Howlett v Budd

[2003] TASSC 49

[2003] TASSC 49

CITATION:              Howlett v Budd [2003] TASSC 49

PARTIES:  HOWLETT, Wayne William
  v
  BUDD, Malcolm Francis

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 24/2003
DELIVERED ON:  2 July 2003
DELIVERED AT:  Hobart
HEARING DATES:  18 June 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law – Evidence – Matters relating to proof – Standard of proof – Circumstantial evidence – Reasonable hypothesis consistent with innocence - Whether the learned magistrate considered and rejected any reasonable hypothesis consistent with innocence before convicting.

Chamberlain v R (No 2) (1984) 153 CLR 521 and Shepherd v R (1990) 170 CLR 57, applied.
Aust Dig Criminal Law [449-451]

Evidence – Burden of proof, presumptions, and weight and sufficiency of evidence – Generally – Credibility and weight – Party's failure to give or call evidence – Whether the learned magistrate properly addressed the applicant's failure to either give evidence or call a material witness.

Weissensteiner v R (1993) 178 CLR 217; Dyers v R [2002] HCA 45, applied.
Aust Dig Evidence [142]

REPRESENTATION:

Counsel:
             Applicant:  K L Baumeler
             Respondent:  M S Cox
Solicitors:
             Applicant:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2003] TASSC 49
Number of Paragraphs:  18

Serial No 49/2003
File No LCA 24/2003

WAYNE WILLIAM HOWLETT v MALCOLM FRANCIS BUDD

REASONS FOR JUDGMENT  SLICER J

2 July 2003

1. The applicant seeks review of his conviction for the crimes of stealing and burglary.  Commercial premises were unlawfully entered on 2/3 November 1999.  The applicant was interviewed by police on 5 April 2002, but made no admissions and was charged with the crimes by complaint dated 3 June 2002.

1. The evidence placed before the court of petty sessions was that:

(1)A burglary had been effected on premises at Salamanca Place between 6pm, 2 November and 10am, 3 November 1999 and a quantity of money and jewellery stolen.  Entry had been gained by the forcing of a door fitted with a deadlock and broken glass was found on the floor.

(2)A hammer, hacksaw blade and a pair of tin snips were removed from inside the property and submitted for forensic examination.

(3)Analysis of the items showed:

(a)the presence of DNA material on the hacksaw blade from at least two individuals, which had not been contributed by the applicant or Scott William Dale, the second person charged with the crime;

(b)the presence of DNA material from at least two male persons on the handle of the hammer and that:

"Wayne William Howlett was not excluded as a possible contributor to the major DNA profile from this swab and the chance of a randomly chosen person having a DNA profile that would not exclude them from that profile would be one – less than one in one hundred million."

(4)Dale was a known associate of the applicant and the two were believed to have shared accommodation at Dromedary.

(5)Dale had been charged with the crimes and convicted on his own plea at an earlier date.  He was not called as a witness on the hearing.

(6)The applicant was interviewed by police on 5 April 2002, but confined his answers, in the main, to ones of "no comment".  The following exchanges recorded on videotape are relevant to the determination of this appeal.

"QAll right.  Can you tell me how a pair of cutters left at the scene at the time of the burglaries and at the scene of the burglaries would have your DNA on it.

ANo comment.

QDo you deny being there?

ANo comment."

1. The applicant elected not to give or adduce evidence on his behalf.

1. The case was circumstantial in nature.  Counsel advanced as a reasonable hypothesis that the presence of DNA material on the handle of the hammer could be explained through its use by Dale who had taken it from the joint residence.  In relation to the failure of either party to call Dale, the learned magistrate asked:

"If you are going to suggest that Dale may be it, what inference should I draw then the fact that he hasn't been called?"

and in answering his own question, stated:

"And the inference I have got to draw is that nothing he could have said would have assisted your client.  Nothing more than that?

...

We have got a hammer handle with Howlett's DNA on it.  He has given no explanation how it got there.  He is right, he doesn't have to if he doesn't want to.  But I am still left with it, the inference being that he had something to do with that hammer, how did it get there.  Well, if you are saying that maybe Dale had borrowed it because they are associates, I would need some evidence, I would have thought, from Dale to say, oh yes, I borrowed that hammer, I took it with me."

1. Counsel contested the approach, submitting that the facts of shared residence and known presence of Dale at the scene were sufficient to support a conclusion of innocent handling and the exchange concluded with the respective statements that:

"his worship:  Well, I don't necessarily know that either.  Just because known associate, doesn't mean that I know that Mr Dale knows where Mr Howlett keeps his hammer.

miss baumeler:  I am not even suggesting that it is Mr Dale's hammer or Mr Howlett's hammer.

his worship:  In which case how did Mr Howlett's DNA get on there?

miss baumeler:  Well because you have evidence from Sgt Smith that they were living in the same place – at Mr Fox's."

1. The learned magistrate did not mention the question of the absence of Dale in his reasons for decision, but for the purpose of the determination of this appeal it will be assumed that his statements set out above reflected his process of reasoning in reaching his finding of guilty.  In those reasons for decision, the learned magistrate stated:

"decision – his worship:  This is a charge of burglary and stealing in relation to Mirror Designs, sorry, Design of Mirrors at Salamanca Place in 1999.  The defendant made no admissions at all to the police of any involvement in the burglary and stealing.

What we have is a hammer found at the scene with his DNA on it whereby he could not be excluded.  The chance of it being randomly put there by somebody else is one in one hundred million.  There is no evidence before me explaining how the hammer got there with his DNA on it.  At best I am told he had an associate called Dale who has already pleaded guilty to this and that Mr Dale might have had the hammer.  It doesn't get us very far.

The defendant has elected not to give evidence.  He is entitled to do that too.  In so doing, of course, I am not given any potential reason as to how that hammer came to be there with his DNA on it.

Inferential – is there a sufficient inference to suggest that he was there if his DNA was on it.  I am told the only other DNA sample is a very, very partial one.  This was the major contents of DNA in relation to Mr Howlett.  I think in the absence of any other reason given to me as to how that would have come there, the only inference I can draw, I would believe is that that hammer was taken to the scene by Mr Howlett and was present at the time.  He was apparently foreign to the area.  The fact that Mr Dale has pleaded guilty is purely the concern of Mr Dale.

I refer then to Mr Howlett.  I think in the absence of any other evidence that might suggest otherwise I have to find the charge be proved."

1. The notice to review claims error in that:

"1   The Learnered [sic] Magistrate erred in convicting the Applicant on the abovementioned complaint in that:-

(a)the facts as presented by the prosecution were unable to substantiate a finding of guilty.

(b)the Learned Magistrate unfairly criticised the defence case for not calling the co-defendant, and erred in inferring that such evidence would not have assisted the defence.

(c)the Learned Magistrate gave insufficient weight to evidence given by Sergeant Smith & Dr Wynen, which was exculpatory.

(d)the Learned Magistrate erred in giving no consideration to the contents of the defendant's video interview when making a finding of guilt.

(e)the Learned Magistrate erred in concluding that there was no reasonably hypothesis consistent with innocence.

(f)the learned Magistrate erred in his findings and effectively reversed the onus of proof.

2    In all of the circumstances, the finding that the charges were proved was unsafe and unsatisfactory."

1. There is no substance to ground 1(c) and (d) and they ought be dismissed.  The remaining grounds can be dealt with as error in the learned magistrate's approach to a circumstantial case (ground 1(a), (e) and (f)), misdirection as to the failure of the defence to call Dale (ground 1(b) and (f)), leading to an "unsafe and unsatisfactory" conviction (ground 2).

Circumstantial case

1. Although the learned magistrate did not state in his reasons for decision that he had engaged in the process of reasoning required of a circumstantial case, namely the necessity to consider and reject any reasonable hypothesis consistent with innocence before convicting, it is clear that such occurred.  The hypothesis of innocent handling had been clearly stated to him immediately before his decision and he had rejected it.   The question is whether on the evidence he unreasonably rejected a hypothesis consistent with innocence.

1. The evidence supporting a hypothesis of innocent handling was scant.  It depended on answers given by an investigating officer and the following extract of his evidence comprises the totality of the relevant material:

"Sergeant, you were in CIB in 1999, is that right? … I was, yes.

And back in 1999, would it be a safe assumption for me to make that Wayne Howlett and Scott Dale were considered known associates? … It would be safe to assume that.

And would it also be the case that both of them were pretty much residing with a Mr Trevor Fox at that time up in Dromedary? … There was a strong connection, yes.

Spending a lot of time up there.  And Mr Dale was also charged in relation to these matters.  Is that right? … Yes.  A detective, at the time, Todd Bain charged him, that's correct.

And you are aware of what the outcome of Mr Dale's matter though? … Well matters were finalised quite some years ago and I believe it was a positive outcome for prosecution.

Mm.  He pleaded guilty? … Yes."

1. The paucity and vagueness of that material caused the learned magistrate some difficulty especially in the absence of evidence from Dale.  This, presumably, caused him to ask counsel what use he could make of that material and to state in his reasons for decision that:

"I think in the absence of any other evidence that might suggest otherwise I have to find the charge be proved."

The extract shows that the learned magistrate properly dealt with the requirements of a circumstantial case in accordance with the principles stated in Chamberlain v R (No 2) (1984) 153 CLR 521 and Shepherd v R (1990) 170 CLR 573.

1. Ground 1(a), (e) and (f) is not made out.

Absence of witness

1. Whilst it is safer in jury cases for the presiding judge to say nothing about an absent material witness (R v Puddick (1865) 4 F & F 497) or give a recital or confined direction only (R v Bryant and Dickson (1946) 31 Cr App R 146; R v Buckland [1977] 2 NSWLR 452), there are situations where it can be warranted (R v Scott (2000) 112 A Crim R 543). A direction giving effect to the principles stated in Jones v Dunkel (1959) 101 CLR 298 ought not be given in cases involving the failure of the defence to call a witness, although some comment is permitted by the Evidence Act 2001, s20 (R P S v R (2000) 199 CLR 620). The comment, in this case, was directed at how the learned magistrate should approach the absence of evidence rather than a failure of the defence to call Dale as a witness. The learned magistrate's observation was confined to an intended self-direction that:

"Nothing he [Dale] could have said would have assisted your client, nothing more than that?"

is permitted provided regard is had to the issues of silence and onus of proof (R v Murphy (1992) 66 LIJ 571; Dyers v R [2002] HCA 45), although constraint must be exercised (Azzopardi v R (2001) 205 CLR 50). The applicant did not give evidence and the issue of how the hammer with his DNA material came to be found at the scene was one within his province (Weissensteiner v R (1993) 178 CLR 217). Whilst the import of Weissensteiner might have been modified by the High Court in Dyers (supra) and Azzopardi (supra), the issue of absence of evidence as to a matter within the personal knowledge of an accused or defendant remains available as an aid to the reasoning process.

1. The High Court in Dyers stated the correct approach to be:

"As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi.  As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence."  (Gaudron and Hayne JJ at par5.)

1. Here the learned magistrate correctly did not speculate.  He paid regard to the absence of evidence rather than failure to call a witness in his reasoning and conclusion.  It might have been preferable had he not made the statement of permitted use, but the statement of the High Court in Weissensteiner v R (supra) that:

"If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor 'has the responsibility of ensuring that the Crown case is presented with fairness to the accused' and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused."

The statement was approved by Callinan J (with whom Kirby J agreed) in Dyers at par20, and remains applicable in this case.

1. Ground 1(b) and (f) is not made out.

1. Even if there was error manifested by the statement, the reasoning disclosed by the learned magistrate shows that he did not make any finding adverse to the applicant by failure to either give evidence or call a material witness.  There has been no "unsafe and unsatisfactory" conviction as claimed in ground 2 (Kelly v O'Sullivan (1994) 4 Tas R 446).

1. The motion to review ought be dismissed.