Elkington v The Queen
[2002] WASCA 185
•17 JULY 2002
ELKINGTON -v- THE QUEEN [2002] WASCA 185
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 185 | |
| COURT OF CRIMINAL APPEAL | 17/07/2002 | ||
| Case No: | CCA:180/2001 | 6 MAY 2002 | |
| Coram: | MURRAY J STEYTLER J PARKER J | 6/05/02 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal granted Appeal allowed Conviction quashed Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | SHERRI-ANNE ELKINGTON THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against conviction Fresh evidence Turns on own facts |
Legislation: | Nil |
Case References: | Gallagher v The Queen (1986) 160 CLR 392 Lawless v The Queen (1979) 142 CLR 659 Mickelberg v The Queen (1989) 167 CLR 259 Ratten v The Queen (1974) 131 CLR 510 Collard v The Queen [2000] WASCA 417 Craig v The Queen (1933) 49 CLR 429 Elkington v The Queen [2002] WASCA 34 Kennedy v The Queen, unreported; CCA SCt of WA; Library No 6116; 2 December 1985 Leuschel v Police (SA) (1999) 75 SASR 231 R v Ahern (1987) 26 A Crim R 280 R v Bernt (1994) 70 A Crim R 1 Roser v The Queen (2001) 24 WAR 254 Salihos v The Queen (1987) 78 ALR 509 Stafford v The Queen, unreported; CCA SCt of WA; Library No 4154; 28 May 1981 Whitehorn v The Queen (1983) 152 CLR 657 Yarran v The Queen [2001] WASCA 52 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ELKINGTON -v- THE QUEEN [2002] WASCA 185 CORAM : MURRAY J
- STEYTLER J
PARKER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction - Fresh evidence - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Application for leave to appeal granted
Appeal allowed
Conviction quashed
Retrial ordered
Category: B
Representation:
Counsel:
Applicant : Ms C A McKenzie
Respondent : Mr R E Cock QC
Solicitors:
Applicant : McKenzie Lalor
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gallagher v The Queen (1986) 160 CLR 392
Lawless v The Queen (1979) 142 CLR 659
Mickelberg v The Queen (1989) 167 CLR 259
Ratten v The Queen (1974) 131 CLR 510
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Case(s) also cited:
Collard v The Queen [2000] WASCA 417
Craig v The Queen (1933) 49 CLR 429
Elkington v The Queen [2002] WASCA 34
Kennedy v The Queen, unreported; CCA SCt of WA; Library No 6116; 2 December 1985
Leuschel v Police (SA) (1999) 75 SASR 231
R v Ahern (1987) 26 A Crim R 280
R v Bernt (1994) 70 A Crim R 1
Roser v The Queen (2001) 24 WAR 254
Salihos v The Queen (1987) 78 ALR 509
Stafford v The Queen, unreported; CCA SCt of WA; Library No 4154; 28 May 1981
Whitehorn v The Queen (1983) 152 CLR 657
Yarran v The Queen [2001] WASCA 52
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1 MURRAY J: I have read the reasons for decision to be published by Steytler J. They express sufficiently for me the reasons why I joined in the orders made by the Court on the hearing of the appeal. I have nothing to add.
2 STEYTLER J: On 16 May 2001 the applicant was convicted by a jury of one count of armed robbery while in company. She was sentenced to a term of 5 years' imprisonment. She sought leave to appeal against her conviction and, at the conclusion of argument on the appeal, the Court unanimously extended the time for bringing the application for leave to appeal, granted that application, allowed the appeal, quashed the conviction and ordered a retrial. These are my reasons for joining in those decisions.
3 The Crown case, at the trial, was that the applicant and two co-offenders, Tracey Anne Lynch ("Lynch") and Chantelle Gwen Barry ("Barry"), robbed a delicatessen in Esperance, known as the Castletown Deli, on 19 February 2000.
4 Evidence of what took place in the course of the robbery was given by Jane Clarke, who was working in the deli at the time, and by Mr William Devine, who owned the deli and was present during the robbery. Both said that the deli was robbed by two women, armed with knives. One of these was a woman of large build wearing a balaclava-like object over her head with blonde hair protruding. This woman confronted Mr Devine in his office. The second woman was described by Ms Clarke as being a woman of medium build, approximately 180 centimetres tall, with tanned skin and brown shoulder-length hair. She wore floral leggings and a T-shirt. She confronted Ms Clarke, made her open a till and emptied the notes and gold coins from the till into a plastic bag. The two women then left.
5 Ms Clarke was later shown two photoboards. She could not identify anyone from the first board (notwithstanding that it contained a photograph of Lynch), but identified the applicant, on the second board, as being the person who removed the money from the till.
6 The Crown also led evidence from two men, Jamie Smithson and Lee Hallam, who observed two women running across the road from the deli. They were in a vehicle being driven by Mr Smithson when they saw the two women run across the road in front of them. The two men recognised one of the women as being Barry, although both said that she had a beanie over her face. Neither recognised the second woman, but
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both said that she was slim with dark hair and tanned skin. Both men said that the two women ran to La-Page Street and got into a blue Hyundai Excel vehicle with tinted windows, which Mr Smithson recognised as being Lynch's vehicle. One woman got in from the driver's side and the other from the passenger side and the car was driven off in a hurry.
7 Mr Smithson said that he knew Lynch well enough to recognise her. He did not think that she was one of the two women that he saw. However, he said that he could not be certain. Mr Hallam, too, knew Lynch. He said that she was not one of the two women that he saw.
8 Each of Lynch and Barry gave evidence. Lynch's evidence was essentially to the effect that the robbery had been committed by the applicant and Barry and that, while she had driven the two women to La-Page Street and waited for them while they went to the deli, she had done this on the assumption that they had gone there to buy something. Barry's evidence was to the effect that all three women had agreed to do the robbery, at the suggestion of the applicant. She said that Lynch had gone into the shop to buy a soft drink and then returned to tell the other two women who was in the shop and where the tills were. Lynch then drove the vehicle to La-Page Street and parked it there while the other two women robbed the shop. However, Barry had at first told the police that Lynch had not been involved in the robbery and that, while Lynch had driven the car, she had not known what the other two women proposed to do. Then, some five days later she had told the police that the robbery had been committed by herself and Lynch and that the applicant had had nothing to do with it.
9 Next, the Crown led evidence from Josephine Williams, who lived at 7 La-Page Street in Esperance. On the day of the robbery she was outside her home, painting her veranda. At about 1 pm, shortly before the time of the robbery, she saw a small, dark blue, two-door car pull into her next-door neighbour's driveway, reverse out of it and park on the verge of her neighbour's property. She noticed two people sitting in the front of the car, but could not see the back seat. Two women then left the car. She could not see the driver's side of the car as it was obscured by a tree. Not long thereafter, she noticed the same two women returning, one of them wearing a black balaclava and the other carrying something white. She said that both women entered the car from the passenger side and "they were … panicking and saying, 'Quick; stop; get in the car.'" She said that the first person to get into the car "climbed somewhere and I just assumed it was into the driver's seat". The car then drove off. She was
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- unable to say whether the person in the driver's seat was one of the two women she had seen getting into and out of the car.
10 The Crown led evidence from Ruth Barry, Chantelle Barry's mother, to the effect that the applicant had been with Chantelle Barry on the day of the robbery and that she had in her possession a grocery shopping bag, and from Allan Little, the owner of the caravan park at which the applicant lived, who saw the applicant with "neatly folded" money in her purse at a time not long after the robbery occurred.
11 The applicant gave evidence in her own defence. She denied that she had anything to do with the robbery. She also led evidence from Ms Williams' neighbour, Philip Shelton. He lived at 9 La-Page Street at the time of the robbery. On 19 February 2000 he was walking home on Goldfields Road. The end of La-Page Street, which is a cul-de-sac, backs onto Goldfields Road. He noticed a car parked in the cul-de-sac. He assumed that the occupant or occupants were lost and approached the car to see if he could help. He said that he walked close enough to the car to see that there was nobody in it. He said that, if there had been someone in it, "they would have been hiding under the seat or something like that" as he was within three or four metres of the car. He said that he could see through the car and that he could see the seats or the backs of the seats. He said that there was definitely nobody sitting in the car. Mr Shelton said that he saw the car around the middle of the day and that the time could have been between 10 am and 2 pm. He did not hear or see the car leave. He said that the car was "a small Asian import, Taiwanese or Korean import … fairly new or very new". He could not recall the colour. He "thought it was a hatch at the time, but … could have been wrong".
12 Mr Shelton also said that, not long after he saw the vehicle, the police knocked on his door and asked him if he had seen anything and he told them what he had seen. He said that he spoke to the police within an hour of the time at which he had observed the car. Mr Shelton was not cross-examined by the Crown in respect of his evidence of his interview with the police.
13 The Crown had earlier led evidence from Police Sergeant Rodney Klanjscek, who was involved in the investigation of the robbery. He was asked, in the course of cross-examination, if he had spoken to Mr Shelton. He said that that name did not "ring a bell". He said that he did not have Mr Shelton's name recorded anywhere.
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14 The Crown prosecutor, in the course of her closing submissions at the trial, commenced by referring to the evidence of Mr Shelton. She said:
"You actually heard quite a lot of evidence over the last 2 days and with one exception, all of it pointed compellingly to the guilt of the accused. What was that one exception? The evidence of Mr Shelton, so let's talk about that first so we can work out whether that hurts the crown case in any way or whether you think it is not relevant.
What did Mr Shelton see? He saw an empty, parked car. That's what he saw. Was that Tracey Lynch's car? Absolutely no way. Mr Shelton couldn't remember the colour of the car, whether it was a two or a four-door car, whether it had tinted windows, the make. He wasn't even sure if it was a sedan or a hatchback. He couldn't tell you any of those things …
Now, on the day that he saw it, he says he spoke to the police. On the day, he would have remembered the colour, he probably would have remembered the make. If he had paid that much attention to it, you would have thought he would have remembered if it was a two-door or a four-door and whether it had tinted windows. He would have remembered those things on the day and he would have told the police when they asked him, 'Yes, I saw a car.'
Now, at that stage the police, as we know, knew that the robbers had driven off in a blue car with tinted windows that most of the witnesses said was a Hyundai. They knew that so if they had gone knocking on Mr Shelton's door and said, 'Mate, did you see anything?' and he said, 'Oh, yeah, I saw this red Commodore parked up the road at about 11.30 and there was no-one in it, mate' - if he had said that to them, they would have said, 'Yeah, okay. Thanks very much for your time but you're obviously talking about a different car,' but if he had said, 'At about quarter past 1 I saw a blue car parked up there and it was a small car, it was a Hyundai, it was a two-door, it was a hatchback,' they would have said, 'Great. Where are your details? Give us a statement.'
His details were not in the sergeant's running sheet anywhere. We know the sergeant wasn't speaking to him and he didn't give
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- a statement to the police so how can we explain that? Well, maybe there was a conspiracy going on. Maybe the police deliberately didn't take a statement from him because they didn't want to stuff up the case against the accused, but what did the police know at that time?
All of these witnesses had seen only two people. Nobody had seen inside the car, nobody knew at that time that there was a driver in the car, so the police weren't trying to find evidence to support a particular case because they didn't know the full story at that time. Your commonsense tells you that if he had seen a blue car, the police would have known about it. They would have taken his details, they would have taken a statement, so commonsense tells you the car he saw was not Tracey Lynch's car."
15 The Crown prosecutor then went on to refer to a number of other defects, as she saw them, in Mr Shelton's evidence before concluding by saying:
"[S]o commonsense, where the car was parked, time factor, and Mrs Williams, all tell you that as helpful as Mr Shelton was trying to be, he saw a different car.
What else tells you that? All of the other evidence that says that the accused was one of the robbers. Let's not beat about the bush here. There are two possibilities: one is the accused and Chantelle Barry did that robbery while Tracey Lynch was in the car - that's one possibility; the other possibility is that Tracey and Chantelle Barry did the robbery. There's no other option. No-one is suggesting that aliens came down to earth and went and did the robbery and that Chantelle Barry is just taking the rap for it because it's what gets her high. No-one is saying that.
Those are two options and if you accept those are the two options, then any evidence that tells you one of the robbers was not Tracey Lynch tells you that one of them was the accused. When you look at that evidence, if you accept that one of the robbers was not Tracey Lynch and that one of them was the accused, again you know that Mr Shelton saw a different car."
16 The trial Judge, in the course of his charge to the jury, said, when speaking of Mr Shelton's evidence, the following:
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- "Of course he couldn't exclude the possibility that somebody may have been crouching under the dashboard or crouched down at the back of the car, but he came within 15 feet of the car, he said, and he saw nobody in it. If you accept that evidence, then you may well think that if it was the car, the getaway car, then he would have seen Tracey Lynch sitting in it listening to the radio, if that was the truth of the matter.
Mr Shelton said that he had the car under observation for about a minute. He said that the police knocked on his door about an hour after he had seen the car - that was his assessment - and asked him what he had seen, but of course there is no record of any interview with Mr Shelton on the police running sheet. There is no explanation for that. You will recall that Sergeant Klanjscek was asked whether he had any knowledge of Mr Shelton. He looked carefully through his running sheet. There was nothing on it. He said several times that that name did not ring a bell with him.
If you accept Mr Shelton's evidence that the police came to see him, you do not know why the running sheet has no record of it. You cannot guess or speculate. There is simply no evidence about that matter. If Mr Shelton saw Tracey Lynch's car with nobody in it, then that is of course quite inconsistent with the crown case because the crown case is that Tracey Lynch was sitting in the car while the other two went and did the robbery."
17 It has since been discovered that there is, in the police notebook of First-Class Constable Brad Richards-Scully, who interviewed Mr Shelton shortly after the robbery, a record of what he was told by Mr Shelton. Notwithstanding that all relevant police documents had been sought by the applicant prior to the trial, this document was never produced and nor was there any other record of it. It recorded Mr Shelton's name, address and telephone number and the words "Saw car only. Blue 4-door car small round shape. Alloy wheels". It is this which has given rise to the first two grounds of appeal, being the only grounds which it is necessary to consider.
18 Ground 1 is to the effect that there was a miscarriage of justice "by reason that the Crown had in its possession or available to it during the trial documentary evidence, namely the police notebook of First Class Constable Brad Richards-Scully, which the applicant had requested but was innocently denied by the Crown". Ground 2 is that there was a
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- miscarriage of justice "by reason that fresh evidence has become available to the appellant since the trial, namely the notebook of First Class Constable Brad Richards-Scully, the relevant contents of which were not contained in the Police running sheet record of investigation subpoenaed by the applicant to be produced at trial".
19 There was no challenge, at the hearing of the appeal, to the production of the constable's notebook as fresh evidence. The Crown conceded that it had not been available to the applicant at the time of her trial, notwithstanding that she had applied reasonable diligence in obtaining all material relevant to the investigation of the case. (See, in this respect, Ratten v The Queen (1974) 131 CLR 510, at 516 - 517, Lawless v The Queen (1979) 142 CLR 659 at 666, 675 and Mickelberg v The Queen (1989) 167 CLR 259 at 301).
20 It will be apparent, from what I have said, that the applicant's defence depended very largely upon the proposition that only two people were involved in the robbery and that there had been no third woman in the motor vehicle at the relevant time. That, in turn, made Mr Shelton's evidence critical to her case.
21 That the Crown prosecutor saw it as being so is evident from the fact that her address to the jury commenced in the manner that I have set out. It is also apparent that the Crown sought to discredit that evidence by suggesting that, in the absence of any police record of it, it could not have been material and, consequently, it could safely be assumed that he did not say anything about having seen a blue Hyundai. However, that submission could not have been made, in anything approaching the manner in which it was made, had Constable Richards-Scully's notebook been available. While it seems that Mr Shelton did not say what was the make of the car that he saw, he had, as the notebook makes plain, described it as a blue four-door car which was small with a round shape. His description was consequently substantially consistent with Lynch's car.
22 In those circumstances, and having regard, also, for the trial Judge's comments to the effect that, if the jury accepted Mr Shelton's evidence, they might well think that, if it was the getaway car he saw, he would have seen Lynch sitting in it, and that there was no explanation for the absence of any record of any interview with Mr Shelton (although his Honour, very properly, told the jury not to guess or speculate about the reasons for that absence), it seems to me that the absence of the notebook
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at the trial was undoubtedly material, having regard for the way in which the Crown, in ignorance of its contents, argued its case.
23 It also seems to me that, while there was a good deal of evidence against the applicant, there was a significant possibility that, if the Crown prosecutor had not been able to discredit Mr Shelton's evidence in the way in which that was done, the jury would have accepted that the car seen by Mr Shelton was that belonging to Lynch and would consequently have entertained a reasonable doubt on the question whether a third person was involved in the robbery and hence on the question whether or not the applicant was guilty of the offence charged. It is, in this respect, established that, in deciding whether to set aside a conviction on the ground of fresh evidence, the test is whether the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. (See Gallagher v The Queen (1986) 160 CLR 392 at 399, 402 and 421 and Mickelberg v The Queen, above, at 273.) In my opinion, that test has been satisfied in this case.
24 It was for those reasons that I joined in the decision to allow the application for leave to appeal, to uphold the appeal and to order a retrial. I should add that the delay in lodging the application was ascribable to the fact that the new evidence only came to light after the time for appealing had already expired and also to delays in obtaining legal aid and access to a transcript. It was, in those circumstances, appropriate to extend the time for bringing the application for leave to appeal.
25 PARKER J: It was essentially for the reasons now published by Steytler J that I joined in the decision to extend the time for bringing the application for leave to appeal, to grant leave to appeal, allow the appeal and order a retrial.
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