Fox v The Queen
[2002] TASSC 13
•25 March 2002
[2002] TASSC 13
CITATION: Fox v R [2002] TASSC 13
PARTIES: FOX, Trevor Stuart
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 66/2001
DELIVERED ON: 25 March 2002
DELIVERED AT: Hobart
HEARING DATES: 12 March 2002
JUDGMENT OF: Cox CJ, Underwood and Crawford JJ
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Juries - Discharge and excusing from attendance - Prejudice to the accused - Whether jury should have been discharged following comment by Crown counsel in closing address.
Stuart v R (1959) 101 CLR 1, applied.
R v Hnoudis [1999] SASC 203, followed.
Aust Dig Criminal Law [768]
Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Unsworn statements and comment on failure to give sworn evidence - Comment - By others - By Crown counsel in closing address.
Stuart v R (1959) 101 CLR 1, applied.
R v Hnoudis [1999] SASC 203, followed.
Evidence Act 1910 (Tas), s85(8).
Aust Dig Criminal Law [555]
REPRESENTATION:
Counsel:
Appellant: P W Barker
Respondent: T J Ellis SC
Solicitors:
Appellant: Ogilvie Jennings
Respondent: Director of Public Prosecutions
Judgment Number: [2002] TASSC 13
Number of Paragraphs: 19
Serial No 13/2002
File No CCA 88/2001
TREVOR STUART FOX v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
UNDERWOOD J
CRAWFORD J
25 March 2002
Order of the Court
Appeal dismissed.
Serial No 13/2002
File No CCA 88/2001
TREVOR STUART FOX v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
UNDERWOOD J
CRAWFORD J
25 March 2002
The appellant was found guilty of one count of receiving, convicted and sentenced to a term of imprisonment. He appealed against the conviction upon the single ground that the learned trial judge erred in failing to discharge the jury when asked to do so. At the conclusion of the hearing of the appeal, the Court dismissed it, saying that reasons for doing so would be published later. These are those reasons.
On 22 October 1999, police officers went to the appellant's home at Claremont. There they found a quantity of power tools. These tools had been stolen from Auld Constructions, builders, six days before they were found at the appellant's house. In his video-taped interview with police officers, the appellant said that he bought these tools from one Scott Williams. Until he was sacked four days after the robbery, Scott Williams was an employee of Auld Constructions. In cross-examination, counsel for the appellant elicited the fact that Mr Williams was sacked for stealing the tools that were found in the possession of the appellant on 22 October 1999.
According to the police evidence at trial, the appellant volunteered to them at the time the property was found, that he had bought all of it from Scott Williams, that it was "legitimate" and that he had receipts. At that stage, the appellant gave police officers a receipt. This document, tendered in evidence, was a single lined page that appeared to have been torn from a small notebook. The writing on it was clearly the work of two people. In one hand there was written "sold to trevor fox for $120 from scott williams ¾16.9.99". There follows a list of four of the 18 pieces of stolen property found on the premises. At the bottom of the page appears what purports to be the signature of Scott Williams. According to the evidence, the replacement value of these pieces of property total $765.
In his videotaped interview with police officers, the appellant volunteered that he had receipts for the stolen property on five separate occasions. He made it clear to the interviewing officers that he bought the property in good faith from Mr Williams, that he did not know it was stolen, and that he had receipts for it. The interview concluded in these terms:
"Q All right, these other receipts you will produce them for us?
A I'll produce them mate no worries.
Q OK, when will you, when will you bring those in?
A Ohh soon as I go through 'em
Q OK, what we'll expect them tomorrow I mean on Monday or something?
A You certain can mate.
Q That's give you the weekend to go through them.
A Yeah you'll certainly have 'em Monday don't worry about that."
The Crown led evidence at trial that no receipts were produced to the police other than the one that was tendered in evidence.
To use his own word, counsel for the appellant "coped" with this at trial by cross-examining one of the interviewing officers and eliciting from him:
· whether or not any further receipts were produced, the appellant was to be charged immediately following his interview with the crime of receiving; and
· when the appellant was last seen by the interviewing officer "he was in custody at the watch house".
The appellant neither gave nor adduced evidence at his trial.
In the course of his closing address, counsel for the Crown referred to the shortcomings of the exhibit receipt and said:
"Now Mr Barker made the point yesterday when he cross-examined Constable Harper that the accused was charged immediately following his interview. He might put forward that as a suggestion as to why the accused declined to co-operate further by producing more of these mysterious receipts, but I want to say this to you, the fact that someone's charged doesn't prevent them going back to the police and saying, 'Well look, here's all the receipts I was talking about', you know, 'I've been wrongly charged', and it certainly doesn't prevent him coming into this Court and presenting to you these receipts if they exist. But no, all you've seen is one very dodgy receipt."
At the conclusion of counsel's address, and in the absence of the jury, counsel for the appellant submitted that Crown counsel had commented on the failure of the appellant to give evidence, that such comment was prohibited by law and that the jury should be discharged.
The learned trial judge refused to accede to the submission and the trial proceeded to a conclusion.
The Evidence Act 1910, s85(8) provides:
"(8) The prosecutor shall not, in any criminal proceedings, comment on the failure of the defendant to give evidence in the proceedings, but he may comment on the failure of any other person, including the spouse of the defendant, to give evidence in the proceedings."
The learned Director of Public Prosecutions, Mr Ellis SC who appeared for the respondent, submitted that Crown counsel had not acted in contravention of the subsection. He submitted that the subsection was narrow in its terms and confined to a prohibition against comment on the failure of the accused to give evidence. Mr Ellis contended that it did not prohibit comment on the failure of an accused to adduce evidence and the receipts could have been put before the jury through a witness other than the accused. Whilst we accept that Mr Ellis' construction of the subsection is correct, the plain inference from Crown counsel's words:
"… and it certainly doesn't prevent him coming into this Court and presenting to you those receipts if they exist"
that a juror would have been likely to draw was that there was no reason why the accused himself could not give evidence and produce the receipts. Accordingly we are of the view that Crown counsel at trial did act in breach of the Evidence Act, s85(8).
The learned trial judge accepted that Crown counsel's observation was accidental and not intended to be a deliberate breach of the Act, and that the jury should not be discharged by reason thereof as his directions would cure any error. With respect to this matter, the learned trial judge firstly instructed the jury:
"The accused is under no obligation to give evidence and this of course includes going to the witness box in order to provide you with evidence of any further receipts he received from Mr Williams besides the receipt which you have in evidence. He's perfectly entitled to remain silent and require the prosecution to prove his case beyond reasonable doubt, you must not assume that he is guilty because he has not given evidence from the witness box, the mere fact that he has not done so proves nothing one way or the other, it does nothing to establish his guilt and cannot be treated as an admission of guilt."
The learned trial judge returned to this matter a little later on in his summing up when he said in the course of reminding the jury of submissions put to them by counsel:
"I should say this to you in relation to the receipts. Whilst the accused could have produced more receipts to the police following the interview, if he'd wanted to there was no obligation on him to do so. More importantly, I repeat the direction that I have given you. The accused was under no obligation whatsoever to go into the witness box and provide you with evidence in relation to those receipts, or anything else. That he didn't do so proves nothing. It does nothing to establish his guilt and mustn't be treated as an admission."
Finally, the learned trial judge repeated the primary contention put to the jury by counsel for the appellant with respect to these receipts by saying:
"In relation to the receipts, or the lack of production of further receipts, Mr Barker made the point to you that by the end of the police interview Constable Harper had made up his mind to charge the accused regardless of whether further receipts were produced, and in fact did charge the accused at the end of the police interview. Mr Barker put to you that, in that situation, there was simply no point in the accused going to trouble - to the trouble of locating and producing further receipts to the police. He'd been charged and there was no benefit to him from doing anything further."
Stuart v R (1959) 101 CLR 1 at 9 is authority for the proposition that, "prima facie a breach by the prosecution of that prohibition must provide a good ground for the quashing by a court of criminal appeal of a conviction". However, in this case, the breach could properly be described as a "glancing sort of breach" to borrow the expression from R v Hnoudis [1999] SASC 203 at par9.
The question is whether the "glancing breach" was such that, after taking into account the learned trial judge's directions, there remained a real risk that the jury was improperly influenced by Crown counsel's offending remark. If there was such a risk, there has been a miscarriage of justice. See McCullough v R [1982] Tas R 43 at 59.
In our view, there was no real risk of the offending remark causing a miscarriage of justice for the following reasons:
· The remark was brief and confined to the words "… and it certainly doesn't prevent him coming into this Court and presenting to you these receipts if they exist".
· The Crown case against the accused was a very strong one. None of the Crown evidence was in contention. The only issue was the appellant's knowledge at the time the goods were in his possession. In addition to the finding of the stolen property at his home shortly after the theft, evidence was adduced, pursuant to the Code, s258(3), that four months before the police found this property, they went to the appellant's home and found stolen computer equipment there.
· Prima facie, the nature of the receipt which was tendered in evidence and relied upon by the appellant to support absence of guilty knowledge looked dubious to say the least.
· It was the appellant who repeatedly asserted to interviewing police that he had receipts for all the property and it was the appellant who volunteered to produce them to the police the following Monday but failed to do so.
· In the circumstances, it was inevitable that, apart from the impugned remark, the jury would have asked themselves why the accused did not produce the receipts to the police or at trial.
· The learned trial judge's direction made it perfectly clear that there was no obligation on the appellant to give or adduce any evidence and that his failure to do so "proves nothing one way or the other, it does nothing to establish his guilt and cannot be treated as an admission of guilt".
For these reasons, the order dismissing the appeal was made.
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