Duke v The Queen
[2002] WASCA 47
•8 MARCH 2002
DUKE -v- THE QUEEN [2002] WASCA 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 47 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:1/2002 | 27 FEBRUARY 2002 | |
| Coram: | MURRAY J | 8/03/02 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DARREL JAMES DUKE THE QUEEN |
Catchwords: | Bail Pending appeal Exceptional circumstances not shown Turns on own facts |
Legislation: | Nil |
Case References: | Harriman v The Queen (1989) 167 CLR 590 Hoch v The Queen (1988) 165 CLR 292 Mullally v The Queen [2000] WASCA 26 Pfennig v The Queen (1995) 182 CLR 461 Rechichi v The Queen [2001] WASCA 319 Bernt v R (1994) 70 A Crim R 1 Brooks v R, unreported; SCt of WA; Library No 7160; 16 June 1988 Caratti v R [1999] WASCA 91 Chamberlain v R (No 2) (1984) 153 CLR 521 Cleland v The Queen (1982) 151 CLR 1 Collard v R, unreported; SCt of WA; Library No 970425; 13 August 1997 Driscoll v The Queen (1977) 137 CLR 517 Gipp v R (1998) 194 CLR 106 Johansen v R, unreported; SCt of WA; Library No 980087; 23 February 1998 Jones v R (1997) 149 ALR 598 Maric v R (1978) 20 ALR 513 Meaney v R, unreported; SCt of WA; Library No 2267; 28 February 1978 Morris v R (1987) 163 CLR 454 Norrie v R, unreported; SCt of WA; Library No 7181; 29 June 1988 R v Privitera [1966] WAR 12 R v Ryan (1984) 55 ALR 408 Toomath v R [1998] WASCA 213 Walser v R (1994) 73 A Crim R 154 Weston v R [1999] WASCA 203 White v R, unreported; SCt of WA; Library No 940327; 6 July 1994 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DUKE -v- THE QUEEN [2002] WASCA 47 CORAM : MURRAY J HEARD : 27 FEBRUARY 2002 DELIVERED : 8 MARCH 2002 FILE NO/S : CCA 1 of 2002 BETWEEN : DARREL JAMES DUKE
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Bail - Pending appeal - Exceptional circumstances not shown - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr T R Stephenson
Respondent : Mr K M Tavener
Solicitors:
Applicant : T R Stephenson
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Harriman v The Queen (1989) 167 CLR 590
Hoch v The Queen (1988) 165 CLR 292
Mullally v The Queen [2000] WASCA 26
Pfennig v The Queen (1995) 182 CLR 461
Rechichi v The Queen [2001] WASCA 319
Case(s) also cited:
Bernt v R (1994) 70 A Crim R 1
Brooks v R, unreported; SCt of WA; Library No 7160; 16 June 1988
Caratti v R [1999] WASCA 91
Chamberlain v R (No 2) (1984) 153 CLR 521
Cleland v The Queen (1982) 151 CLR 1
Collard v R, unreported; SCt of WA; Library No 970425; 13 August 1997
Driscoll v The Queen (1977) 137 CLR 517
Gipp v R (1998) 194 CLR 106
Johansen v R, unreported; SCt of WA; Library No 980087; 23 February 1998
Jones v R (1997) 149 ALR 598
Maric v R (1978) 20 ALR 513
Meaney v R, unreported; SCt of WA; Library No 2267; 28 February 1978
Morris v R (1987) 163 CLR 454
Norrie v R, unreported; SCt of WA; Library No 7181; 29 June 1988
(Page 3)
R v Privitera [1966] WAR 12
R v Ryan (1984) 55 ALR 408
Toomath v R [1998] WASCA 213
Walser v R (1994) 73 A Crim R 154
Weston v R [1999] WASCA 203
White v R, unreported; SCt of WA; Library No 940327; 6 July 1994
(Page 4)
1 MURRAY J: This application for bail comes before me as a single Judge exercising the powers of the Court of Criminal Appeal under the Criminal Code (WA), s 702. The applicant is a convicted person who now appeals against his convictions. The application is therefore to be dealt with under the Bail Act 1982 (WA), Sch 1 Pt C cl 4 which in such a case as this requires the Judge who is to deal with such an application to consider whether "there are exceptional reasons why the defendant should not be kept in custody," and bail is only to be granted if the Judge is satisfied that that is so and also that bail may properly be granted having regard to the matters ordinarily applicable to the question of the grant or refusal of bail under cls 1 and 3 of the Schedule.
2 As to that, I think it should be said at the outset that it seems to me that the applicant is a person to whom bail might be granted upon the application of the ordinary principles set out in cls 1 and 3 of Sch 1 of the Act. The fate of the application does not turn upon such matters but upon the search for some exceptional reason why the applicant should not be kept in custody.
3 The application is supported by the applicant's affidavit. He was tried in the District Court on an indictment containing six counts as follows:-
(1) between 1 October 1994 and 31 December 1994, he stole as a servant, gold ore, the property of certain corporations;
(2) again between 1 October and 31 December 1994, he stole as a servant, gold ore, the property of the same corporations;
(3) between 1 October and 31 December 1994 at Forrestfield, he had in his possession money that was the proceeds of a major offence;
(4) a precisely similar charge, allegedly committed at Forrestfield, between 1 October 1994 and 31 January 1995;
(5) between 1 October 1994 and 28 February 1995 at Southern Cross, he engaged in a transaction involving property which was the proceeds of a major offence, and
(6) between 1 October 1994 and 31 May 1995, again at Southern Cross, he engaged in a transaction of the same type as that referred to in count (5).
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4 After trial, he was acquitted of the offences charged in counts (1), (2), (5) and (6), but he was convicted of the offences charged in counts (3) and (4).
5 Colloquially, those offences may be described as property laundering. They are offences against the Criminal Code (WA), s 563A. It is a very grave offence punishable by imprisonment for 20 years. The offence may be committed in a number of ways, one of which is that charged in counts (3) and (4), that the offender has in his or her possession, money or other property that is the proceeds of a major offence. The section defines the term "major offence" relative to this case as an indictable offence. Stealing as a servant is, of course, such an offence. The section also provides the definition that the proceeds of an offence (not necessarily committed by the accused) may be money "derived or realised, directly or indirectly," by any person from the commission of the offence.
6 Upon his conviction on 19 December 2001, the applicant was remanded in custody for sentence. He was ultimately sentenced to a term of 2 years imprisonment with parole eligibility. I presume there were two such sentences to be served concurrently. They were backdated to 19 December 2001. The applicant's earliest eligibility date for parole is therefore 19 August 2002.
7 On 11 February 2002, the applicant appealed against the convictions but not, it seems, against the sentences. Unsurprisingly, the appeals against conviction will not be ready for hearing in the immediate future. The applicant proposes to argue five separate grounds of appeal to which I shall return in these reasons in due course. The trial took place between 3 December and 19 December 2001. It is understandable that preparation for the appeals will take some time. The applicant therefore makes the submission, which I think is likely to be factually correct, that he may serve all or an overwhelming proportion of the non-parole period before the appeals can be heard and determined.
8 As to that circumstance, in Mullally v The Queen [2000] WASCA 26 at par [18], in giving reasons with which Malcolm CJ and Wallwork J agreed, I said:
"One matter raised is the fact that given the time of the year and the timing of the appeal against conviction, it would be unlikely to be disposed of, even if listed expeditiously, before the expiration of the major portion of the non-parole period of the
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- appellant's sentence. That alone cannot be enough to constitute an exceptional circumstance: Robinson v R (1991) 65 ALJR 519 per Gaudron J at 519 - 520, but it may be enough in a case where it is possible for the court considering the grant of bail to conclude that there are such strongly arguable grounds of appeal as to enable the court, without finally determining the matter, to conclude that there are good prospects that the appeal against conviction is likely to be successful."
9 It will be seen that the crucial question will generally be the establishment of strongly arguable grounds of appeal to support the conclusion of likelihood of success in the appeal. In those circumstances, if all or the major portion of a sentence required to be served will in fact be served, then that combination of events will generally, in my opinion, constitute exceptional reasons for the grant of bail in that if the appellant is kept in custody serving the sentence, the right of appeal may be seen to be rendered nugatory. In the recent case of Rechichi v The Queen [2001] WASCA 319, I endeavoured to make the point clearly at par [10] of reasons with which on that occasion Steytler and Roberts-Smith JJ agreed, as follows:
"Both of those cases support the view that where one has a combination of a strongly arguable case on appeal and in addition if bail is refused so much of a sentence would be served as to make the resolution of the point of the appeal in favour of the applicant rather a hollow victory, then bail may be granted and the test may be regarded as satisfied. It is not the case that bail in those circumstances must be granted. It is the case that they present themselves as circumstances which may in a particular case constitute exceptional circumstances and justify the grant of bail and it is to be noted that where the matter is approached in that way the courts have been careful to emphasise that one is concerned both with the presence of a strongly arguable case in the mind of the court hearing the application for bail and the service of time in custody if bail is refused."
10 I turn then to the case which the applicant would seek to make out on appeal. A principal ground is ground A. It asserts that the trial Judge erred in wrongly admitting the evidence of a Mr Ellis which evidence, it is said was inadmissible or ought to have been excluded in the exercise of discretion in that its prejudicial effect substantially outweighed its probative value. The evidence is described as "propensity evidence only"
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- and for reasons given in the ground, it is suggested that the evidence might well have been fabricated.
11 By propensity evidence in this context is meant evidence of similar offences to those charged or which otherwise shows merely that the accused person is of bad character or for some other reason has a propensity to commit the offences charged. Ground A seems to owe something in its formulation to the decision of the High Court in Hoch v The Queen (1988) 165 CLR 292 where it was held that the admissibility of similar fact evidence in cases where sexual offences are alleged depends upon the evidence having a probative value in respect of the commission of the offences charged. That probative value will be absent or insufficiently present to overcome the prejudice attendant upon the admission of such evidence if the evidence is reasonably explicable on the basis of concoction.
12 This statement of the law was further developed by the High Court in Harriman v The Queen (1989) 167 CLR 590, a case where the accused was charged with being knowingly concerned in the importation of heroin and where the Crown sought to lead evidence of earlier sales of heroin involving the accused (which evidence was held to be admissible) and of the use of heroin by him (which evidence was held to be inadmissible).
13 A very useful statement of the law in relation to the admissibility of such evidence is to be found in the case of Pfennig v The Queen (1995) 182 CLR 461. It is sufficient for present purposes to quote the headnote:
"Propensity evidence is not admissible if it shows only that the accused has a propensity or a disposition to commit a crime. The basis for the admission of propensity or similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. The strength of its probative force may lie in the fact that the evidence reveals striking similarities, unusual features, underlying unity, system or pattern such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution, though none of those characteristics is an essential pre-requisite of its admissibility in every case."
14 It appears that related grounds include ground B. That ground asserts that there is an inconsistency in the verdicts of acquittal upon
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- counts 1 and 2 on the indictment, the charges of stealing as a servant, and counts 3 and 4 upon which the applicant was convicted. The ground depends upon the proposition that the money said to have been "laundered", the subject of counts 3 and 4, was the proceeds of the offences of stealing as a servant charged as counts 1 and 2. It is said that there was no evidence properly admissible at trial that the money came from any other source by way of an indictable offence.
15 Ground C is a related ground in that although there are other matters dealt with in its verbiage, it is essentially a complaint that the trial Judge directed the jury that the evidence of Ellis in its entirety, including that which it is said ought to have been excluded, was available as corroboration for the evidence of the Crown's witness, the applicant's ex-wife, a Ms Rogers, who was an accomplice of the applicant.
16 Ground D may be put to one side for the moment, but ground E appears to be a related ground in that it complains, presumably upon the basis that the evidence of Ellis in its entirety was admissible, that the trial Judge "failed to caution the jury regarding the use to which they might put the evidence given by Ellis of other offences allegedly committed by [the applicant] for which he had not been charged". The ground does not say in what terms the caution should have been given and I must say its meaning and effect rather escapes me because the complaint appears to be that the jury should have been told that the propensity evidence could not be used to establish that the applicant was in possession of money which came from thefts of gold other than those, the subject of counts 1 and 2 on the indictment.
17 I have read, as quickly as possible, the four volumes of the application book and I have paid particular attention to transcript references prepared by Mr Stephenson. Putting the matter very broadly, the Crown case in relation to count 1 on the indictment appears to have depended substantially upon the evidence of a shift boss at the mine near Southern Cross at which between October and December 1994 the applicant was employed as an underground miner. This was a Mr Proells who gave evidence that on one occasion he saw the applicant removing from the mine an apparently heavy bag. He saw the applicant on the surface also and told him to go back to work. The applicant said he merely wished to "get rid of what he had" but he did not say what it was. The respondent invited the jury to conclude that it was gold ore but the jury obviously found themselves unpersuaded beyond reasonable doubt and acquitted the applicant of count 1.
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18 Count 2 appears to have depended substantially upon direct evidence given against the accused by an accomplice, one Brooks. His evidence was that he and the applicant, after a firing underground, filled four bags of gold ore. The applicant removed those bags using a machine called a bogger and he later told Brooks that he had hidden them in the bush and then later taken them to Kalgoorlie for processing. Brooks said he was later paid $5,000 in cash by the accused as his share of the proceeds.
19 Counts 5 and 6 also depended upon the evidence of Brooks. He confessed that he had himself, independently of the applicant, been stealing gold ore from the mine and secreting it at his home in Southern Cross. On two occasions, one in late 1994 and the other in early 1995, he gave some of this ore to the applicant so that the applicant could get it processed, sell it and share the proceeds with Brooks. The Crown case was that Brooks in fact received about $1,500 for the first quantity of ore he gave the applicant in this way. The offending transaction for the purposes of count 5 on the indictment was alleged to be that the applicant received the ore in circumstances where he must have known that it had been stolen by Brooks, had it processed, sold it and shared the proceeds with Brooks. The offending transaction in respect of count 6 was that on the second occasion of which Brooks spoke in evidence, the applicant received the ore in circumstances in which, again, he must have known it was stolen. It seems to me to be clear that the applicant could not be convicted of counts 2, 5 and 6 unless they were content to rely upon the evidence of the accomplice Brooks. This, clearly, they were not prepared to do; hence the acquittals.
20 As to counts 3 and 4, the respondent's case was certainly opened upon the basis that they were concerned with the proceeds of gold stealing by the applicant including, but not necessarily limited to, the stealing offences which were the subjects of counts 1 and 2. Certainly the evidence was not so limited.
21 An important witness in relation to these counts which concerned the possession of money was the applicant's then wife, Nicola Rogers. She was rightly treated as an accomplice. Her evidence was that initially, just before Christmas 1994, the applicant showed her a bag containing $20,000 which he said he had made prospecting. She was given some of the money and spent it. Two weeks later, he showed her another amount of money and told her there was $10,000 of which, again, she was given a portion which she spent. Later, the applicant told her that the money had not in fact been made prospecting but from the processing of gold ore which he had stolen from the mine at Southern Cross. Nicola Rogers
(Page 10)
- admitted making use of the funds knowing that that was their source. Count 3 related to the first sum of money she was shown and count 4 related to the second.
22 There was other evidence in relation to these offences given by persons who were not accomplices. They were, firstly, the applicant's mother, Phyllis Rogers, who said that she also was shown a bag of money by the applicant and he used some of it to buy electronic equipment in her presence. She said that when she pressed the applicant for an explanation as to where he got the money, he said that it was from gold he had stolen. Further, the applicant's sister, Megan Wellstead, said that she had been told by the accused that he had a substantial sum of money in a bag but he did not tell her where it came from. It is not completely clear to me from her evidence whether she even saw the bag.
23 The evidence of Nicola Rogers was subjected to very considerable criticism and challenge by the defence at trial. There was much to suggest that apart from the fact that she appears to have been an accomplice of the applicant's, her evidence was to be approached with considerable caution. The evidence of Phyllis Rogers and Megan Wellstead does not appear to have been similarly tainted.
24 The other evidence bearing upon counts 3 and 4 was clearly that of the witness Ellis. He was also a miner and employed the accused at his mine in 1996. They appear to have had a close relationship. So much so that, according to Ellis, the accused confessed to him that while employed on the mine at Southern Cross, not Ellis' mine, he stole gold ore. According to Ellis, the applicant described how it was done. The impression given by Ellis' evidence was that the applicant was saying that he had committed these offences of theft on a number of occasions, stealing in total something like 600 ozs. The ore processed in Kalgoorlie from this source was worth about $300,000. Ellis said that the applicant confessed to him that Brooks was also involved.
25 There was no suggestion that Ellis was an accomplice in respect of those activities, but his evidence was not unnaturally subjected to considerable challenge on behalf of the applicant on the grounds that he had not always spoken in entirely consistent terms about what the applicant had told him and that what he said in evidence the applicant told him could not, having regard to the procedures of the mine, have been the method employed to steal the gold ore. In other words, the suggestion was that the evidence of Ellis was inaccurate when he said that the applicant had made a confession to him in the terms about which he
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- testified. These matters were, of course, clearly before the jury for their consideration.
26 The prosecution opened the evidence of Ellis by saying that the admissions supported the evidence of Proells as to count 1, and Brooks as to count 2. Counsel added:
"It is also consistent with what Nicola and Phyllis Rogers will say about what the accused told them as to his activities in relation to stealing gold from Fraser's mine."
- Certainly the trial Judge left the evidence of Ellis to the jury as being evidence which was capable of corroborating that given by the ex-wife of the applicant, Nicola Rogers.
27 I return then to the proposed grounds of appeal. I do not doubt that they are generally arguable but, in my opinion, ground A is unlikely to succeed. Ellis' evidence was not mere propensity evidence. It was direct evidence which, if accepted, was itself capable of establishing the applicant's guilt of counts 3 and 4, together with the other evidence of his possession of the money, in that it was evidence which, whether directly referable to counts 1 and 2 or not, was capable of establishing that the money was the proceeds of the theft of gold ore on more than one occasion from the mine at Southern Cross by the applicant. It was therefore evidence directly referable to establishing that the money was the proceeds of a major offence committed in fact on more than one occasion. In those circumstances, it was not to be subjected to the rules in respect of the admissibility of similar fact or propensity evidence.
28 In those circumstances, the evidence was clearly admissible and ground C would fall away. Apart from its own probative value, the evidence was clearly capable of corroborating that given by Nicola Rogers. Further, there could be no requirement for any direction of the kind envisaged by ground E, putting to one side the merits which that ground might otherwise be seen to have. Further, the recitation of the evidence relative to the various counts which I have given in summary form, in my opinion, makes it clear that there is unlikely to be merit in the suggestion of inconsistency of verdicts which is at the heart of ground B.
29 In the argument before me, ground D was not strongly relied upon. It is concerned with the adequacy of the directions of the trial Judge in respect of the evidentiary value of lies allegedly told by the applicant in respect of the payment of a fine. I do not propose, although I have considered this ground, to discuss it in any detail. It is sufficient, in my
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- opinion, for these reasons that I should say that whether or not the directions of the trial Judge might be improved upon in this regard, the matter canvassed in this ground is unlikely, in my opinion, to lead to a decision by the Court of Criminal Appeal that upon that basis alone the convictions should be quashed.
30 In short, it seems to me that the proposed grounds of appeal lack the persuasive force, upon my summary analysis of them, to demonstrate that the appeal is likely to succeed. In those circumstances, I am not able to find that there are exceptional reasons why the applicant should be granted bail. His application is refused.
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