Harvey v The Queen - [1999] WASCA 51

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HARVEY -v- R [1999] WASCA 51

CORAM: KENNEDY J
IPP J
WALLWORK J

HEARD: 14 MAY 1999

DELIVERED : 15 JUNE 1999

FILE NO/S: CCA 26 of 1999

BETWEEN: RONALD WILLIAM HARVEY
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal and new trial - Evidence - Prejudicial material admitted - Whether cured by judge's direction

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr R D Young
Respondent: Mr S P Pallaras & Ms L B Black

Solicitors:

Appellant: Gunning
Respondent: Acting State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Crofts v The Queen (1996) 186 CLR 427
Demirok v The Queen (1997) 137 CLR 20
Maric v The Queen (1978) 52 ALJR 631

Case(s) also cited:

R v Hally [1962] Qd R 214
R v Knape [1965] VR 469
R v Waring (No 2) [1972] Qd R 263
R v Weaver [1968] 1 QB 353
Stevenson v The Queen, unreported; CCA SCt of WA; Library No 960039; 2 January 1996

KENNEDY J: The appellant was presented in the Supreme Court on an indictment containing two counts of armed robbery in company and one count of stealing a motor vehicle. After a two day trial, the jury found the appellant guilty of each of the offences.
Although the matters complained of by the appellant are rightly said to be questions of law, the notice is described as a notice of application for leave to appeal against conviction. It is to be regarded as an appeal. Furthermore, the appeal is said to be against the appellant "having been convicted of the offence of armed robbery in company", the sentence being specified in the notice as one of 7 years' imprisonment. That was the sentence imposed in respect of the second count in the indictment, which charged an armed robbery in company. The third count, charging a second armed robbery in company, attracted a sentence of 1 year's imprisonment. The first count, charging the stealing of a motor vehicle, which attracted a sentence of 4‑1/2 years, is not referred to in the notice of application for leave to appeal against conviction. I proceed on the basis that the appeal is against each of the three convictions. That was the assumption on which the appeal was argued.
The grounds of appeal are that the learned trial Judge erred in
(a)not discharging the jury following a line of questioning by the prosecutor which suggested that the appellant was part of a group of criminals at Casuarina Prison who conspired together to provide false alibi evidence in their respective trials;
(b)the questioning suggested not only an organised conspiracy to pervert the course of justice by fabricating alibi evidence, it also suggested that the appellant had associations with other persons charged with and convicted of armed robbery offences;
(c)by putting to the appellant that the alibi evidence given at a trial of his associates had not been believed, the prosecutor was suggesting that that alibi evidence was false, when there was no evidence that the alibi led at that trial was in fact false: that the evidence was not believed by the jury does not equate with deliberately false evidence being given;
(d)the suggestion that fabricated alibi evidence was led by the appellant's criminal associates in other trials, and that the appellant got the idea for his own fabricated alibi from them carried a grave prejudice to the appellant which could not be overcome by direction, and the jury should have been discharged, particularly where the prosecutor, having given the learned trial judge an assurance that the line of questioning was relevant, had been allowed to proceed, over objection, on the strength of that assurance.
On 7 January 1998, two men ran into the Cloverdale East licensed Post Office. One of them was armed with a baseball bat, and the other was armed with a hammer. From the drawers in the Post Office, money and documents, the property of Australia Post, together with money and a watch, the property of the licensee of the Post Office, were taken by the armed robbers before they left the scene, driving off in the stolen car which was the subject of the first count in the indictment. The licensee said that he heard the noise of tyres after the robbers left, and he saw a car of red, maroon colour coming out of an adjacent lane and going off to the right. A customer in the Post Office said that, after the robbers had departed, he ran outside and saw a red, maroon‑coloured car, driving very fast, "just past the roundabout". The fact that there were two different owners of the items of property which had been stolen resulted in there being two counts of armed robbery.
The evidence was that a red Commodore sedan had been stolen from the Belmont Forum shopping centre carpark between 2.10 and 2.40pm, that the robbery had taken place at approximately 2.15 to 2.20pm, and that the stolen car was found abandoned in the same shopping centre at approximately 2.55pm with some of the documents which had been stolen from the Post Office still in it. A fingerprint of the appellant was discovered on one of the documents recovered, an Australia Post receipt. When questioned by detectives, the appellant denied being involved in the offences.
The appellant elected to give evidence at his trial. He said that, on the morning of 7 January 1998, he had attended a training course which had commenced at 9.00am and finished at 11.30am or a quarter to 12. After the course had finished, he went, as he normally did, to his father's panel beating and spray painting workshop. He arrived at the workshop at about noon and helped with some odd jobs. At about 2.00pm, he drove to the Belmont Forum shopping centre to obtain some lunch. He claimed that while he was sitting in the parking area "outside of the car" eating his lunch, "so that no food and that went into the car", he noticed another car had pulled up behind him. He saw Jason Matthews, whom he recognised as an acquaintance, in that car. Having seen him, he said he got out of his car (sic) and started walking towards Mr Matthews' car. Mr Matthews leant over and opened the passenger side door. The appellant said there were papers on the front seat. He said he just picked them up and placed them on the floor. He sat on the passenger seat with his feet outside the car and said that he and Mr Matthews "just had a catching up talk", because he had not seen Mr Matthews for a while. Asked whether he noticed anything in particular about the car or about Mr Matthews, he replied that the only odd thing was that one of Mr Matthews' mates was in the back seat of the car. He was not introduced to that person and did not recognise him. The conversation, he said, would only have gone on for two or three minutes. After they had finished their conversation, Mr Matthews, according to the appellant, just said that he was in a bit of a hurry and they said goodbye. The appellant went back to his car, finished off his lunch and headed back to his father's workshop.
In his examination-in-chief, the appellant agreed with his counsel when it was put to him that he had been remanded in custody to Casuarina Prison subsequent to his being charged. The next time he saw Mr Matthews after 7 January 1998 was in the prison, and he agreed that he had spoken to him in relation to the present offences with which the appellant had by then been charged. He said that he had a short conversation with him and asked him if he had committed an offence that day.
It appears that, by letter dated 21 January 1999, the Crown had informed the appellant's advisers that it was intended to cross-examine the appellant and Mr Matthews on the appellant's claimed "alibi", which was that Mr Matthews had been the offender and that he himself had not been involved in the offences. The view was then expressed that, in the course of that cross-examination, the jury would inevitably learn that both the appellant and Mr Matthews were in custody together. The Crown indicated that it would seek to adduce evidence from which the jury might infer that the appellant had sought to rely upon this particular alibi because of his association with others who had used a similar alibi. Prior to the trial, no objection had been raised to this suggestion. At the trial, the Crown Prosecutor had referred to the correspondence between the parties, and the appellant's counsel conceded that it was appropriate for the appellant and Mr Matthews to be cross-examined about their relationship in the manner proposed, notwithstanding the fact that the jury would learn of their imprisonment together. Accordingly, no objection was raised prior to the evidence being led before the jury.
In cross-examination, the appellant agreed that he had first met Mr Matthews in 1997 and that from September 1998 until the middle of January 1999 he had been with Mr Matthews "constantly". The appellant also admitted that when in April 1998 he had been asked by detectives whether he had been "in that red Holden Commodore sedan back on 7 January this year", he had denied that he had been. The cross-examination of the appellant then turned to the subject of Mr M Rutty and Mr J Cunningham. Mr Rutty, the appellant accepted, was a friend of his, and he described Mr Cunningham as a friend of a friend. It was then put to him that Mr Rutty and Mr Cunningham were both in Casuarina Prison with him.
An objection was taken by counsel for the appellant to this line of questioning. The Crown Prosecutor, on being invited to explain the relevance of the cross-examination, indicated that it arose out of the notice of alibi which had been served upon the Crown. On that basis, he was given permission to proceed, but it was indicated that the cross-examination of the appellant as to his association with people who were fellow prisoners for the purpose of attacking the appellant's credit would not be permitted. The appellant then agreed that, in 1998, Mr Rutty had been in Casuarina Prison. He also agreed that he knew that Mr Cunningham had gone to trial in 1998 and that his defence at that trial had been a denial. He further agreed that Mr Rutty had given evidence for Mr Cunningham, telling the jury that he, Rutty, had committed the offence with others, but that Mr Cunningham had not been involved. Mr Rutty had himself been caught "red‑handed". The Crown Prosecutor then went on to secure admissions from the appellant to the effect that Mr Cunningham was still in gaol and that he had been convicted of "that offence". The cross-examination continued:
"The jury obviously didn't believe Mr Rutty, did they?---Obviously not.
And you are now going to maybe call Mr Matthews to say the same thing?---He's just telling what he done."
Counsel for the appellant objected once again to this questioning. The objection was properly upheld by the learned trial Judge. Counsel then made a submission that the jury should be discharged. In response, the Crown Prosecutor outlined what he had hoped to establish by the line of questioning adopted by him. It was as follows:
"Rutty and Rutty's brother pleaded guilty. Rutty was apprehended a short distance away from the scene of the crime and Cunningham was identified by a detective who had previous dealings with him and identified Cunningham during the chase. Cunningham, however, got away and the Crown's case was presented entirely on the identification made by the detective of Cunningham.
So it came down to an identification issue. A bit like this case where the only link is the fingerprint evidence. The offence took place in November of this year and Mr Rutty gave evidence, "Yes, myself and my brother did it but Mr Cunningham didn't", and when he was asked to disclose the identity of the third person, he refused to name that person. All he would say is that it wasn't Mr Cunningham.
The parallels, therefore, between this case and that case - same offence, same circle of friends, mates sticking up for each other, one mate who has got nothing to lose by admitting his role in the commission of the offence - the same case here. Matthews has got nothing to lose or gain by his evidence here if he gives such evidence tomorrow."
The Crown Prosecutor admitted that he was unable to establish any involvement of Mr Matthews in the Rutty-Cunningham alibi, although no doubt he had the intention of cross-examining Mr Matthews on the matter if he were to give evidence. He added:
"What about the fact that he has been charged and will be pleading guilty shortly to committing six armed hold‑ups with Jamie Cunningham? There is an association - I have had this checked carefully. There is an association between all four individuals."
The learned trial Judge ruled that the proposed evidence was not relevant, but he declined to discharge the jury, saying that he did not think that the position was irremediable. It was, he said, nothing that could not be fixed with an appropriate direction to the jury to ignore the evidence that had been given about the matter. He accordingly brought the jury back into court and warned them immediately that what had happened in the Cunningham trial had no relevance to the present trial. Nor had the fact that, on some other occasion, in respect of some completely different offence, in regard to which there was no evidence that either the appellant or his alibi witness, Mr Matthews, was involved, Mr Rutty, who had pleaded guilty to a robbery offence, told the jury that Mr Cunningham had not been involved in the offence. He directed them that, to the extent that they might have had the impression that the men were all mates together in Casuarina and had this modus operandi in regard to dealing with the evidence against them at a trial, this would be pure speculation and should be put right out of their minds. He directed them to ignore what they had heard in answer to the question put to the appellant, to ignore what they had heard both as to what had been put to the appellant and as to what he had answered in regard to the Rutty-Cunningham matter. It being then late in the afternoon, the trial was adjourned.
The cross-examination of the appellant then continued on the following morning. He repeated that Mr Matthews had pulled his car up behind him in the carpark and had beeped his horn. He then said he had sat in Mr Matthews' car; but that his feet were outside the car. He described their having had just a social chat. He claimed that he had grabbed the papers on the seat and chucked them out of the way - he had earlier said that he had "placed" the papers on the floor. His evidence, so far as can be judged from the printed word, was far from convincing. He maintained he had not noticed anything suspicious, notwithstanding that it was suggested to him that he was asking the jury to accept that a mate of his, who had just committed a hold‑up, had decided to stop and have a chat with him while he was still in the stolen getaway car.
The evidence of Mr W R Harvey, the appellant's father, differed slightly from that of the appellant in one respect. He said that, at lunch time, he would send the appellant out to get something to eat and that when he returned they would eat their lunch. The appellant's evidence was that he had been eating his own lunch in the carpark in the shopping centre on this occasion.
Mr Matthews was then called as a witness for the defence. Questioned by counsel for the appellant, he said he was currently remanded in custody at Casuarina Prison in relation to 21 armed robbery offences and a number of motor vehicle stealing offences, to which he had pleaded guilty. He had not been charged with the present armed robberies; but he agreed he knew something about an armed robbery offence at a Post Office in Cloverdale. Asked what he knew about it, he indicated that he did not want to say anything, because he might incriminate himself. Counsel for the appellant requested that he be compelled to answer the question, and the learned trial Judge indicated to Mr Matthews that, if the questions were answered in a satisfactory manner, he would be given a certificate against prosecution under s 11 of the Evidence Act 1906. Mr Matthews then told the Court that he had gone with another person to the Belmont Forum carpark where he had stolen a car, which he had then driven to the Post Office. He said he could not recall who his accomplice was, claiming that he had "done a few robberies". He denied that the appellant had been his accomplice. He admitted that he and his accomplice had taken weapons with them, but he could not remember what those weapons had been. At the Post Office, he said, he told a person, who was at the time serving a customer, to open the safe and the till. He said he was taken to the safe, which was open, and that he "grabbed all the stuff out of the safe". The evidence of the licensee of the Post Office was that, on the insistence of one of the armed robbers, he opened the door of the safe, which was just behind him. The intruder became very upset because there was nothing in the safe, and he demanded to know where "the rest" was. The licensee pointed to two drawers, from which he said the robber then removed money and papers.
Mr Matthews said that, after leaving the Post Office, he drove to the Belmont Forum shopping centre "just to hide the car again, just to get out and … get rid of the disguises and stuff, just blend in again". However, on driving into the parking area at the Belmont Forum, he said he recognised one of his friends, the appellant, who was sitting in his car eating. He pulled up alongside him. He called out to him and the appellant came up to his car and sat down in the passenger seat. He said, "We just had a talk and that … It was just a quick conversation, just, 'How're you going? What're you doing?' It lasted a couple of minutes and they then "just went [their] separate ways"." He said he became aware when he was in prison that somebody had been charged with the offence and he spoke to the appellant about it. The appellant told him that he hadn't done it. Mr Matthews said that when he was "reading the thing" he realised that he was the person who "did it". He claimed that he told the appellant that he would stand up and say he had done it.
Under cross-examination, Mr Matthews still could not remember the weapons which he and his accomplice had taken into the Post Office, although he admitted that on more than one occasion he had used in his robberies a machete, a sword, a knife and a firearm. He said he did not remember using a hammer or a baseball bat in a hold‑up. There were a number of other discrepancies between the prosecution evidence and that of Mr Matthews. The customer in the shop maintained that neither of the offenders was wearing gloves. Mr Matthews claimed that they had both been wearing gloves. His evidence was that the safe was open when he asked the licensee of the Post Office to open it and he said he grabbed everything out of it. The licensee maintained that there was nothing in the safe, which was located immediately behind where he was standing. In addition, Mr Matthews could not remember whether he and his accomplice had taken anything into the Post Office with them in which they could place any stolen property. Only when a grossly leading question was put by the appellant's counsel did he recall that they had taken a bag with them.
The final matter concerned the somewhat improbable story of Mr Matthews that, having driven away in haste from the scene of the robberies and at a time when it might have been thought that he would be endeavouring to abandon the stolen vehicle as soon as possible, he had stopped to speak about quite inconsequential matters with his friend, the appellant, not knowing whether the car's loss had been reported by its owner or whether a search was being made for it. The Crown argued that the story being advanced was implausible and designed only to explain away how the appellant's fingerprint had come to be found on the Post Office document in the stolen car.

In his summing up, the learned trial Judge reminded the jury of his earlier direction to them, when he had instructed them to put out of their minds the evidence in respect of the Rutty-Cunningham trial. None of it, he said, was relevant to the issues they had to decide in the case, and he told them to put it to one side altogether.
In my opinion, had the questions been formulated with rather more care than they were, it should have been open to the Crown to cross-examine the appellant and Mr Matthews regarding a similar defence recently adopted by Mr Cunningham on his trial when Mr Rutty, who had been caught red‑handed, admitted having committed the offence with which Mr Cunningham had been charged, and claimed that, in addition to his brother, there was a third person involved in the robbery whom he was unable to identify. The four were apparently known to one another. The Crown Prosecutor in this case did, however, give far too much emphasis to the fact that the persons concerned had been in Casuarina Prison and had criminal records. It must also be accepted that there was no justification for the reference by the Crown Prosecutor to the jury obviously not believing Mr Rutty. But it must still be appreciated that it was counsel for the appellant who brought out the fact that the appellant was being held in remand at Casuarina Prison, where he had met Mr Matthews once more, and that Mr Harvey's counsel also elicited in evidence the fact that Mr Matthews had pleaded guilty to 21 charges of armed robbery and a number of charges relating to the stealing of motor vehicles.
It should further be noted that the learned trial Judge, clearly unintentionally, told the jury that Mr Cunningham's trial had been in respect of a robbery. That evidence had not been given before the jury. His Honour, in the absence of the jury, had previously been informed that the trial had been a trial for robbery.
The primary question before this Court is whether the learned trial Judge erred in the exercise of his discretion by declining to discharge the jury. In Crofts v The Queen (1996) 186 CLR 427, at 440 ‑ 441, Toohey, Gaudron, Gummow and Kirby JJ said:
"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?"
At 432, Dawson J said:
"Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial Judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that "a high degree of need for such discharge"

must appear before a discharge will be ordered. (See Winsor v The Queen [1866] LR 1 QB 390 at 394; Swinburne v David Syme & Co [1909] VLR 550 at 563, affd David Syme & Co v Swinburne (1909) 10 CLR 43; R v Boland [1974] VR 849 at 866). When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury."

See also Maric v The Queen (1978) 52 ALJR 631, at 635, per Gibbs ACJ.

It must be appreciated, of course, that, in the present case, the eliciting of the prejudicial evidence was not inadvertent. However, it was a somewhat unusual case and, as Barwick CJ observed in relation to a criminal trial in Demirok v The Queen (1997) 137 CLR 20, at 22:
"To secure equality between the contestants, there are statutory provisions intended to secure a fair trial to the accused and to protect him from prejudicial conduct, whether by judge or prosecutor. Yet I think it important to remember that this does not mean that, by one means or another, the accused must be protected from any and all disadvantage arising from the facts of the case and from the incidents of a properly conducted trial."
In the circumstances of this case, it does not appear to me that the trial Judge, with the advantage which he had over this Court in appreciating the impact which the offending material had upon the jury, failed to exercise his discretion in a proper manner. The warning which he gave to the jury was given almost immediately after the objectionable cross-examination had taken place, and an additional warning was given by him in the course of his summing up to the jury. Furthermore, the manner in which the defence was conducted made it quite obvious that the appellant was a friend of a persistent armed robber. I am satisfied that the jury would certainly have returned the same verdicts if the avoidable prejudicial evidence had not been put before the jury. I would therefore dismiss this appeal.

IPP J: I have read the reasons to be published by Kennedy J. I agree with them and his Honour's conclusions. I have nothing further to add.
WALLWORK J: I agree with the reasons for judgment of Kennedy J. There is nothing I could usefully add to those reasons.