Garvey v The Queen
[2004] WASCA 271
•25 NOVEMBER 2004
GARVEY -v- THE QUEEN [2004] WASCA 271
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 271 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:52/2002 | 6 SEPTEMBER 2004 | |
| Coram: | MURRAY J STEYTLER J MCKECHNIE J | 25/11/04 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK ERIC GARVEY THE QUEEN |
Catchwords: | Criminal law Fraud Whether verdict unsafe and unsatisfactory New Evidence Whether admissible No new principles |
Legislation: | Nil |
Case References: | Jones v The Queen (1998) 191 CLR 439 Mallard v The Queen (2003) 28 WAR 1 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : GARVEY -v- THE QUEEN [2004] WASCA 271 CORAM : MURRAY J
- STEYTLER J
MCKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : LA JACKSON DCJ
File No : IND 27 of 2001
Result : Appeal dismissed
Catchwords:
Criminal law - Fraud - Whether verdict unsafe and unsatisfactory - New Evidence - Whether admissible - No new principles
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Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr D Dempster & Mr L M Fox
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jones v The Queen (1998) 191 CLR 439
Mallard v The Queen (2003) 28 WAR 1
Case(s) also cited:
Nil
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1 MURRAY J: I agree with McKechnie J that the affidavit of the applicant tendered on the hearing of the application should not be received and admitted in evidence before this Court. Ground 5 therefore falls away.
2 I too would refuse the applicant leave to appeal, essentially for the reasons given by McKechnie J.
3 STEYTLER J: I have had the advantage of reading the judgment of McKechnie J. I agree with it and would consequently dismiss the application for leave to appeal. There is nothing I wish to add.
MCKECHNIE J:
Introduction
4 Between 6 and 8 March 2002 the applicant stood trial on an indictment that:
"1. On a date unknown between 12 January 1999 and 24 March 1999 at Perth MARK ERIC GARVEY sold a Vodafone SIM card the property of the Ministry of Justice.
2. AND FURTHER THAT between 23 March 1999 and 13 April 2000 at Perth and elsewhere MARK ERIC GARVEY, with intent to defraud, by deceit or fraudulent means gained a benefit, pecuniary or otherwise, for himself."
5 At the close of the prosecution case, the Judge upheld a submission of no case on count 1 and as a consequence the jury returned a verdict of not guilty and judgment of acquittal was entered. The trial proceeded and the applicant was convicted on count 2 and fined the sum of $2,000. From that conviction he applies for leave to appeal on a number of grounds. He has supported his application with a lengthy affidavit and annexures sworn 1 September 2004.
6 The applicant filed lengthy written submissions in support of the appeal and further submissions in reply to the respondent's written submissions. At the hearing, the applicant indicated that he did not wish to expand the argument by oral submissions. As the applicant was appearing pro se, the respondent elected to rely upon its written submissions and make no oral submissions. In these circumstances the Court indicated it would take time to read and consider the submissions,
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- and that it would receive the affidavit and rule whether, and to what extent, the affidavit might be admissible in the course of its consideration of the appeal.
The case at trial: an overview
7 The applicant was represented at trial by counsel. The prosecution case was uncomplicated. In 1997 the Ministry of Justice (MOJ) purchased a Vodafone SIM card which carried a telephone number 0416 264 506. From late January 1999 through to April 2000, MOJ received and paid bills relative to that telephone number and SIM card. On 12 April 2000, Police Officers Butler and Foley executed a search warrant at the applicant's house at 5 Oxford Street, Inglewood. Under a pair of jeans, in a dirty clothes basket, Detective Butler found a telephone that contained the SIM card. Although the applicant had been employed by MOJ on a series of short-term contracts as a computer technician, his employment ceased on 23 March 1999. The SIM card had never been issued to him.
8 Evidence was given of a number of telephone calls emanating from number 0416 264 506 to persons and entities with whom the applicant may have had dealings.
9 The defence case was also uncomplicated. The applicant denied using the SIM card. He had various SIM cards with Telstra and Optus and at least one Vodafone card. He had no idea how the phone was in the dirty clothes basket but he did not put it in there.
10 The prosecution case was one requiring the drawing of inferences. In other words, it was a case which relied upon circumstantial evidence.
11 From that brief outline I turn to a more detailed examination of the prosecution case as it unfolded through the witnesses and exhibits.
MOJ witnesses
Howard John Bunt
12 Bunt was, and is, the Telecommunication Manager for MOJ who gave evidence that in February 1997 he purchased some mobile phones. He produced the records of Vodafone number 0416 264 506. That phone contained an IMEI number and a SIM card. The SIM card number was identified as part of the purchase contract.
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13 Bunt explained that SIM cards can be transferred to other handpieces but will always respond to the same Vodafone number. The phone identified with the SIM card was first given to A Leong, an employee of MOJ, in February 1997. When Leong left the Public Service, he returned the phone and SIM card which were then given to another MOJ employee, Ms Yvonne Collins, for a period of about 6 weeks. When the phone and SIM card were returned, because the Vodafone coverage was insufficient, they were put into the spares cupboard. Neither the SIM card nor phone in question were given to the applicant, although he had access to another MOJ mobile phone. That phone was returned in March 1999.
14 In cross-examination, Bunt said that there are about 1,400 mobile phones in the MOJ fleet and that MOJ employed about 5,500 people. Bunt stored in his office a number of mobile phones which might need SIM cards. When a replacement was issued, it was recorded on a computer.
Robert Jan Berg
15 Berg is the Director of Information Services at MOJ. On 23 March 1999 he called the applicant into his office, in the presence of Ms Janet Duncan, the applicant's supervisor, to advise the applicant that the department was contracting out and outsourcing all its operations and that it was due to commence in April/May. The applicant was given a copy of a formal letter of advice and told that for the period between 23 and 31 March 1999, the end of the contract period, he would continue to be paid to the end of the contract but there was no need for him to be at the premises. The applicant was escorted to his office so he could pick up his personal effects. The applicant gave Berg his mobile phone and security key.
16 In cross-examination Berg said that in January 2000, as a result of the Auditor-General asking about mobile phones, he initiated an exercise where all mobile phones had to be accounted for. In February 2000 Mark Vasile was authorised to conduct an investigation and the matter was referred to police as soon as Vasile made Berg aware about this telephone number. Instead of cancelling the phone, Berg decided to reactivate it and involve the police. Vasile was not to carry out an independent investigation but to do what police asked him to do. Berg did not know when the actual SIM card was reported stolen to the police.
17 Berg said that the applicant did not know that they were going to have the meeting on 23 March and that he would not be at work on the MOJ premises for the last eight days of the contract period. The work the
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- applicant was doing was going to be outsourced or contracted out and in-house employees did not need to do it any more. The outsourcing required tendering and the tenders had been released in 1998, had been closed, and were being evaluated. Negotiations had taken place and the successful tenderer was a company called GEC ITS. The applicant did not sign an employment contract. He was escorted from the building between approximately 10.00 to 10.30 am. The applicant explained that there were some items he could not carry because he was on a motorbike. Berg knew one item was a stereo set. Berg described the applicant as a highly skilled trouble-shooter.
Yong Hiong Leong
18 Leong was employed by MOJ for about 10 years as a Senior IT Administrator ceasing work for MOJ in late July 1998. He had a mobile phone number 0416 264 506 on issue to him. When he left MOJ he passed the phone on to Yvonne Collins, the Database Administrator. The phone was an Ericsson 3 Series and the SIM card was in working order.
19 In cross-examination, Leong confirmed he had physically given the phone to Yvonne Collins and did not leave it in the office or give it to Janet Duncan. He gave it to Collins because she did not have a mobile phone. She was the database administrator.
Yvonne Patricia Collins
20 At the time of trial Collins was employed by a company as Database Administrator. She had been employed at MOJ for 12 years. She left MOJ, when her job was outsourced, in May 1999. While employed at MOJ she acquired a mobile phone, an Ericsson handpiece, from Leong in July 1998. It did not work too well and Collins asked for a replacement which she received, she thought, on 13 January 1999 whereupon she handed Leong's phone back to Bunt's group. The SIM card was in the phone at the time.
21 In cross-examination she said Bunt was wrong in his recollection that she had the phone for only six weeks. She had no involvement with Janet Duncan in getting the phone. She handed it back to Bunt or Cusens as a direct swap. Cusens brought down a new Nokia phone for her use.
Douglas Andrew Cusens
22 Cusens had worked for MOJ until 14 months prior to the trial. In January 1999 he was employed as Telecommunications or Technical Officer. His immediate superior was Bunt. In January 1999, Collins had
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- an Ericsson Vodafone mobile phone that was not giving proper coverage so it was swapped over for a Nokia with Telstra coverage. The Ericsson phone, Vodafone SIM card, plus a charger, were taken from Collins and given to Bunt. The phone was kept as a spare in stock.
23 In cross-examination Cusens said that the phone was still active notwithstanding that it was out of contract. There were other phones in the box of similar circumstance with live SIM cards. They were spare phones for short term loan or replacement. There may have been 10 or 12 spare phones in the box in January 1999. There was no record of when the Ericsson handpiece came back into the department. There were two ways to disconnect the SIM card - either ring up a carrier and bar it, or ring up the carrier and say: "It's no longer required, I want to dispose of it. Write the contract off".
Janet Maree Duncan
24 In March 1999, Duncan was employed by MOJ. She was present in Berg's office on 23 March when the applicant attended. The applicant was asked to return any MOJ items. Asked whether he had any at home, the applicant replied "No". Berg said that if he did have any items of MOJ property at home, could he please return them by 31 March. The applicant gave Berg (in the applicant's office) his phone and security key, picked up his own bag and was escorted out by Berg.
25 In cross-examination, Duncan said that the applicant would not have been aware that his contract was not being renewed in March. He had been working for about 3 years on short contracts. Duncan was involved in the meeting because she was the applicant's supervisor. She acted in the position that Leong left. She did not have Leong's mobile phone. She did have a mobile phone herself, probably a Nokia. She was asked:
"You can't remember a day when Mr Garvey came into your office and you were holding up two mobile phones and asking which one you should use, and one of them you identified as Mr Leong's phone, being an Ericsson phone:"
26 To which she replied:
"I don't recall that one at all."
27 Duncan did not say that the event did not happen, it could possibly have happened. After the applicant left, Duncan cleaned out his office. Some of the applicant's material was given to Pauline Bingham, the
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- applicant's girlfriend at the time. There were no notebooks, laptops or PCs that belonged to the applicant. There were possibly some memory cards and disks which the applicant indicated were his.
28 On 26 March, the applicant came back to collect some items. Kurt Schmidtke met him outside the lift so the applicant did not get into the ISD section. He came up to level 12. On 26 March, the applicant gave Schmidtke a list of items he wanted off his PC, and which Schmidtke got for him.
Mark James Vasile
29 In February 2000, Vasile was working at MOJ as Telecommunications Officer. His immediate superior was Bunt. Vasile was asked to make investigations into a particular telephone number, 0416 264 506 and found an account sent on a monthly basis for the use of the phone number:
"… there were several numbers that were called, several Department of Justice or Ministry of Justice numbers, also regular numbers such as information-type service numbers, computer company, retail-type company numbers."
30 On 29 March 2000, Vasile visited Zeus Technology at 650 Murray Street, West Perth, and spoke to Kurt Baeten. Vasile showed him a photograph of the applicant. Baeten mouthed: "I'm on the phone to him." Vasile checked with Vodafone to establish that the call had been made to Zeus Technology's phone number from the mobile phone in question at the time and date that he had visited the company. Vasile produced details of mobile telephone calls from 0416 264 506 indicating that between March 1999 and April 2000 there were approximately three mobile telephone handsets used with that SIM card.
31 In cross-examination, Vasile said the call to Zeus Technology appeared on the Vodafone bill. The Vodafone bill did not show the handset used because that is irrelevant.
32 The applicant was charged on 12 April 2000. A toll ticket report was generated prior to the visit to Zeus, sometime in March 2000. The police had started to investigate at that stage. Vasile had handed the police the toll ticket report but had not heard back from them after that. When Vasile went to Zeus Technology on 29 March he was doing it on his own as an investigator. He was not instructed to do so by Detective Butler. Bunt or Berg did not tell him to go there. They did not know Vasile was
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- going to Zeus Technology. Vasile received a photograph of the applicant from the archive of photographs in the Building Manager's office at MOJ. Vasile could not recall telling Bunt or Berg he was doing that. Vasile was asked the value of calls made on the phone over the period which he put at roughly $900 to $1,000. The figure was prepared from the finance department by Ms Papadopoulos, the ISD finance person. Vasile was not employed at MOJ at the time that the applicant was.
Witnesses from entities with a relationship to the applicant
Neil James Hancock
33 Hancock is the Managing Director of Portacom. The applicant phoned Hancock in March 1999 at the time he left MOJ. Hancock did not see him again after that and had had maybe one or two contacts since then. Portacom had won a tender for the supply of portable computers to MOJ when the applicant worked there and was one of the people Hancock worked with regularly. Hancock thought the applicant was a very good worker.
Kurt Alfons Baeten
34 Baeten is General Manager of Zeus Technology Pty Ltd and knows the applicant who used to be a customer of Zeus Technology. The applicant used the business name Megatech Solutions. Baeten produced a copy of invoices for 1999 to 2000 from Zeus Technology to Megatech or Mark Garvey (the applicant). During the period most of the business was done over the telephone. The applicant did not leave a contact telephone number. Usually if he wanted to purchase items from Zeus he would ring them and they would call back. The telephone number for Megatech on the documents was 9370 4491. In March 2000, when Vasile went to Zeus Technology, Baeten was on the phone speaking to the applicant.
35 In cross-examination, Baeten said they had problems with the address, 5 Oxford Street, Inglewood. It was an empty address. It was a serviced office and they were empty. Baeten went to the address. Baeten then corrected himself and said the address he went to was on Scarborough Beach Road. Baeten had been to 5 Oxford Street. It is a suburban house. The applicant was there at the time and it looked like he was living there. Baeten was not able to say whether the phone number 9370 4491 is connected to 5 Oxford Street, Inglewood. The date on the invoice is reflective of when the invoice was collected. The applicant was not "a bad creditor as a customer". In 1999 – 2000 other people would have dealt with the applicant. Mark Starling was the Sales Manager. The
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- applicant could order things by fax. Baeten could not dispute whether the applicant used the fax as opposed to ringing the company because the Sales Managers generally dealt with him.
Joan Patricia Kirby
36 Kirby works at Mix 94.5FM and did so in December 1999 as Promotions and Marketing Director. On 5 December 1999 on a "No Repeat Weekend", the prize was a $3,500 voucher to spend at Retravision, Inglewood. Kirby rang the applicant on his mobile number 0413 564 491. She spoke to him twice. The applicant attended the station on 13 December 1999 to collect his prize and signed the prize receipt form. There was another competition in February known as the "The Thousand Dollar Hour" with a 1902 number that competitors had to call - 1902 555 945. When contacting the applicant, Kirby rang 0413 564 491. When the listener calls and they get through as the winner they have to give their relevant details, address, date of birth, phone numbers, to the announcer so they can have a point of contact. The applicant won. Kirby called him back on 0413 564 491.
Statements read into evidence
37 Statements were read to the jury, by consent, including a statement of Sarah Dawson, the Account Manager with Rebound Computers. She produced four accounts from Rebound Computers addressed to Megatech Solutions.
38 Glen Robert Howley employed by Inglewood Retravision as a Senior Sales Assistant and Brett John White employed by Hartley Kawasaki as Spare Parts Manager, both gave details of contact with the applicant.
39 Two other statements, that of Inspector John Phillips and Elizabeth Jeany Papadopoulos, were read into evidence.
Exhibit 11 – Analysis of phone calls
40 Exhibit 11 formed part of the prosecution case. It is an analysis of telephone calls made from mobile phone number 0416 264 506. It included calls to a 1902 number associated with Mix 94.5FM at a time consistent with the applicant's winning of a prize, calls to Inglewood Retravision at times following the receipt by the applicant of a prize from Mix 94.5FM. The prize was goods to a certain value from Inglewood Retravision. There were calls to Hartley Kawasaki where the applicant, who owned a motorbike, was a customer. There were calls to iiNet, a company with which the applicant had a relationship. The applicant is a
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- computer technician and the phone number 0416 264 506 showed calls to Microsoft, Portacom Pty Ltd, Zeus Technology and Rebound Computer Co. There were calls to the Police Internal Investigations Unit at a time when the applicant was dealing with that unit and calls to MOJ to the extension of Pauline Bingham who was at the time the applicant's partner.
The police officers
Gary Dean Butler
41 Butler was a Detective Senior Constable attached to the Prisons Unit in February 2000 when he received a complaint from MOJ on a date which was in dispute at the trial but was somewhere towards the end of February, beginning of March. After receiving documentation relating to mobile phone number 0416 264 506, and making enquiries as to the calls, on 12 April 2000 he, together with Detective Senior Constable Foley, executed a search warrant on the applicant's house at 5 Oxford Street, Inglewood. Butler and Foley were met at the door by the applicant. There is a dispute as to precisely what was said, how they were identified, and whether the warrant was shown to the applicant. Butler described the search:
"We continued to search the house. At about 11.20 am the accused walked down the hallway of his premises and advised me that he wanted to go to the toilet. I explained to the accused that I wished to search him first and the accused walked back towards the kitchen past his bedroom. He's then quickly turned around and fled into his bedroom. I've ran up the hallway to see and hear the lid of a laundry basket close. There was a pair of folded up blue denim jeans on top. I said to the accused, 'What are you doing here?' He said, 'I'm getting some clothes.' I opened up the lid of the laundry basket, I looked inside and I saw a black mobile phone. I said, 'I suppose this has been here all the time?' The accused said, 'Yeah'.
…
…I removed the mobile phone from the laundry basket and removed the battery, and inside I could see that there was a Vodafone SIM card with a number on it. We returned to the kitchen where I read aloud the number from the SIM card and that SIM card number corresponded with the SIM card number on the search warrant."
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42 In cross-examination, Butler advised that he received the complaint on 28 February 2000 from his senior officer. He kept a running sheet, "sort of chronological diary of action". The first entry is 1 March 2000, 9.00 o'clock, when he received carriage of the file. On 28 February, Butler was advised that he would be given a complaint file from MOJ. Butler acknowledged he was incorrect if the dates coincided.
43 Butler spoke with the Internal Investigations Unit of MOJ, who referred him to Berg, who referred him to Vasile. Butler was aware that Vasile went to Zeus Technology, but not on direction from him. Butler was made aware of the visit after it happened. When Butler did the search on 12 April 2000, he was aware that the SIM card had been used in three different handpieces. The Vodafone SIM card in issue was in the Nokia phone. There was an Ericsson phone in the house along with a number of mobile phones. The other phones were not on the search warrant so Butler did not look at them. Butler did not look to see if their IMEI numbers were related. The SIM card was the item for the search, not the handset or the IMEI number. Butler had a meeting with Vasile before 29 March 2000. When Butler executed the search warrant, the applicant was the major suspect. Butler was looking for SIM cards. He had not taken witness statements from witnesses. Butler had spoken to some people and seen documents. Butler did not caution the applicant before finding the SIM card. Butler gave a copy of the search warrant to the applicant. When the two police officers went to the front door they were met by the applicant. They did not identify themselves as being from the Prisons Department but from the Prison Unit. Butler did not actually say "Police Officer" but held up his ID and said "My name's Gary Butler. I'm from the Prison Unit. We're here with a search warrant". The applicant retained possession of the copy warrant. Butler told the applicant the police were looking for a Vodafone SIM card connected with MOJ. The applicant said he would not have any Vodafone SIM cards because he only used Optus or Telstra. Butler received a mobile phone call after he entered the applicant's house. There may have been discussion between the applicant and Foley. This was early in the piece. There is one hallway. The applicant said he wanted to go to the toilet. He did not say he wanted a shower. There was a dog in the house. The applicant walked back towards Butler, passed his bedroom then did an about-face and fled into his bedroom. The applicant accelerated very quickly from a small walk to disappear quickly. He did not slip over and fall into the bedroom. Butler never showed him the SIM card. He advised the applicant he was under arrest. The applicant did not say he would like to ring a lawyer. Butler did not arrange for the exhibit to be tested for fingerprints. It
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- looked like somebody else was living in the house. The mobile phone was in the laundry basket.
44 Butler got to the doorway in time to see the lid of the basket closing. When he opened up the lid, there was a blue pair of denim jeans folded on top, the mobile phone was in the basket with the screen down - actually inside the basket. Butler said to the applicant: "So this has been here all the time, has it?" and the applicant replied: "Yeah". That is the only thing he said.
Julie Kristy Foley
45 Foley gave evidence that she attended with Butler to execute the search warrant. After Butler advised the applicant he had a search warrant and explained the reason for the search, the applicant stated he did not have a Vodafone SIM card but he did have an Optus and Telstra SIM card. The applicant stated he needed to go to the toilet. Butler asked the applicant to stop and said he needed to search him first. The applicant turned and walked towards Butler and then turned again and fled into a room. Butler chased after him. Prior to getting to the doorway of the room, Foley heard a sound which she believed was a wicker basket closing. She approached the door. When standing at the door, Foley saw Butler standing next to the applicant. Butler asked the applicant what he was doing and he stated he was getting some plain clothes. Butler opened the linen basket and removed a black Nokia phone with the Vodafone SIM card inside.
46 In cross-examination she said:
"No, I couldn't see him going in the room. I kind of - I followed them.
…
However, he went - I was in the hallway area when he just ducked into the room.
…
As far as I can recall when he left the room that we were searching in we had to follow him."
47 Foley said she did go into that room. She was standing at the doorway, so she had a clear view into that room. She did not remain in the kitchen. She recalled toilet not shower. She saw the SIM card in
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- question and the Nokia mobile phone in the house. Detective Butler pulled it out and opened the back. The applicant was standing directly next to Detective Butler at the time. One would believe that he did see it. She saw no reason why he would not have seen it.
"Counsel: Let me clarify your answer, so you're saying the SIM card wasn't taken out of the phone at that point of time, it was still in situ in the back of the phone where it's kept, the user SIM card. Is that right?---When the cover was taken off, the SIM card was in place inside the phone. Detective Butler removed that SIM card from it, at which stage I couldn't say whether it was while he was standing right there or when he walked to the kitchen, but [the applicant] was right next to him, so I can only assume that he has seen it inside the telephone and also when it was removed."
48 After the successful no case submission on count 1, the applicant went into evidence. His evidence as to count 2 can be summarised:
49 I have lived at 5 Oxford Street, Inglewood for seven years and had been in a relationship with Pauline Bingham for 12 years. In 1999 I was employed at MOJ, Information Services Directorate as Senior Support Officer, Operating Systems and Applications. I was responsible for defining the SOE and fixing problems. I had been working from March 1996 – the contract just kept rolling over. I never actually saw a contract or signed a contract. I have never seen exhibit 5 or documents like it (Contract Employee Extension Advice). When at MOJ, I had my MOJ mobile, desk phone and business mobile for Megatech Solutions. The mobile number for my Megatech Solutions phone is 0413 564 491. I have been involved with phones ever since I was a child. My father worked for the PMG. Over the last 30 years I have probably owned 400 telephones. I worked with Telecom testing, modifying and repairing telephones. Mobile phones sparked my interest. Originally there were no SIM cards. I would have owned at least 100 mobile phones over the years. I went to auctions where I used to buy computer equipment and they had mobile phones for sale. I produce invoices from Smith Broughton & Son, Auctioneers, from whom I have bought mobile phones. I have a collection of SIM cards especially from the time when my girlfriend was working with Telstra. In these plastic bags were old SIM cards, some of which would have been out of service, that I had or my girlfriend had.
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50 I have no idea how the Vodafone SIM card could have got into the basket in the bedroom, in the phone or in the house. I certainly did not steal any SIM cards from MOJ. I had my own phone service that I was already paying for and while I was at the department I had the Ministry ones as well.
51 Business calls were tax deductible on Megatech Solutions. Up to the 23 March 1999 I had four phones – two mobiles and two landlines. I have no idea how the SIM card got into the phone or into the house. I found a SIM card on the footpath on the Esplanade, in Perth, in December 1999, near the Hartley Poynton building, after dropping my girlfriend off on the motorbike. I do not remember what it was like. It was the fifth or sixth time I have picked up a SIM card. I just chucked it in my pocket. I don’t actually remember taking it out of my pocket. I think I put it in the peanut butter container lid with the other SIM cards.
52 When employed at MOJ there was an occasion when I walked into Duncan's office she was holding two phones. She said: "I've just got mine and Leong's phone. I'm just deciding which one's a better one to keep". They were both Ericsson phones. I'm quite sure that happened, contrary to Duncan's evidence. My employment was terminated on 23 March. I did not know work was coming to an end until that day. I handed over a mobile phone and access key. I have not been back to the building since. There was an Optus SIM card in the Ericsson phone I handed to Bob Berg on 29 March.
53 On the day the police came (12 April 2000) there were 10 phones in the house. I took photos in April 2000 (exhibit 19). During that time I was using the Megatech Solutions mobile phone for business and personal calls. I have gone through the accounts and prepared a summary (exhibit 20). I have some more photos as the computer room looked on that day (exhibit 21) and I took a video (exhibit 26). I work in the dark and I can often pick the wrong mobile. I was not aware that the SIM card was in the house before that day. I had various SIM cards with Telstra and Optus and I had at least one Vodafone. Detective Butler came with a woman who did not identify herself. He [Butler] did not say his name. He said he wanted to see me about a Vodafone SIM card that I had not returned when I left the Ministry of Justice. He had a search warrant. He wouldn't actually, give it to me. He never gave me a copy. I told him I was never issued with a Vodafone SIM card. I finished my smoke and decided to go and have a shower so I headed off down the hallway. Butler started looking at the mobile phones. I thought: "Stuff them. I'll go and have a shower". I never mentioned the toilet. Butler said: "I want
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- to search you first". I said: "Yeah, whatever". I stepped on a bit of my bulldog's drool that was on the ground and slipped and sort of stumbled into the room. I noticed I had a pair of jeans that were lying on the bed. I picked them up and tossed them on top of the clothes basket and it made a sort of a clack because it is a cane basket and the lid is warped and if you hit the lid it will make a clack sound. Butler came in, walked over to the basket, he appeared to be fumbling around with something, but then he and said: "Has this always been here?" and there was some sort of mobile phone upside down in the bin, and I said: "Yeah, right". What I meant was "Yeah, for sure", like I always keep phones in the dirty clothes bin. It is obvious I do not keep phones in the dirty clothes bin. I always keep them out in the computer room. So it was a sarcastic comment. Detective Foley was still in the kitchen. Butler was playing round with the phone in the doorway. He had a SIM card, which I could not see, but he was trying to read. It was in his hand. I never saw the SIM card. I have never taken any SIM card from the Ministry. I have had a look at the Vodafone MOJ bill. I left MOJ on 23 March. There is a call at 12.19 pm to 9264 1386 which is my girlfriend Pauline's MOJ work number, which is not correct because she was not at work that day. She was at home with me at that particular time. She only worked three days a week, Wednesday, Thursday, Friday. I did not ring her number. The second number is David Sinclair's number. We worked in the same room. He was off-site that day so I knew I couldn't get hold of him. I did ring him at home that night on my Megatech business phone. I have an analysis of 21 phone calls (exhibit 25).
54 The photos which were tendered by the applicant show various views of the living room, bedroom, hallway and computer area, including photographs of the lid in which SIM cards are kept, and a photograph of the dog.
55 Under cross-examination the evidence of the applicant was that his girlfriend did not have a mobile phone. He was asked:
"Counsel: There was a phone found in the clothes basket, isn't it, in your bedroom? Do you accept that?---Yes. There were clothes in there, yeah.
Do you know how it got there?---No idea."
56 Butler said he found it there. I don’t know. I didn't duck back into the bedroom. The jeans were in the dirty clothes basket when Detective Butler went into the room. I didn't put the phone in the basket. I didn't
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- contact Microsoft by phone in the period. If I want to contact them I use the internet. I deal with iiNet. Could not say whether I had rung them. The card I found outside Westralia Square could have found its way into the phone. I do not believe I put it in a mobile phone at the time. I used that SIM card and it came up with call barred, calls barred on it. It was alive but not active. I don’t know if the card was live up into the day that it was seized.
57 I dealt with Kawasaki and probably made calls to them. Usually I use the landline. I did not have a handpiece on me when the police came to the door. I did walk up the hallway to get some clothes and have a shower. I did not open the basket, I picked the jeans up and threw them on the basket and the lid makes a clack sound because it is warped.
58 I agreed there were three possibilities – me, not my girlfriend or the detective. I would not be prepared to make unsubstantiated allegations against the police like that. I cannot offer a reason or explanation as to how it got there.
59 In re-examination the applicant was asked: "If it was in your house and if it was active, how could it be that you could've used it as such?" The answer was: "I could have accidentally used it".
The Judge's directions to the jury
60 After correcting one matter of fact stated by prosecuting counsel, the Judge directed the jury on the onus and burden of proof. He made particular references to inferences from facts, telling the jury:
"…you should only draw an inference which is adverse to the accused man if it is the only reasonable inference open from the facts."
61 He then explained "circumstantial evidence" in terms which are unexceptional. The Judge reminded the jury that if there was any evidence missing, in the absence of any evidence on the point it goes against the prosecution.
62 The Judge directed the jury on the remaining count saying that the charge was one of fraud and that there are four things the Crown needed to prove although ultimately it came down to two of them:
"Firstly, the crown must prove that it was the accused man; secondly, that he obtained a pecuniary benefit; thirdly, that he
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- did so with the intent to defraud and, fourthly, that he did so by deceit or fraudulent means."
63 This accords with a submission made to the Judge by defence counsel in the absence of the jury that the Judge could direct the jury:
"…to find the accused guilty, you would need to be satisfied, (1) he made the phone calls, the vast majority of them; (2) he made them intentionally to get a benefit ie free calls, and that's really it."
64 The Judge then pointed to the evidence relating to each of the four points he had raised, making reference to the applicant's response to each. In relation to the basket, he reminded the jury of Detective Butler's evidence:
"[The applicant] denies that he put the mobile phone in the clothes basket. The police said that they heard a noise of the wicker basket lid closing, and we're all familiar with wicker baskets and they are noisy things in the sense they creak, and so on, so if you open or close a lid there's usually some noise associated with it. Detective Butler says he arrived at the doorway in time to see the accused man closing it and he heard the noise. The accused man says, 'No, that's not right' - the noise that the police heard was because he had thrown a pair of jeans which needed washing on top of the lid and that made the same sort of noise. And you can probably accept from your own commonsense and experience of life that it would indeed make a similar noise, but the evidence by Detective Butler is direct evidence saying, 'I saw this happen.' It's for you to assess the evidence in this regard bearing in mind always it's for the crown to prove the case and not for an accused person to prove his innocence."
65 Towards the end of his address the Judge said to the jury [353]:
"Really, there are only two questions: did the accused make the calls on a mobile phone using the SIM card? As a fact, did he do that? Did he make the calls, or the majority of them, on a mobile phone using the SIM card? If you are not satisfied that he did that, then that's the end of the matter. You need go no further than that. If you are satisfied beyond reasonable doubt that he did, then the second question you must ask: did he do so
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- knowing someone else would be paying for the calls, that is, that he was gaining a pecuniary benefit, a benefit in money?"
66 This accords precisely with the submission to the jury made by defence counsel.
The amended grounds of appeal
"1. The Learned Trial Judge erred in failing to properly direct the jury on the inconsistent and inconclusive evidence given by the Crown's witnesses.
2. The trial of the appellant miscarried as a result of the learned trial Judge's failure to properly direct the jury in relation to the burden of the Crown to establish existence of a disputed fact or circumstance.
3. The verdict of the jury was against the weight of the evidence.
4. The Trial Judge erred in law in that he failed to adequately direct the jury to the law on conviction relating to a verdict based on circumstantial evidence, where the accused has a reasonable hypothesis consistent with innocence, the jury thereby returning an unsafe and unsatisfactory verdict. The verdict of the jury ought to be set aside.
5. In conjunction with Ground 2, during the trial the Applicant became aware that much of the evidence given by key Prosecution witnesses was knowingly false and he will seek orders for the production of documents as proof and make an Application for Leave to Adduce New Evidence in regard to that evidence."
67 Ground 6 was deleted in the course of Court of Criminal Appeal motions on 4 December 2003.
The applicant's affidavit
68 Some of the grounds and submissions in support of them are bound up with the affidavit so it is convenient to deal with the admissibility of the affidavit first. The test for admission of evidence on appeal, whether satisfying the description of "fresh" or "new" is now settled and has been applied by this Court in a number of recent decisions. It is sufficient to
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- refer simply to Mallard v The Queen (2003) 28 WAR 1 at [11] to [17]. At [15] their Honours summarised the position as follows:
"If the evidence is new but not fresh evidence, the Court of Criminal Appeal will quash a verdict of guilty only if that material either shows the appellant to be innocent or 'raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand': Ratten v R, above, 520 per Barwick CJ."
"To the extent that evidence is properly regarded as 'fresh', we propose to apply the test …, whether the [applicant] has established that there is a significant possibility that, in the light of all the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted him."
70 In the present case, the applicant was represented at trial. Absent flagrant incompetence of counsel, something neither suggested in the grounds of appeal or submissions, nor apparent from reading the transcript, a person is bound by the actions of counsel. The documents annexed to the applicant's affidavit are all documents which were available prior to trial and matters about which the applicant was well aware. For example, annexure 1 to the affidavit is an extract from Butler's running sheet. It was tendered at the preliminary hearing. Aspects of the running sheet were put to Butler in the course of cross-examination although the running sheet was not tendered at trial. The evidence of the running sheet is not fresh or new evidence. Counsel made a tactical decision as to the use to which it would be put. The balance of the documents relate to procedures within MOJ and the alleged actions of people, some of whom were also prosecution witnesses. If, which I doubt, the material had any relevance in the trial at all, its sole relevance was as to credit. The fact that counsel failed to cross-examine any witness concerning the matters asserted in the annexure does not give rise to a miscarriage of justice. Indeed, one can readily see good tactical reasons why counsel would not wish to use the material even if a basis of relevance could be established. Much of the body of the affidavit contains matters of argument, assertions, submission, speculation and conjecture. To the extent that the affidavit sets out facts, those facts were known at the time of the trial. I would refuse leave for the applicant to adduce evidence in the form of the affidavit sworn 1 September 2004 on the
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- grounds that the evidence is neither fresh nor new in the senses explained in Mallard.
The submissions of the applicant on the other grounds
71 Many of the submissions of the applicant are directed to the finding of the handpiece with the accompanying SIM card in the clothes basket. The applicant refers, amongst other things, to a house plan identified by Butler at trial, and the photographic exhibits tendered through him. The circumstances of the finding of the phone were live matters at trial. The applicant at trial, in his evidence, disclaimed any allegation that Butler may have planted the phone or SIM card as unsubstantiated. That of course was not an end of the matter because the prosecution had to affirmatively establish that Butler found the phone. The applicant's evidence and the photographs were before the jury, together with Butler's evidence. I have given full regard to the points which the applicant makes, and my own inspection of the plan and the photographs, including photographs of the position of the laundry basket. I consider it was open for the jury to conclude that the applicant was indeed trying to conceal the mobile phone which he had on his person at a time immediately after Butler had advised him he would have to be searched. It was open for the jury to reject the applicant's version of slipping at the door and his explanation for taking a shower and placing the dirty clothes in the basket the lid of which he conceded made a sound.
72 The applicant complains about the actions of the prosecutor which he asserts unfairly prejudiced the jury. There was no complaint by counsel for the defence at any time about the conduct of the prosecutor. If there was substance to the ground of appeal, complaint might have been expected. The absence of complaint is itself likely to be fatal to the ground. In essence the applicant asserts that the prosecutor misconducted of himself by failing to put those matters which the applicant regards as indicating his innocence. As is usual, the closing addresses of counsel have not been made available to the Court. I therefore rely on the fact that counsel for the defence made no adverse comment about them and the Judge, apart from correcting one minor error of fact, made no other adverse comment. There was nothing in the opening address of prosecuting counsel which gives rise to a feeling of disquiet.
73 I have set out the Judge's directions as to the drawing of inferences. There is nothing exceptional about his directions nor was anything further necessary. The Judge did not fail to direct the jury about the burden or standard of proof. As to the general grounds about the verdict of the jury,
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- I have conducted a review of the evidence as required by Jones v The Queen (1998) 191 CLR 439. In my opinion, it was open to the jury to be satisfied that on 12 April 2000 the applicant was in possession of the SIM card which was in a handpiece. He attempted to conceal the handpiece in the clothes basket because of a guilty apprehension about its possession.
74 Taken individually, the calls made to various organisations could not establish guilt. For example, many persons might have a need to ring Microsoft or indeed to respond to radio quiz shows. Taken together however, as exhibit 11 demonstrates, the destination of those telephone calls from the single number provides compelling evidence that they were made by the applicant. When that is coupled with the circumstances of his possession on 12 April 2000, it was open for the jury to conclude that he was guilty.
75 For these reasons I would dismiss the application for leave to appeal.
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