Hudson v The Queen
[2003] WASCA 304
•5 DECEMBER 2003
HUDSON -v- THE QUEEN [2003] WASCA 304
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 304 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:95/2003 | 11 NOVEMBER 2003 | |
| Coram: | MALCOLM CJ SCOTT J MCKECHNIE J | 5/12/03 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction allowed Conviction quashed Applicant granted retrial | ||
| B | |||
| PDF Version |
| Parties: | SHAUN RICHARD HUDSON THE QUEEN |
Catchwords: | Criminal law Appeal against conviction and sentence Doctrine of recent possession Obligation on Crown to adduce evidence of initial explanation where Crown relies upon failure to offer an explanation Duty of prosecuting counsel generally |
Legislation: | Nil |
Case References: | Bruce v The Queen (1987) 61 ALJR 603 Gilson v The Queen (1991) 172 CLR 353 McCullough v The Queen (1982) 6 A Crim R 274 Vella v The Queen (1990) 2 WAR 537 Beljajev v The Queen [1984] VR 657 Bellamy v The Queen [1981] 2 NSWLR 727 Biason v R, unreported; CCA SCt of Vic; 22 June 1983 Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627 Doggett v The Queen (2001) 208 CLR 343 Gilbert v The Queen (2000) 201 CLR 414 Gipp v The Queen (1998) 194 CLR 106 Glennon v The Queen (1994) 179 CLR 1 Houghton v The Queen [2002] WASCA 363 Jarvis v The Queen (1993) 20 WAR 201 KBT v The Queen (1997) 191 CLR 417 Kobeissi v The Queen [2000] WASCA 44 Lowndes v The Queen (1999) 195 CLR 665 MacKenzie v The Queen (1996) 190 CLR 348 MFA v R (2002) 193 ALR 184 R v Anderson (1991) 53 A Crim R 421 R v Caplin (1933) SR (NSW) 514 R v Hay and Lindsay [1968] Qd R 459 R v Nguyen [1999] 1 VR 457 R v Schama and Abramovitch (1914) 11 Cr App R 45 R v Soma (2003) 196 ALR 421 R v Stafford 91976) 13 SASR 392 R v Tran (2000) 180 ALR 62 R v Wanganeen (1988) 50 SASR 433 R v Ward (1999) 109 A Crim R 159 Rugari (2001) 122 A Crim R 1 Sikaloski v The Queen [2000] WASCA 387 Stalker v The Queen [2002] WASCA 364 Veen v The Queen (No 2) (1988) 164 CLR 465 White v Taylor [2001] WASCA 350 Whitehorn v The Queen (1983) 152 CLR 657 Wilde v The Queen (1988) 164 CLR 365 Woolmington [1935] AC 462 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HUDSON -v- THE QUEEN [2003] WASCA 304 CORAM : MALCOLM CJ
- SCOTT J
MCKECHNIE J
- CCA 108 of 2003
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal against conviction and sentence - Doctrine of recent possession - Obligation on Crown to adduce evidence of initial explanation where Crown relies upon failure to offer an explanation - Duty of prosecuting counsel generally
Legislation:
Nil
(Page 2)
Result:
Appeal against conviction allowed
Conviction quashed
Applicant granted retrial
Category: B
Representation:
Counsel:
Applicant : Ms G A Archer
Respondent : Mr R E Cock QC & Mr D N Ryan
Solicitors:
Applicant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bruce v The Queen (1987) 61 ALJR 603
Gilson v The Queen (1991) 172 CLR 353
McCullough v The Queen (1982) 6 A Crim R 274
Vella v The Queen (1990) 2 WAR 537
Case(s) also cited:
Beljajev v The Queen [1984] VR 657
Bellamy v The Queen [1981] 2 NSWLR 727
Biason v R, unreported; CCA SCt of Vic; 22 June 1983
Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627
Doggett v The Queen (2001) 208 CLR 343
Gilbert v The Queen (2000) 201 CLR 414
Gipp v The Queen (1998) 194 CLR 106
Glennon v The Queen (1994) 179 CLR 1
Houghton v The Queen [2002] WASCA 363
Jarvis v The Queen (1993) 20 WAR 201
(Page 3)
KBT v The Queen (1997) 191 CLR 417
Kobeissi v The Queen [2000] WASCA 44
Lowndes v The Queen (1999) 195 CLR 665
MacKenzie v The Queen (1996) 190 CLR 348
MFA v R (2002) 193 ALR 184
R v Anderson (1991) 53 A Crim R 421
R v Caplin (1933) SR (NSW) 514
R v Hay and Lindsay [1968] Qd R 459
R v Nguyen [1999] 1 VR 457
R v Schama and Abramovitch (1914) 11 Cr App R 45
R v Soma (2003) 196 ALR 421
R v Stafford 91976) 13 SASR 392
R v Tran (2000) 180 ALR 62
R v Wanganeen (1988) 50 SASR 433
R v Ward (1999) 109 A Crim R 159
Rugari (2001) 122 A Crim R 1
Sikaloski v The Queen [2000] WASCA 387
Stalker v The Queen [2002] WASCA 364
Veen v The Queen (No 2) (1988) 164 CLR 465
White v Taylor [2001] WASCA 350
Whitehorn v The Queen (1983) 152 CLR 657
Wilde v The Queen (1988) 164 CLR 365
Woolmington [1935] AC 462
(Page 4)
1 MALCOLM CJ: This appeal against conviction and the appellant's application for leave to appeal against sentence were heard on 11 November 2003. At the conclusion of the argument on the appeal, the appeal against conviction was allowed and the conviction quashed. The Court ordered a retrial and the appellant was granted bail. The reasons to be published by Scott J adequately express the reasons why I joined in making the orders at the conclusion of the argument on the appeal against conviction.
2 I would only add that I agree with the observations of McKechnie J regarding the comments made by counsel for the prosecution regarding the cost of going to trial on charges of burglary and stealing and her personal observations and comments about aspects of the case.
3 SCOTT J: This appeal and application for leave to appeal against sentence were heard by this Court on 11 November 2003. At the conclusion of the appeal the appellant's appeal against conviction was allowed and the conviction quashed. The Court ordered that the appellant be granted a retrial and he was allowed bail. The Court indicated that reasons would later be published for having reached that conclusion. These are those reasons.
4 The appellant was charged on indictment in the District Court that:
(1) on 27 January 2002 at Perth he entered or was in the place of Tutti Frutti WA Pty Ltd trading as Tutti Frutti WA without its consent with intent to commit an offence therein and that he was armed with an offensive weapon, namely, a knife;
(2) and further that on the same date and at the same place he stole a floor safe, money, gift vouchers, pepper spray, night safe, wallet, keys and a computer stocktake scanner, the property of Tutti Frutti WA Pty Ltd.
5 The Crown's case was that the premises of Tutti Frutti in Barrack Street, Perth were burgled on a Sunday night, 27 January 2002. The burglar prised open the pad-bolt on the back of the door of the shop to gain entry to the store. Once inside, the burglar stole a safe containing some money, some expensive computer stocktake equipment, some tools and a pepper spray. The Crown's case was that the offender put the pepper spray in his pocket and the rest of the stolen goods in a green wheelie bin which he wheeled up Murray Street to Royal Perth Hospital.
(Page 5)
- The Crown's case was that the offender was then stopped and spoken to by police officers. It was said that the offender was the appellant.
6 The Crown also relied upon the fact that located outside the burgled premises, in a carpark, was a plastic Coke bottle containing clear liquid which smelt like methylated spirits. That Coke bottle had one of the appellant's fingerprints on it when the print was examined by a fingerprint expert.
7 Importantly, for the purposes of this appeal, the Crown relied upon the doctrine of recent possession. In explaining to the jury how that principle applied to this case, counsel for the prosecution said:
"Where an accused person is in possession of property which has recently been stolen then you are entitled to infer, as a matter of fact, that in the absence of any reasonable explanation, guilty knowledge on the part of the accused. That is, if you are satisfied that the accused was in recent possession of the stolen property and after hearing his explanation you reject that explanation beyond reasonable doubt, you may use that failure to give a credible explanation as to the evidence of his guilt."
8 Counsel went on to explain that the learned trial Judge would later provide the jury with more detailed directions on the law.
9 It is common ground that the appellant was located at the top end of Murray Street near Royal Perth Hospital. He had in his possession a pepper spray and a knife and was standing close to a green wheelie bin which contained items (including the safe) that had come from the burgled premises. It was not in dispute that police officers had attended the premises following a report of the burglary and had proceeded from there to Royal Perth Hospital, searching alleyways as they went. It was not in issue that the police officers located the appellant shortly after the burglary had taken place. There was a second person located with the appellant who, the police officers said, was intoxicated and who had passed out.
10 It was common ground that the appellant, when spoken to by police officers, gave an explanation for his possession of some of the items of property which had come from the burglary. The Crown did not lead the evidence of the appellant's explanation in evidence-in-chief because it was said to be a self-serving statement. The Crown also objected to defence counsel leading from police officers evidence as to what it was said the appellant said when first spoken to. In the end result, therefore, the
(Page 6)
- Crown did not adduce any evidence as to the explanation which the appellant proffered when first spoken to by the police outside the hospital in circumstances where the police said he was in possession of, or close to, the property that had come from the burglary. In addition, the learned Crown prosecutor objected to the defence cross-examining the police officer to adduce what was then said by the appellant. At the close of the Crown's case the jury had no evidence as to what, if anything, was said by the appellant when first spoken to by the police.
11 In this case the Crown had an obligation to adduce evidence as to the accused's explanation to police when first spoken to: Bruce v The Queen (1987) 61 ALJR 603; Gilson v The Queen (1991) 172 CLR 353 at 369. The Crown's failure to lead the evidence had three consequences in the course of the trial. Firstly, the jury was left to consider the evidence without hearing from the police the explanation the appellant offered when first spoken to by the police. Because of the way in which the Crown opened the case, that put the appellant at a considerable disadvantage in the trial process. The Crown had said that its case, in part, relied upon the failure of the appellant to give a credible explanation as to his possession of the property.
12 Secondly, it may have caused the appellant to give evidence at the trial to explain his position and to testify as to what he said to the police. He may not have testified had his explanation to the police been led as part of the Crown's case.
13 Thirdly, the failure to call the evidence may have reflected upon the credibility of the appellant as a witness in that whilst his evidence at trial was consistent with what he was said to have told the police on the night in question, the jury did not have evidence from the police officer to support that testimony.
14 The grounds of appeal are:
"1. The learned trial judge erred in law in excluding evidence of the explanation given by the appellant to the police.
Particulars
(a) The Crown relied, in part, on the doctrine of recent possession in relation to a pepper spray found on the appellant shortly after the offence had occurred.
(Page 7)
- (b) The appellant gave the police an explanation, which acknowledged possession of the pepper spray.
(c) In the opening address, the learned Crown prosecutor explained the doctrine of recent possession, and said … 'if you are satisfied that the accused was in possession of the stolen property and after hearing his explanation you reject that explanation beyond reasonable doubt, you may use that failure to give a credible explanation as to the evidence of his guilt …" (see page 26 of the transcript).
(d) The Crown did not lead evidence of the accused's explanation to the police.
(e) The Crown objected to the attempt by defence counsel to elicit that evidence in cross-examination of Crown witnesses, and the learned trial judge upheld the objection (see pages 89, 90 and 99 of the transcript).
- 2. The learned trial judge erred in law in permitting hearsay evidence to be lead of a description given to police.
Particulars
(a) In re-examination of Constable Mitten the learned Crown prosecutor sought to elicit evidence of information that had been given to the Constable (see page 82 of the transcript).
(b) The information apparently was that there were two male persons in possession of a wheelie bin, that 'possibly' contained a safe and stolen items from a burglary, and that the men were described as being an Aboriginal male and a Caucasian male, both scruffy looking and one may be wearing a trench coat.
(c) The learned trial judge overruled the objection of defence counsel, ruling that the evidence was
(Page 8)
- admissible not for its truth but as to the Constable's state of mind.
- (d) The prejudicial nature of that evidence was compounded by the later oblique reference to the evidence in the cross-examination of the appellant (see page 204 of the transcript).
(e) The jury clearly saw the evidence as being significant as, after they retired, the jury asked a question specifically about the description (see page 276 of the transcript).
(f) It is acknowledged that the learned trial judge did then direct the jury that the evidence was not led for its truth, but the transcript was read out to the jury (see pages 292 - 295).
- 3. The verdicts of the jury were inconsistent with each other.
Particulars
(a) The appellant was charged with one count of aggravated burglary by being in a place with intent and with one count of stealing property from that place.
(b) The appellant was acquitted of the burglary but convicted of the stealing.
4. The learned trial judge misdirected the jury in relation to the doctrine of recent possession by reversing the onus of proof (see pages 268 - 9 of the transcript).
5. The trial miscarried due to the conduct of the learned Crown prosecutor."
15 Senior counsel for the respondent conceded ground 1 of the grounds of appeal, and argued that a retrial should be ordered. That concession was, in my opinion, properly made and a retrial was ordered, as I have said. In view of that concession, it is not necessary to consider the other grounds of appeal. It may be that some of those grounds have merit, but it is not necessary to consider other grounds further in view of the fact that the Crown accepted that the appeal against conviction had to succeed.
(Page 9)
16 The appeal was allowed and a retrial ordered. It was, therefore, not necessary to consider the application for leave to appeal against sentence.
17 MCKECHNIE J: The reasons published by Scott J sufficiently express my reasons for joining in the decision to quash the conviction and order a retrial.
18 As a result, it is unnecessary to consider the other grounds, including ground 5, which alleged that the trial miscarried due to the conduct of the Crown Prosecutor.
19 I would, however, make two short observations.
20 In the course of her closing remarks to the jury, the Crown Prosecutor commented on the cost of the trial to the community, remarking that the "cost of going to trial even on burglary and stealing is enormous." She concluded her remarks by saying, "The community reaps what it sows in terms of the decision that the community makes." This latter statement has nothing to do with the jury's role in the evaluation of evidence.
21 The cost of the administration of justice and particularly the cost of a jury trial is fundamentally irrelevant to the issue whether the Crown has proved its case beyond reasonable doubt. References to cost therefore should not be made. They amount to an invitation to a jury to take into account irrelevant considerations about which no evidence has been given.
22 On several occasions prosecuting counsel made reference to what she thought about aspects of the case, sometimes using an illustration from her own experience. The personal thoughts, beliefs and opinions of counsel are irrelevant and can distract the jury from the actual evidence in the trial. It is the duty of an advocate to advance argument, not opinion.
23 It would be wise for counsel who prosecute on behalf of the State to remember the duties of counsel. See McCullough v The Queen (1982) 6 A Crim R 274 at 285; Vella v The Queen (1990) 2 WAR 537 at 540 - 542. Counsel should constantly bear in mind the Statement of Prosecution Policy and Guidelines 1999, published by the Director of Public Prosecutions, particularly par 9:
"A prosecutor is a 'minister of justice'. The prosecutor's role is to assist the court to arrive at the truth and do justice between
(Page 10)
- the community and the accused according to law and the dictates of fairness."
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