Davey v Tasmania
[2020] TASCCA 12
•5 August 2020
[2020] TASCCA 12
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Davey v Tasmania [2020] TASCCA 12
PARTIES: DAVEY, Matthew John
vSTATE OF TASMANIA
EATON, David John
v
STATE OF TASMANIA
FILE NOS: 1183/2019
1270/2019
DELIVERED ON: 5 August 2020
DELIVERED AT: Hobart
HEARING DATES: 7 May, 2 June 2020
JUDGMENT OF: Blow CJ, Estcourt and Geason JJCATCHWORDS:
Criminal Law – Evidence – Identification evidence – Voice identification – Admissibility – Bases for admissibility – Opinion of detective after listening to hundreds of phone calls and police interview with accused.
Kheir v The Queen [2014] VSCA 200, 43 VR 308; Nguyen v The Queen [2017] NSWCCA 4, 264 A Crim R 405; R v Phan [2017] SASCFC 70; Tasmania v Farhat [2017] TASSC 66, referred to.
Aust Dig Criminal Law [2940]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Contention that counsel disobeyed instructions to seek separate trial.
R v Birks (1990) 19 NSWLR 677, referred.
Aust Dig Criminal Law [3515]REPRESENTATION:
Counsel:
Appellants: In person
Respondent: E Avery
Solicitors:
Respondent: Director of Public ProsecutionsJudgment Number: [2020] TASCCA 12
Number of paragraphs: 125Serial No 12/2020
File Nos 1183/2019
1270/2019
MATTHEW JOHN DAVEY v STATE OF TASMANIA
DAVID JOHN EATON v STATE OF TASMANIAREASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
ESTCOURT J
GEASON J
5 August 2020Orders of the Court (2 June 2020):
1 Appeal 1183/2019 dismissed.
2 Appeal 1270/2019 dismissed.
Serial No 12/2020
File Nos 1183/2019
1270/2019
MATTHEW JOHN DAVEY v STATE OF TASMANIA
DAVID JOHN EATON v STATE OF TASMANIAREASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
5 August 2020
1In late January 2016 thieves stole 14 firearms from a locked safe in a shed in the Launceston suburb of Blackstone Heights. Three men were charged with stealing them, tried before Wood J, and found guilty by the jury. Two of them, Matthew Davey and David Eaton, appealed against their convictions. Their appeals were heard together on 7 May and 2 June 2020. At the conclusion of the hearing, the Court made orders dismissing both appeals, reserving its reasons for publication at a later date.
2I joined in the making of those orders for the same reasons as those that are published today by Estcourt J.
File Nos 1183/2019
1270/2019
MATTHEW JOHN DAVEY v STATE OF TASMANIA
DAVID JOHN EATON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
5 August 2020The appeals
3The appellants, Matthew John Davey and David John Eaton, have each appealed their convictions following jury verdicts of guilty on indictment of one count of stealing a firearm or firearm part contrary to s 234A(1) of the Criminal Code.
4The appellants were found not guilty on the same indictment to one count of aggravated burglary contrary to s 245(a)(ii) of the Code, and one count of stealing contrary to s 234 of the Code.
5The appellant Davey has appealed on the ground that he should have been tried separately (ground 1), and on the ground that DNA evidence was tendered on his trial without the person who swabbed the item being made available for cross-examination (ground 2), and on the ground that "technical legal" arguments on his trial which were ruled against him, should have been ruled in his favour (ground 3).
6The appellant Eaton has appealed on the ground that the learned trial judge erred by allowing evidence of a police officer as to voice identification to be led on the trial in circumstances that were unfairly prejudicial to him (ground 1), and that there was an accumulation of errors and irregularities in the trial that led to a substantial miscarriage of justice (ground 2).
7On the hearing of the appeal, the appellant Davey, listed the following specific matters of complaint as those which he seeks to raise by his appeal:
· The evidence of the witness Dillon Davey was coincidence evidence within the meaning of s 98 of the Evidence Act 2001 and should not have been admitted.
· A witness DJ White was not called by the Crown and ought to have been.
· It was impossible for the jury to follow instructions about what evidence was admissible against each of the accused.
· That he ought to have been tried separately from his co-accused.
· That a jury member was discharged after she rode on the same bus as the appellant Eaton and, because it was not known what she may have told other jury members, the entire jury should have been discharged.
· That another juror had trouble sleeping at night during the course of the trial and she should have been discharged and replaced with a reserve juror as her memory and decision-making ability may have been impaired.
· That forensic officer who did the testing of a screwdriver on which Davey's DNA was found should have been called as a witness.
· A witness Steven Hipworth was not called by the Crown and ought to have been.
· A witness Detective Jago ought not to have been permitted to give opinion evidence at trial as to the identification of voices on telephone intercepts, and he should have been called only once and not three or four times.
· That a view was taken of a scene at Austins Ferry but the prison failed to ensure that Davey was able to attend, and further, that views should have been taken of the other alleged crime scenes as well.
· That the learned trial judge ought not to have allowed an application by the Crown to cross-examine a witness, Samantha Woodruff, as an unfavourable witness.
· That the trial was conducted on the basis of a joint criminal enterprise whereas it should have been "run for what each individual had done".
8On the hearing of the appeal, the defendant Eaton submitted that:
· He should have been tried separately.
· That the opinion evidence of voice identification of Detective Jago should not have been admitted, and that Eaton had never spoken to him on the telephone.
· That his video record of interview was not played to the jury.
· That Detective Jago's evidence only placed Eaton at the scene of the crime the day before it was committed and not on the day.
· That witnesses were not called by the Crown who ought to have been called.
The Crown case
9The Crown case as opened to the jury was substantially as follows.
10Between 24 January and 25 January 2016, a property situated at 93 Blackstone Road in Blackstone Heights, near Launceston, was broken into. The residence was ransacked and a number of items of jewellery were taken, including a wedding ring. The yard of that property contained a shed and inside that shed was a firearm safe. The firearm safe was also broken into and 14 firearms were stolen from that safe.
11The three accused, the appellant Davey, the appellant Eaton and Daniel Cure, were friends. Davey and Eaton were living together. The burglary was planned, by the three accused, knowing that there would be firearms at the residence, and it was committed over the Australia Day long weekend in 2016, when the accused were aware that the home owners would be away from the property.
12The first attempt to travel to Launceston by the accused was aborted when they came under the notice of police and turned around. The second attempt took place the next day, when Eaton and Cure went to the property. During that time they were instructed by Davey over the telephone, telling them what to do, in particular because they were equipped with an oxyacetylene cutting set and were using it to try and cut into the metal safe. They had problems operating the cutting equipment and despite Davey trying to talk Eaton and Cure through the issues they were having, they were ultimately not successful and they gave up that night.
13The third attendance at the property was the next day and was ultimately successful. The items stolen were taken when all three accused were at the property and participated in the crime. They were able to enter a case and take a number of jewellery items, and they cut a hole in the shed with just enough room to enter and remove all the firearms from the firearm safe.
14The firearms were ultimately disposed of by unknown means but two of them were recovered by police in circumstances that linked them to the accused.
The Davey appeal grounds
Dillon Davey's evidence
15This argument involves a ruling made by the learned trial judge as to a telephone call that was said to have taken place between Dillon Davey and the appellant Davey in which Dillon Davey, as a result of a conversation he had with a Cody Williams, approached the appellant Davey and had a discussion with him about sourcing a firearm for Williams.
16The inference the jury was to be invited to draw from that call and from other telephone intercept evidence was that the firearm to be sourced was one of the stolen firearms. It was said to be a black nine millimetre pistol that the appellant Davey gave to Dillon Davey to look at, and which Dillon Davey touched.
17Counsel for the Crown at trial argued that this was just another piece of circumstantial evidence that corroborated the finding by police of firearms near the appellant Davey's residence and corroborated the evidence that Dillon Davey's fingerprints were on the pistol.
18Counsel for Davey objected on the basis that the evidence was inadmissible coincidence evidence. He argued:
"I say, (sic) demonstrates the tenuous nature of this grouping of coincidence evidence and it is tenuous because he isn't charged with possession of a particular firearm from 93 Blackstone Road. Possession of firearms is not even an alternative to count 3 on the indictment of stealing firearms."
19The learned trial judge ruled:
"Well I'm satisfied pursuant to s 98 that this does not infringe the coincidence rule. It's a piece of circumstantial evidence of the event which is the aggravated burglary and the theft of firearms, the firearm, the subject of the evidence, is one of the – relied upon by the Crown as one of the stolen firearms. There's no infringement of the coincidence rule here. The evidence is admissible."
20With respect, Wood J was perfectly correct to have ruled in that way. So much is clear from Pattison v Tasmania [2017] TASCCA 13 in which her Honour, with whom Pearce and Brett JJ agreed, pointed out at [75] that evidence is not evidence of a tendency to act in a certain way when it is evidence of actual conduct.
21There is no merit in this argument
D J White
22The appellant Davey submits that his trial was unfair because Darren (DJ) White was a person who was mentioned in evidence as a person who may have been involved in the commission of the crime, but was not called by the Crown.
23For the reasons I have set out in respect of the appellant Eaton's grounds of appeal, there is no merit in this argument.
The jury's ability to follow instructions
24The appellant Davey submits that the trial was unfair because it was impossible for the jury to follow instructions about what evidence was admissible against each of the accused. This ground can conveniently be subsumed into the grounds concerning the need for a separate trial for Davey.
A separate trial?
25The appellant Davey on this ground of appeal submits that he was not afforded a fair trial and that he should have been tried separately from his co-accused.
26This was not raised by counsel for Davey prior to the commencement of the trial or at any time during the trial. Other counsel made applications for separate trials for Davey's co-accused which were not pursued. Counsel for Davey "flagged" a similar application but none was made. The closest point was at the conclusion of submissions on behalf of the other accused, when counsel for Davey was called on by the learned trial judge and he responded:
"As to the applications made by my learned friends, I don't think I'm entitled to be heard on that particular point. An application for Mr Davey is likely to follow regardless of whether or not those two applications are granted depending on another course that may be taken in the trial, namely the witness Samantha Woodruff but that is not contingent on the outcome of these two applications."
27The witness Woodruff was made available on a Basha inquiry and was cross-examined by counsel for Davey alone. Thereafter Woodruff was called on the trial and gave evidence without objection. No application for a separate trial followed. The matter was never mentioned again.
28The principles to be considered in an application for a separate trial are whether there was evidence led on the trial that was inadmissible against the appellant Davey but admissible on the trial of the co-accused. If so, the question was whether that resulted in prejudice to Davey that was not capable of being alleviated by instructions to the jury; R v Darby (1982) 148 CLR 668; R v Courtney [1998] TASSC 127 and Tasmania v Smart [2014] TASSC 52. There are always potential difficulties in a joint trial with multiple co-accused however it is to be expected that a properly instructed jury will follow instructions: Bannon v The Queen (1995) 185 CLR 1.
29At trial, there was a significant amount of evidence led in relation to intercepted telephone communications. That material was tendered and played on the trial. It was arguably the most significant evidence against the appellant Davey. All of the calls played on the trial were admitted into evidence on Davey's trial. Some of the calls were also admitted on the case of the co-accused and were identified during the trial and in the judge's summing-up. Importantly however, the jury were provided with a table of the call exhibits which referenced which of the accused's trial they were admitted on.
30There was also evidence on the trial of examinations of mobile telephones which were conducted by two police officers, Sergeant Michael Maher and Senior Constable Dean Shaw. This was generally admissible on the trial of all accused. However the jury were directed that the content of text messages found was only admissible of the trial of the accused whom the jury considered was the author of such messages.
31Counsel for the State, Ms Avery, submits that the evidence against the appellant Davey at trial was not significantly weaker than that against either of the co-accused. Whilst Davey initially instructed the co-accused in the commission of the crime, he ultimately attended in person and assisted in the crime, and was the sole principal responsible for the disposal of a stolen firearm. Ms Avery submits that there was no material led on the trial against the co-accused which could be considered unfairly prejudicial to Davey or could have led to a risk of guilt by association. I agree. Any possible prejudice was alleviated by the very careful instructions of the learned trial judge and by the table provided to the jury. It is fanciful to suggest the jury would not be able to follow instructions about what evidence was admissible against each of the accused, when they had a table that could be followed to precisely that end.
32It follows, in my view, that there is no merit in the assertion by the appellant Davey that he should have been tried separately from his co-accused. If an application for a separate trial had been made it would inevitably have been refused. No other rational outcome would have been open to the learned trial judge.
33It also follows from what I have said, that there is no merit in the argument that it was impossible for the jury to follow instructions about what evidence was admissible against each of the accused.
The juror on the omnibus
34The appellant Davey points out that a jury member was discharged after she rode on the same bus as the appellant Eaton, and Davey argues that because it was not known what she may have told other jury members, the entire jury should have been discharged.
35When the fact of the juror on the bus was brought to the attention of the learned trial judge, as a result of the juror informing the court attendant, Ms Styles, her Honour sought submissions from counsel. Counsel for Davey agreed with her Honour that providing the juror had not had any discussions with other members of the jury, then she should be discharged, but if she had held such discussions then the Court would need to know what they were.
36The juror was examined by her Honour as follows:
"HER HONOUR: All right. So, let's pretend I'm the jury. You come into the jury room and I want you to say to me what you said to them.
JUROR: I was like 'Hi', so I - the bus – and I saw Daniel, what's his name, sorry, him on the bus so I'm a bit concerned; do you think it's okay or do you think I should um, let you know, like let the judge know –
HER HONOUR: Let the judge know.
JUROR: Yeah, she was like, if you feel concern about it then you'd better go and talk to them and that's how I asked her to come outside and I was like, I'm a bit concerned about this situation so would you, like, I'm just seeking some help.
HER HONOUR: Yes."
37Counsel for Davey then suggested to her Honour that the juror be asked whether, after she had a conversation with the court attendant, she went back and told the jury what had happened. The question was asked and the juror's answer was "no". Then counsel for Davey submitted as follows:
"MR CANGELOSI: Yes, I concur that this juror should be discharged. As to the question of the balance, I am attracted to what Ms Morgan said about possibly asking a question of the foreman and the reason why I am attracted in that way is because when the juror went in to the jury room, as she described, while she may not have used express words to the effect of, 'I am concerned', the question is what impression did the other jurors take from that and, plainly, it being raised in that way, it was enough for one of the other jurors to say, 'If you are concerned, you should do this,' and if it's known that that has occurred and the other jurors would naturally take form it that this juror was concerned to an extent might. So, asking the question of this juror, 'Did you communicate your concern to the rest of the jury', may not, I think, go far enough. The question, ultimately, is what did the rest of them take from it in that regard –"
38There followed this exchange between counsel and her Honour;
"HER HONOUR: I don't think he should be required to interrogate the jury about what they took from it. I mean – that's just going to invite them to reflect and look at all sorts of possibilities, isn't it? I mean, I think that it's just been such a minimal conversation that – and even if they did detect that she was concerned. It's hardly surprising, she's been on the same bus as the accused, you know.
And I think I can get around it by saying, look, all I'm – the court, this is a nothing situation, but really the court has to be just so cautious and – it's an entirely innocent situation but in situations like this the court will bend over backwards. And that's why we typically have two reserve jurors. I think that deals with that issue. I certainly don't want to elevate this, I don't want to see the jury speculate about – about it and think well perhaps there was something in her body language that might have suggested such and such. Ms Baumeler?
MS BAUMELER: I'm just wondering, I agree with your Honour in terms of, it shouldn't just come from the foreman but maybe as a general proposition to the jury that remains that if anyone else feels, as a result of this, that they can't act impartially then they need to tell us now, basically.
HER HONOUR: Yes.
MS BAUMELER: Rather than, ask the foreman to interrogate.
HER HONOUR: Yes, so if they had a – yes.
MS BAUMELER: Because then then we'll know. I mean, if they're telling us that they're fine and that there's – they don't have any concerns as a result of this then we, we continue on. But if, people start putting up their hands then we've got an issue.
MR CANGELOSI: I agree with that approach.
HER HONOUR: There's nothing to suggest that she did say anything and aren't we thereby suggesting that she might have. That's the concern.
MS BAUMELER: Well, she said something. I mean – it's quite clear that she's walked in and she's said something. I mean, she's at least indicated that she's concerned about the fact that she was on the bus. We're then going to tell the jury that we're discharging her. I think, in all fairness, the question to the remainder of the jury, is, you know, this happens, it can happen, like your Honour said, it's a small city, people run into each other, we're doing it out of an abundance of caution but has anything occurred that's causing anyone else concerns.
HER HONOUR: An open invitation to raise anything.
MS BAUMELER: Yep.
HER HONOUR: Yes. Just as a very very general proposition.
MS BAUMELER: Without elevating it.
HER HONOUR: Look we'll come back to the direction to the jury, I think we've got the stay with the juror at the moment. Ms Avery, anything that's been raised by counsel in terms of a further question of this particular juror?
MS AVERY: No, your Honour there's nothing to raise."
39The juror was brought back and the following exchange occurred:
"HER HONOUR: Now, just one other question. Did you say anything at all. So, I'm really focussing not on what happened but on your discussion with the members of the jury this morning. Did you say anything at all to any members of the jury about how you were feeling, or how you felt about –
JUROR: Yes. I did. I was just like – 'So, Danielle, so, I was a bit nervous. I didn't know whether he was like, I thought I should be telling them because I – like, I wasn't like – I've never been in that situation before so, I was like I'm a bit concerned, what do I have to do?' And that's it, pretty much.
HER HONOUR: So, the concern you expressed was about what?
JUROR: Whether it's appropriate to catch the same bus, like whether I was doing the right thing or, whether I should have got off from the bus and –
HER HONOUR: I see.
JUROR: just being conscious of the situation.
HER HONOUR: Yes. Anything else that you said to them about any other aspect of how you were feeling or any concerns or anything of that nature?
JUROR: No.
HER HONOUR: All right, then.
JUROR: I was like, should I talk to one of the staff or should I ignore it and they're like, if you are concerned then you can.
HER HONOUR: Yes.
JUROR: And that's how I got to tell.
HER HONOUR: Nothing further?
MS MORGAN: Without trying to be difficult, I just simply ask if we could clarify the juror's use of the term 'concern'. If it reflects an awkwardness about the situation or a concern as in a –
HER HONOUR: Well, was that the words -
MS MORGAN: - an apprehension of fear or something happening?
HER HONOUR: Well, it's - it was what's actually said that's relevant, isn't it?
MS MORGAN: Just that, concern is a word that can be interpreted in a number of different ways.
HER HONOUR: Well, what I want to know about is, what you actually said, so being as precise as you can, what did you actually say about how you were feeling?
JUROR: So, it was, I wasn't expressing – like - I was concerned about the situation because I did not know whether it was appropriate to catch the same bus – that's it.
HER HONOUR: Yes.
JUROR: 'Cos I'd never seen him out of the Court before and I was just making sure that I'm doing the right thing."
40The juror was discharged and when the jury were brought back they were given the following direction:
"HER HONOUR: I'm conscious there's one of your members missing that we're just waiting on. Mr Foreman, ladies and gentlemen, as you will have observed, one of your members is not with you now and I just want to talk to you about that. In criminal trials justice must not only be done but it must appear to be done and that may be a concept that you're familiar with, this idea of the appearance of justice and so nothing should be allowed to happen which might cause any concern or give the appearance that the case is not being tried with complete fairness and impartiality.
Now, because of this great concern which the law has about the appearance of justice, even the most innocent of contact such as a juror talking to someone who, as it turns out to be, is a potential witness in a case or is associated in some way with the prosecution or any one or more of the accused, can make it necessary for the trial judge to discharge a juror and that's what's happened in this case. Now, in this case the juror concerned merely caught a bus with an accused person so a completely innocent situation. The juror acted completely appropriately in raising this with the Court this afternoon and indeed so has the accused who raised it responsibly with his counsel this morning.
So in such a case the law is really very strict and the juror needs to be discharged even though, as I've said - the most innocent of encounters. So that's what has happened, the juror has been discharged and I can say that this is not an uncommon situation where this kind of innocent contact can give rise to the need to discharge a juror and we live in a relatively small place and this can happen. And indeed, this is one of the reasons why we have reserve juror and we have two here.
So what will happen is that the trial will continue, our juror has been discharged and our first of two jurors, Mr …, will become our replacement juror on the trial. And I think this is probably a convenient time to mention that this is – it's really easy for this to occur and sometimes when it does happen there's nothing that you can do about, it's happened, and this is indeed the situation for the juror and for Mr Eaton they were – found themselves in that situation.
So I do ask that you be careful to use your common sense, your discretion to avoid any situation, insofar as you can, sometimes, like this, it's impossible but please try and avoid any situation where you may innocently come into contact with somebody connected with the trial. If it does happen, then what is necessary is to make a note, pass it to the court officer and just say, 'please give this to the judge', and avoid any discussion amongst yourselves and that is the appropriate way to deal with it.
So I might just pause now, is there anybody who has any matters that they want to raise or any questions in relation to this matter? Alright, so if our reserve juror could please take a seat in the 12th seat of the jury box? And thank you again, for your patience. Now, we can have Detective Jago called?"
41I regard all of this as a storm in a teacup. It was patently obvious that the "concern" the juror was articulating was whether it was appropriate to have been on the same bus as the appellant Eaton. The learned trial judge was meticulous in the way in which she dealt with the matter and there is to my mind no possibility of a miscarriage of justice. The juror was clear that she had no further discussion with jurors about the matter after she had reported her concern to Ms Styles. There is no merit in the submission.
The sleepless juror
42The appellant Davey submits that another juror had trouble sleeping at night during the course of the trial and that the juror should have been discharged and replaced with a reserve juror, as her memory and decision-making ability may have been impaired.
43The juror raised this matter with a court officer and the learned trial judge dealt with it in the following way:
"HER HONOUR: Just – I want to deal with a query that was raised by one of the jurors this morning with the court officer and what I'm about to say is a response to that matter in very general terms. I won't single out the juror at this stage or ask which one of you raised this question because I think I can deal with this in a general way at this stage and perhaps it's useful for all jurors to hear what I'm about to say because there may be other jurors in the same boat.
The matter raised is that the trial is impacting upon the person to the extent, as I understand it, keeping their brain active at night and there was some difficulties with sleep. Some impact of that kind is to be expected, the courtroom and the trial process involves a high level of human emotional and intellectual engagement. Because of that there will be some impact upon many jurors in many trials and an impact to a greater or lesser extent will be felt really by all those involved in the trial process but particularly for jurors, I think. Because obviously one day you're going about your lives and the next day you find yourselves in a courtroom for four weeks. And as I said, it's a high level of human emotional and intellectual engagement.
Now, having said that as jurors your health is a matter for you to monitor and if the impact were to reach a stage where your health were to be compromised, then obviously raise that with me as you must. And the correct approach in such a situation is a note to the court officer, if there are any matters indeed, and I mentioned this yesterday in another context, any matters you want to raise please raise it in a note and hand it to the court officer and that will them be handed to me."
44I regard this as another storm in a teacup. What was raised by the juror was "some" difficulty with sleep as a result of an over-active brain. The matter was never raised again by the juror, notwithstanding the direction by her Honour to do so if appropriate. The direction was more than sufficient. There is no merit in the argument.
The DNA on the screwdriver
45The appellant Davey submits that the forensic officer, Russell Venn, who did the testing of a screwdriver on which Davey's DNA was found, should have been called as a witness.
46Evidence of the DNA testing of the screwdriver was given by forensic scientist, Rita Westbury. In cross-examination of her, Davey's counsel opened up the involvement of Mr Venn. The transcript discloses the following:
"Okay. So, you've referred to an examination by someone else. Is that someone else Russell Venn?........Yes, so in the first six exhibits – the first six exhibits were examined by Russell Venn and then the seventh exhibit, which was the hair, Russel isn't authorised to examine hairs, so he had another scientist help him with that and that was Kerryn Gray. So those first seven exhibits, I didn't have anything to do with, I didn't see the exhibits except for when I saw whatever ones today. But I've seen photos and I've looked at the notes.
Alright, thank you. Now, is Russell Venn still employed by Forensic Science Service Tasmania?........Yes, he's employed as a technical officer with our – with our laboratory.
Okay. So in terms of the process that was followed by Russell Venn in obtaining – conducting biological examination of items 1 through to 6, you have no personal direct observations that you can describe the court or the court about how that examination took place?........Not in terms of those specific items."
47In his closing address counsel for Davey said:
"In respect of the screwdriver firstly you have not heard any evidence from the man who examined that thing, Russell Venn. He still works for Forensic Science Service Tasmania but you've not heard any evidence form him, you've not had any explanation about why he has not been called. How do you know what procedure was used to examine the screwdriver? No evidence about it. How do you know what procedure was used to get a swab of it, whether it was even the right thing that was tested? Who knows? He was not called. That, I suggest, ladies and gentlemen, is a very big unknown.
The report offers – certainly describe where the screwdriver comes from and you've had evidence from Constable Walker about that but they don't see with their own eyes the testing, the swabbing of that screwdriver. The only witness who have come before you with respect of that screwdriver who can tell you anything about that testing is Ms Westbury. She tested the swab but how DNA came to be on a swab that she tested is simply a big gaping hole.
Now, in respect of the screwdriver, let's assume for a moment and let's be fair to prosecution that the swab does come from there and in respect of the pistol and the ammunition you've heard that the forensic experts don't tell us how the DNA came to be there. It can come from direct contact, it can come from a transfer. I have been holding this glass the last few days; maybe if I put it down somewhere my DNA from the glass will end up on that surface. Who knows? But that is broadly speaking, the mechanics of it.
But the problem is we don't know what the likelihood is. How much more likely it is that it is direct contact that leaves the DNA behind over a transfer? Without knowing what the likelihood is, how is any one of you in a position to determine Matthew Davey held the pistol. Matthew Davey held the ammunition. I suggest you can't. Having considered the evidence in this way I want to leave you with two possible hypotheses, two possible explanations that are open on the prosecution case. They share a common starting point. I'll explain why their open shortly but this is what they are.
A common starting point is that a person, maybe they were a defendant, maybe another person, close to Matthew Davey, a person who goes to 175 Main Road, Austins Ferry, commits the crime. When that person does they use either Matthew Davey's screwdriver, possibly other items like gloves, clothing from the same residence and they go to Launceston. Thus, Matthew Davey's DNA is matched to a swab possibly from the screwdriver, possibly not because he has previously handled it or because it was handled with his gloves and other clothing.
Consider the possibility? Let's not name names for the moment, it doesn't matter. Someone from 175 Main Road, Austins Ferry other than Matthew Davey – or is it a person who goes there – goes in to a shed, sticks screwdrivers, other tools, clothing, gloves into a bag and goes off (indistinct word). At the crime scene, the screwdriver, at some point, is used in whatever way you would use a screwdriver there. You might handle it with gloves. You might wrap the screwdriver in a towel, in a t-shirt to get better purchase on it when you twist it.
All of that can explain why his DNA is on that thing. That's the common starting point. There are two further possibilities (indistinct word) and this goes to how the DNA comes to be on the pistol and the ammunition. Either, the same explanation. Having committed the crime, having removed the firearms from the safe, that gloved hand leaves DNA on the garment, and at some point, on some ammunition.
Alternatively, it's put in to a bag from 175 Main Road, Austins Ferry, that Matthew Davey has used, the gun gets wrapped up in the same towel, t-shirt, whatever. How is that impossible? More to the point, how is that excluded beyond reasonable doubt? The other possibility – and this brings me closer to what I was saying at the start – is that Matthew Davey's DNA is on the gun and the ammunition because he actually handles them.
If you've come from 175 Main Road, Austins Ferry with a screwdriver and other items, there is a reasonable likelihood you might return there and if you're returning there with those items, what is the likelihood that Matthew Davey ends up handling a gun there? Now, this is where we have to be so very careful because if that is what is in your mind, that maybe what happened, then you are thinking that maybe Matthew Davey has done the wrong thing here.
But it isn't a charge on the indictment. They are the possible explanations. No amount of telephone intercept material really, vague as it is, can really exclude those explanations. Your immediate reaction to hearing those two explanations may well – but that's so unlikely, so unlikely. Surely, the easier explanation is he goes and commits the crime. Well, of course it's the easier explanation, but that doesn't make it the truth.
Consider this for a moment. As we've heard from the forensic scientists, we each have DNA. It essentially encodes who we are in genetic form and, in order for anyone of you to exist, many unlikely events, even before you were born, had to take place in order to bring about you in this courtroom, listening to me in this courtroom. The unlikelihood of the exact sperm cell and egg required to make anyone of us the likelihood of that occurring, over untold generations into the past, is so unlikely that statistically it shouldn't happen. Yet, here we are, because unlikely things can be true. Let me put it another way. In a setting perhaps more connected to this case. It relates to a different case and it, in some respects, forms the backdrop for some directions that you will receive at the end of the trial from her Honour."
48In my view the cross-examination of Ms McMahon was designed by Davey's counsel with the objective of being able to ultimately submit to the jury that there was a "big unknown" and a "gaping hole" in the case against Davey because Mr Venn still worked for Forensic Science Service Tasmania, but the jury did not hear any evidence from him, and because they had not had any explanation as to why he had not been called.
49That was an obvious and reasonable forensic decision by Davey's counsel. No doubt he had in mind that to ask the Crown to call Mr Venn, or to call him himself, would be fraught with risk, given the well-known propensity of laboratory staff to carry out testing with great care to avoid contamination of evidence. There is no merit in the submission that a miscarriage of justice resulted from the failure of the Crown to call Mr Venn.
Steven Hipworth
50The appellant Davey submits that his trial was unfair because Steven Hipworth was a person who was mentioned in evidence as a person who may have been involved in the commission of the crime, but was not called by the Crown.
51There was evidence led on the trial from a witness, Justin Clark that Clark had travelled to Hobart in April 2016 with a person known as Steven Hipworth. They went to an address, which Clark could not identify, but the inference was that it was Davey's address. Clark went there with Hipworth. There was some time spent at that address where other persons were present, and after a few hours Clark and Hipworth left. They were subsequently intercepted by police and one of the stolen firearms was found in the vehicle. There was thus an inference open that Davey had disposed of one of the stolen firearms to Hipworth. Hipworth was not called to give evidence at trial.
52For the reasons I have set out in respect of the appellant Eaton's grounds of appeal, there is no merit in the appellant Davey's argument that it was unfair to him not to call Hipworth.
Voice identification evidence
53The appellant Davey submits that Detective Jago was not qualified to give opinion evidence as to the identification of the voices heard on telephone intercepts captured by investigating police. He also argued that it was unfair that Detective Jago was called three or four times during the trial, as the Crown did, in order to break his evidence into a chronological order that married with other evidence.
54This evidence was challenged before the commencement of the trial on a voir dire, and Davey's counsel was content for the objection to be determined on the material contained in the Crown papers. The learned trial judge ruled the evidence admissible as lay opinion pursuant to s 78 of the Evidence Act.
55At trial, Detective Jago gave evidence that he listened to between 720 and 1200 calls during the operation, and that he had also compared this voice to that of the appellant Davey's in his record of interview with police. He said Davey was consistent in his manner of speech and that his speech was deep and unique.
56An objection to this evidence was raised during the trial by counsel for Davey, on the basis that the evidence given by Detective Jago was different to that foreshadowed in the Crown papers. However, the objection was not pursued after the witness gave some evidence about the relative number of calls in which Davey was referred to by name.
57During the trial the learned trial judge provided the jury with a repeated warning in relation to the use of this evidence as it was specific to the appellant Davey, and in her summing-up, after giving the jury lengthy directions as to the dangers of identification evidence, her Honour directed the jury, specifically as to Davey, as follows:
"I turn now to the specifics of the identification by Detective Jago of Mr Davey's voice in the telephone intercepts so this is part of the same direction about the need for care and caution in relation to accepting identification evidence and what I'm doing is now pointing out the specifics of the identification with respect to Mr Davey so Detective Jago's evidence and aspects of his evidence which you'll need to carefully consider.
In brief Detective Jago's evidence was that he was not familiar with Matthew Davey's voice prior to Operation Oracle. He gave evidence that he was though able to identify the voice of Matthew Davey in the calls. How was he able to do that? Well, he said he was able to do that based on the fact that there are a number of calls in which Mr Davey identified himself so these were the calls that we listened to on the trial, P6, from the 21st December 2015 to the 11th of February such as Relationships Australia call, the Dave Powell's car yard call, the use of the name Matthew or Matty and he said he heard other calls, other than the ones that were played in Court, in which he heard Matthew, Matty or Matthew Davey, and he said there were approximately 30 to 50 calls where Matthew, Matty or Matthew Davey were used.
Other content in the calls also gave rise to his opinion that it was Matthew Davey speaking such as address, locations, the subscriber of other phones. Detective Jago said the voice he attributed to Mr Davey was consistent throughout the calls. Following the end of the operation he conducted an interview with Matthew Davey and his evidence was that he made a comparison of what he heard on the recordings with the voice of Matthew Davey in person and he said when he met with Mr Davey, when he spoke with him, it was the same voice that he'd been hearing all along and which he had attributed to Matthew Davey.
He said, 'I was satisfied in my opinion that it was the same voice that I'd heard since the beginning of the operation.' But as you know, as I've explained, people may be convinced that their opinion is strongly grounded but ultimately it's a matter for the jury to carefully scrutinise that and I've identified for you the risk of error. There are a number of matters that have been specifically raised in this case that require your consideration in determining whether the evidence identifying the accused Matthew Davey can be safely acted upon. As I've already said, bear in mind the difficulty of keeping a memory, an imprint of a voice in your mind as opposed to a visual image.
Essentially there are two parts to Detective Jago's evidence. We've got recognition of the voice as being that voice which in other calls contained markers of identity such as Matty, Matthew Davey or some other marker of identity and what I say to you there is it's a matter for you as to whether that is a reliable marker of identity. Secondly the evidence of Detective Jago is that when he compared those calls and the calls in question which he identified as the same, it was the same voice as in the interview he conducted when he spoke to Mr Davey in person.
Now, as to the identification call to call, the strength of that evidence as to identification of the same voice will depend on the individual call. Obviously if hardly anything is said then the evidence of identification is not as strong as a lengthy call with a lot said, which is common sense. At the end of the day all this evidence establishes at its highest is that it is the same voice call to call at its highest. As to that identification call to call as being the same voice when he's listening to various voices, I warn you that mistakes can easily be made even when we're identifying the voice of someone close to us, friend or family member, although identifying the voice of a stranger is more difficult, much more difficult.
Another question is what opportunity did Detective Jago have to hear the voice of the person? Well, that's self-evident from the calls that you have and you can assess that for yourselves. As I've said the reliability of each identification depends on the length of each individual call, how much was said and you have that information before you. The reliability of each identification is going to vary depending on how long the person speaks for, the nature of the call and so on and so you have the calls, you can assess that.
Mr Cangelosi has pointed out that you don't have any contemporaneous notes made by Detective Jago about his level of certainty or otherwise that would help you to scrutinise his evidence and it would seem that there's a risk that somehow he's ultimately globalised, if you like, his opinion so that he's heard a whole lot of calls and ultimately he's decided that they're all so similar, that they're the same calls, but what is his evidence in relation to a particular call which could be significant in this case and you don't have, if you like, the benefit of contemporaneous notes in relation to a specific call which may assist you to scrutinise the reliability of his identification.
Another point which is similar – which is really the same point that I made in relation to Eton, is that Detective Jago again had the summaries of metadata from TIS, Telephone Intercept Services, he's expecting the call to be the voice of Matthew Davey, the risk where in terms of reliability is the expectation has influenced his identification of the speaker. The risk – well, the risk is that there are voices that are similar, but they're not identical in all their characteristics and yet with an expectation of the speaker being a certain person, the opinion is filled in with that expectation if you like, and so the end opinion is, it is Matthew Davey rather than it sounds like Matthew Davey so, if you like, the person's assessment of the voice is shored up by the information they have from TIS, another fact that you've got to bear in mind.
How clearly could the person hear the voice? How was the sound conveyed? Well, they're telephone calls, bear in mind the risk that there's some distortion and you have the call so you can consider that for yourselves. Was there anything about the voice that would've impressed itself upon Detective Jago, was there something distinctive about the voice? Detective Jago's evidence was that the voice was difficult to hear, well that's a factor that bears on reliability. He said, 'It was difficult to hear and understand because it was mumbly, it was deep.' He said, 'To me it was quite unique,' so his evidence was that to him it was quite a unique voice and that may assist you in assessing the reliability of the - that recognition or identification evidence.
How long did he have to keep the characteristics of the voice in his mind before identifying the voice as that of the accused? Well, ultimately his evidence was, 'I couldn't be certain it was Matthew Davey until I spoke to him in person,' and his evidence was that he interviewed the accused on the 26th of April 2016. Now, a final point here is that you are, yourselves, entitled to compare the voice of the accused as you have heard it during the police interview with the voice on the recordings in order to assess Detective Jago's opinion so you have the police interview with Mr Davey, you have the recordings and you can undertake that comparison.
Here bear in mind the risk that you're listening to a recording and the recorded police interview may have distorted Mr Davey's voice to some extent. You need to consider the risk that the callers had a voice similar to that of Mr Davey but were not Mr Davey or was not Mr Davey and that Detective Jago was honest but mistaken in his identification of Mr Davey. In other words the risk that Detective Jago had confused Matthew Davey's voice with another similar voice, a deep, mumbly male voice. That's a risk that you need to take into account.
Now, I'm required by law to point out all of these factors because all of these may bear on the reliability of Detective Jago's opinion and you must give consideration to these matters. Any one of these circumstances may possibly lead to error."
58As was said by Crawford CJ and Evans and Blow JJ in Braslin v Tasmania [2011] TASCCA 14 at [28] and following, voice identification evidence falls within the definition of "identification evidence" in the Evidence Act, s 3(1). There are two provisions of that Act that are relevant – ss 116 and 165. Those sections recognise the unreliability of identification evidence and require that the jury be warned as to its use. The underlying reasons are explained in Domican v R [1992] HCA 13, 173 CLR 555 and Dhanhoa v The Queen [2003] HCA 40, 217 CLR 1 (per Gleeson CJ and Hayne J at [19], per McHugh and Gummow JJ at [53] and Callinan J at [90]-[91]). Once the required warnings are given, no question of unfair prejudice within the meaning of s 137 of the Evidence Act is likely to be discernible.
59As to the correct basis of admissibility, it seems to me that from the perspective of a trial judge, such evidence is admissible evidence on the basis that it is either; factual evidence of a commonplace of human experience (R v Phan [2017] SASCFC 70, 128 SASR 142 per Hinton J at [59], with whom Kelly and Nicholson JJ agreed); lay opinion, pursuant to s 78 of the Evidence Act (Kheir v The Queen [2014] VSCA 200, 43 VR 308; at [65]) or evidence of an ad hoc expert under s 79 of the Evidence Act (Nguyen v The Queen [2017] NSWCCA 4, 264 A Crim R 405 per Hulme J at [81] and Schmidt J at [105]).
60In Phan at [58] Hinton J said;
"[58] Before turning to consider Solomon it is to be noted that in Bulejcik v The Queen (1996) 185 CLR 375 (Bulejcik) the High Court was required to consider whether it was permissible for a trial Judge to invite a jury to compare the voice of the accused, recorded when he gave his unsworn statement in court, with voices on a recording made by police of out of court conversations in which the accused was, according to the police, a participant, in order that the jury might determine for itself whether the accused was in fact a participant in the out of court conversations. Bulejcik may be accepted as authority for the proposition that, subject to adequate direction and warning, a jury may compare voices recorded on recordings tendered in evidence for the purposes of determining for itself whether there is one or more speakers common to each recording. It does not settle, however, the question whether there is any special rule governing the admissibility of recordings of out of court statements or conversations admitted for, amongst other things, voice comparison purposes. Brennan CJ may be taken as concluding that there is no special rule and that the evidence is admissible if relevant to a fact in issue, subject to discretionary exclusion. McHugh and Gummow JJ may be taken as doubting but not deciding the question of whether there is a special rule, whilst Toohey and Gaudron JJ appeared to accept the existence of such rule without deciding the same."
61His Honour then went on at [59] to extrapolate as follows:
"[59] If it is permissible for the jury to undertake voice comparison because '[r]ecognition of a speaker by the sound of the speaker's voice is a commonplace of human experience', it follows that evidence of voice comparison does not fall exclusively within the province of experts and expert opinion evidence. That said, the expert who satisfies the qualifying criteria for the admissibility of expert evidence may give expert evidence of voice comparison. It also follows that evidence of voice comparison lead from a non-expert will be inadmissible unless the non-expert enjoys an advantage over the jury. It is this last proposition with which Solomon deals." (Footnotes omitted)
62In R v Solomon [2005] SASC 265, 92 SASR 331, the appellant was convicted of drug offences proven in part by the tender of 120 intercepted telephone calls. A detective was permitted to give evidence that, having listened at length to the recordings of the calls, including for the purpose of preparing transcripts, he could identify a particular voice in a number of conversations as being the same person. Thereafter the prosecution proved the identity of the common speaker circumstantially. Hinton J justified Solomon as an application of the principle settled in ButeravDirector of Public Prosecutions (Vic) (1987) 164 CLR 180 at 187-188.
63In Nguyen (above) Schmidt J said at [103]-[105]:
"[103] The concept of an ad hoc expert, who can be called to give opinion evidence such as that sought to be called from the Senior Constable, has long been recognised (see R v Butera [1987] HCA 58; (1987) 164 CLR 180). In Regina v Leung and Wong (1999) 47 NSWLR 405; [1999] NSWCCA 287 it was held at [40] that s 79 is sufficiently wide to accommodate the idea of such an ad hoc expert.
[104] RA Hulme J has explained the experience on which the Crown's case that the Senior Constable had the expertise which rendered his evidence both relevant and admissible under s 79 rested. That section provides that the opinion rule does not apply to opinion evidence which is based on a person's specialised knowledge 'based on the person's training, study or experience', where the opinion 'is wholly or substantially based on that knowledge'.
[105] All that the Senior Constable had done, in the performance of his duties, which on the Crown's case resulted in his claimed specialised knowledge and the formation of the opinions about which he gave evidence, was not, as RA Hulme J has explained, able to be replicated by the jury. In the result, I too consider that his evidence was correctly admitted, as it was both relevant to what was in issue at the trial and admissible under s 79, given the experience on which his opinions rested."
64That case involved the evidence of one of three officers who were assigned the task of monitoring intercepted telecommunications during the investigation. There were some 45,000 voice calls and text messages and mobile internet data. The constable estimated that he monitored 70 per cent of all intercepted material. In the course of carrying out this monitoring, the officer may have listened to calls a number of times; stopping, starting and restarting to listen again. He did this to ensure the accuracy of summaries he was required to prepare. He listened to the calls again after having heard the recording of the police interview.
65Finally, as to Kheir, Pearce J observed in Farhat [2017] TASSC 66 (6 February 2017) at [31]:
"In Kheir v The Queen [2014] VSCA 200 the Court of Appeal considered the evidence of a police officer who, after listening to approximately 1,000 telephone calls over about a month, said he was able to attribute the voices on the phone intercepts to the accused when he heard them speak following their arrest. The plurality stated at [62] that in Victoria 'identity evidence, whether visual or aural, had never been treated as a matter requiring proof of expertise, whether ad hoc or otherwise'. It continued at [65]:
'In our view, the evidence of Sergeant Bray was more appropriately viewed as falling within s 78 than s 79. The "matter" of which Sergeant Bray had a "perception" was the audio recordings of the telephone intercepts, the recordings of the applicant's record of interview and a comparison of the two. His perception of that comparison met the test of relevance because he was in a better position to make that comparison than the jurors were. Whether the voice heard in the intercepts was also that in the record of interview was a fact in issue, and the comparison could rationally affect the assessment of the probability of that fact. Sergeant Bray's opinion was based upon that comparison, and his opinion — that the voices on the two tapes were the same — was necessary to shed light upon the observations he made about the voices' similarities'." [Footnotes omitted.]
66Kheir was affirmed in Victoria in Tran v The Queen; Chang v The Queen [2016] VSCA 79.
67In Farhat Pearce J expressed the view that he preferred the approach adopted by the Victorian Court of Appeal in Kheir and in Tran, but would have admitted the evidence on the facts of the case even if it was opinion evidence. His Honour's ruling in Farhat was delivered prior to the decision of the South Australian Full Court in Phan which was handed down on 23 June 2017. The New South Wales Court of Criminal Appeal decision in Nguyen was not decided at the time of the legal argument in Farhat and was handed down just four days before Farhat was.
68In my view, therefore, it is likely to be unnecessary for a trial judge to devote too much time to an analysis of the authorities, as in most cases the evidence will be admissible via each of the current three differing pathways. There is even a fourth pathway, as was articulated by Basten J in Nguyen at [27], and as might be seen as underpinning Kheir, namely that there is a general law principle which continues to operate by virtue of s 9 of the Evidence Act with respect to the admissibility of voice recognition and voice identification evidence, subject to exclusion pursuant to ss 135 and 137 of the Act, and subject to necessary warnings based on unreliability (ss 116 and 165). No doubt the question will be settled by the High Court at some stage as foreshadowed in Honeysett v The Queen [2014] HCA 29, 253 CLR 122 at [48].
69In Honeysett, the appellant was convicted of the armed robbery of an employee of a suburban hotel, following a trial before a jury. The robbery was recorded on CCTV and at the trial, over objection, the prosecution adduced evidence from an anatomist, Professor Henneberg, of anatomical characteristics that were common to the appellant and to one of the robbers. The professor's opinion was based on viewing the CCTV images of the robbery, and images of the appellant taken while he was in custody. The High Court concluded that his opinion was not based on specialised knowledge.
70In a joint judgment at [18] the Court set out the professor's methodology as follows:
"Professor Henneberg's method of 'forensic identification' can be shortly described. Professor Henneberg looks at an image of a person and forms an opinion of the person's physical characteristics. His opinion is not based on anthropometric measurement or statistical analysis. Professor Henneberg stated that statistical analysis may yield reliable results when anthropometric measurements can be taken or the photographs are taken at the same angle and in prescribed body positions. Surveillance images and standard police photographs are not of this standard. He explained that his examination of images does not differ from that of a lay observer save that he is an experienced anatomist and he has a good understanding of the shape and proportions of details of the human body."
71In holding that the professor brought an unwarranted appearance of science to the prosecution case, the Court pointed out at [43], that his opinion was not based on his undoubted knowledge of anatomy:
"Professor Henneberg's knowledge as an anatomist, that the human population includes individuals who have oval shaped heads and individuals who have round shaped heads (when viewed from above), did not form the basis of his conclusion that Offender One and the appellant each have oval shaped heads. That conclusion was based on Professor Henneberg's subjective impression of what he saw when he looked at the images."
72It should be noted however that the respondent acknowledged that the professor had not examined the CCTV footage over a lengthy period before forming his opinion, and thus did not maintain a submission that his opinion was admissible as that of an ad hoc expert (cf Butera v Director of Public Prosecutions (Vic) (above) per Mason CJ, Brennan and Deane JJ, citing Cooke J in R v Menzies [1982] 1 NZLR 40 at 49, and cf Nguyen (above)).
73Given the appellant Davey's submission that there was no testing of the evidence carried out, it is perhaps of interest to note that in 2015, faced with inconsistent approaches to voice identification evidence, the Criminal Practice Directions for England and Wales were revised to require that there be "a sufficiently reliable scientific basis" for the evidence to be admitted. That would, it seems, involve forensic voice comparison evidence involving empirical testing. (See [2018] Crim LR 20.) No such requirement exists in Australia.
74It follows from all that I have said that I accept the submission made by counsel for the State, that, having regard to the state of the authorities, and in light of the directions given to the jury, the evidence of Detective Jago was properly admitted and there was no unfair prejudice from the admission of the evidence.
The view at Austin's Ferry
75The appellant Davey submits that it was unfair that the prison failed to get him to a view which was taken of the scene at Austin's Ferry. He also argues that views should have been taken of the other crime scenes as well.
76The Crown made application at the trial for a view pursuant to s 53 of the Evidence Act. This was opposed by counsel for Davey. However, the learned trial judge granted the application.
77The purpose of the view was so that the jury could properly appreciate the proximity of a particular tree where stolen firearms were said to have been buried, to the residence being shared by Davey and Eaton at the time. Camera footage was captured, by means of an infra-red lens, of persons climbing over the fence from the residence, but the footage would have been difficult for the jury to understand without an understanding of the nature of the area generally and where the residence was located and where the particular tree was located.
78It is regrettable that the appellant Davey was not able to be present at the view but to my mind it cannot be said that any relevant unfairness resulted, much less a miscarriage of justice. And because a view was taken of one relevant place, does not mean that every other relevant place had to be inspected.
79There is no merit in this argument.
Samantha Woodruff
80The appellant Davey submits that the witness Samantha Woodruff should not have been ruled an unfavourable witness.
81The Crown made application at trial that Woodruff be declared unfavourable, pursuant to s 38(1) of the Evidence Act, and further foreshadowed the tender, pursuant to s 66 of the Act, of two intercepted telephone calls, the subject matter of which Woodruff claimed at trial that she could not explain. Those applications were opposed by counsel for the appellant Eaton and the co-accused Cure and argued at considerable length. The learned trial judge ruled that the evidence should not be excluded and the witness was declared unfavourable. Davey's counsel made no submissions to the contrary.
82Asked by the learned trial judge as to the extent of the proposed cross-examination of Woodruff, Crown counsel responded:
"Your Honour, the intention of the Crown is to cross-examine generally about the presence of Mr Eaton and Mr Cure in Launceston on the evening of the 24th and 25th January 2016. Their presence specifically at her residence that night and their access to the vehicle and taking the vehicle in her possession before returning it in the early hours of the 25th January.
The Crown were intending to play to Ms Woodruff – two of the calls that have already been played, in particular call 13235. That is the call where – between herself and Mr Davey where she references Carly and her car's not coming back. The Crown was intending to put to her that the car in question there is the Daewoo and that that goes to Mr Cure and Mr Eaton having access to the Daewoo. The Crown were intending to put and play again to Ms Woodruff call 13319 which is the call where she refers to, 'The boys.' I suggest to her that the boys on that occasion is in fact Mr Eaton and Mr Cure, that had arrived at her house and returned the vehicle."
83The learned trial judge ruled as follows:
"RULING – HER HONOUR:
In terms of the application to cross-examine Ms Woodruff, pursuant to s 38 of the Evidence Act it has been demonstration that the evidence she has given is unfavourable to the Crown and involves matters about which she may reasonably be supposed to have knowledge about and about which it appears to me that the witness is snot making a genuine attempt to give evidence.
Further, she has made prior inconsistent statements in several respects in her interview with police concerning the taking of the car by Mr Eaton and Mr Cure, the returning of the car and their presence at her house in Launceston. It is plain to me from her evidence when the calls were played that the calls related to matters about which she may reasonably be supposed to have knowledge and about which it appears clear that she was not making a genuine attempt to give evidence. With reference to the interview with police it's plain that she has made prior inconsistent statements to the police.
Whilst she is not particularly forthcoming in that interview and not particularly open with police, it is plain when there's regard to the entire thread of the questions and her answers to police on the topic she has made prior inconsistent statements about her observations of Mr Cure and Mr Eaton, the use of the car during the relevant period. The evidence she has given at trial is unfavourable within the terms recognised by the leading authorities on point in that the – in the sense that she now asserts a lack of memory when it appears from earlier statements that she has had a memory.
In terms of s 136, in this context the asserted prejudice is the risk that the jury may use the evidence of Mr Cure and Mr Eaton when it's only evidence against Mr Davey, that is the telephone calls, but that point falls away given the position now of the Crown regarding those two phone calls and their admissibility against Mr Cure and Mr Eaton. Another prejudice identified is that the responses in the telephone calls and the interview are equivocal and there's a lack of clear inconsistency, however, it's sufficient clear to reveal an inconsistency and equivocal aspects of some of her responses can be explored in cross-examination. So pursuant to s 137, I think I said 136, but as I recall it the reliance was upon 137, the evidence should not be excluded pursuant to that provision.
So unless there's anything else counsel, we should now resume the trial in the presence of the jury. Bring the jury in."
84I detect no error in the learned trial judge's ruling, and I observe that it had no adverse effect on the appellant Davey. That is presumably why his counsel made no submissions in opposition to the Crown's application. There is no merit in this argument.
Joint criminal enterprise
85The appellant Davey submits that the Crown case ought not to have been conducted on the basis of a joint criminal enterprise.
86Counsel for the State submits that it was not, and that the evidence was led on the basis of the three accused being co-principals in regard to the matter. She says that, in fact, the jury were invited to consider other pathways of guilt in respect to the appellant Davey, namely as an aider or abettor or instigator, and that as such was explained in the learned trial judge's charge to the jury and set out in the memorandum to the jury.
87All of that is correct. Her Honour directed the jury as to the memorandum as follows:
"So, the document contains the elements of each charge. If you're considering count 1 for example, involving Matthew Davey, you would go to his memorandum and you would see that for each and every charge there are four possible pathways. That is, as a principle offender, the person who actually carried out the crime, as an aider, abettor or instigator. So, those four possible pathways are set out for each and every charge and under each of those headings, principle instigating, aiding and abetting, I set out all those matters that you would need to be satisfied of beyond reasonable doubt, in order to find him guilty on that basis. And, these elements as you can see, and you would have gathered from my direction yesterday, are very strict and, we'll come to those in a moment.
Now, then you'll see in relation to Daniel Cure and David Eaton, again three charges and the possible pathways in relation to each charge. Matthew Davey has four possible pathways. Daniel Cure and David Eaton have three. Principle aid or abetter, so there's no instigating for those two accused as a possible pathway. So, what a trial Judge has to do when summing up to the jury is provide every single direction of law that could conceivably apply to the possible findings of fact that a jury may reach. So, the Crown's case is essentially and principally against each and every accused on all three charges, is that they are the principles. They are – they are the people who actually carried out the crime. But, directions are left for you in terms of instigating Mr Davey aiding and abetting for all three in case you are not satisfied beyond reasonable doubt in terms of principles and of course, not satisfied of any of those pathways, then not guilty."
88I note however, that the Crown did initially inform the learned trial judge that it was intended to open the case on the basis of joint criminal enterprise. That did not occur however, after her Honour pointed out that the words "joint criminal enterprise" have a specific meaning at general law and queried what was really being relied upon by the Crown were the principles of accessorial liability contained in the Code.
The Eaton appeal grounds
A separate trial
89Counsel for the appellant Eaton made an application that the jury be discharged and that a separate trial be ordered. This was ultimately not pursued by counsel and no ruling was made by the learned trial judge.
90Eaton's counsel made the following submission:
"Essentially the submission is, and I must admit, that it's probably going to take me a little time to pull all of it together, as to what it is that my submission relates to, but it's essentially – that there has been a significant amount of evidence led that is said to be only evidence in relation to Mr Davey, and that part of that evidence certainly makes reference to Mr Cure and in circumstances where the jury are being told to ignore that evidence when they are dealing with the trial of Mr Cure, and that it's not admissible on the trial of Mr Cure.
Now, in my submission, when they're hearing it all together and then being told that they have to ignore it, that it is asking the jury to essentially do an impossible task of separating out the evidence that relates to Mr Davey, when Mr Cure is actually being mentioned in that evidence, and the two starkest examples that I can give your Honour, without going through the trial transcript and giving you each single one, is the evidence that's about to be led from Dillon Davey, a reference to Mr Cure being sent up to Launceston, and we're going to tell this jury 'don't worry about that, you can just ignore that when you're considering whether Mr Cure is actually going up to Launceston to commit this aggravated burglary that he's been charged with.'
The other is in terms of the phone records at the time that the Crown essentially say that the 'break in' or better word, is actually occurring. We've got some records that are admissible against Mr Cure because we say it's Mr Cure who's actually speaking on the phone at that time, and it's his phone. But then there are a whole host of other phone calls that we're going to tell them, or we've told the jury, they're not admissible against Mr Cure but it's his phone and in terms of my closing address, I mean, I can't even comment on the fact that you're – clearly this is a phone that everyone else is using, because that's not admissible on Mr Cure's trial. So, in my submission, it's gotten to the stage where the way that the evidence is being led, it is going to be impossible for the jury to separate this all out, and as I said …".
91After exchanges between the learned trial judge and counsel for both Eaton and Cure, and the calling of the witness Dillon Davey on a Basha inquiry, and then on the trial, the question of a separate trial was not raised again by Eaton's counsel, nor by Cure's counsel who had made a similar application. I infer that was because Eaton's counsel appreciated that there was no merit in the application on the grounds articulated by her, and because she was satisfied with the particular direction given by her Honour to the jury as to Dillon Davey's evidence, as follows:
"HER HONOUR: Before we take the lunch break I just want to give you a direction about some of the evidence that you have heard today. Evidence can be admitted in a criminal trial for a particular purpose, here we've had some evidence from Mr Dillon Davey about what a person called DJ said to him. I think his name was Darren White. So what DJ said to Mr Dillon Davey about what he did, that is, going to Launceston and being involved with firearms et cetera. Now, that's not there before you for the purpose of proving what DJ did.
Now, there's been exploration about what DJ said to Mr Dillon Davey and three counsel have asked questions about that, but – and I want to make this really clear: if a party in a criminal trial wants to prove what somebody did then they need to call that person as a witness. So to prove the truth of what DJ said, as in if somebody wants to prove that what FDJ said he did, he went to Launceston, firearms and so on, they need to call DJ as a witness in this trial.
So what was said cannot be relied upon to prove the truth of what DJ said he did in terms of any involvement with or without Mr Cure, with or without Mr Eaton. If somebody wants to prove that they're going to have to call DJ. All right …".
92However the appellant Eaton submits that he specifically instructed his counsel at trial to make an application that he be tried separately from his co-accused. This submission is arguably outside the reach of the grounds of appeal set out in the notice that he has filed. He was however permitted to make the submission, and the hearing of the appeal was adjourned to allow counsel for the State to make inquiries of his counsel.
93The principles relevant to a ground of appeal of this nature were summarised by Gleeson CJ, with whose reasons McInerney J agreed, in R v Birks (1990) 19 NSWLR 677 at 685 as follows:
"1 A Court of Criminal Appeal has a power and duty to intervene in a case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2 As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3 However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible and undesirable to attempt to define such cases with precision. When they arise they will attract appellate intervention."
94I am satisfied that there was no proper basis for a successful application for a separate trial on behalf of the appellant Eaton and that, had his counsel pursued the application, it would inevitably have been refused. It follows that it does not matter whether or not Eaton instructed his counsel to make or pursue such an application, either prior to or at any stage during the trial.
95As with the appellant Davey, there was no material led on the trial against Eaton's co-accused which could be considered unfairly prejudicial to him, or could have led to a risk of guilt by association. Any possible prejudice was alleviated by the very careful instructions of the learned trial judge and by the table provided to the jury.
96Given my view that, if an application had been made, it could only properly have been refused, a failure to follow an instruction to make the application, if indeed there was such an instruction, could not be said to be "flagrant incompetence". It is impossible to say that a miscarriage of justice has resulted as a result of any such failure. There is no merit in this argument.
Voice identification evidence
97The appellant Eaton makes the same complaint as the appellant Davey with respect to the admission of the voice identification evidence of Detective Jago.
98I make the same observations as I have set out above as to Davey's appeal. However, in Eaton's case the evidence was even stronger, and was in reality, voice recognition evidence. Detective Jago, at trial, before the jury, gave the following evidence:
· That he had known the appellant personally for approximately 10 years.
· That he had regular contact with the appellant in around 2010 in the course of his employment at Bread Café.
· That in this period he communicated with the appellant, they referred to each other by name and the appellant afforded him nicknames.
· That he continued to have contact with the appellant from 2010 until recently. That he spoke to the appellant on approximately 12 occasion and they continued to share a familiarity.
· That he recognised the appellant's voice in some of the telephone intercept material based on his previous dealings.
· That he considered the appellant's voice to be "quite high pitched with a quite laconic drawl to it" and that assisted in his identification.
· That he listened to approximately 175 calls, on multiple occasions, where he was able to identify the appellant as a speaker.
· That he spoke with the appellant at the conclusion of the investigation and said "it reaffirmed the belief that I held that it was the voice of Mr Eaton".
99At the conclusion of Detective Jago's evidence-in-chief in relation to his opinion of the identification of Eaton's voice, the learned trial judge instructed the jury as follows:
"Well, I'm just going to say something really brief about this at this point and it's a matter that I'll come back to as a direction of law at the end of the evidence. Detective Jago has given evidence about meeting with Mr Eaton at the Bread café and exchange with him and then listening to these telephone phone intercepted calls and being able to recognise Mr Eaton's voice. Now what sits underneath that is an opinion. It's his opinion that he – that that voice was Mr Eaton's voice. Now, that is just his opinion. Without any disrespect to Detective Jago, ultimately it's your opinion – it's your view about the evidence that counts, that matters. You are perfectly entitled to have regard to his opinion, ultimately you'll be perfectly entitled to accept it if you consider that it's reliable. But it's very much your decision and ultimately at the end of the trial I'll be giving further directions to you about this category of evidence, which we call opinion evidence.
Bear in mind in the meantime, that you're not bound to accept an officer's opinion that that officer believed a voice was the voice of so and so. It's for you to scrutinise it, see what it's based on, it would be up to you to assess whether that's a reliable opinion or not. And you'll have to consider that in light of all of the evidence that you hear on this trial. Really I'm just saying to you that it's – it would be perfectly within your rights to reject that opinion and it's very must your decision and you'll take into account all of the evidence on the trial and I'll come back to this in much more detail at the end."
100As with the evidence against Davey, in addition to her lengthy directions as to the dangers inherent in identification evidence in her summing-up, the learned trial judge, as she was obliged to, set out for the jury, the specific potential dangers relevant to Eaton's case.
101In my view there is no merit in this ground of appeal. Whilst the basis of the identification of Eaton's voice was different to that of Davey's, the evidence of Detective Jago was admissible and was properly admitted. That Eaton's otherwise inadmissible "no comment" record of interview with police was not played to the jury, adds nothing to the argument. Nor does the suggestion that Detective Jago had never spoken to Eaton on the telephone.
The day before the crime
102The appellant Eaton submits that Detective Jago's evidence "puts me at the scene of the crime the day before it was committed." I infer that he means that the voice identification evidence suggests Eaton's presence at the crime scene on the date of the failed attempt with the oxy-acetylene cutting equipment, and then points to his return to Hobart the day before the thefts.
103Even assuming, as was not the case, that there was no evidence at all to suggest that Eaton returned to Launceston the following day to successfully carry out the crime, the case against all accused was a circumstantial one. All of the evidence, including the voice identification evidence, directed to establishing the unsuccessful attempt, remained relevant and highly probative of the appellants' intention and objective on the day of the crime. It was material from which the jury could infer that the successful thefts were carried out by the same people, or included the same people, as those who were involved in the failed attempt the day before. They were clearly warned by the learned trial judge that they could not substitute the evidence of the failed attempt for evidence of the crime.
104There is no merit in this argument
Witnesses not called
105As I apprehend it the appellant Eaton submits that his trial was unfair as the individuals Darren (DJ) White and Steven Hipworth were persons who may have been responsible for the commission of the thefts and ought to have been called by the Crown as witnesses.
106There was no obligation on the Crown to call Darren White. He was referred to in the evidence of Dillon Davey as having claimed to have travelled to Launceston and being involved in the thefts. As was pointed out to the jury by the learned trial judge however, that was not evidence of the truth of that statement. I infer that White was the possible "fourth person" mentioned by Eaton's counsel in her closing address, as being involved in the crime. This was not a case where it could ever have been suggested that the crime was committed by a single person who was not Eaton or one of his co-accused, and conversely if there was a fourth person involved, that fact did not detract from the evidence of Eaton's involvement.
107The same may be said of Hipworth. He was the person who the Crown asserted purchased one of the stolen firearms from Davey and Eaton. Nothing but an empty assertion existed that he may have been involved in the theft of the weapon. And were he involved, that fact would not have lessened the effect of the evidence against Eaton.
108Put simply, no possible unfairness could have arisen from a failure to call White or Hipworth, as the evidence overwhelmingly implicated the three accused, and the involvement of a fourth or fifth person would not have altered that. There is no merit in this argument.
Disposition
109For the foregoing reasons I joined in the order of the Court dismissing both appeals.
File Nos 1183/2019
1270/2019
MATTHEW JOHN DAVEY v STATE OF TASMANIA
DAVID JOHN EATON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
5 August 2020110I have had the benefit of reading the draft reasons for judgment of Estcourt J. I agree with his Honour's reasons for the conclusion that both appeals should be dismissed.
111I would like to add an additional comment about an issue raised by Mr Davey in his appeal. It relates to the way Detective Jago gave his evidence at trial.
112Detective Jago was called by the State to give identification evidence in respect of multiple telephone intercepts to which he had listened, and in respect of surveillance footage.
113At the commencement of the trial the State indicated it preferred to call Detective Jago on multiple occasions in respect of each category of evidence. It suggested it may call him as many as ten times.
114This course was not opposed by defence counsel.
115Detective Jago's evidence was given on 6 separate days, as follows:
6 February 2019
Examination in chief (EIC) Detective Jago called. Telephone calls played and identification evidence given.
7 February 2019
EIC: Detective Jago called on two occasions. Telephone calls played and identification evidence given.
8 February 2019
EIC: Detective Jago gives evidence on three occasions. Telephone calls played and identification evidence is given. CCTV footage is played relating to a site at St Virgils' Austins Ferry.
12 February 2019
EIC: Detective Jago called and gives evidence with respect to St Virgil's surveillance evidence.
20 February 2019
EIC: Detective Jago is called twice. He gives further evidence with respect to the St Virgil's surveillance evidence.
26 February 2019
EIC: Detective Jago is called and there is further examination-in-chief, followed by cross-examination and re-examination.
116As can be seen, cross-examination of Detective Jago occurred at the conclusion of his evidence.
117The gist of the complaint raised by Mr Davey, is that permitting Detective Jago to give his evidence this way was unfair. He submits that this is because the evidence could be modified to accommodate the content of evidence from other witnesses in between each of his attendances. The suggestion is that, apprised of the evidence received from other witnesses, Detective Jago was at an advantage he would not otherwise have had, and which, as I apprehend the point, led to unfairness and a miscarriage of justice. No examples of this occurring are raised in his submission
118The nature of the evidence to be led from Detective Jago lent itself to presentation in the way it was. I infer that defence counsel agreed, and did not consider the course was intended to create a tactical advantage. (Defence counsel were not minded to agree to such course in respect of Detective Hart's evidence, opposing it.)
119In my view it provided a convenient way of introducing evidence that related to different stages of the investigation, or which was about different actors in the case.
120It does not follow, of course, that because counsel did not object, it ought necessarily to have been permitted. If it was inherently unfair to proceed that way, it remained so, irrespective of the position taken by counsel, and it was for the trial judge to veto the prosecutor's proposal in accordance with the obligation to ensure a fair trial: Jago v District Court (NSW) (1989) 168 CLR 23 at 29; Dietrich v The Queen (1992) 177 CLR 292 at 300, 353. There is more than the convenience to a witness in the presentation of evidence in a single sitting. It combines a presentation of the evidence-in-chief, with cross-examination. It is easier for the jury to observe every aspect of a witness and comprehend the evidence, when it is given this way. They observe the content of the evidence-in-chief, the way it survives challenge in cross-examination, and the witness's demeanour through each stage. In the ordinary course, such arrangement is, in my view, preferable.
121It also avoids the risk associated with a witness modifying evidence, changing the emphasis of evidence, or adding to it, to address an issue which arises as the trial unfolds. As to that point, I do not ignore the fact that a witness may be recalled to address such a matter. But that is not an answer to the point, and ignores the advantage which accrues if a witness is able to deal with a matter without the need to come back later to plug a hole in the case. The other potential unfairness, particularly where all the cross-examination is deferred, is that the case is repeated at multiple points without challenge; in this case a chorus that the accused were the actors, repeated eleven times.
122It is not difficult to comprehend that repetition might enhance an aspect of the case unfairly. For that reason I think the approach is one which requires careful consideration before it is permitted, and cogent reasons for doing so. Plainly if it were adopted by the prosecution for purely tactical reasons it would be inappropriate: Nguyen v The Queen [2020] HCA 23 at [45].
123Was it unfair?
124A review of the transcript shows that the trial judge was alive to the risks associated with the approach taken to the presentation of this evidence by the State. Indeed, on the basis of the experience with Detective Jago's evidence, her Honour was cautious about allowing a similar approach to the evidence of Detective Hart, and ultimately refused it.
125The attraction to the approach was that it maintained continuity in the narrative. That will have assisted the jury to understand the factual matrix which formed the State's case. It was not inappropriate in the particular circumstances of this case to permit it. The particular risks of such approach to which I have referred, did not manifest themselves. There is nothing in the transcript of the trial which sustains the submission that Detective Jago tailored, modified or adjusted the evidence he gave at trial, from that contained in the proof of evidence provided prior to trial. On the whole of the trial, I am not satisfied that this method of receiving the evidence gave rise to an actual unfairness such that it can be said there was any miscarriage of justice.
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