Hobeich, A.J v The Queen

[1990] FCA 819

Re: ANDREW JOSEPH HOBEICH
And: THE QUEEN
No. ACT G37 of 1990
FED No. 819
Criminal Law - Bias of Witness

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), Wilcox(1) and Higgins(1) JJ.

CATCHWORDS

Criminal Law - Appeal from Supreme Court - Extension of time to appeal - Failure of Crown to call wife of principal crown witness - Witness not called by defence to rebut husband's denial of statement - wife's evidence unlikely to have influenced result of trial.

Material not led by Crown elicited by Trial Judge's questioning - Whether prejudicial to defence case.

Corroboration of the evidence of an accomplice - Nature of corroborative evidence - Fingerprint - Directions to jury.

Bias of the witness - Directions to jury regarding witness' status as an accomplice and possible interest in falsely implicating the appellant - Lack of request for re-direction on the question of corroboration or bias.

Statement of witness not called admitted by consent - Statement contradicted another witness' oral evidence - Contents of statement not put to that witness.

Evidence Act 1971 (ACT)

Richardson v R (1974) 131 CLR 116

R v Apostilides (1984) 154 CLR 563

Kalajzich and Orrock (1989) 39 A Crim R 415

R v Berill and Ors (1982) Qd R 508

R v Richards (1965) Qd R 254

R v Redpath (1962) 46 Cr App R 319

R v Knight (1966) 50 Cr App R 122

R v Flannery (1969) VR 586

R v Freeman (1980) VR 1

R Booth (1982) 2 NSWLR 847

Hudd v R (1987) 75 ALR 143

HEARING

CANBERRA

#DATE 24:12:1990

Counsel for the appellant: Mr R. Mildren

Solicitor for the appellant: Messrs Gilpin and Associates

Counsel for the respondent: Mr P. Hastings

Solicitor for the respondent: Director of Public Prosecutions

ORDER

The appeal be upheld.

The conviction and sentence recorded on 24 November 1989 be quashed.

A new trial be ordered.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 22 June 1990, Neaves J refused an application by Andrew Joseph Hobeich, the appellant, for an extension of time within which to file and serve a notice of appeal against his conviction and sentence in the Supreme Court of the Australian Capital Territory. The appellant was convicted of possessing a controlled substance, to wit, heroin for the purpose of supplying the said substance to another person or persons on 26 January 1988; supplying a controlled substance, to wit, heroin to another person, namely, Miguel Anguel Rodriguez between 1 July 1987 and 31 December 1987; supplying a controlled substance, to wit, heroin to another person, namely, Miguel Anguel Rodriguez between 1 January 1988 and 26 January 1988; supplying a controlled substance, to wit, heroin to another person, namely, Miguel Anguel Rodriguez on 26 January 1988.

1. Details of the application for extension of time and the reasons for the failure of the appellant to file a timely notice of appeal are set out in his Honour's reasons for judgment. It suffices to say that the circumstances of the delay in filing and serving a notice of appeal were such that, had Neaves J been persuaded that the appeal arguably had merit, he would have granted the extension of time sought.

2. The appellant appealed against Neaves J's rejection of his application for an extension of time. Having regard to his Honour's attitude, the central question before us was whether there was any substance in any of the proposed grounds of appeal. We took the view that there was substance in one matter raised before us - a matter which, was at best, fleetingly mentioned before Neaves J - and we granted an extension of time. The appellant then filed a notice of appeal. Upon the following day we heard argument in respect of the matters raised by the notice of appeal except severity, in connection with which matter the relevant material was not all available. We adjourned the hearing of that as part of the case until a date to be fixed.
   The Failure of the Crown to call Mrs Rodriguez

3. The principal ground of appeal was the failure of the Crown to call as a witness, Jacqueline Mary Rodriguez, wife of Miguel Anguel Rodriguez. Miguel Rodriguez was the principal Crown witness. He claimed that the appellant had provided him with heroin. The appellant's case was that, to the contrary, Rodriguez supplied heroin to him. The offences of possession for supply and supply of heroin to Miguel Rodriguez with which the appellant was charged, could, therefore, have been found to have been committed by the appellant only if the jury accepted, beyond reasonable doubt, the truth of the evidence given by Miguel Rodriguez. The appellant and Rodriguez agreed that, on 26 January 1988, they had used heroin together at Rodriguez's shop in the City. Thereafter a fight broke out between them. They differed as to how it started. The appellant was seriously wounded and, as a result, Rodriguez was charged with attempted murder.

4. Mrs Rodriguez was called to give evidence at the committal. Her evidence is set out in the Appeal Book. Prior to the trial, the Crown Prosecutor indicated that he did not intend to call Mrs Rodriguez. Nothing in her evidence could have advanced the Crown case. The defence, however, wished to have her called to obtain evidence which, it was contended, would lead to an inference that Miguel Rodriguez had orally stated to her that he had supplied the appellant with heroin. Apparently, counsel's reasoning was that if Miguel Rodriguez denied making such a statement, the statement could then be proved pursuant to s.60 of the Evidence Act 1971 (ACT) by means of Mrs Rodriguez.

5. However, the Crown Prosecutor indicated that he did not intend to call Mrs Rodriguez. This was a decision within his competence: see Richardson v R (1974) 131 CLR 116; R v Apostilides (1984) 154 CLR 563. Nevertheless, the Crown did cause Mrs Rodriguez to be in attendance and so informed defence counsel. During the course of cross-examination, Rodriguez denied making the statement which had been attributed to him; a statement which was, in any event, vague in its import. The defence could have called Mrs Rodriguez to rebut her husband's denial. If she departed from her statement to the police or her evidence in the Magistrate's Court, she could, subject to a possible claim of marital privilege, have been cross-examined to establish the making of that statement or the giving of that evidence. But, for whatever reason, counsel for the defence decided not to call Mrs Rodriguez.

6. There is no substance in this ground of appeal. The Crown Prosecutor was not bound to call Mrs Rodriguez. He gave notice to the defence of his intention not to call her and he made her available as a witness for the defence. That she did not give evidence at the trial was a consequence of a decision made by counsel for the defence. In any event, even if she had repeated her earlier evidence, it seems unlikely that it would have had any influence on the result of the trial.
   Prejudicial material elicited by Trial Judge

7. The second ground argued before us arose out of certain questions asked by the learned trial judge of Miguel Rodriguez. They are set out in the judgment of Neaves J. We will not repeat them. Their substance appears from the references to Rodriguez's answers to those questions in the trial judge's charge to the jury:
   

"Thereafter (ie after the accused and Miguel Rodriguez first met) the Crown would say the evidence establishes that they met on some 20 occasions including one visit to Kings Cross together where a packet was picked up and they came back to Canberra."

1. The trial judge rejected an application to discharge the jury, made immediately after the evidence about the Kings Cross visit was given. The objection was that the reference to the "packet" was unfairly prejudicial. His Honour took the view that the reference to the "packet" conveyed no sinister connotation, so that the revelation of that fact to the jury was not unfairly prejudicial.

2. The line of questioning his Honour pursued did elicit material the Crown had not led. That may have been the result of a conscious decision by the Crown, and for a good reason. The questioning of Rodriguez on that matter by the trial judge was a course which carried a risk of eliciting unfairly prejudicial matter. As it happened, however, although we accept that the jury may have placed a sinister connotation on the evidence as to the "packet", the evidence was relevant to the case made against the appellant, that he was the supplier, as opposed to Rodriguez. It added nothing unfairly prejudicial on that issue. The jury still had to decide whether they accepted Rodriguez. His evidence about the Kings Cross visit depended entirely upon the jury's acceptance of him as a witness of truth. Even if the evidence should not have been elicited, it could not have influenced the outcome of the trial. If Rodriguez was accepted by the jury, the conviction is sustainable with or without the Kings Cross evidence. If he was not, this evidence would have been rejected along with his other evidence as to supply. We add that there was no request for a direction that the jury should disregard the statement made by Rodriguez concerning the "packet". In our opinion, it was so plainly self-serving that no such direction was necessary.
   Corroboration of the evidence of an accomplice

3. The third ground relied upon by the appellant has more substance. As we have mentioned, it was not really put to Neaves J. This ground related to the direction of the trial judge concerning the use to be made of the testimony of Rodriguez, having regard to his status as an accomplice.

4. At the trial, there was no dispute about Rodriguez being an accomplice. The trial judge told the jury so in adequate terms. His Honour proceeded to give the standard form of direction concerning the approach to the evidence of an accomplice. However, his Honour did not explain why the evidence of accomplices generally, and that of Rodriguez in particular, should be viewed with suspicion.

5. During the course of his summing up the trial judge said:-
   

"There is not much in the way of corroboration. The only corroboration is perhaps the foil papers, the little folded pieces of paper that were found, and the indication photographs, exhibit C, that there had been heroin used back at the shop - the shoe shop in Bailey Arcade."

1. What evidence can properly be described as corroborative was discussed extensively in Kalajzich and Orrock (1989) 39 A Crim R 415. A clear difference of opinion has emerged between the Court of Criminal Appeal in New South Wales and Queensland and a view represented by the Full Court of the Supreme Court of South Australia. The controversy may be shortly stated. It is whether a piece of evidence is incapable of being regarded as corroborative because-
   

(i) so to regard it requires the acceptance of the evidence of the person to be corroborated; and/or

(ii) requires the rejection of an explanation provided by the defence case that would make such evidence non-probative of guilt.

1. The nature of the evidence in this case, referred to as corroborative, is not such as to require a resolution of that controversy. It is to be noted that the witness, Rodriguez, says he obtained the "foils" of heroin, on one of which the appellant's fingerprint was found, from the appellant's room. He does not allege that it was a "foil" supplied to him by the appellant. Certainly, the identification of the fingerprint has independent cogency apart from Rodriguez's evidence, but the fact of the fingerprint, though consistent with that evidence, does not prove any element of the offences charged which element was in issue.

2. It is, of course, capable of proving that the appellant had possessed or handled a "foil" of heroin previous in time to Rodriguez leaving it at his, ie Rodriguez's, home. The fact that the appellant possessed heroin could have been corroborative of possession for supply as charged if that prior possession was capable of supporting the proposition that:-
   

(i) the appellant packaged the heroin; and/or

(ii) the appellant provided the heroin voluntarily to the witness Rodriguez.

1. In context, even disregarding the appellant's version of events, the evidence was "neutral" with respect to the issues raised by the prosecution case. It was not in issue that both the appellant and Rodriguez could be expected to be and have been in possession of heroin. In R v Berill (1982) Qd R 508, for example, had the complainant asserted her black eye was not connected with the alleged rape but with some other altercation with the accused, then it would not be corroborative of the matter charged, even though it might corroborate some collateral detail of her evidence. Nor would it become corroborative because the accused gave a different account, equally consistent with innocence of the offence charged as to how the injury was suffered. (See for example, R v Richards (1965) Qd R 254.)

2. The considerations discussed in the context of considering whether "distressed condition" or torn clothing are capable of being corroborative are helpful in this regard. (See for example, R v Redpath (1962) 46 Cr App R 319; R v Knight (1966) 50 Cr App R 122.)

3. The extent to which evidence is corroborative, how its corroborative value is affected by the prosecution evidence and/or the defence case, should be made clear to the jury.

4. Merely to say the fingerprint was "corroboration" may have implied that the warning about the accomplice's evidence could be disregarded. That, of course, is not so. Even if evidence is corroborative, the jury must still be warned that they must scrutinise the whole of the accomplice's evidence including the extent to which that evidence renders the matter relied on as being corroboration, corroborative of the accomplice's evidence and as to the part or parts thereof that it corroborates. (See for example, R v Flannery (1969) VR 586; R v Freeman (1980) VR 1.)

5. In the circumstances of this case, therefore, the suggested "corroboration" and its relationship to the alleged offences required more elaboration than it was given, even if it was correctly characterized as capable of being so regarded.

6. His Honour did not explain how the presence of the "papers", corroborated the Crown case. The "papers" seem to have been those found by police at Rodriguez's house. There was evidence that one paper bore the appellant's left index fingerprint. So they corroborated the allegation that at least this paper had once been in the appellant's possession. But Rodriguez's evidence was that he had stolen three "foils" of heroin from the appellant's wallet. His evidence was that, after he, Rodriguez, wounded the appellant, he went back to the appellant's room at Macquarie Hostel and stole these foils and some other heroin. He was subsequently found in New South Wales in possession of some of that other heroin. Under these unusual circumstances, the fingerprint did not corroborate a case that the appellant had supplied heroin to Rodriguez. The fingerprint was consistent, also, with the use and handling of heroin at the shop where both Rodriguez and the appellant had used heroin together. It depended on Rodriguez's evidence being accepted to do more than corroborate prior handling of the foil in question.

7. The trial judge had also referred to "the papers" before addressing corroboration as (see p 150 Appeal Book)
   

"some independent evidence of those pieces of paper coming from the accused's room because you have got the pieces of paper themselves and that it was the accused who had heroin wrapped in those pieces of paper."

1. The later reference to the fingerprint, indirect as it was, seems to have been taken up by the jury. They asked to have read to them the transcript of the evidence of the fingerprint expert, Constable Hennig.
   Bias of the witness Rodriguez

2. There is also the question of the status of the witness Rodriguez not only as an accomplice but also as an unconvicted defendant.

3. It was objected before Neaves J that Rodriguez should have been dealt with and sentenced before giving evidence at the trial of the appellant. There is no substance in this. Rodriguez was defending a charge of attempted murder of the appellant. He had other charges against him arising out of the incident on 26 January 1988. He was giving evidence at the trial of the appellant of the charges against him. The appellant was to be relied on by the Crown as giving evidence against Rodriguez. One had to go first.

4. However, granted that Rodriguez had first to testify, he came before the Court with much to gain from-
   

(i) exculpating himself; and

(ii) giving evidence inculpatory of the appellant.

1. This is a situation different in quality from the suspect motives of a sentenced co-offender who may still have some motive of revenge or personal satisfaction, fulfilment of a promise or avoidance of a perjury charge arising from previous testimony.

2. In R v Booth (1982) 2 NSWLR 847, Street C.J. pointed out (848):-
   

"It is well established that the evidence of an accomplice is inherently suspect."

1. Further in his Honour's view (849)-
   

"The full nature of the position of the witness as an accomplice is necessarily opened up as a relevant matter for evidence, so that the jury may be able to give proper (850) meaning and carry properly into effect the warning which the trial judge is required to give them. Quite plainly, it would be of more significance in the jury's mind in evaluating the effect of the warning if it knew that the accomplice was still waiting to be dealt with."

1. Although a comparatively rare situation, it is important that the precise status of the accomplice and his or her motives for falsely implicating an accused be investigated.

2. O'Brien C.J. (Cr. D) noted (850):-
   

"Once the principle is conceded that the attention of the jury must be directed to the risk inherent in accepting the evidence of a witness whom they find to be an accomplice of the accused, it becomes relevant, in the assessment by the jury of that risk, to know whether he has any advantage to gain from the Crown in his giving evidence against the accused."

1. Lee J said (851):-
   

"In order for the jury to assess the degree of danger involved in evaluating his (the accomplice's) uncorroborated testimony, it is necessary for the Crown to disclose whether the witness has for instance been offered or granted a pardon, or whether it is not intended to proceed against him, or whether in fact he has been charged with an offence arising out of or related to the matter with which the accused is charged...It is particularly relevant in regard to the extent to which the evidence of that accomplice can be called upon to found a conviction of the accused."

1. Lee J went on to note that the jury should not be placed in a position of speculation with regard to the particular circumstances affecting the position of the accomplice. Only if they had the full facts before them could they do justice both to the accused and the Crown.

2. Independently of whether a witness is also an accomplice, evidence showing bias on the part of the witness is admissible (see Hudd v R (1987) 75 ALR 143). It is highly relevant to the evaluation of the weight which may safely be placed on a witness' testimony.

3. At the time he gave evidence, Rodriguez stood charged with attempted murder of the appellant. As appears from the decision of this Court delivered on 24 July 1990 (Neaves, Foster and Higgins JJ) Rodriguez was ultimately convicted of the malicious wounding of the appellant. He was sentenced to four years imprisonment. The situation for Rodriguez undoubtedly would have been worse if he had also been convicted of supplying heroin to the appellant. The appellant, after all, was sentenced to eight years (non-parole five years) for supplying heroin to Rodriguez.

1. As these facts indicate, Rodriguez had a significant reason, even apart from his possession of heroin in New South Wales, for seeking to cast the blame for both the assault and the supply of drugs onto the appellant rather than accepting that responsibility himself. Apart from a more complete direction as to his status as an accomplice, it is our opinion that a direction should have been given to the jury concerning Rodriguez's intent in diverting blame from himself and seeking to curry favour with the Crown by giving evidence which would support the Crown case.

2. It follows, in our opinion that the jury should have been directed as to the particular position of the witness Rodriguez and his interest in falsely implicating the appellant.
   Lack of request for re-direction

3. The learned trial judge was not requested to redirect the jury on corroboration or on bias. In some cases, this could be regarded as a sufficient acquiescence by the accused in the direction given at the trial to persuade an appeal Court that no substantial miscarriage of justice had occurred. Indeed, in some cases, it may be possible to be satisfied that counsel for an accused has deliberately down-played any references to the status of an accomplice for fear that such evidence would damage the defence case. Yet it does not seem to us that this was the position here. Given that both the appellant and Rodriguez were admitted heroin users, there could not have been any prejudice to the appellant in bringing home to the jury the significance or the question as to who was the supplier and of Rodriguez's interest in inculpating the appellant.

4. We are not persuaded that the result of the trial would have been the same even had a fuller warning been given. Accordingly, given the additional doubt as to whether there was evidence capable of being corroborative, on the charges of supply, as distinct from possession, the appeal should be upheld.
   Statement of witness not called admitted by consent

5. One further matter should be mentioned. At the conclusion of the defence case, a written statement of a Mr Fogl was admitted by consent. In this statement Fogl suggested that the appellant and the witness Rodriguez had first met in January 1988. This suggestion contradicted Rodriguez's evidence that the two men had met in November 1987. Rodriguez said that, between then and 26 January 1988, the appellant had supplied him with heroin on some 20-40 occasions, a statement which appears unlikely to have been true, if they had first met in January. Fogl also stated that the appellant did not come to Canberra till January 1988. If the jury accepted the statement seriously at its face value, it should have weakened Rodriguez's evidence.

6. The basis on which the document was admitted was not made clear at the time. Its contents had not been a matter squarely put to Rodriguez, although something of the sort had been obliquely raised with him in cross-examination. Whilst we do not have the advantage of knowing what was submitted by counsel in address, it is curious that no reference is made to this statement in the summing up. What the jury made of the matter we do not know. They may not have adverted to it. But they should not have been put in the position of having to choose between Rodriguez's oral evidence and a written statement tendered by consent, without agreement by counsel as to whether Fogl's date was correct.

7. The convictions and sentences must be quashed and a new trial ordered. Accordingly, the severity ground does not arise.