Director Of Public Prosecutions v Bertram Brownlie (a pseudonym)[1] (No 2) , Director Of Public Prosecutions and Davina Brownlie (a pseudonym) (No 2)
[2015] VSCA 267
•24 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0150
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| BERTRAM BROWNLIE (A PSEUDONYM)[1] (NO 2) | First Respondent |
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DAVINA BROWNLIE (A PSEUDONYM) (NO 2) | Second Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the names of the Respondents.
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 September 2015 |
| DATE OF JUDGMENT: | 24 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 267 |
| RULING APPEALED FROM: | DPP v [Brownlie & Brownlie] (Unreported, County Court of Victoria, 29 and 31 July 2015) |
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CRIMINAL LAW — Interlocutory appeal — Theft of watches and jewellery — Identification of objects — Whether charges foredoomed to fail — Whether incompetent police investigation rendered trial unfair — Whether judge correct to grant a permanent stay — Application for leave to appeal granted and appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Trapnell QC with Ms J Warren | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the First Respondent [Bertram Brownlie] | Mr A J Palmer with Ms P J Marcou | Lethbridges |
| For the Second Respondent [Davina Brownlie] | Mr S N Tyrrell | James Valos & Associates |
THE COURT:
Introduction
This is the second occasion upon which this Court has been asked to set aside an interlocutory decision of the trial judge concerning charges of theft against the respondents.[2]
[2]See DPP v Brownlie & Brownlie (a pseudonym) [2015] VSCA 147 (Priest and Beach JJA, and Dixon AJA) (‘the first appeal’).
The respondents, who are charged on the basis of joint criminal enterprise, have pleaded not guilty to an indictment[3] in the County Court containing ten charges of theft.
[3]Indictment 1308963A.3.
On 29 July 2015, following an application by the respondents, the trial judge ordered a permanent stay of all charges, save for charge 4 (‘the interlocutory decision’).
Later, on 31 July 2015, the judge refused a prosecution application that she certify under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) that her decision was of sufficient importance to justify it being determined on an interlocutory appeal.
The Director of Public Prosecutions seeks leave under s 296 of the CPA to review the judge’s refusal to certify; and, if successful in the application for review, the Director seeks leave to appeal against the judge’s decision staying charges 1, 2, 3, 5, 6, 7, 8, 9 and 10, on three grounds:
1. The learned trial judge erred by ordering a stay of the prosecution made against the respondents as an abuse of process on the basis that the prosecution was foredoomed to fail or alternatively, on the basis that the conduct of the police investigation of the charges rendered the trial unfair to the respondents.
2. The learned trial judge erred by failing properly to apply the legal test as to whether the prosecution was foredoomed to fail.
3. The learned trial judge erred by failing to take the prosecution case on each charge at its highest.
For the reasons that follow, we would grant leave to appeal, allow the appeal and set aside the interlocutory decision granting a permanent stay.
The prosecution case
It is necessary to provide an outline of the prosecution case.
Bertram Brownlie, the first respondent, is a qualified jeweller. For many years he conducted a jewellery business at 83 Hawthorn Road, Caulfield. His wife, Davina Brownlie, the second respondent, assisted in the business. At relevant times, the business was conducted through a company, Caulfield Jewellers Pty Ltd. Mr Brownlie was the sole director, secretary and shareholder of the company.
Caulfield Jewellers Pty Ltd ceased trading on 3 December 2010, and entered into voluntary liquidation. Worrells Solvency and Forensic Accountants (‘Worrells’), was appointed liquidator.
The offences founding the ten charges on the indictment are alleged to have been committed between 10 October 2008[4] and 12 August 2010. Each charge relates either to a watch (charges 1, 2, 3, 4, 6, 7, 8 and 10) or to an item of jewellery (charges 5 and 9), left with the respondents for repair or for service.
[4]Charge 1 alleges a theft on 10 August 2008, but the prosecution case is that the watch the subject of the charge was pawned on 10 October 2008.
In the first appeal, the Court described the prosecution case as follows:[5]
[5]The first appeal, [5]–[7].
The Crown alleged that between 1 August 2008 and 12 August 2010, the respondents received watches and items of jewellery from their customers during the course of trading as a jewellery shop, and that they then dealt with or disposed of that property in a manner that was not authorised by their customers. Each charge related to a separate complainant. Each complainant is said to have given a similar account of leaving their item at the shop, then making numerous enquiries as to the progress, and continually receiving excuses for the delay, until the shop finally closed in December 2010. …
Police enquiries with various second-hand dealers and pawnbrokers in Melbourne revealed that the second respondent, Mrs Brownlie, had, on occasions during the relevant period, attended two pawnbrokers to sell or pawn watches or jewellery.
The Crown case was put on the basis that the respondents were engaged in a joint criminal enterprise; that is, that they entered into an agreement with each other to steal items of jewellery from customers when the opportunity arose and that the agreement remained in existence at the time of each offence. The Crown contends that each of the charges on the indictment constitute part of an ongoing criminal enterprise and, therefore, that both respondents are equally criminally liable for all offences which fall within the scope of that ongoing criminal enterprise. Both respondents are alleged to have participated in the joint criminal enterprise in that:
(a)they both maintained the jewellery shop business by working in the shop and managing the business;
(b)they were both involved in giving customers excuses for the delay in returning their items; and
(c)the second respondent, Mrs Brownlie, took the items of jewellery to pawn at the pawnbrokers.
The prosecution alleges that after Caulfield Jewellers Pty Ltd entered into voluntary liquidation on 3 December 2010, the items of property set out in each charge were located at a pawnbroker’s business (either Tinson Jewellers[6] or Chapel Street Pawnbrokers[7]). Each item was left by Mrs Brownlie with the relevant pawnbroker as security for a cash loan. It is alleged that in so doing Mrs Brownlie was acting on behalf of, and with the agreement of, her husband. The watches and items of jewellery which Mrs Brownlie pawned were dishonestly appropriated, the prosecution asserts, since the owners did not give permission to the respondents to pawn them. To pawn the items was to usurp the rights of the owners.
[6]Charges 1 to 9.
[7]Charge 10.
As we have mentioned, at the time Caulfield Jewellers Pty Ltd ceased trading, the liquidator, Worrells, took control of the business premises. Worrells seized a deal of property found at the premises. The prosecution alleges that, at the time Worrells took control, the various items of the complainants’ property — which had been left with the respondents either for repair or service — were not located at the business premises, but were instead located at one of the pawnbroker’s businesses, having been pawned by Mrs Brownlie as security for loans.
Prior to cessation of the business, the respondents had proffered implausible excuses to the complainants to explain why their property was not at the shop. The prosecution asserts that this evidence supports the allegation that the respondents dealt with or disposed of the items of property that were not located in the shop, and which were located at a pawnbrokers’ businesses. The prosecution relies on the fact that the watches and items of jewellery located during the investigation at the relevant pawnbroker’s business had been left there without the consent of the owners. Further, the prosecution seeks to rely on the circumstances alleged in each charge as mutually being cross-admissible, so as to prove that the explanations given by the respondents for not returning the property when requested to do so by the owners, were implausible.
We will expand on the facts when we turn to the judge’s ruling.
The proceeding thus far
On 26 March 2015, an indictment containing 30 charges was laid. It had been anticipated that this indictment would be the basis of the first of four trials. With respect to 25 charges an item had been left with the respondents and not recovered. Five charges related to items left with the respondents, but which had later been recovered from the pawnbroker.
By a ruling delivered 13 May 2015, the judge permanently stayed the 25 charges that related to the unrecovered items (none of which were located at a pawnbroker’s business). The judge did so because the prosecution could not prove what items were — and, save for the property with the pawnbrokers, were not — located at the respondents’ premises when the liquidators assumed control. Thus, the prosecution could not eliminate the possibility that a particular item had been located at the premises at that time, but had later been removed by an unauthorised person, mistakenly given to someone other than the owner or sold. The prosecution did not attempt to appeal this ruling.
The remaining five charges were joined with other ‘pawnbroker’ charges on a fresh ten charge indictment. All ten charges were then stayed by the trial judge on 26 May 2015. She did so because she was of the view that there was no evidence upon which a jury could find that the respondents had an intention to permanently deprive the complainants of the pawned items. That ruling was the subject of the first appeal.
On 29 July 2015, the judge made the ruling which is the subject of the present applications. With respect to 9 of the ten charges on the indictment, the judge ordered a permanent stay. Stripped to its bare essence, the judge was of the view that the prosecution would be unable to prove that an item that the complainants stated he or she had left with the respondents was one of the items that had been recovered from the pawnbroker. The charges were thus foredoomed to fail. Furthermore, certain ‘missing’ evidence would result in an unfair trial. Her Honour refused certification under s 295(3) of the CPA.
The application to the trial judge
The respondents submitted, first, that the charges should be permanently stayed on the basis that they were foredoomed to fail; and secondly, that as a result of an incompetent police investigation, the respondents could not receive a fair trial.
In support of these submissions, the respondents relied on evidence that Worrells took control of the premises of Caulfield Jewellers Pty Ltd on 3 December 2010. Worrells did not, however, conduct an inventory; in particular, of any items within the safe at the premises. On 8 December 2010, a representative of Worrells, Laura Bronts, saw, within the safe, boxes containing yellow envelopes with jewellery inside them, together with a number of loose items of jewellery and watches. The safe and the premises were then locked. When Ms Bronts returned to the premises on 14 December 2010, the safe — which had been closed — was open. Thus, it appears that someone had effected unauthorised entry to the premises and safe following Ms Bronts’ earlier visit. The yellow envelopes, which, some of the evidence suggests, had information recorded on them (including names and money calculations), have since been lost or destroyed. Further, a large number of different items from the business, which had come into the possession of police, were returned to claimants of the property, without there being any proper record kept by police identifying the item returned, or the verification process leading to its return.
The respondents submitted that, in light of these matters, it cannot be known what property was left at the Caulfield Jewellery Pty Ltd premises when it closed on 3 December 2010. Further, there had been a loss of evidence, including the yellow envelopes with information recorded on them. Moreover, the identification of items by the complainants was flawed.
The judge’s ruling as to the permanent stay
The judge described the ‘issue’ as follows:
The issue that is before the court is that in the circumstances, the prosecution no longer has evidence that is necessary to exclude items of property seized by the police from Caulfield Jewellers, including the contents of the envelopes which were located in the safe at Caulfield Jewellers as belonging to the complainants, rather than the items said by the prosecution to belong to the complainants which were located at the pawnbrokers.
And later her Honour observed:
That is the basis of the submission in this case, as the evidence which is said to be necessary is no longer available, and there is no satisfactory record, by notes or photographs, of that evidence.
Further, the trial judge said:
… each complainant, clearly, other than [the complainant in charge 4], admits that the item left is not unique, or does not bear a mark or engraving which sets it apart from other such item.
Consequently, the prosecution, and there is no issue about this, must rely on evidence to support the evidence of recognition of each complainant. Each complainant can say words to the effect of ‘I had an item that is very similar to the one that I am shown and I consider that it is very similar to mine’ and each has indicated a genuine belief that the item is owned by that person, and was the item that was left at Caulfield Jewellers.
Evidence of recognition or identification of a human being, for obvious reasons is compelling …
The evidence as to recognition of items of property by a witness can only be one that is similar, unless the item is unique, as human beings are.
Another important aspect of her Honour’s reasoning may be found in the following passage:[8]
Further, the evidence led by the Crown in the circumstances does not assist greatly as I accept the submissions, upon an analysis of the prosecution case, that as evidence has been destroyed or no longer available, with insufficient records, the prosecution cannot exclude the fact that items of property left by the complainants on this indictment before the court with Caulfield Jewellers, were not located with the items seized by the police.
In other words, given the unsatisfactory collection and retention of goods by the police from those seized by Worrells, it cannot be excluded that the items of the complainants on this indictment were not there. It is put positively by the Crown that they were at the pawnbrokers, however I consider that it cannot exclude that they were elsewhere.
[8]Emphasis added.
The judge’s ruling on certification
The prosecution asked the judge to certify pursuant to s 295(3) that her ruling was of sufficient importance to justify it being determined on an interlocutory appeal. Her Honour refused to do so. In refusing the application, she said in part:[9]
I agree with the submission made on behalf of the[respondents] that the ruling that is the subject of this application is not in relation to statutory interpretation or the application of complicated legal principles. It is solely a conclusion which is reflecting that critical evidence necessary to evaluate the opinion of each complainant which cannot be taken at face value is no longer available.
In the circumstances to which I have referred I rule that the decision to enter a permanent stay of all charges on this indictment, save for Charge 4, is not attended by sufficient doubt and thus is not of sufficient importance to justify it being determined on an interlocutory appeal.
[9]Emphasis added.
The applicant’s submissions
The applicant submitted that, contrary to the trial judge’s ruling, the preconditions for certification set out in s 295(3)(b) of the CPA were met in this case, in that the interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal. It was submitted that sufficient doubt as to the correctness of the judge’s decision arises because a permanent stay has been granted in response to no more than an ‘arguable defence’. If left to stand, it was argued, the decision will result in a miscarriage of justice.[10] Since the order for a stay is effectively dispositive of the proceedings on charges 1 to 3 and 5 to 10, leave to appeal should be granted no matter what view is taken of its ultimate merits.
[10]DPP v Pace (a Pseudonym) [2015] VSCA 18, [25] (Priest and Beach JJA).
As to the substance of the interlocutory appeal, counsel submitted that it is unclear from the trial judge’s ruling whether the stay was ordered on the basis that the prosecution is foredoomed to fail, or whether it was ordered on the basis that, owing to some insurmountable unfair prejudice, the respondents would be unable to receive a fair trial. The fact that charge 4 has not been stayed suggests it is on the former basis. If it were on the latter basis one would expect that all charges on the indictment would be stayed, because the posited unfairness would apply to the whole trial.
Counsel for the Director argued that the trial judge appears to have conflated two incompatible bases for ordering a stay by acceding to the application on the bases that, first, the loss of certain evidence and the absence of any satisfactory records of that evidence amounts to an evidentiary unfairness to the respondents in that evidence which may assist in testing the prosecution case is no longer available; and, secondly, evidence necessary for the prosecution to exclude a possible hypothesis consistent with innocence is no longer available and the prosecution is therefore foredoomed to fail.
The applicant accepted the criticism that several aspects of the police investigation were ‘not as thorough as they might otherwise have been’. It was argued, however, that in order that the loss or destruction of evidence, or a failure to retain property, be such as to warrant a permanent stay, the court must be satisfied of substantially more than that the missing evidence might have assisted defence in meeting the prosecution case. It is not sufficient that the loss of relevant material could or might result in injustice or unacceptable lack of fairness; it must be shown that that would be the result.[11] Counsel submitted that the ‘missing’ evidence must be of such a nature that its absence, or unavailability, was likely to have had a significant impact on the fairness of the trial.[12]
[11]Aydin v The Queen (2010) 28 VR 588, 592 [17].
[12]Audsley v The Queen (2013) 228 A Crim R 98, 107 [45].
Before the trial judge, the respondents argued that the ‘missing’ evidence in this case — that is, the yellow envelopes and the watches and items of jewellery that had been seized from the respondents’ jewellery store — might have assisted the respondents to mount their defence and to test the prosecution case. In relation to the yellow envelopes, however, the respondents’ argument relied upon a mere possibility that the envelopes might have contained exculpatory notes or records (such as a purported location of a missing item or details of a part on order for that item). This argument, so counsel for the Director argued, is premised on ‘pure speculation’ and should have been discountenanced by the judge. There simply is no evidence of any additional information being on the yellow envelopes (save for a customer’s name, contact number and, in some instances, a nondescript monetary figure). Furthermore, even if relevant information was contained on the yellow envelopes, it is difficult to conceive, so the applicant’s argument went, how that would assist the respondents to challenge the prosecution case or how they are otherwise forensically disadvantaged by the absence of that evidence.
Counsel submitted that the prosecution case, quite simply, relies upon the jury being satisfied beyond reasonable doubt that the complainants have each correctly identified the items seized from the pawnbrokers as being their respective items. It was submitted that, far from the defence being forensically disadvantaged by the absence of the yellow envelopes, it may be posited that significant forensic advantage might be gained by the defence demonstrating to the jury the inadequacies of the police investigation in this case.
The applicant submitted that the disposal of evidence by police could, at most, only be said to give rise to a possible prejudice, which may adequately be ameliorated by judicial direction. Finally, it was contended that the trial judge failed to consider whether remedies other than a stay of proceedings — such as a forensic disadvantage direction — could acceptably mitigate any unfairness or forensic disadvantage.
The respondents’ submissions
Upon the hearing in this Court, counsel for the first respondent conceded that, upon proper analysis, charges 3, 7, 9 and 10 were not foredoomed to fail, since there was sufficient evidence of positive identification of the item to which the charge related by the complainant concerned. All other charges (save charge 4) were, it was submitted, foredoomed to fail. In any event, the ruling granting a permanent stay could be upheld on all charges (including charges 3, 7, 9 and 10) on the basis of ‘unfairness’. Save that counsel for the second respondent did not join in the concession concerning charges 3, 7, 9 and 10, he substantially adopted the submissions of counsel for the first respondent.
It was submitted that there were two strands to the judge’s ruling. First, the judge characterised each complainant’s evidence of identification of the relevant item as being no more than evidence of similarity. Evidence of mere similarity was an insufficient foundation for each charge. Secondly, due to the defects in the manner in which the police investigation was conducted, the prosecution was unable to exclude the possibility that the items left with the respondents were not still located there when the liquidator took possession of the premises. Thus, it may be the case that the complainants’ property was disposed of to others at a time after Worrells took control. Due to the incompetent investigation and record-keeping by the police, the respondents were hamstrung in pursuing this line of defence. A fair trial thus was not possible.
Analysis
In our view, the trial judge directed herself appropriately as to the applicable principles,[13] but erred in the application of those principles to the facts of this case.
[13]The judge cited Walton v Gardiner (1993) 177 CLR 378, 392–3 (Mason CJ, Deane and Dawson JJ) (‘Walton’); Little (a Pseudonym) v The Queen [2015] VSCA 62, [59] (Priest JA), [73]–[75] (Lasry and T Forrest AJJA); Wells v The Queen [2010] VSCA 100, [22] (Ashley JA).
On proper analysis, there is evidence available on each charge on the indictment which is capable of satisfying a jury to the requisite degree of the respondents’ guilt. The charges therefore are not foredoomed to fail. Indeed, the analysis is quite simple.
There is undisputed evidence that each complainant left either a watch or a piece of jewellery with the respondents for service or repair. There is further evidence that none of the owners authorised the respondents to pawn their property. There is also evidence that, when the various complainants enquired as to the status of the service or repair, he or she was provided with an excuse for the failure to complete the service or repair. And there is undisputed evidence that each relevant watch or item of jewellery identified by a complainant (or another) as his or hers (or another’s) was found in the possession of a pawnbroker, having been left there by the second respondent. The real dispute concerns the strength of the evidence of identification with respect to the particular watch or piece of jewellery which is the subject of a given charge.
We have earlier mentioned that counsel leading for the first respondent conceded that charges 3, 7, 9 and 10 are not foredoomed to fail. That concession was realistic. It is nonetheless remains necessary to examine some of the evidence of identification relevant to each charge. Such an examination reveals that there is evidence on each charge capable of being accepted by a jury as evidence of positive identification of the relevant watch or item of jewellery. That being so, the charges cannot be seen to be foredoomed to fail in the manner posited by the respondents.
Charge 1
John Plain owned a Rolex gold watch with gold bracelet band. There is evidence capable of establishing that he deposited the watch with the respondents on 8 October 2008 for repair. A Pawn Ticket from Tinson Jewellers demonstrates that a Rolex gold watch — the description on the Pawn Ticket fitting the description of Mr Plain’s Rolex watch — was pawned by Mrs Brownlie two days later, on 10 October 2008. In December 2010, police sent Mr Plain a photo of a watch, which was identical to the watch he had left with the respondents. In his statement to police, Mr Plain said that on 3 February 2011 he looked at the watch in person at the Caulfield CIU, and ‘can confirm it is [his] watch because the watch is very distinctive and [he] purchased the watch in Switzerland about 1985’.
Thus, taking the prosecution case at its highest, there is evidence from which it might properly be concluded that Mr Plain positively identified the watch retrieved from Tinson Jewellers as his watch, and that his watch had been pawned by Mrs Brownlie within two days of having been left with the respondents for repair. The fact that he had been shown a photograph before his personal identification of the watch can, at best, go only to weight.
Charge 2
Charge 2 relates to an Omega 18 carat gold watch, that had belonged to Maria Grossbard (now deceased). The prosecution assert that this watch was pawned by Mrs Brownlie on 20 April 2009. It is submitted by the respondents, however, that Maria Grossbard did not deposit her watch with the respondents until October 2009. In our view, however, whether the suggested discrepancy in the crucial dates is capable of resolution is a matter for the jury. Maria Grossbard’s son, Michael, in a statement to police said that he was sent a photo of a number of watches in February 2011 and ‘immediately recognised the gold watch in this photo as being [his] mother’s’. He confirmed that it was his mother’s watch when he personally viewed it at Caulfield CIU, and possesses photographs of his mother’s watch taken some years ago which will permit an adequate comparison to be made.
The jury would be capable of accepting Michael Grossbard’s evidence of identification of his mother’s watch. Again, the process of identification employed by the police, and any discrepancy in date, can bear only on weight.
Charge 3
Phillip Hamilton left a Bulova Accutron gold watch with the respondents for repair. He recognised the watch, which had been seized from Tinson Jewellers, in a photograph sent to him by police. In February 2011 he identified it in person at Caulfield CIU. In his statement, he said he was able to do so ‘because it is a one-off item, bought by [his] late father in Switzerland in 1970, and bears a tiny scratch on the upper band of the bracelet which [he] can identify’.
The respondents pointed out that no mention had been made of the scratch to police prior to Mr Hamilton identifying the watch. In our view, however, there is ample evidence upon which a jury could be satisfied of the accuracy of Mr Hamilton’s identification. His failure to mention the scratch is a matter which the respondents might (or might not) see fit to use in order to attack the weight to be attached to the evidence.
Charge 4
As we have mentioned, charge 4 was not stayed. There is no challenge to the trial judge’s ruling on charge 4.
Charge 5
Charge 5 relates to a gold link bracelet, which Marie Howson identified as hers.
The evidence on charge 5 in some respects stands apart from that on other charges. In a separate ruling made on 26 May 2015, the judge excluded Ms Howson’s evidence of identification under s 137 of the Evidence Act 2008, on the basis that her evidence was ‘very, very unreliable and weak’. The applicant submits that this ruling also falls for consideration, in circumstances where the whole of her Honour’s reasoning permanently staying all charges on the indictment is under review.
In our opinion, Ms Howson’s evidence is capable of being accepted by a jury as identifying the relevant piece of jewellery. It does not appear to us to be ‘very unreliable and weak’. In her statement to police, she said that, when she was showed photographs by the police, ‘[she] immediately recognised the bracelet on the left of the photo as [her] bracelet’. She was then given the bracelet — which had been a gift from her husband many years ago — to look at. Ms Howson said that the ‘look’, ‘feel’ and ‘fit’ of the bracelet ‘confirmed to [her] that it is [her] bracelet’. When cross-examined at committal, she said it was ‘definitely’ her bracelet.
We cannot see that the probative value of her evidence is outweighed by the danger of unfair prejudice. Her evidence is capable of establishing that her bracelet had been left with the respondents for repair, and that she later identified it when it was shown to her by police (the bracelet having been seized from a pawnbroker where it had been left by Mrs Brownlie).
Charge 6
Peter Janovic left an IWC watch with the respondents for service in January 2010. He had owned the watch for about thirty years. After Caulfield Jewellers closed down, he provided a description of his watch to police. In December 2010, he was sent a photo of a watch by police. He ‘immediately recognised the watch’ as his. When he viewed the watch in person at Caulfield CIU he knew it was his watch because his father had given it to him for his engagement, and it had been in his possession for thirty years. The watch that Mr Janovic identified had been left with Tinson Jewellers not long after he had left his watch with the respondents. A properly instructed jury would be capable of being satisfied that he positively identified his watch.
Charge 7
Charge 7 relates to an Omega white gold ladies’ watch, belonging to Guta Zaks. Her son, Dr Jack Zaks, had left the watch with the respondents for repair in January 2010. Dr Zaks and his mother later recognised the watch in a photo provided by police. Moreover, in his statement to police, Dr Zaks said that when he looked at the watch in person, he knew the watch he was shown to be his mother’s ‘because she has had the watch for so many years and always wore it on special occasions’. Further, there is some evidence that, when left with the respondents the watch was still in its original box, and that the watch was still in its original box when recovered from Tinson Jewellers. Thus, so it seems to us, there is evidence capable of acceptance that Dr Zaks correctly identified the item found at Tinson Jewellers as the item deposited with the respondents.
Charge 8
Ross Johnstone owned a 1975 Tag Heuer gents’ watch, which he left with the respondents in January 2010 for repair. Later, in December 2010, he identified his watch from a photograph shown to him by police. In his statement, he said that he identified the watch when it was shown to him by police in person because he had owned the watch for four years and had the service booklet which showed the model number. In our view it is a matter for the jury whether they accept Mr Johnstone’s evidence of identification. It is open to them to do so.
Charge 9
With respect to charge 9, the respondent place some reliance on supposed discrepancies in dates.
Sandra Anderson owned an 18 carat gold chain with a nine carat gold pendant. She gave evidence that she had left the item for repair with the respondents in early 2011. The respondents seize on this evidence to suggest that Ms Anderson’s evidence of identification ought be discounted, since the business was closed by January 2011. It is noteworthy, however, that Ms Anderson had acquired the item in Tel Aviv during a trip to Israel, and the item recovered from Tinson jewellers was in the original box from the Tel Aviv jewellers. Moreover, travel records lately recovered by police show that Ms Anderson returned from an overseas trip in January 2010, not January 2011. Hence, the applicant submits, the discrepancy as to dates is capable of explanation on the basis of simple mistake. In circumstances where Ms Anderson identified her chain and pendant from a police photo, and then purported to identify it in person based on distinctive features, in our view it is open to a jury to be satisfied of her identification.
Charge 10
Marsha Negri owned a silver Raymond Weil ladies’ watch, with a rectangular face and diamond and bracelet band. When she left it for repair, it had a crack in the face. In February 2010, she was shown a photograph of a number of watches by police and recognised her watch. She then viewed the watch personally — it had been recovered from Chapel Street Pawnbrokers — and identified it by the crack in the face. In our opinion, a jury could be satisfied that Ms Negri was correct in her identification.
Further observations on identification
Whether, on any given charge, a properly instructed jury is prepared to accept that the particular complainant’s identification of a watch or item of jewellery is trustworthy is a matter for them. As we have attempted to demonstrate, there is direct evidence which, when properly scrutinised, is capable of amounting to positive identification, rather than, as the respondents submit, amounting to no more than an assertion that it ‘looks like’[14] the complainant’s property. Properly understood, the evidence of identification is capable of supporting each charge on the indictment.
[14]See Pitkin v The Queen (1995) 130 ALR 35. See also R v Clout (1995) 41 NSWLR 312.
Furthermore, there is circumstantial evidence which is capable of supporting the direct evidence of identification, including the similarity of excuses proffered by the respondents to various complainants, and the close temporal connection between an item being left with the respondents for service or repair, and a similar item being pawned by Mrs Brownlie.
In light of these conclusions, it cannot be said that the charges are foredoomed to fail. Insofar as the order for a permanent stay was based on her Honour’s assessment to the contrary, it cannot be permitted to stand. The trial judge’s assessment of the evidence involved no exercise of discretion,[15] but a misapprehension as to its effect.
[15]Cf MA v The Queen (2011) 31 VR 203.
Any prejudice to the respondents flowing from the nature of the identification evidence can, in our view, adequately be ameliorated by judicial direction, rather than by resort to the exceptional remedy of a permanent stay. Senior counsel for the applicant conceded that the jury will require careful direction as to the frailties attending the evidence. Section 35, 36 and 37 of the Jury Directions Act 2015 now govern the directions to be given as to the identification of objects. We note in this regard that it has previously been held that the kind of directions that a trial judge might need to give to a jury with respect to the identification of an inanimate object will differ according to whether the identification of the object is, or is not, a significant component of the proof of guilt.[16]
[16]R v Marijancevic (1993) 70 A Crim R 272, 278 (Teague J; Brooking and Coldrey JJ concurring); R v Clout (1995) 41 NSWLR 312, 320–322 (Kirby ACJ); R v Crupi (1995) 86 A Crim R 229, 239–243 (Crockett, Nathan and Vincent JJ); R v Lowe (1997) 98 A Crim R 300, 314–318 (Hunt CJ at CL; Smart and Ireland JJ concurring); R v Whelan (2003) 56 NSWLR 454, 467 [46]–[48] (Hodgson JA; Dowd and Barr JJ concurring).
Unfairness
The respondents’ counsel submitted that there was a general unfairness flowing from the flawed police investigation. It was submitted that the fairness of any trial was unacceptably compromised, and the granting of a permanent stay was required.
First, it was submitted that unfairness resulted from the ‘highly suggestive and dubious’ method used by police to identify the various items of property. As we have said, however, the methods adopted with respect to identification go only to the weight to be attached to the evidence. There is nothing in the respondents’ first point.
Next, the respondents contend that their cases have been prejudiced by ‘missing’ evidence. By way of example, the respondents submitted that the yellow envelopes originally located in the safe at the respondents’ premises constituted their ‘business records’. They contained items of jewellery and similar — subsequently returned by police by people claiming to be the owners, or sold — and had notations on the outside of them have not been preserved, but which may have assisted the respondents in their defence to the charges.
The respondents also rely on the manner in which police dealt with property recovered by police from the respondents’ business. A deal of jewellery and similar was held by the police for return to owners who made claim to it. Police thus returned much of what was taken from the respondents’ premises to people claiming to be the true owners of it. (Other items, to which owners did not lay claim, were sold at auction.) The evidence reveals, however, so the respondents submit, that the property held by the police was not properly recorded or catalogued by photographs or other means. Moreover, when various people made claim to certain of the property held by the police, inadequate records were kept identifying the property which was handed over to the particular claimant.
In summary, the respondents relied on:
· the lack of any evidence as to the items located at the respondents’ premises when the liquidator took possession;
· the lack of any systematic records made or photographs taken by police of items returned to their putative owners or sold at auction; and
· the lack of any comprehensive evidence of the notations made on the envelopes in which items of property were found.
The judge thought that the respondents were, as a result, in an ‘invidious position in testing the Crown case’, and the trial would thus be unfair.
It is fair to say, however, that when pressed by the Court to explain how the envelopes might have helped, and why they were crucial to the defence, counsel were unable to advance any convincing reason. We accept the submissions of the applicant, that, at best, all that can be said is that the envelopes ‘might’ have assisted the respondents’ defence. This provides an insufficient justification for a permanent stay.[17] Certainly, the present does not represent the kind of rare and exceptional case where a permanent stay would be appropriate.
[17]Walton, 392 (Mason CJ, Deane and Dawson JJ); Aydin v The Queen (2010) 28 VR 588, 592 [17] (Harper JA); Audsley v The Queen (2013) 228 A Crim R 98, 107 [45] (Kaye AJA); Hermanus (a Pseudonym) v The Queen [2015] VSCA 2, [39] (Priest JA).
In our view, the respondents’ assertions that their defence will be unacceptably compromised by the ‘missing’ evidence is somewhat chimerical. The prosecution case is a simple one. Watches and jewellery left with the respondents for service or repair were soon after pawned by Mrs Brownlie when she had no authority to do so. The pawned items were recovered from the pawnbrokers’ possession. The strength or otherwise of the prosecution case depends, to a large extent, on the strength or otherwise of the identification evidence. Rather than weaken the defence, it might be thought that the absence of adequate records weakens the prosecution’s position. We cannot see that the ‘missing’ evidence will result in an unfair trial. Her Honour ought not to have concluded that it could.
Conclusion
For the foregoing reasons, we are of the view that her Honour was wrong to order a permanent stay. We would thus grant leave to appeal, allow the appeal and set aside the order granting a permanent stay.
Senior counsel for the applicant urged us to direct that the matter return to another judge. As we understood it, the submission that we do so was based on an apprehension of bias on the part of the trial judge.
It is not appropriate to make the direction sought by the applicant. We are of the view that the record shows that the trial judge had applied herself assiduously to what has been a difficult trial. The fact that the judge has made certain rulings adverse to the prosecution[18] — two of which have been reversed on appeal — could not justify a conclusion that her Honour will do other than continue to perform her duty with detachment and fairness.
[18]See Antoun v The Queen (2006) 224 ALR 51.
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