. Police later examined the memory card in the camera and found, amongst the photographs stored on it, seven photographs of interest. Five of these photographs showed Mr Starkey standing inside a cannabis crop. The other two showed him standing next to a trailer of cannabis. The trailer was the same trailer that was being towed by the appellant, although the vehicle towing it in the photograph was not the appellant's Nissan Patrol. In one of these photographs, Mr Starkey is with another person identified at trial as 'Charlie'.
The police discovered, behind the sea container, five large black bins. Each of these bins contained cannabis the total weight of which was 11.839 kg. This is the cannabis the subject of the possession count.
The police located on the property four separate crops of cannabis plants which were surrounded by bushland. In total 142 plants were being cultivated. These crops were the subject of the charge of cultivation of cannabis. The two crops closest to the home were 300 or 400 metres away, another crop was about 520 metres away and the furthest crop was approximately 550 to 600 metres away. Each crop was watered by a poly‑pipe irrigation system controlled by an electronic timer tap. The water was piped from a large tank fed by a windmill. The piping which led from the tank was plain to see. The crops were ringed with rabbit wire. It was not disputed that the cannabis in the plastic bins was harvested from the plants growing in the plots.
The police searched Mr Starkey's shed and the appellant's home.
In Mr Starkey's shed, the police discovered about 413 grams of cannabis, some smoking implements and books on growing cannabis.
The search of the appellant's home revealed no cannabis, but in the main bedroom the police discovered a tin which contained a quantity of receipts. The receipts showed that the appellant had purchased, from September 2007 to March 2008, quantities of fertiliser in various forms, rabbit wire, electronic timer taps, poly‑pipe and PVC elbows, which are used to join lengths of poly‑pipe. The documents relating to the electronic timer taps showed that originally five taps were purchased, but one was returned. The brand of timer tap sold to the appellant was the same as the timer taps found on the crops. A DNA profile matching that of the appellant was found on two of those timer taps. At trial, the appellant, through his counsel, conceded that the DNA on the two timer taps belonged to him.
The search of the appellant's property took some hours and was electronically recorded. During the course of the search, the police spoke at various times to the appellant under caution. There is no need to refer in detail to what the appellant told the police. It is sufficient to note that the appellant denied any knowledge of the cannabis crops or the cannabis in the black bins. He told the police that the fertiliser he had purchased was used in a vegetable patch outside the residence which was no longer there. (Indeed, the state led evidence that there was no sign of any vegetable patch). He said that the items that he had purchased were used for legitimate purposes on the property.
Both the appellant and Mr Starkey were arrested and charged.
In late August 2008, Mr Starkey's lawyer emailed the main investigating officer, Senior Constable Almady, and proposed that Mr Starkey would plead guilty to the offences and give evidence against the appellant if it was accepted that he was only going to receive 25% of the cannabis. This offer was accepted. Mr Starkey then made a written statement on 26 September 2008 implicating the appellant in the offence. I will refer to the content of this statement in more detail later in these reasons.
On 19 February 2009, Mr Starkey pleaded guilty to the offences of possession of cannabis and cultivation of cannabis with intent to sell or supply to another. The state prosecutor made a concession to the sentencing judge, Macknay DCJ, that in light of Mr Starkey's cooperation, including a promise to give evidence against the appellant, it was open to his Honour to impose a suspended term of imprisonment. His Honour made a suspended imprisonment order and told Mr Starkey that if he reneged on his promise to give evidence against the appellant, he was liable to be resentenced pursuant to s 37A of the Sentencing Act 1995 (WA) to a term of immediate imprisonment. Evidence was given at trial of these events.
Mr Starkey's witness statement
Shortly before the appellant's trial, Mr Starkey died. The state prosecutor gave notice to the appellant's defence counsel that the state intended to read an edited version of Mr Starkey's statement to the jury as part of its case, pursuant to s 158 and cl 7(1)(a) of sch 3 of the Criminal Procedure Act 2004 (WA). The appellant's counsel opposed this course. Prior to the jury being empanelled on the first day of the trial, the learned trial judge, Wager DCJ, having considered both written and oral submissions on the question, ruled that the statement be admitted into evidence. In due course, the statement was read to the jury as part of the state's case.
The statement, in material terms, provided that Mr Starkey commenced work at the appellant's property around April or May 2007. He described his duties as caretaking the property and performing a range of general farm jobs. Mr Starkey said that around June 2007, the appellant took his family to Wyndham and stayed there for several months. He said that in or around July or August, the appellant telephoned him and asked him if he would be interested in growing pot on the property. Mr Starkey said that the appellant offered him 25% of the total amount of cannabis grown. He said that he agreed to the appellant's proposal because he was out of money and the appellant was not paying him properly.
He said that in late September 2007, the appellant returned from Wyndham and, in mid‑October, the two of them commenced planting the four crop sites with cannabis. Mr Starkey stated that they both cared for the plants.
He said that in late March 2008, the two men harvested the crops for the first time. He said that he and the appellant drove the appellant's Nissan Patrol and trailer to each site and they cut the crowns out of each plant. He said the cannabis was dried and then put into plastic bins and hidden behind the sea container.
The appellant's evidence at trial
The appellant gave evidence at the trial.
His evidence was to the effect that in or about June 2007, Mr Starkey came to live on a full‑time basis at the property. He said that the agreement between himself and Mr Starkey was that Mr Starkey could live in the shed rent free and work as a farm hand performing various jobs around the property. He said that for every full day Mr Starkey worked, he was to pay Mr Starkey $150.
The appellant testified that he and his family went to Wyndham for three months, returning either in September or October 2007. Upon his return, he estimated that he worked away from home 80% of the time. In early 2008, he took time off work to renovate his home. He said that he was living at the property continuously in the two‑month period before the execution of the search warrant. During this time, he regularly purchased materials for the renovations and the property. The appellant said that the fertiliser he purchased was used by him on two vegetable gardens, one larger than the other, which were adjacent to the residence, and to feed trees lining the driveway of the property. The appellant said that as the property was not on scheme water, irrigation equipment was required to pipe water to various points around the property. He said that the irrigation equipment that he purchased was for this purpose and was not used, to his knowledge, to grow cannabis. He said that he used rabbit wire around his home and elsewhere on the property, but he had nothing to do with its use around the cannabis plots.
The appellant denied taking the seven incriminating photographs found on the memory card. The appellant said that Mr Starkey had borrowed the digital camera on an occasion when Mr Starkey and his friend Charlie had travelled to Perth.
The appellant agreed in cross‑examination that the four cannabis crops were 'quite an operation for one man'. He further agreed that Mr Starkey was a weak, sickly man who had been given six months to live.
The issue at trial
There was no issue at trial about the existence and quantity of the cannabis material found in the bins or that 142 plants were being cultivated on the property. Intention was not an issue in either count. The issue at trial was whether the appellant was a party to the offences.
The cases at trial
The state case was that, although Mr Starkey was an accomplice whose evidence could not be tested by cross‑examination, it was confirmed in many respects by other evidence, and the jury could rely on it. However, even if his evidence was rejected, it was submitted that all the surrounding circumstances pointed only to the appellant's guilt.
The appellant's case was that Mr Starkey's evidence should be rejected because he was an accomplice and his evidence could not be tested by cross‑examination. It was submitted that the appellant's evidence should be accepted or at least gave rise to a reasonable doubt. It was further submitted that the circumstances relied upon by the state were capable of innocent explanation and did not point to the appellant's guilt.
By their verdicts, the jury plainly rejected the appellant's denials and accepted that the state had established beyond reasonable doubt that the appellant was a party to each offence.
The statutory framework for admission of the statement
Clause 7(1)(a) of sch 3 to the Criminal Procedure Act provides:
A court dealing with a charge may admit into evidence a statement of a witness … if the court is satisfied that the statement complies with clause 4 … and -
(a)that the witness is dead[.]
Clause 4 of sch 3 provides the conditions which must be complied with in order for a statement to be admissible. It is accepted that Mr Starkey's statement complied with these conditions.
Clause 7(5) is in the following terms:
A court may refuse to admit a statement or recording under this clause if the court is satisfied that the admission of the statement or recording would be unfair to the party.
Clause 7(6) states:
If a statement … in a written form is admitted in evidence under this clause in a case being tried by a jury, it must be read aloud to the jury but, unless the court orders otherwise, must not be given to the jury.
In this case, the statement was read but not given to the jury.
The decision of the trial judge to admit Mr Starkey's statement
The learned trial judge ruled that it was not unfair for the state to read Mr Starkey's statement to the jury.
In her succinct oral reasons (ts 36 ‑ 39), her Honour accepted that Mr Starkey's evidence was, as she put it, 'central to the state's case'. She acknowledged that he was an accomplice and that he had been given a suspended term of imprisonment because of his promise to give evidence for the state at the appellant's trial. Her Honour further acknowledged that the appellant was unable to cross‑examine Mr Starkey. She recognised the potential dangers in admitting the evidence but said that they could be dealt with by a combination of measures being:
1.some portions of the statement might not be read to the jury;
2.allowing defence counsel to cross‑examine about Mr Starkey's sentencing proceedings before Macknay DCJ and to, if necessary, call Mr Starkey's lawyer if the appellant's counsel wished to deal with any inconsistencies between the plea in mitigation and the statement; and
3.the giving of 'strong' directions at the time the statement was read and during her summing up about:
(i)the dangers of accomplice evidence and the need for corroboration of it; and
(ii)the dangers of evidence which was read and not subject to cross‑examination.
Her Honour's directions
Just prior to the state prosecutor reading Mr Starkey's statement to the jury, her Honour addressed the jury (ts 335 and 336). The directions made it clear that the weight the jury could give to the evidence was affected by the inability of the defence to test its credibility under cross‑examination. Her Honour also highlighted Mr Starkey's status as an accomplice. She told the jury that Mr Starkey's evidence should be approached with caution and very carefully scrutinised. She informed the jury that Mr Starkey had received a suspended sentence of imprisonment because of his promise to give evidence against the appellant and that he 'may have reasons of self‑interest to lie, or to falsely implicate another in the commission of offences'.
Later, in her summing up, her Honour gave lengthy and detailed directions with respect to Mr Starkey's evidence (ts 439 ‑ 446). Her Honour expanded upon the directions that she had given earlier. She highlighted a difference between Mr Starkey's statement and the evidence of the police officers. She pointed out to the jury that Mr Starkey had not made the statement until after it had been indicated to Mr Starkey's lawyer that the prosecution would accept the version of facts put forward by him.
At ts 444 her Honour gave the following direction:
[I]n view of the matters that I have raised with you, as a matter of law I must direct you that it would be dangerous for you to convict Mr Daniels on the statement of Mr Starkey, unless you find that his evidence is supported in a material way, in a real way, by independent evidence implicating Mr Daniels in the offence.
Her Honour told the jury that if they rejected Mr Starkey's evidence, it was still open to the jury to convict the appellant on the circumstantial evidence presented by the state.
Her Honour's directions with respect to Mr Starkey's statement were very favourable to the appellant. No exception has been taken to them and Ms Black, in her submissions to this court, conceded that her Honour's directions were as good, from the appellant's perspective, as could have been given in the circumstances.
Did her Honour err in admitting Mr Starkey's statement?
The issue raised by the appellant's ground of appeal is whether her Honour erred in admitting Mr Starkey's statement into evidence. In the context of cl 7(1) and cl 7(5) of sch 3 of the Criminal Procedure Act, an error can only be established if it is demonstrated that the admission of the statement was unfair to the appellant.
Ms Black, on behalf of the appellant, submitted that it was unfair to admit Mr Starkey's statement due to 'its inherent unreliability'. It was said that this was by reason of a combination of features being that there was no other direct evidence implicating the appellant, Mr Starkey was an accomplice and his evidence was unable to be tested by way of cross‑examination.
Ms Black submitted that while any prejudice caused by each of these matters standing alone could be dealt with by direction, because these matters arose in combination, no direction could cure the prejudice.
The purpose of cl 7 of the Criminal Procedure Act is to allow for a statement from a witness who is dead or absent, that complies with the formalities in cl 4, to be admissible even though the witness cannot be cross‑examined. However, Parliament, by the enactment of cl 7(5), recognised that there may be circumstances where a witness statement, meeting the criteria for admissibility in cl 7(1), should nevertheless be excluded. The requirement for exclusion is 'unfair[ness] to the party'. In the present case, 'the party' is the appellant.
Although cl 7(5) states that a court 'may' refuse to admit a statement which is unfair, it is difficult to conceive of a situation where the admission of a statement in such a circumstance would be allowed.
In Chaudhry v The Queen [2007] WASCA 37 [29] ‑ [46], Miller AJA, with whom Wheeler and Buss JJA agreed, considered the test of unfairness in cl 7(5). It appears that the parties argued that appeal on the basis that the test for unfairness was whether or not the prejudicial effect of the statement would outweigh its probative value. That was not the test adopted by his Honour. At [36] his Honour said:
The real question was whether the prejudice, more properly termed 'unfairness' occasioned by reason of the fact that the deponent to the statement was not called, was negatived by directions given by the learned trial judge.
As I understand it, his Honour was saying that it would be unfair to admit a statement if the prejudice it would cause was unable to be negatived by directions given by the trial judge.
At [44] and [45], Miller AJA made it clear that the prejudice to which he was referring was not merely that the evidence went to a central issue in the case and was to the accused's disadvantage. He cited with approval McLure J's statement in Hill v The Queen [2003] WASCA 177 [82]:
The evidence is on a central rather than peripheral issue. In my view that is a factor in favour of its admission not exclusion. The prejudicial effect to justify exclusion cannot arise solely from the fact that the content of the evidence is to a defendant's disadvantage. Although there are grounds for challenging the reliability of the proposed evidence that, as the trial Judge observed, could be used to the applicant's advantage.
In this case, the evidence of Mr Starkey went to a central issue in the case because he directly implicated the appellant in the commission of the offences. In this sense, the evidence was prejudicial to him. However, this was a factor in favour of its admission, not exclusion.
There were dangers in the admission of the evidence. Mr Starkey was an accomplice and his evidence could not be tested under cross‑examination. Mr Starkey's absence, however, led to some forensic advantages to the appellant. It meant that Mr Starkey was unable to explain all of the circumstances surrounding the negotiations leading up to the making of his statement and the circumstances in which he was sentenced. Moreover, the appellant's evidence concerning Mr Starkey could not be contradicted by testimony from Starkey.
Her Honour was alive to the dangers that could flow from the admission of Mr Starkey's evidence. The directions which she gave, both at the time that the statement was read and in her summing up, were clear, comprehensive and favourable to the appellant. They effectively dealt with any unfairness which may have arisen as a result of the admission of the statement.
In my opinion, the appellant has failed to demonstrate that, in the circumstances of this case, the admission of the statement was unfair. Her Honour did not err by failing to exclude the statement. The ground of appeal has no reasonable prospect of success. Leave to appeal should be refused and the appeal should be dismissed.
Orders
1.Leave to appeal is refused.
2.The appeal is dismissed.
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