Evans v The Queen

Case [2007] HCA 59

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

GRAHAM JOHN EVANS   APPELLANT

AND

THE QUEEN   RESPONDENT

Evans v The Queen [2007] HCA 59
13 December 2007
S219/2007

ORDER

1.   Appeal allowed.

2.   Set aside the orders of the Court of Criminal Appeal made on 7 September 2006, and in their place order that:

(a)the appeal to that Court be allowed,

(b)the appellant's convictions be set aside, and

(c)there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with G A Bashir for the appellant (instructed by Legal Aid Commission of NSW)

D C Frearson SC with M M Hobart for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Evans v The Queen

Criminal law – Evidence – Admissibility of in court demonstrations – An armed man wearing overalls, balaclava and sunglasses committed a robbery – During the trial the appellant was required to wear overalls and a balaclava found at his residence and sunglasses not in evidence as well as walk before the jury and say words attributed to the robber ("the in court demonstration") – Whether the in court demonstration was relevant – Whether the in court demonstration was unfairly prejudicial – Relevance of distinction between demonstrations, experiments, inspections, reconstructions and views – Whether s 53 of the Evidence Act 1995 (NSW) ("the Act") applied to in court demonstrations – Whether requiring the appellant to perform the in court demonstration was permitted either by s 53 of the Act or at common law.

Criminal law – Evidence – Admissibility – Whether showing witnesses the overalls and balaclava found at the appellant's residence was relevant – Whether showing witnesses the overalls and balaclava was unfairly prejudicial.

Criminal law – Appeals – Application of the proviso– Whether the trial judge's error in not admitting alibi evidence which the appellant proposed to call denied the application of the proviso – Whether the failure of the trial judge to give adequate reasons for rulings made during trial was a miscarriage of justice – Whether the judicial warnings to the jury were adequate – Whether the in court demonstration was so prejudicial as to deny the application of the proviso – Whether the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged.

Words and phrases – "demonstration", "experiment", "inspection", "unfairly prejudicial", "reconstruction", "relevance", "view".

Criminal Appeal Act 1912 (NSW), s 6(1).
Evidence Act 1995 (NSW), ss 53, 55, 137.

  1. GUMMOW AND HAYNE JJ.   In February 2002, security cameras photographed an armed man robbing persons of money.  The offender was wearing overalls, sunglasses, and a balaclava which covered all of his face except eyes and mouth.  After the robbery, a baseball cap and a tissue were found on the floor near where the robber had stood.…

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AGLC
Evans v The Queen [2007] HCA 59
Case
[2007] HCA 59
Decision Date

CaseChat Overview and Summary

The appeal in *Evans v The Queen* concerned the admissibility of evidence presented during the appellant's trial for robbery. The prosecution requested that the appellant, during the trial, wear a balaclava and overalls found at his residence, along with sunglasses not in evidence, and walk before the jury while uttering words attributed to the robber. The central dispute revolved around whether this "in court demonstration" was legally permissible.

The High Court of Australia was required to determine several legal issues. These included whether the in-court demonstration was relevant to the proceedings, whether it was unfairly prejudicial to the appellant, and the applicability of section 53 of the *Evidence Act 1995* (NSW) to such demonstrations. The Court also considered whether the common law permitted such conduct if the Act did not apply, and whether the trial judge's rulings and warnings to the jury regarding this and other evidence, including the exclusion of alibi evidence, constituted a miscarriage of justice. Finally, the Court had to consider whether, in light of any errors, the proviso to section 6(1) of the *Criminal Appeal Act* could be applied to uphold the conviction.

A majority of the High Court, comprising Gummow and Hayne JJ, allowed the appeal. Their reasoning, in part, differed from the joint reasons by finding that the in-court demonstration was legally irrelevant to the issues in the trial, rather than being unfairly prejudicial. This finding was determinative of the appeal. Kirby J agreed with the orders proposed in the joint reasons, while Heydon and Crennan JJ dissented.

The High Court ordered that the appeal be allowed, the orders of the Court of Criminal Appeal be set aside, and that the appellant's convictions be quashed, with a new trial to be ordered.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal made on 7 September 2006, and in their place order that:

(a) the appeal to that Court be allowed,

(b) the appellant's convictions be set aside, and

(c) there be a new trial. (Joint decision of Gummow and Hayne JJ, Kirby J delivering separate reasons, but agreeing with the joint orders, Heydon and Crennan JJ dissenting)

Background

Background to the litigation

In most respects, I agree in the joint reasons. However, I disagree with the analysis in the joint reasons where they strike out, for the first time, upon a line of reasoning that was not previously argued or considered[36]. On this aspect of the case, I agree in what Heydon J has written in his reasons, although I differ from the ultimate conclusion reached by his Honour[37]. Save for this difference, which reflects an earlier divergence in this Court on a like question[38] (and which, as there, does not ultimately produce a different outcome) my own analysis and conclusion result in my agreement in the orders proposed in the joint reasons. The appeal must be allowed.[36]Namely, that the evidence proffered by having the appellant, at the prosecutor's request, wear a balaclava and overalls before the jury in court, was not relevant to any issue in the appellant's trial. See joint reasons at [23]-[24].[37]Reasons of Heydon J at [262]-[264].[38]Smith v The Queen (2001) 206 CLR 650 at 653-654 [6], 656 [12], 657-659 [20]-[23].The facts and legislation The facts relevant to the appeal are stated compendiously in other reasons[39]. It would be superfluous for me to restate them. [39]Joint reasons at [11]-[14]; reasons of Heydon J at [129], [133]-[135], [137]-[150]. Similarly, the other reasons explain comprehensively the course followed in the appellant's trial including in the questions addressed to witnesses about the appearance of the clothing (overalls and a balaclava) worn by the offender when committing the offences and aspects of the trial judge's conduct of the proceedings about which complaint is made. I will repeat none of this material. The applicable provisions of the Criminal Appeal Act[40] and of the Evidence Act 1995 (NSW)[41] ("the Evidence Act") are also stated elsewhere. I incorporate all of those provisions by reference. Adopting this course allows me to proceed directly to the points of agreement with, and difference from, the views expressed by my colleagues.[40]See reasons of Heydon J at [130].[41]Reasons of Heydon J at [148]. See also at [186].The issues The other reasons clarify the issues that now fall to be decided. Those issues are the ones expressed in the appellant's several grounds of appeal to this Court which are helpfully set out in the reasons of Heydon J[42]. So presented, the controversies that this Court is asked to resolve may be summarised as follows:(1)The relevance of clothing issue: Whether the Court of Criminal Appeal erred in failing to hold that the trial had miscarried as a result of the admission of the evidence of witnesses concerning items of clothing taken from the appellant's home some 22 months after the offences, suggested to be similar to clothing worn by the offender at the time of the offences and, on that ground, relevant to questions for decision by the jury[43];(2)The demonstration issue: Whether the Court of Criminal Appeal erred in concluding that s 53 of the Evidence Act did not apply to an in-court demonstration in which the prosecutor required the appellant to perform by dressing up in a balaclava and overalls, walking in front of the jury and saying words attributed to the offender by one witness[44] ("the demonstration"). If s 53 of that Act did not apply to the demonstration, did any residual rules of the common law apply to render such questioning and conduct impermissible? Whether, otherwise, such evidence was inadmissible as prejudicial and unfair, or as involving the splitting of the prosecution case, or as condoning improper conduct on the part of the prosecutor, in respect of which the Court of Criminal Appeal should have provided redress to the appellant?(3)The judicial warnings issue: Whether the Court of Criminal Appeal ought to have held that a miscarriage of justice had occurred by reason of the failure of the trial judge to direct the jury concerning the specific dangers occasioned by the demonstration, questioning and procedures referred to in issues (1) and (2)[45]. In particular, whether, in the circumstances, the attempted warning given by the trial judge to the jury about the dangers inherent in the use of in-court evidence for a suggested similarity between descriptions and appearances of items of clothing, the appearance of the accused when dressed up, walking and speaking[46], and the imperfect evidence of surveillance videotapes, taken at the time of the offences, were defective for the lack of specific warnings to the jury about the dangers of convicting the appellant on the basis of any such perceived resemblance or similarities;(4)The sufficiency of reasons issue: Whether the Court of Criminal Appeal erred in failing to uphold the appellant's complaints about the omission of the trial judge to give adequate reasons for critical rulings made in the course of the trial (including in respect of some issues for which reasons were reserved but never subsequently stated)[47]; and(5)The proviso issue: Whether, in light of the resolution of the foregoing issues and the appellant's complaints of consequential or other errors of law and miscarriage of justice (including the wrongful exclusion of alibi evidence) or for reasons of a departure of the appellant's trial from the fundamental assumptions of a fair trial[48], the Court of Criminal Appeal erred in dismissing the appeal on the basis of the "proviso" to s 6(1) of the Criminal Appeal Act.[42]Reasons of Heydon J: ground 1 at [136], ground 2 at [168]; ground 3 at [228]; ground 4 at [237] and ground 5 at [249].[43]cf reasons of Heydon J at [136].[44]Reasons of Heydon J at [168]. The prosecutor also invited the appellant to wear her own sunglasses, evidently to mimic still further the appearance of the offender. Those sunglasses were not in evidence. Their introduction into the case by counsel was rightly criticised by the Court of Criminal Appeal. That error compounded the errors and prejudice of the demonstration upon which the prosecutor had embarked. [45]Reasons of Heydon J at [228].[46]Reasons of Heydon J at [231]-[232].[47]Reasons of Heydon J at [237].[48]cf Weiss v The Queen (2005) 224 CLR 300 at 317-318 [46]; cf joint reasons at [10].Narrowing the issues

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GUMMOW AND HAYNE JJ KIRBY J (dissent) CRENNAN J

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Ratio Decidendi

Legal Principle Established

Established by: GUMMOW AND HAYNE JJ, CRENNAN J

The remaining issues: The foregoing reasoning brings me to the two remaining issues that I need to address. The first is the application to the demonstration of the common law rules that remain applicable because s 53 of the Evidence Act does not govern this case. The second is the resulting application of the "proviso" in s 6(1) of the Criminal Appeal Act, including to the erroneous exclusion at trial of the alibi evidence, pursuant to the Criminal Procedure Act 1986 (NSW), s 150. I turn to address these issues.In-court demonstration: relevant but unfairly prejudicial A new "relevance" issue: I now arrive at the point where I depart from the joint reasons. Those reasons[75] conclude that no issue about the lawfulness of a "demonstration" arises (whether under the Evidence Act or the common law). For the joint reasons, an anterior legal question is presented. This is whether what was done at the prosecutor's request was "relevant". The joint reasons conclude that this is the "determinative" question. Those reasons answer the question adversely to the prosecution. That answer is fatal to the reception of such evidence. The evidence should not have been received not because it was unfairly prejudicial to the appellant but because it was legally irrelevant to the issues arising in the appellant's trial.[75]Joint reasons at [18]-[19]. I disagree with this analysis. Its only merit, as I see it, is that it obviates consideration of questions otherwise arising as to how Pt 2.3 of the Evidence Act (or the residual common law) would apply to the use of any "demonstration" actually carried out[76].[76]Joint reasons at [32]. Rejection of irrelevance: There are several reasons why, in my view, this Court should not adopt the analysis embraced in the joint reasons. First, it is not an argument that is raised in any of the appellant's grounds of appeal before this Court. To the contrary, as the relevant ground (ground 2.2), set out in the reasons of Heydon J, demonstrates[77], the appellant's objection to the demonstration before this Court was not made on the footing that such conduct proffered no relevant evidence for the consideration of the jury. His ground of appeal impliedly accepts that what the appellant was asked to do could be judged by the jury to be relevant to the critical issue for decision, namely the identification of the appellant as the offender. Instead, the attack in this Court, according to the applicable ground of appeal, was on the permissibility of the demonstration, measured on the footing that it was designed to elicit evidence that was relevant but unfairly prejudicial to the appellant. [77]Reasons of Heydon J at [168]. This Court is a court of error. Under the Constitution, appeals to this Court are limited to correcting errors of the courts below[78]. The purpose of a constitutional "appeal" is to quell a controversy between the parties, brought to this Court for resolution[79]. Ultimately, unless an issue is raised on the record, as for example by a ground of appeal (or cross-appeal or notice of contention) or where the parties and the court agree to a relaxation of the rules so as to allow an issue to be raised more informally, there is no relevant controversy for the Court to quell. This Court does not enjoy a roving commission to create new grounds of appeal so that it might decide an appeal upon some basis about which no party is complaining. [78]Mickelberg v The Queen (1989) 167 CLR 259 at 267; Eastman v The Queen (2000) 203 CLR 1 at 13 [18], 51 [158], 58 [178]; cf 76 [232].[79]Singh v The Commonwealth (2004) 222 CLR 322 at 383 [152] per Gummow, Hayne and Heydon JJ. See also Batistatos v RTA (NSW) (2006) 226 CLR 256 at 280 [63] per Gleeson CJ, Gummow, Hayne and Crennan JJ.