Hugo v R
[2000] WASCA 199
•4 AUGUST 2000
HUGO & ANOR -v- THE QUEEN [2000] WASCA 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 199 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:107/1999 | 16-19 MAY 2000 | |
| Coram: | PIDGEON J ANDERSON J SHELLER AJ | 4/08/00 | |
| 74 | Judgment Part: | 1 of 2 | |
| Result: | Appeal allowed Re-trial ordered | ||
| PDF Version |
| Parties: | BURKE WILLIAM HUGO HAROLD PAUL NASKO THE QUEEN |
Catchwords: | Criminal law Particular offences Attempt to pervert the course of justice Directions to jury Inadequate directions on elements of the offence Criminal law Evidence Consciousness of guilt Directions to jury Adequacy Direction required in respect of each act or statement of each accused relied on as consciousness of guilt Criminal law Accused's failure to give evidence Directions to jury Criminal law Evidence Unreliable witness Corroboration Directions to jury Failure to direct on what evidence was capable of confirming or tending to confirm the evidence of witness Criminal law Evidence Self-incrimination Indemnity Grant to witnesses of certificates of indemnity against prosecution Whether grant should be in presence of jury Directions to jury Criminal law Evidence Duty of prosecutor Duty to present "full picture" Failure to call material witness Whether miscarriage of justice Defence counsel at trial consented to witness' absence and to trial judge's direction that nothing was to be made of absence |
Legislation: | Crimes Act 1914, s 43 Criminal Code, s 689(1) Customs Act, s 233B Evidence Act 1906, s 11, s 50 |
Case References: | Ahern v The Queen (1988) 165 CLR 87 Alexander v R (1981) 145 CLR 395 Attorney-General v Cockram (1990) 2 WAR 477 Bromley v The Queen (1986) 161 CLR 315 Doney v The Queen (1990) 171 CLR 207 Edwards v The Queen (1993) 178 CLR 193 Goonan v R (1993) 69 A Crim R 338 Healy v The Queen (1995) 15 WAR 104 Kalajzich v R (1989) 39 A Crim R 415 Lewis v The Queen (1998) 20 WAR 1 Longman v The Queen (1989) 168 CLR 79 Markovina v The Queen (No 2) (1998) 19 WAR 119 McMillan v Reeves (1945) 62 WN (NSW) 126 Meissner v The Queen (1995) 184 CLR 132 Morris v The Queen (1987) 163 CLR 454 Palmer v The Queen (1998) 193 CLR 1 Plomp v The Queen (1963) 110 CLR 234 R v Abusafiah (1991) 24 NSWLR 531 R v Armstrong [1998] 4 VR 533 R v Fowler [2000] NSWCCA 142 R v Jovanovic (1997) 42 NSWLR 520 R v Kerim [1988] 1 Qd R 426 R v Nanette (1981) 3 A Crim R 268 R v Renzella [1997] 2 VR 88 R v Small (1994) 33 NSWLR 575 R v Tripodina (1988) 35 A Crim R 183 R v Uhrig (unreported) CCA NSW 24 October 1996 RPS v The Queen (2000) 74 ALJR 449 Strickland v The Queen [2000] WASCA 79 The Queen v Apostilides (1984) 154 CLR 563 The Queen v Rogerson (1992) 174 CLR 268 Tripodi v The Queen (1961) 104 CLR 1 Weissensteiner v The Queen (1993) 178 CLR 217 Wilde v The Queen (1988) 164 CLR 365 Woods v Smith [1976] WAR 13 Zoneff v The Queen [2000] HCA 28 Apostilides v The Queen (1984) 154 CLR 563 Bedelph v R [1979] Tas R 249 Biggs v DPP (1997) 17 WAR 534 Broadhurst v The Queen [1964] AC 441 Buck v R [1983] WAR 372 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Cleland v The Queen (1982) 151 CLR 1 Cunningham v Ryan (1919) 27 CLR 294 Davies & Cody v The Queen (1937) 57 CLR 170 G v H (1994) 181 CLR 387 Gipp v The Queen (1998) 194 CLR 106 M v The Queen (1994) 181 CLR 487 R v Minarowska & Koziol (1995) 83 A Crim R 78 Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998 R v Ali (1982) 6 A Crim R 161 R v Coyne [1996] 1 Qd R 512 R v Ellis (1998) 100 A Crim R 49 R v Roads [1967] 2 QB 108 R v Vannatter [1999] QCA 104 The Queen v Murphy (1985) 158 CLR 596 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HUGO & ANOR -v- THE QUEEN [2000] WASCA 199 CORAM : PIDGEON J
- ANDERSON J
SHELLER AJ
- CCA 108 of 1999
- HAROLD PAUL NASKO
Appellants
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Particular offences - Attempt to pervert the course of justice - Directions to jury - Inadequate directions on elements of the offence
Criminal law - Evidence - Consciousness of guilt - Directions to jury - Adequacy - Direction required in respect of each act or statement of each accused relied on as consciousness of guilt
Criminal law - Accused's failure to give evidence - Directions to jury
(Page 2)
Criminal law - Evidence - Unreliable witness - Corroboration - Directions to jury - Failure to direct on what evidence was capable of confirming or tending to confirm the evidence of witness
Criminal law - Evidence - Self-incrimination - Indemnity - Grant to witnesses of certificates of indemnity against prosecution - Whether grant should be in presence of jury - Directions to jury
Criminal law - Evidence - Duty of prosecutor - Duty to present "full picture" - Failure to call material witness - Whether miscarriage of justice - Defence counsel at trial consented to witness' absence and to trial judge's direction that nothing was to be made of absence
Legislation:
Crimes Act 1914, s 43
Criminal Code, s 689(1)
Customs Act, s 233B
Evidence Act 1906, s 11, s 50
Result:
Appeal allowed
Re-trial ordered
Representation:
Counsel:
Appellants : Mr R T Redlich QC & Ms E M Brimer
Respondent : Mr J V Agius & Mr S M Davies
Solicitors:
Appellants : A C Thorpe & Co
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ahern v The Queen (1988) 165 CLR 87
Alexander v R (1981) 145 CLR 395
Attorney-General v Cockram (1990) 2 WAR 477
(Page 3)
Bromley v The Queen (1986) 161 CLR 315
Director of Public Prosecutions v Kilbourne [1973] AC 729
Doney v The Queen (1990) 171 CLR 207
Edwards v The Queen (1993) 178 CLR 193
Goonan v R (1993) 69 A Crim R 338
Healy v The Queen (1995) 15 WAR 104
Kalajzich v R (1989) 39 A Crim R 415
Lewis v The Queen (1998) 20 WAR 1
Longman v The Queen (1989) 168 CLR 79
Markovina v The Queen (No 2) (1998) 19 WAR 119
McMillan v Reeves (1945) 62 WN (NSW) 126
Meissner v The Queen (1995) 184 CLR 132
Morris v The Queen (1987) 163 CLR 454
Palmer v The Queen (1998) 193 CLR 1
Plomp v The Queen (1963) 110 CLR 234
R v Abusafiah (1991) 24 NSWLR 531
R v Armstrong [1998] 4 VR 533
R v Fowler [2000] NSWCCA 142
R v Jovanovic (1997) 42 NSWLR 520
R v Kerim [1988] 1 Qd R 426
R v Nanette (1981) 3 A Crim R 268
R v Renzella [1997] 2 VR 88
R v Small (1994) 33 NSWLR 575
R v Tripodina (1988) 35 A Crim R 183
R v Uhrig (unreported) CCA NSW 24 October 1996
RPS v The Queen (2000) 74 ALJR 449
Strickland v The Queen [2000] WASCA 79
The Queen v Apostilides (1984) 154 CLR 563
The Queen v Rogerson (1992) 174 CLR 268
Tripodi v The Queen (1961) 104 CLR 1
Weissensteiner v The Queen (1993) 178 CLR 217
Wilde v The Queen (1988) 164 CLR 365
Woods v Smith [1976] WAR 13
Zoneff v The Queen [2000] HCA 28
Case(s) also cited:
Apostilides v The Queen (1984) 154 CLR 563
Bedelph v R [1979] Tas R 249
Biggs v DPP (1997) 17 WAR 534
Broadhurst v The Queen [1964] AC 441
(Page 4)
Buck v R [1983] WAR 372
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Cleland v The Queen (1982) 151 CLR 1
Cunningham v Ryan (1919) 27 CLR 294
Davies & Cody v The Queen (1937) 57 CLR 170
G v H (1994) 181 CLR 387
Gipp v The Queen (1998) 194 CLR 106
M v The Queen (1994) 181 CLR 487
R v Minarowska & Koziol (1995) 83 A Crim R 78
Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998
R v Ali (1982) 6 A Crim R 161
R v Coyne [1996] 1 Qd R 512
R v Ellis (1998) 100 A Crim R 49
R v Roads [1967] 2 QB 108
R v Vannatter [1999] QCA 104
The Queen v Murphy (1985) 158 CLR 596
(Page 5)
1 PIDGEON J: I have read the reasons to be published by Sheller AJ. I agree with those reasons and with the orders proposed.
2 ANDERSON J: I have had the advantage of reading in draft the judgment of Sheller J. For the reasons given in that judgment, with which I entirely agree and to which I can add nothing, I would grant leave to appeal, allow the appeal, quash the verdicts and order a new trial.
SHELLER AJ:
Introduction
3 On 27 May 1999 the applicants Burke William Hugo and Harold Paul Nasko, who were members of the Australian Federal Police ("AFP"), were convicted on separate charges in the same indictment of attempting to pervert the course of justice in relation to the judicial power of the Commonwealth contrary to s 43 of the Crimes Act 1914 (Cth). The charges were that on 26 June 1996 each applicant made a false record that lysergide was found in the main bedroom at 15 Laughton Way, Leeming and in the knowledge that the record was false, invited one Cherie Wright to sign it. The record made by Hugo was a property seizure record. The record made by Nasko was in his police notebook. Hugo's record stated that he found the lysergide in the cupboard in the main bedroom. Nasko's record stated that the lysergide was found in the closet in the main bedroom. The Crown case was that the substance was found in a cupboard in a garage outside the house.
4 In June 1996, Anthony Henry came to the notice of the AFP in the course of an investigation into the suspected importation of narcotics. Henry was 19 years old and lived with his de facto wife, Wright, and two children at 15 Laughton Way. On 26 June 1996, the AFP arrested Henry and others in connection with the investigation. The AFP obtained a warrant to search 15 Laughton Way. Nasko was the warrant holder and Hugo the property officer for the search.
5 The usual duties of the property officer were to:
- assign a specific reference number to each item of property seized;
- record a description of each item seized;
- record the time the item was found;
- record the name of the officer who found the item; and
(Page 6)
- - record the specific location where the item was found.
6 The usual practice of the property officer was to record this information on a printed form called a property seizure record ("PSR"). The PSR had a number of carbon copies positioned one behind the other. The PSR was a contemporaneous record of what occurred during a search. The practice was that the occupant of the premises being searched signed the PSR and was given one of the carbon copies at the conclusion of the search. This made it difficult for an occupant later to challenge the record that an item had been found and where it was found.
7 The search warrant was executed at 6.25 pm on 26 June 1996. The AFP members present were the applicants and Federal Agents Scantlebury, Roussety, Fredericks, Bowring and Warren. Others present during the search were Henry, Wright, two friends of Wright, Tosca Kamperman and Cindy Purvis, and two children. Shortly after arriving at the premises, Hugo set himself up in the main bedroom to undertake the property officer's duties.
8 According to the evidence, at about 7.30 pm Bowring found a sheet of paper impregnated with LSD in a used envelope addressed to Wright's previous address in a cupboard in a garage outside the house. She reported to Nasko that she had found the envelope and LSD in the garage. Nasko spoke to Wright and accompanied Bowring and Wright to the garage. Bowring showed Nasko where she had found the envelope. Wright denied any knowledge of it. Bowring then went back inside and spoke to Hugo in the presence of Roussety. Bowring could not recall whether she said anything to Hugo about finding the LSD. Her usual practice was to inform a property officer if she had found something.
9 While Nasko and Wright were outside, Nasko wrote in a yellow notebook and asked Wright to sign the notes. The words Nasko wrote were:
"1900 hours - envelope containing suspect LSD tabs located in closet in bedroom main."
10 Part of this writing was at the bottom of one page in the notebook and the rest at the top of the next. Wright signed the notebook at the bottom of each page without reading it. She did not know what Nasko had written and could not say where she was when she signed it. In evidence she said she was "outside".
(Page 7)
11 At about 7.30 pm Nasko arranged by telephone for an AFP photographer to attend at the premises. Sometime before the arrival of the photographer at approximately 8.10 pm, Hugo made a four line entry in the PSR, the first line of which was as follows:
"AH-HN6 Orange envelope addressed to Cherie Wright 1900 Hugo."
- This was followed by two sets of ditto marks in the column headed "Specific location of item". The description above the ditto marks was, "main bedroom cupboard". The name Hugo appeared in the column headed "Officer". This entry meant that Hugo had assigned the code AH-HN6 to the envelope and LSD and indicated that Hugo had found the envelope and LSD in the main bedroom cupboard at 7 pm.
12 Sometime later, Hugo invited Wright to sign the PSR. Wright signed under a printed statement at the bottom of the page, which read "I acknowledge that I have received a copy of this Property Seizure Record." Kamperman was also invited to sign and signed the PSR as a witness. Both signed it not realising it was in part false. Wright was given a pink carbon copy of the PSR which she later left on the table at 15 Laughton Way.
13 The events so described evidenced the acts of each applicant relied upon by the Crown to support the charges. The Crown case was that each applicant attempted to pervert the course of justice in relation to the judicial power of the Commonwealth by making a record which was false. There was little debate that each applicant made the entry and that the entries on their face were untrue.
14 Section 43 of the Crimes Act provides, so far as presently material, that any person who attempts to pervert the course of justice in relation to the judicial power of the Commonwealth shall be guilty of an offence. In Meissner v The Queen (1995) 184 CLR 132 at 140-141, Brennan, Toohey and McHugh JJ said:
"A person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice. Attempting to pervert the course of justice is a substantive offence. Whether or not conduct succeeds in perverting the course of justice is irrelevant. It is the tendency of the conduct that is decisive. ...
(Page 8)
- The two elements of the offence of attempting to pervert the course of justice are conduct which has the proscribed tendency and an intent that the course of justice be perverted."
15 In this case, the areas of difficulty and debate centred on whether either Hugo or Nasko made the record he did by mistake and whether either Hugo or Nasko intended, by making the record, to pervert the course of justice.
16 The Crown led evidence of other events said to have taken place at 15 Laughton Way and at AFP headquarters in West Perth after the LSD was found. After Nasko had telephoned for the photographer, Scantlebury and Roussety took Henry back to AFP headquarters for questioning. The applicants remained at 15 Laughton Way with Wright, Kamperman and Purvis. Before the photographer arrived the envelope and the LSD had been on the bed in the main bedroom with a box of seized items. At some point in time the envelope and the LSD were moved to the bottom of the wardrobe in the main bedroom. The photographer Taylor arrived at about 8.10 pm. Hugo showed him the main bedroom. After Hugo had looked around he pointed out the bottom of the wardrobe to Taylor as the location of the envelope with the LSD. Taylor then took four photographs of the envelope and the LSD.
17 After Taylor had finished taking the photographs, the applicants took Wright back to AFP headquarters. Kamperman followed in her own car. Wright and Kamperman were taken to an interview room. They were left alone for some time before the applicants returned. Shortly afterwards, Scantlebury put his head into the interview room and asked Nasko to come out.
18 In the meantime, Scantlebury and Roussety had interviewed Henry in another interview room on the same floor. Scantlebury told Henry that the LSD had been found in the garage. Scantlebury and Roussety then left. Henry was alone in the interview room when Nasko came in and told him that the LSD had been found in his bedroom. Roussety saw Nasko in the corridor outside the interview room as he returned to that room. Nasko was walking away from Roussety and the room. Roussety returned to the interview room and found Henry alone. When Scantlebury returned to the interview room, Henry asked him why he had been told by another agent that the drugs had been found in the bedroom. Scantlebury then left the interview room and approached the team leader Curtis. Scantlebury appeared agitated. He told Curtis that there was a problem with the PSR and the LSD from 15 Laughton Way because Scantlebury had been led to
(Page 9)
- believe that the LSD was found in the garage whereas Nasko had said it was found in the bedroom. Nasko joined this conversation. Curtis asked Nasko what the problem with the location of the LSD was and Nasko said there appeared to be some confusion about where it was found. Curtis told Scantlebury and Nasko to sort out the confusion and make sure the PSR was completed properly.
19 Nasko returned to the interview room where Hugo, Wright and Kamperman were present. A conversation took place between the applicants to the effect that something was wrong with the PSR. The applicants appeared to panic. Hugo made some changes to the PSR and asked Wright to initial them, which she did. Nasko made some changes in his yellow notebook and asked Wright to initial those changes, which she did. Then Nasko, in the presence of Hugo, asked Wright to get rid of the carbon copy of the PSR given to her earlier in the evening which she had left at 15 Laughton Way, because the carbon copy could get them, the applicants, "into trouble". Subsequently, Wright complied with that instruction and tore up the carbon copy of the PSR.
20 The change Hugo made to the PSR was to write the words "garage in cupboard" over the ditto marks he had originally placed under the heading "Specific location of item". He wrote this on each of the four lines for the entry AH-HN6. The change made by Nasko to his yellow notebook was to strike through the words "closet in bedroom main" and to write the words "garage area" above the struck out words.
The Crown case against Hugo
21 At all material times while Hugo was completing the PSR at the premises he was in the main bedroom. The PSR was a straightforward form. The first five items recorded on the PSR were found by Roussety. Hugo recorded each of those items accurately. The sixth item recorded was the envelope and the LSD. Hugo recorded that he was the person who found the envelope and the LSD and he made ditto marks to indicate that the envelope and LSD were found in the main bedroom cupboard. There was no explanation inconsistent with guilt as to how Hugo came to record that he was the person who found the envelope and the LSD and that he found them in the main bedroom cupboard. No explanation was ever proffered by Hugo except to say that the entry was a result of mistake.
22 On 18 July 1996 Hugo made a statement in which he said in part:
(Page 10)
- "Every action that I undertook on Wednesday 26 June 1996, I undertook honestly and in good faith in the execution of my duties as a federal agent.
If on a careful review of all of my paperwork it can be established that I have made some error, then any such error would be an error of honest mistake and I thoroughly and comprehensively reject any suggestion that I have in any way acted improperly or with criminal intent. …
I can say for my part, whilst at those premises, and thereafter, none of the actions that I undertook were done with anything other than an honest intent.
If on careful audit of all of my actions that day it can be found that I have made a mistake then such a mistake would obviously be an innocent mistake, if such mistake exists.
The circumstances under which I was working at the time were generally very difficult. In particular, Cherie Wright, who had a newborn baby and whom I was informed was suffering from post-natal depression and was taking medication for it, was right at my side conducting herself in an hysterical manner.
Not only did this distract me from the tasks that I was performing, I also had to try and calm the lady down as I felt sorry for her in her medical condition.
Whilst I was in the bedroom recording the exhibits, this and the general activity on the premises presented a significant and major distraction to me.
These factors, coupled with the fatigue that I was obviously labouring under, may have affected the manner in which I performed my duties."
23 Roussety was the person who actually searched the cupboard in the main bedroom. He did not find any LSD nor was he recorded by Hugo as finding the LSD. There had been a conversation between Bowring and Hugo about the finding of the LSD shortly after it was found and the substance of that conversation was that the envelope and the LSD had been found outside in a shed.
(Page 11)
24 The Crown case was that it would be significantly easier to prove an offence of possession against Henry or Wright if the LSD had been found in the wardrobe in the main bedroom rather than in the open garage outside the house. When the AFP photographer, Taylor, arrived, either Hugo or Nasko in the presence of the other told Taylor that the LSD in the bedroom needed to be photographed. Hugo took Taylor into the bedroom and pointed to the envelope and the LSD in the bottom of the wardrobe and, by doing so, caused Taylor to take photographs of the LSD in that location.
25 Before Taylor arrived, the envelope and the LSD had been on the bed in the main bedroom with the box of seized items. This box of items had been taken into the kitchen area. At some point in time, the envelope and the LSD must have been placed in the bottom of the wardrobe for the purposes of the photographs. The effect of the photographs, taken in the way they were, was to corroborate that the envelope and the LSD had been found in the wardrobe in the main bedroom as recorded on the PSR.
26 When the applicants and Wright arrived back at AFP headquarters, Nasko learned from Scantlebury and Curtis that Scantlebury knew that the LSD had been found in the garage and had already told Henry that fact. Nasko returned to the interview room and had a discussion with Hugo about the PSR. Wright and Kamperman said the applicants appeared to panic. The changes to the PSR were then made and Wright was asked to initial them. Nasko, in Hugo's presence, asked Wright to destroy the carbon copy of the PSR that Wright had left at 15 Laughton Way. After the recorded interview, the applicants asked Wright and Kamperman out for drinks at the casino for the purpose of currying favour with them and ensuring that everything was smoothed over. In the prepared statement to Internal Affairs, Hugo gave no explanation as to how he came to record on the PSR that he found the envelope and the LSD in the cupboard in the main bedroom and was otherwise obfuscatory.
The Crown case against Nasko
27 When Nasko first learned from Bowring that the envelope and the LSD had been found, he had just been in the main bedroom and had been asked by Bowring, from the door of the main bedroom looking in, to come out of the main bedroom to talk to Bowring. Nasko came out of the main bedroom and Bowring showed Nasko the envelope and the LSD. Either immediately or a little later in the conversation, Bowring told Nasko that she had found the envelope and the LSD in the garage. Nasko called for Wright to come out of the main bedroom to talk to him and
(Page 12)
- Bowring. Wright denied knowledge of the LSD. The three of them then went out to look at the location where the envelope and the LSD were found, taking the envelope and the LSD with them.
28 The Crown argued that there was no occasion for Nasko ever to form the view that the envelope and the LSD had been found in "the closet in bedroom main". Nasko made the notes in his yellow notebook deliberately and must have deliberately written a false note. It would be significantly easier to prove an offence of possession against Henry or Wright if the LSD had been found in the wardrobe of the main bedroom rather than in the open garage outside the house. When the AFP photographer, Taylor, arrived, either Hugo or Nasko in the presence of the other told him that the LSD in the bedroom needed to be photographed. In the presence of Nasko, Hugo took Taylor into the main bedroom. Before Taylor arrived, the envelope and the LSD had been on the bed in the main bedroom with the box of seized items which had been taken to the kitchen area. At some point in time, the envelope and the LSD must have been placed in the bottom of the wardrobe for the purposes of the photographs. The effect of the photographs, taken in that way, was to corroborate that the envelope and the LSD were found in the wardrobe in the main bedroom as recorded in Nasko's notebook.
29 When the applicants and Wright arrived back at AFP headquarters, Nasko went into the interview room where Henry was alone and told Henry that the LSD had been found in the wardrobe in the main bedroom. Nasko learned from Scantlebury and Curtis that Scantlebury knew that the LSD had been found in the garage and had already told Henry that fact. Nasko then returned to the interview room and had a discussion with Hugo about the PSR. Wright and Kamperman said the applicants appeared to panic. Nasko made changes to his notebook and asked Wright to initial them. Nasko asked Wright to destroy the carbon copy of the PSR that she had left at the premises. After the recorded interview, the applicants asked Wright and Kamperman out for drinks at the casino for the purpose of currying favour with them and ensuring that everything was smoothed over.
Trial and Appeal
30 The applicants' trial took place between 10 and 27 May 1999 at the District Court in Perth before his Honour Judge Nisbet and a jury. On 27 May 1999, the jury returned verdicts of guilty against each applicant. On 28 May 1999, each applicant was sentenced to a suspended term of 12 months' imprisonment. Both applicants applied for leave to appeal
(Page 13)
- against their convictions. The applicants were represented at the trial by the same solicitor, Mr Quigley. Nasko was also represented by Mr Sheales, counsel retained by Mr Quigley. On this application for leave to appeal, Mr Redlich QC and Ms Brimer appeared for the applicants. The Crown prosecutor at the trial was Mr Agius QC. Mr Davies appeared with him. Mr Agius and Mr Davies again represented the Crown on this application.
31 As finally amended, the grounds of appeal numbered 14 but ground 5 was abandoned. In broad terms, they were directed to the conduct of the trial by the prosecutor and the Judge, and to what were said to be the Judge's misdirections to the jury. Those appearing for the applicants at the trial neither raised any objection to the summing up at its conclusion nor sought any re-direction. See R v Tripodina (1988) 35 A Crim R 183 at 191-195. In R vAbusafiah (1991) 24 NSWLR 531 at 536 Hunt J said:
"One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial Judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error …, any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial.
There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice."
32 Ground 6 in the appeal was that the verdict was, in all the circumstances, unsafe and unsatisfactory. Matters raised in the course of the appeal included complaints about the summing up:
(Page 14)
- - on the elements of the offence charged;
- on consciousness of guilt alleged to have been revealed by the facts and circumstances surrounding the amendment of the records, the request to destroy the carbon copy of the PSR and the invitation extended to Wright and Kamperman to accompany the applicants to the casino for drinks;
- on corroboration; and
- on the failure sufficiently to identify evidence admissible against one only of the applicants.
Ground 1: The elements of the offence
33 The applicants submitted that the trial Judge misdirected the jury as to the elements of the offence with which they were charged and failed adequately to relate such elements to the factual issues in the case.
34 As appears from the passage I have quoted from Meissner, the elements of the offence of attempting to pervert the course of justice are conduct which has the proscribed tendency and an intent that the course of justice be perverted. To that, in the case of an offence under s 43, must be added that the attempt to pervert the course of justice be "in relation to the judicial power of the Commonwealth".
35 The Queen v Rogerson (1992) 174 CLR 268 concerned a charge of conspiring to pervert the course of justice said to have arisen out of an alleged agreement to fabricate evidence which had as its object the frustration or diversion of a police investigation into the possible commission of a crime. At 280 Brennan and Toohey JJ said:
"Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are
(Page 15)
- various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice."
36 If the Crown case was made out, it could not seriously be contended that it was not open to a jury, acting reasonably on the evidence at a trial properly conducted, to convict each applicant of the charge against him. At least it was open to a jury to be satisfied beyond reasonable doubt that the making of the records in the PSR and the notebook, and the invitation to Wright to sign the records were intended to deny to a court knowledge of the true circumstances of any charge of possession of prohibited imports which had been imported into Australia contrary to s 233B(1)(c) of the Customs Act 1901 (Cth) based on the finding of the envelope and its contents.
37 The applicants suggested in argument that the PSR and the notebook could be regarded as records kept for some private purpose. However, the evidence was that the PSR was a printed form designed to serve as a contemporaneous record of a search. Nasko's notebook, though less formal than the PSR, was on its face used by him as a record of his police work. In my opinion, it would be fanciful to regard either the PSR or Nasko's notebook as other than records kept to be used, if the occasion arose, in giving or preparing to give evidence or as evidence of what had occurred during the search. Moreover, as Judge Nisbet indicated to the jury, while the Crown had to show beyond reasonable doubt that the false entry made by each applicant was not made by that applicant as the result of a mistake, the circumstances were such as clearly to leave it open to the jury to be so satisfied beyond reasonable doubt.
38 When the trial Judge came to sum up to the jury about the elements of the offence charged and to explain what the indictment meant, he started with the rhetorical question, "What is an attempt?". He next gave a direction of the sort given when an accused is charged with an attempt to commit a crime: see eg McMillan v Reeves (1945) 62 WN (NSW) 126 at 127 and compare s 4 of the Criminal Code. The question was, the trial Judge said, when preparation had stopped and attempt begun. His Honour continued:
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- "What that means, in this case and very importantly, is that the Crown has to establish that it was the intention of Mr Hugo to pervert the course of justice and that he had begun to do so, that is attempted to do so - he had begun to do so by, in his case making the erroneous entry, the false entry in the property seizure record."
39 As Malcolm CJ reiterated in Healy v The Queen (1995) 15 WAR 104 at 107, the offence of attempting to pervert the course of justice is a substantive offence.
"There is no question of an attempt to attempt. In this case the substantive offence was complete as soon as an act having the necessary tendency was done with the intention of perverting the course of justice."
40 Coming next to what he described as "the other parts of 'attempted to pervert the course of justice in relation to the judicial power of the Commonwealth' ", Judge Nisbet said:
"The course of justice in relation to the judicial power of the Commonwealth in this context is as follows:
… the Commonwealth of Australia has laws which prohibit the importation of narcotics into Australia, relevantly in these circumstances stopping drugs coming in, illicit drugs. We all know what they are, heroin, amphetamines. That is a law of the Commonwealth.
The laws of the Commonwealth charge the Australian Federal Police and as it happens our customs officers and our postal officers and other people with duties to gain intelligence about and prevent the illegal importation of narcotic substances into the country and the Australian Federal Police have a role in investigation, detection and apprehension of those involved in this trade. That is a function that they perform in their office as Australian Federal Police.
In the last stages of this function there are prosecutions of those involved in this trade and in the prosecution of these offences these prosecutions are brought within the judicial power of the Commonwealth and in these prosecutions evidence is brought before the court by way of Australian Federal Police officers, maybe customs officers and others. We are not concerned with
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- the others. We are concerned with Australian Federal Police officers and in the exercise of that function they prepare documents which are property seizure records and police notebooks which can and are prepared in the knowledge that not only can they but in the event that there is a plea of not guilty, for example, by an accused person that has been apprehended by them, will in all probability be used in evidence against the accused. That's why they are there. Property seizure records are very important documents.
Police notebooks are important documents. They are important because the police go from one investigation to another, day in, day out, during their professional lives and without these mechanisms in place to assist them, when the time comes to actually get in the witness box and give evidence against a drug dealer, for example, or a drug importer, what is their primary source of refreshing of their memory about what they did on the day in question but property seizure records and their notebooks.
Police are entitled to and courts every day of the week give them permission to refresh their memories from their notebooks and property seizure records and documents of this like. So, in this case the attempting to pervert the course of justice in relation to the judicial power of the Commonwealth can now be seen to be particularised in the balance of the indictment.
…
So in terms of - it is, I stress, a matter for you, but I can tell you that the judicial power of the Commonwealth has been invoked in the preparation of each of these two documents - it's there. So what is a perversion of the course of justice? Well, this is not a difficult notion. If the prosecution is correct, what has happened is that in the course of preparing two important documents which may later - no one knows, but which would later form the foundation of perhaps a prosecution because remember that the relevant item in each case is the sheet of LSD, a highly illegal substance. We all know that was found in one place, not when it was, in truth, found in another.
Now, this is no mere technicality. Crucial to the prosecution of drug importers, dealers, in this miserable trade is the chain of
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- evidence that leads to the - in the case of a properly prepared prosecution with all of the properly obtained evidence, a properly won conviction. So you can't say - and it would be an error, and I direct you not to think that, 'look, what does it matter whether these drugs are found in a cupboard or in the garage? One of them had them.' Justice is perverted when the evidence trail is tampered with. It's not a difficult notion."
41 Neither the applicants' legal representatives at the trial nor the Crown prosecutor took exception to these directions. This is, to say the least, regrettable. The trial Judge was given no assistance in formulating an appropriate direction about the elements of the offence. In particular, his Honour was not referred to the statements in the High Court which I have quoted.
42 The applicants claim that the trial Judge misdirected the jury. The Crown prosecutor does not suggest otherwise. No mention was made of the necessity for the Crown to prove that the applicants had engaged in conduct that had the tendency to pervert the course of justice. The jury was not instructed that the course of justice is perverted in relation to the judicial power of the Commonwealth when the capacity of a court exercising federal jurisdiction to do justice in accordance with the law and the circumstances of the case is impaired, that the substance allegedly found was a prohibited import and that a person charged with an offence related to prohibited imports which are narcotic goods would be dealt with by a court exercising federal jurisdiction. Instead, the jury was directed to consider whether the applicants had done something beyond the point of preparation and therefore amounting to an attempt and was told that the judicial power of the Commonwealth had been invoked in the preparation of the documents and that justice was perverted when the evidence trail was tampered with.
43 In the course of a submission that, even if properly directed, the jury would have come to the same conclusion, the Crown submitted that, at trial, the only live issue was whether intent had been sufficiently proved. The trial Judge gave directions about intention at various places. In the passage already quoted, his Honour spoke of Hugo's intention to pervert the course of justice. He said later:
"In the indictment 'attempted to pervert the course of justice in relation to the judicial power of the Commonwealth' means that the Crown has to persuade you beyond reasonable doubt that
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- each of Mr Hugo and Mr Nasko had the intention to commit a crime.
Now, that means, as is obvious, what is intention here? Intention is state of mind. That's getting into the mind of a person. 'Well,' you might say and correctly, 'how do you get into the mind of somebody?'. You can't do that. You can't read someone else's thoughts."
44 After giving what was intended to be an illustration of the concept, his Honour said:
"How do you gauge someone's intention? There is only one way you can do it, and that is by looking at their words and their deeds and putting them in the context in which they were spoken or performed in the case of words or deeds respectively at the time at which the alleged offence is said to have been made out; that is, during the course of the search of 15 Laughton Way, Leeming. That's the only way you can discern intention."
- A little later on his Honour said:
"If you don't know what their state of mind is, your verdicts must be not guilty, because the Crown has to prove to you that their states of mind were guilty states of mind, that they intended to commit offences.
There are various possibilities in respect of each. Each had an entirely innocent state of mind actuated, as the defence has urged upon you in its case, by mistake; no guilty intention to do anything. The verdict must be not guilty; a state of mind, like at the end of the Crown case after analysing the evidence, 'I don't know what their state of mind was. I can't work it out from the evidence.' The verdict must be not guilty and finally, well, I am satisfied beyond a reasonable doubt in the case of either one or both of these persons that they intended to pervert the course of justice by making these false entries in the record of property seizure and notebook respectively and getting Cherie Wright to sign it and your verdict in that case must be guilty as charged." (my emphasis)
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- "You can't have made a mistake and be guilty at the same time. So it's logical - I sometimes think people say the law isn't, but it's perfectly logical. If the Crown has to prove guilty intention, they have to prove an intention to commit the crime. Then they have got to negative; they have to say 'it's not a mistake' and they have to prove it beyond reasonable doubt because the two don't sit together."
46 A little later in the summing up his Honour dealt with the circumstantial case and said, "You are asked to draw inferences that lead, the Crown says, inescapably to a conclusion of guilt in that the accused made these entries that are complained of with the intention to pervert the course of justice …"
47 Even though at more than one point the trial Judge gave a direction in terms of an intention to pervert the course of justice, the jury was also directed in terms of an intention to commit a crime. In the passage emphasised above, the jury was directed, that the intent of one was sufficient to convict both. It is unknown what the jury made of all this but there was a considerable risk of confusion.
48 Section 689(1) of the Criminal Code enables this Court to allow an appeal against conviction if it thinks that there was a miscarriage of justice on any ground, provided that the Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred ("the proviso").
49 In Wilde v The Queen (1988) 164 CLR 365 at 372 Brennan, Dawson and Toohey JJ said that, unless conviction by a properly instructed jury acting reasonably on the evidence properly before them and applying the correct onus and standard of proof was inevitable,
"… the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen [(1955) 93 CLR 493 at 514]. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court
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- of Criminal Appeal must answer according to its assessment of the facts of the case."
50 However, their Honours went on to point out at 372-373 that the proviso was not intended to provide, in effect,
"… a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517 at 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso …
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. … In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances."
51 In the present case, whatever may be the strengths of the Crown case, the jury was inadequately and inaccurately instructed on the elements of the offence charged. In particular, they were not instructed at all about the essential element that the Crown had to prove, namely that the applicants had engaged in conduct that had the tendency to pervert the course of justice. Nor were they correctly instructed about what is meant by the course of justice in relation to the judicial power of the Commonwealth within the meaning of s43 of the Crimes Act. I am satisfied that this was a radical and fundamental error which went to the root of the proceedings. The failure properly to direct on these elements gave rise, in my opinion, to a substantial miscarriage of justice. This irregularity did not stand alone.
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Ground 2: Consciousness of guilt
52 In his address to the jury, the Crown prosecutor urged that the applicants' behaviour, including both their language and the changes they made to the records in the interview room indicated that they knew they had been found out and they had to cover it up. Further, the Crown prosecutor urged that part of the covering up was to ensure that everything went smoothly with Wright and Kamperman. They were asked out for drinks. The Crown prosecutor put to the jury that Hugo's statement indicated a consciousness of guilt on his part. How did his fluster and fatigue fit with buying Wright and Kamperman drinks? It was argued that the invitation to destroy the pink copy of the PSR and the placating of Wright and Kamperman by one or other of the applicants in the presence of the other indicated a consciousness of guilt.
53 Ground 2 was directed to the trial Judge's treating this evidence as capable of supporting the inference of a consciousness of guilt and failing adequately to direct the jury as to the use to be made of evidence of consciousness of guilt. The summing up began on 26 May 1999. Immediately before the luncheon adjournment on that day, and in the absence of the jury, counsel for Nasko said:
"The offence was committed at Leeming and what has been led about AFP was led in consciousness of guilt [sic]."
54 Counsel said that the trial Judge would obviously have to give a consciousness of guilt direction and referred to Edwards v The Queen (1993) 178 CLR 193 and R v Renzella [1997] 2 VR 88. In Zoneff v The Queen[2000] HCA 28 Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 15 - 17:
"The meaning of the phrase 'consciousness of guilt', the risk that its use by the trial judge may itself suggest guilt, which circumstances call for the giving of an Edwards-type direction, and the difficulty in distinguishing between lies going to credibility and those indicating guilt have been matters of some controversy. The Court of Appeal in Victoria in a series of cases, R v Morgan (Unreported, 13 August 1996), R v Renzella, R v Laz [1998] 1 VR 453, R v Erdei [1998] 2 VR 606, R v Cervelli [1998] 3 VR 776 and R v Konstandopoulos [1998] 4 VR 381 has sought to grapple with the problems. But as Hayne JA in Morgan at 4 suggests, rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated.
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- There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards at 211, 'the accused knew that the truth…would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)
Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged. See Osland v The Queen (1998) 73 ALJR 173 at 183 per Gaudron and Gummow JJ; 159 ALR 170 at 182." [197 CLR 316 at 333-4]
55 In response to counsel's submission that a consciousness of guilt direction should be given, Judge Nisbet said:
"That's in two respects: that's in Mr Nasko allegedly coming into the interview room and the comments of the two in the conference room before the two women.
SHEALES, MR: Yes. All the - and obviously the re-signing of the books.
NISBET DCJ: Yes.
SHEALES, MR: All that of what happens at AFP can only be led as consciousness of guilt.
NISBET DCJ: Yes. Yes I understand.
SHEALES, MR: And asking out for drinks.
NISBET DCJ: Yes, all right."
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56 The conduct of an accused may be thought by the jury to exhibit a consciousness of guilt and hence may be treated by the jury as an admission of guilt. In Edwards v The Queen the High Court discussed the Crown's reliance upon a lie by the accused to prove guilt. At 210 Deane, Dawson and Gaudron JJ said:
"It is convenient to confine ourselves to the requirement that there be a consciousness of guilt, but the same analysis is applicable to the requirement that the lie relate to a material issue. Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."
57 In the present case, the evidence relied upon was not the only evidence of guilt against the applicants or either of them. Nor was it an indispensable link in the chain of evidence necessary to prove guilt which had to be proved beyond reasonable doubt before the jury could conclude that one or other of the applicants was guilty. If the conduct of the accused is to be relied upon as an admission against interest, it must relate to a material issue. This means that it must be concerned with some circumstance or event connected with the offence and must have occurred in circumstances in which the explanation for the conduct is that the accused knew that the truth would implicate him in the offence. The jury should be instructed that this conduct can only be taken into account if they are satisfied, having regard to the circumstances and events said to
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- indicate that it constitutes an admission against interest, that it reveals a knowledge of the offence or some aspect of it and that it was conduct engaged in because of a realisation of guilt. Moreover, the jury should be instructed that there may be reasons for the accused's conduct apart from the realisation of guilt. If the jury accepts some other explanation for the conduct, it cannot be regarded as an admission. In Edwardsat 211 Deane, Dawson and Gaudron JJ said:
"It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters."
59 The trial Judge gave this direction:
"Can I remind you again that the relevance [sic] evidence at AFP headquarters led by the Crown is to establish in the accused guilty knowledge, if you like; a cover-up is the way Mr Agius put it in his summing up. It is to show that these acts are inconsistent with mistake or innocence. Well, this is going to be a matter for you. The Crown has to prove that it wasn't a mistake. If it was a mistake, are these actions that took place in AFP headquarters equally consistent with mistake, as with guilty intention? If they're equally consistent in your minds, then you will be obliged to find for mistake because it's the Crown's duty to negative mistake, to prove it wasn't a mistake. I think that's a reasonably understandable concept."
60 No doubt, the expression "evidence at AFP headquarters" was intended to refer to the changes made to the records, to the invitation to drinks and to Hugo's statement. No attempt was made to separate Hugo's conduct from Nasko's conduct. No direction was given in accordance with Edwards as to how the jury should treat each applicant's conduct and as to other explanations which might have been available before it was treated as an admission of guilt. During the course of submissions, the
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- applicants suggested, as did counsel at the trial, that, if a mistake in a record is pointed out to the maker, the natural and innocent thing to do is to amend the error. This may explain the trial Judge's reference to mistake but the direction is confusing.
61 In my opinion and with due respect, the Crown's reliance upon the conduct of each of the applicants as evidence of a consciousness of guilt, and therefore, as part of the material to be taken into account in determining whether they were guilty or not guilty, required an Edwards direction about each act of each applicant relied upon for this purpose. The danger of not doing so is, to adapt the language in the passage I have quoted from Edwards, that the jury would reason that the applicants did what they did on the occasions in question simply because they were guilty. It seems the trial Judge recognised that such a direction was necessary. It was, however, not given.
Ground 3: The Weissensteiner direction
62 The Crown prosecutor applied to the trial Judge to direct the jury on the failure of each accused to give evidence. This application was opposed by the applicants' representatives. After directing the jury to ignore the absence of Scantlebury, a direction to which I shall return, the trial Judge gave the following direction:
"The accused are in a different position here, and this harks back to Mr Quigley reopening his address to you earlier today to address the particular position of the accused. I want to remind you that the accused are under no obligation to give any evidence at all. They are entitled to remain silent and require the prosecution to prove its case beyond reasonable doubt in each and every material particular. It is the right of every accused not to give evidence, and their failure not to give evidence, if it can be called a failure - for myself I don't think it is a failure as such but it is an election that they make; their election not to give evidence - cannot fill gaps in the prosecution case.
You cannot assume that the accused are guilty because they haven't given evidence, and the mere fact that they do not give evidence proves nothing one way or another. The fact of their not having given evidence does nothing to establish their guilt but, on the other hand, it does nothing to explain, rebut or contradict the evidence presented by the prosecution either.
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- You can't infer the accused are guilty because they haven't gone into the witness box. You can't treat the election of the accused not to give evidence as an admission of guilt, but there are cases where certain facts are peculiarly within the knowledge of the accused persons.
This case, being a circumstantial case as has been opened out to you, is one of these types of cases. Bear in mind again this is a circumstantial case and you are asked to infer certain things and, in particular, you are asked to draw inferences that lead, the Crown says, inescapably to a conclusion of guilt in that the accused made these entries that are complained of with the intention to pervert the course of justice but, says the Crown, these facts are peculiarly within the knowledge of each of the accused. In the case of Mr Nasko, what information did he have at his disposal when he came to write the entry in his notebook about where the drugs, the sheet of LSD, were found?
The Crown says that he had this information. He had Lexie Bowring coming and getting him, taking him with Cherie Wright and showing them that they had been found in a cupboard in a wardrobe. Having regard to that information, what other information did he have that caused him to make that entry? What were the circumstances of its making?
In the case of Mr Hugo, what information did he have at the time that he made the entry in the property seizure record that the drugs were found in a cupboard in the main bedroom? These facts are peculiarly within the knowledge of the accused.
When it comes to drawing inferences, bearing in mind that you cannot infer guilt per se as such from the failure to give evidence, an inference might be more safely drawn from the proven facts where the accused elects not to give evidence, which inference may be unfavourable to the accused.
So the election not to give evidence in the particular facts of this case may - I don't say must, I just say may - enable you more safely, more comfortably, to draw an inference against the accused that may ultimately fit into a chain of reason that then allows you to make a (indistinct)."
63 In Weissensteiner v The Queen (1993) 178 CLR 217 an accused charged with the murder of two persons and the theft of their boat had set
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- off with those two persons on a cruise in the boat. The two were never seen again, but the accused remained in possession of the boat. The case against the accused was circumstantial. There was abundant evidence from which the jury could have concluded that the missing persons were dead and also evidence from which the jury could have concluded that the accused had not only stolen the boat but had also been involved in the deaths. The accused did not give evidence and called no witnesses. At 228 - 229 the majority of the Court, Mason CJ, Deane and Dawson JJ said:
"Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.
…
The failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof. In some other circumstances, silence in the face of an accusation when an answer might reasonably be expected can amount to an admission by conduct. But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence."
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64 In RPS v The Queen (2000) 74 ALJR 449 the appellant was convicted of four counts of unlawful sexual intercourse with his daughter. The prosecution case was based largely on the complainant's evidence. The appellant gave no evidence at trial. At 457 at par [35] - [36] Gaudron ACJ, Gummow, Kirby and Hayne JJ said:
"The present case (and cases of a similar kind) must be contrasted with that considered by this Court in Weissensteiner. There the prosecution case was that the accused's guilt was to be inferred from circumstances, particularly the unexplained disappearance of those whom it was alleged he had murdered, and his possession of the boat and equipment which they owned and from which they had disappeared while on a voyage with the accused. The majority of the Court held that the trial judge in that case had made no error by directing the jury that they could more safely draw the inferences which the prosecution alleged should be drawn 'when the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge'. …
The present case depended ultimately upon acceptance of the complainant's evidence, supported, perhaps, by an acceptance of the partial admission allegedly made by the appellant. In those circumstances the trial judge was wrong to direct the jury that they were entitled to conclude from the appellant's election not to give evidence that his evidence would not have assisted him in the trial. The trial judge was also wrong to direct the jury that the election not to put forward any denial or contradiction might lead them more readily to accept the evidence given by the witnesses for the Crown which the appellant was in a position to contradict of his own knowledge."
65 In R v Fowler[2000] NSWCCA 142 Wood CJ at CL, with whom Barr J agreed, Hulme J expressing no opinion on this point, quoted from both Weissensteiner and RPSand said at pars [159] - [163]:
"It remains possibly open to argument that a Weissensteiner direction should only ever be contemplated in a "smoking gun" case, or to a circumstantial case dependent on inference from proved facts, the innocent explanation for which might only reasonably lie in the mouth of the appellant. Whether that be correct or not it is difficult to see how the joint judgment would authorise such a direction in relation to the failure of an accused
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- to answer, on oath, the testimony of a prosecution witness as to the specific facts, from which an inference is drawn.
So far as the decision in RPS turned upon considerations other than those related to the prohibition in s 20(2) of the Evidence Act 1995 (NSW) [enabling the Judge or any party (other than the prosecutor) to comment on a failure of the defendant in a criminal proceeding to give evidence], Callinan J, said (at par 111) in a passage which leaves little, if any life, in the Weissensteiner direction:
'There is no doubt that a direction in accordance with Jones v Dunkel (1959) 101 CLR 298 may be given in respect of a failure by the Crown to call a material witness without acceptable and admissible explanation. The need for such a direction will usually be heightened by the Crown's responsibility to present its case in a way which is fair to an accused. (see R v Apostilides (1984) 154 CLR 563) However, such a direction may not be given in relation to an accused person or an accused person's witnesses who, if the matter were a civil trial, might be expected to be called. A direction with respect to a defence case, based upon Jones v Dunkel would not only infringe s 20(2) but also would erode the basic principle of the presumption of innocence. The principles stated in Jones v Dunkel by their very nature presuppose that there is a need, or an occasion, for evidence to be called by a party, or an expectation that evidence could and should be called by a party. An accused person in criminal proceedings labours under no such need, occasion or expectation.'
The conclusion of McHugh J concerning the permissibility of a jury being entitled, but not bound, to take into consideration that the accused has given no evidence denying or explaining a fact which is within his or her knowledge and which reasonably calls for an answer (at para 50), did not find favour with the other members of the Court, as a general proposition.
Similarly, his Honour's observations that the existence of tactical reasons for not denying or explaining facts, provided an insufficient basis for a direction negating the significance of silence (at para 57), or that the 'good reasons' for such a
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- direction were likely to be few, were not ones which found favour with the remaining members of the Court.
In my view, it follows from the reasons of Gaudron ACJ, Gummow, Kirby and Hayne JJ and from the separate reasons of Callinan J, that his Honour was in error in regarding the case as appropriate for a Weissensteiner direction. The occasion for such a direction in my view must hereafter be confined to an exceptional case of the kind there involved, where the line of reasoning in question is compelling."
66 In his statement Hugo gave an explanation for the entries in the PSR, namely mistake caused by fatigue and the distraction of Wright's presence and behaviour. Nasko's case was that the entries in the notebook were explained by mistake and were corrected once he realised the mistake. On the state of authority at the time Nisbet DCJ was trying this case, I think it was understandable that his Honour gave the direction that he did. However, later authority to which I have referred, in my opinion, demonstrates that the direction should not have been given.
Ground 4: Failure to identify adequately or at all what evidence was relevant and admissible against each accused on their separate trials
67 Each applicant was charged under a separate count. On 13 May 1999, the fourth day of the trial, in the absence of the jury and in response to an inquiry from Hugo's solicitor whether particular evidence would become admissible as against his client, the Crown prosecutor said that it would "on the basis of common purpose". The Crown prosecutor said that, although the applicants were not charged with conspiracy, the Crown would put to the jury that the jury would be entitled to conclude, depending on the jury's view of the evidence, that the accused acted in concert and, accordingly, that there was a common purpose. Reference was made to Tripodi v The Queen(1961) 104 CLR 1 at 6 - 7 where the High Court said:
"But when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime
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- becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case."
68 In Ahern v The Queen(1988) 165 CLR 87 at 99 the High Court, having referred to Tripodi, said:
"Once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation in the combination, but the offence charged."
- See also Cross on Evidence, 6th Australian edition, at 980 - 981. Whatever consequence the Crown prosecutor's statement may have had on the way that the evidence was led without differentiation, where necessary, between the applicants against whom it was led, and without objection, the Crown's attitude changed. On 25 May 1999 in the absence of the jury the Crown prosecutor told the trial Judge:
"Your Honour, I didn't address on common purpose and I won't be asking your Honour for any directions on common purpose. There is a common purpose case there but upon reflection it occurred to me that it would only complicate the jury's task if I put the common purpose case to the jury and sought directions on it, so I purposely didn't refer to it in my address."
The trial Judge said:
"Yes. I was going to discuss that with you because it seemed to me the way to approach it would be to simply approach all the evidence and then identify that part of the evidence which spoke against both accused, that which spoke against only one, and which one, and leave it on that basis. I was going to discuss that with all counsel."
"What I want you to remember at all times, as has been pointed out to you from the beginning, is that we are in fact having two separate trials at once here. We are having two trials at the same time. There is a whole trial against Mr Nasko and there is a whole trial against Mr Hugo.
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- That means that you have to give each of their positions separate consideration, so you have to consider the case against each man separately and you have to bring in at the end of the day separate verdicts in respect of each of them.
It is easy to think when all the evidence is produced at the one time and part of a witness's evidence is particularly relevant against one of the accused and another part particularly relevant against the other that it is all rolled up in one, but it isn't. You have two trials happening at the one time requiring your separate consideration. You can't, for example, say 'We find one not guilty, so the other one must be not guilty too' or, conversely, 'One is guilty so the other one must be'. That's not appropriate. As a matter of law, it's not how you do it and you have to bring your minds separately, collectively, to bear upon each one."
70 The applicants complain that the trial Judge failed to instruct the jury specifically as to what evidence was admissible and what evidence was not admissible against each of them. They said that the trial Judge summarised the evidence of Bowring, Roussety, Fredericks, Taylor, Henry, Wright, Kamperman, Curtis, Purvis, Turner, Woods, Bosnic, Blay, Campbell and Salmon generally without identifying the parts of those witnesses' evidence admissible against each of the applicants. The Crown points out that no objection to any evidence was taken on the basis that it was not admissible against one of the applicants. This may be explained by the Crown prosecutor's statement on the fourth day that evidence would be admissible against Hugo "on the basis of common purpose."
71 It is correct, as the Crown submits, that examples can be found where the trial Judge treated the case against each accused separately. His Honour clearly recognised the need to point to those parts of the evidence which could be taken into account in considering the case against both accused and those parts which could only be taken into account in considering the case against only one of them. However, neither of the applicants' legal representatives raised any point about this at trial. The question is therefore whether the error is of such a nature that it led to a miscarriage of justice.
Grounds 7, 8, 11, 12 and 14
72 Grouped together in the applicants' written and oral submissions were various parts of ground 7, namely that the Crown prosecutor
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- conducted the prosecution unfairly and in breach of duty, ground 8 that the trial Judge failed to instruct the jury or adequately direct them on certain matters, ground 11 concerning the direction on motive, ground 12, that the trial Judge prejudiced the defence case by misdirecting the jury in accordance with the Crown prosecutor's invitation on certain matters and ground 14 the signing by Wright of the PSR and Nasko's notebook. It is appropriate to consider these grouped submissions together.
73 Two specific matters are reflected in several of the complaints listed in grounds 7, 8 and 12. These are the allegation at the trial by counsel for Nasko that the Director of Public Prosecutions had done a deal with Henry so that he would give evidence at the trial and Henry's identification of Nasko as the person he spoke to alone in the interview room at AFP headquarters.
The alleged deal
74 In summing up, Judge Nisbet said:
"Next, Mr Sheales addressed you that the prosecution of the accused was nothing short of disgraceful and that the prosecution had behaved, deliberately, unfairly. I direct you, as a matter of law, to disregard those remarks. There is not a scintilla of evidence to support them. In my opinion, those remarks are the product of misplaced fervour and they are distracting. Put them out of your minds. I'm here to ensure that the accused - each of them gets a fair trial, and as far as I'm concerned they have had a fair trial right up until now and I'm certain that they will continue to receive a fair trial.
It's for you to bring in verdicts of guilty or not guilty. Next, Mr Sheales, in the furtherance of these remarks, left it open to you to conclude that a deal had been done by the DPP with Mr Henry. Let me tell you, in no uncertain terms, that there is no evidence of any deal. There is only one finding open to you on this question, there was no deal. If either side in this trial wanted to explore that issue further they could have but haven't. It is, in any event, an unnecessary distraction and has been.
You have more than enough evidence with which to weigh Mr Henry's credibility and reliability as a witness without involving any conjecture about a non-existent deal, a deal with which there is not a scintilla [of] evidence to support its making."
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75 What was referred to as the "deal" related to ten counts of trafficking in amphetamines with which Henry was charged and with which the Director of Public Prosecutions did not proceed. Separately, Henry had been convicted and sentenced for the importation of amphetamines and the possession of the LSD sheet found at 15 Laughton Way. We were told that the sentencing Judge was asked to take into account in sentencing Henry, his cooperation with the Crown. The relevant parts of the cross-examination of Henry were:
"Were you every charged with 10 counts of trafficking?---I was charged, yes.
What happened to those charges?---The DPP decided not to proceed with them.
That would be the Commonwealth DPP?---Yes.
That would be Mr Agius.
NISBET, DCJ: Mr Sheales
AGIUS, MR: My friend knows better than to say that, your Honour. That is most improper.
NISBET, DCJ: Mr Sheales, you should really withdraw that
SHEALES, MR: I withdraw that.
NISBET, DCJ: ---and apologise, I think.
SHEALES, MR: I withdraw it and I will apologise in a moment if it is justified.
AGIUS, MR: Your Honour, my friend knows I come from private practice and that I have no say in these matters. I ask that he withdraw it now. If not, I ask that he state his refusal to withdraw it, on the record.
SHEALES, MR: I have withdrawn it, your Honour.
NISBET, DCJ: Yes. I think you should apologise, Mr Sheales.
SHEALES, MR: Well, your Honour, I apologise in anticipation.
…
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- SHEALES, MR: Do you know why the charges were withdrawn against you?---I was told that there wasn't enough evidence.
You were told your admissions weren't enough?
AGIUS, MR: I object to that.
SHEALES, MR: Is that what you were told?---Yes. That is what I was told by my lawyer, anyway.
AGIUS, MR: It is all right, your Honour. The witness has qualified the answer.
NISBET, DCJ: Yes.
SHEALES, MR: It had nothing to do with giving evidence here?---I didn't even - I know nothing about giving evidence here benefiting me in any way.
Was a letter given to the Judge from the DPP on your sentence? Was a letter handed up in Court from the DPP to the Judge?---Not that I know of. No.
Not that you know of. You will be relieved to hear I am going to ask you about the events of 26 June.
NISBET, DCJ: Is there a transcript of the sentencing available?
SHEALES, MR: I am endeavouring to try and get one at the moment, your Honour.
NISBET, DCJ: I would like to see that, I think, having regard to this line of questions.
AGIUS, MR: Your honour, it is most improper for my friend to have embarked upon the cross-examination that he has just completed, without having taken the precaution, the proper sensible professional precaution, of at least checking the transcript because he has impugned my credit, he has impugned the credit of the Federal Director of Public Prosecutions in his effort to spray this witness with a matter upon which he must have had no instructions at all. I think it is utterly offensive and improper."
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- On 20 May 1999 the following interchange took place:
"AGIUS, MR: Your Honour, there is one matter I would like to deal with immediately when the jury come back to Court as we are now between witnesses and that is I would like to have on the record an acknowledgment from my learned friend, Mr Sheales, that there was no letter handed up on sentence in relation to Mr Henry. He and I have spoken about it. It seems to me this would be an appropriate time to deal with it.
NISBET, DCJ: Yes, all right.
SHEALES, MR: I'm content for that, your Honour.
NISBET, DCJ: All right.
…
AGIUS, MR: Your Honour, I wonder if my friend has had an opportunity to view the transcript of the sentence proceedings before [sic - of] Mr Henry and if so whether he is in a position to make a statement about whether or not he accepts that there was no letter handed up from the Director of Public Prosecutions or the police in favour of Mr Henry on his sentence.
NISBET, DCJ: Yes, thank you. Have you had that opportunity Mr Sheales?
SHEALES, MR: I have, your Honour, and I have been assured that there was no letter handed up and I accept that."
During his address to the jury, the Crown prosecutor said:
"Let me, before I leave Mr Henry, come back to one other thing. Again, it was a matter that was floated with a view to denigrate him, perhaps with a view to denigrate the Commonwealth Director of Public Prosecutions. It was no small matter, ladies and gentlemen, because what was being suggested and what was being asked about was a very grave thing indeed. The suggestion was that Mr Henry had done some kind of deal and that in return for himself not being prosecuted for the 10 supplies of amphetamine he agreed to either give evidence or give false evidence. Make no bones about it, that was the suggestion.
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- It wasn't suggested to any of the police the deal had been done with them. The deal had been done, on the suggestion of Mr Sheales, with the prosecution. Mr Henry denied it and that is where the evidence is. That is the whole of the evidence on that point. Mr Curtis and others said they hadn't been consulted by the DPP. Mr Turner says it's in a rare case that he's not consulted but it can happen. It's in a rare case that his cases are no-billed on him but it can happen. But on the question of whether or not any deal had been done, the only evidence is Mr Henry's denial.
Now, this is a pretty grave allegation because it's not just an allegation that concerns Mr Henry and cutting his own (indistinct). It's not an allegation that could possibly have any weight if it was meant only to soil him. No. That was a deliberate and despicable allegation which was meant to harm the whole of the prosecution case. You would think that if there was any substance in that allegation you would hear something about it.
What have you heard? The denial by Mr Henry. Have you heard of any subpoenas being issued calling for files which might evidence any such deal? Have you heard of any witness or any lawyer from the Commonwealth Director of Public Prosecutions being subpoenaed and called down here and put into the witness box and being examined as to whether this had occurred? What about Mr Henry's lawyer? Was Mr Henry's lawyer subpoenaed and called to give evidence about whether or not he had done any such deal?
What do you think about the absence of that material? What do you think it says about the veracity of Mr Henry's answer and about the truth? There is no evidence of any deal and to the extent to which it was floated to try and sway you, raise a doubt, it is utterly without substance because, as I'm sure his Honour will tell you, if not in this context then in every other context in this trial you must decide the case on the evidence as it is, not only speculation.
No amount of statements, no matter what force with which they're put from the bar table, turns them into evidence. Otherwise we might as well just not bother training to be lawyers. We might as well not bother with our trial process.
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- We might as well not bother sending you out, all of those tedious times that we did, to argue points of evidence. If there is a fundamental rule about how trials are conducted, it's that judges and juries can only act on evidence. It's not a new rule. I haven't just invented it at 20 past 3. My friend knew that rule. Why does he float that and not follow it up with a single shred of evidence if it's not to deceive you?
Cherie Wright, what is her motive for lying? Where is it? Has it been identified? Where is it? She has never been charged with anything, the best we know on the evidence. You have her record of interview with the police on this night. She seems to answer every one of their questions in a fairly frank, if not somewhat naive, way. What assessment can you make of her from that record of interview? Is she the scheming liar or is she a person who was under a great deal of pressure at the time and who has taken time to think about her position and who is telling you what she considers to be the truth? What motive did she have? Where has one been identified?"
76 In his address to the jury, which followed Mr Agius's address, Mr Sheales said:
"On the issue of the DPP's conduct in Henry's case, who would you expect to call the witness if there's no problems? Who would you expect to call the witness? You would expect the Crown.
…
How dare you suggest - it's a very odd thing - the Commonwealth DPP, the big title remember, hasn't got clean hands about this. How dare you suggest it?
Suggest it because the withdrawal of the charges on the face of it seems extraordinary without explanation. Can't think of a sensible one. All they had to do. Imagine cross-examining a senior person from the Director of Public Prosecution's office or the director himself. He would carry a lot of weight as a witness. You would want to make sure. You would want to make sure what you were putting to him because if ever a witness would reek of credibility that would be the one. That would be the one, but no show."
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77 These short quotations indicate the heat that at times the conduct of this trial generated. The following passages are taken from the addresses to the jury by the Crown prosecutor, by Mr Sheales and by Mr Quigley. They are taken randomly.
78 During his address to the jury, the Crown prosecutor said:
"You know what's even more telling than Mr Roussety's evidence about that? My learned friend - the big one, as he refers to himself - didn't put to Mr Roussety that he didn't see that. He never put to Mr Roussety - he never asked him a question to suggest to him that he was lying about that, that it wasn't Mr Nasko that he saw, that it was somebody else that he saw. There wasn't a single question.
Now, this man - this counsel is very competent - we have witnessed that for 2 weeks - very, very skillful, and yet do you think he would miss something like that? Why shouldn't you believe Mr Roussety? Is there a single reason that has emerged in the evidence in this case as to why you should not believe Mr Roussety when he says, with tears in his eyes as a witness, that this case is important to him because these are his colleagues on trial? Why would you not believe him when that man, a man of that calibre, says, 'I saw Mr Nasko walking away from the room'?"
- Mr Sheales in addressing the jury said this:
"You know, don't worry about titles, police officers; don't worry about titles, Commonwealth Director of Public Prosecutions; don't worry about titles, NCA - also known as the Never Catch Anyones - really and truly, they're hiding behind the screen because fairness in this case has gone out the window. It's all about winning and that's not what our court system is about."
Mr Quigley addressed the jury thus:
"Do you feel so overwhelmed as you sit there? Hardly. I don't mean to be presumptuous but hardly. You see, my learned friend as he made the point to you - and I have got to compliment Mr Agius. I was a little nervous before the trial began being a Perth lawyer and perhaps Sydney's leading Queen's Counsel prosecutor coming over here to prosecute - naturally you get nervous. He has got an awesome reputation. He referred to the Royal Commission in Sydney and the police
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- corruption in Sydney in his final address. Of course he was the senior counsel assisting Wood J and cross examined all those corrupt police.
This trial would have been a great disappointment for him because he didn't get any of that in this trial but he is in private practice in Sydney as he has explained to you and of course you get nervous before a person with such an awesome reputation comes over and as he said, he's not part of the DPP, he has been briefed by the DPP to present their case and I don't seek to praise him or damn him with fake praise or any smart alec things like that but he did a good job in the sense that this case was fatally flawed from the time it was investigated by Mr Bosnic. It carried that fatal flaw within it."
79 The ad hominem personal remarks found in these quotations and elsewhere during the taking of evidence and during the addresses are entirely out of place in a trial. They demean the trial process and, if they are intended to influence the jury in the decision making process, they are improper. They illustrate an attitude by those conducting the trial more concerned with point scoring than ensuring that the applicants had a fair trial and that the trial Judge had all the assistance to which he was entitled. They are part of the background and context in which this trial, in my opinion, went wrong. The complaints made against the way the Crown prosecutor conducted the trial brought complaints about the way Nasko's counsel behaved during the trial. A large part of the written submissions and the appeal hearing was devoted to these grounds of appeal. Some of these matters moved Judge Nisbet to give the directions which I have quoted.
80 I am unimpressed with the argument that the trial Judge's directions about a deal by the Director of Public Prosecutions with Henry were unjustified, misled the jury and were productive of unfairness to the applicants. That was how counsel ran the defence without any evidence to support it. Counsel did not seek any re-direction. The carefully measured submissions put in writing to this Court about the strength of the case against Henry on the charges which were dropped may have been more persuasive than the way counsel saw fit to address the jury. But that cannot be a matter for complaint on this appeal. The trial Judge was perfectly entitled to make the point that the allegation of a deal was unsupported by evidence.
81 In the course of oral submissions, counsel for the applicants said:
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- "I think it is fair to say that more was made of this issue on both sides, we would submit, than was probably justified in the circumstances because the learned prosecutor took the view that the attack that was being made was - and it was elevated to the position that clearly the Director of Public Prosecutions must have entered some deal or arrangement with Mr Henry that resulted in those ten amphetamine charges not being proceeded with.
As a result of the position which was adopted by the learned prosecutor, he ultimately complained to the Judge following the closing address of defence counsel as to the way in which defence counsel had characterised this issue, saying that it was unjustified criticism of the prosecution case and also the Director of Public Prosecutions. The Judge heard full argument - this is all set out in the submission and I'm not going to detail it to the Court - and as a consequence the learned trial Judge determined to give directions to the jury. …
It is of significance that each of the directions the learned trial Judge gave was a direction which the learned prosecutor sought… The directions sought were (a) there was no evidence of any deal done between Henry and the prosecution and if one is to talk about a deal, then that proposition is clearly correct. Mr Henry denied that there was a deal and there was no other evidence that there was an agreement or arrangement between him and the DPP; (b) it was totally unjustified to suggest to the jury, as the learned prosecutor did and as the learned trial Judge subsequently did, that the only finding they could make was that there was no deal done.
It was quite wrong because there was no evidence beyond the fact that there was an unexplained withdrawal of these charges in circumstances which would entitle a jury to entertain as one possible inference that Mr Henry was receiving favourable treatment, but to suggest as the learned prosecutor and subsequently the learned trial Judge did that the conclusion was that there was no deal done was a misdirection; (c) was to then result in the Judge adopting the prosecutor's suggestion that Mr Sheales should be the subject of a personal criticism, that it was an improper suggestion for Mr Sheales to have made, and then the Judge further acceding to the learned prosecutor's request informed the jury that the jury should draw no adverse against
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- the Crown by the Crown having determined not to call any evidence to explain why the withdrawal of the charges took place. Finally, the learned trial Judge acceded to the learned prosecutor's suggestion that the jury should be told if the defence had wanted to, that they could have called evidence about it.
Now, our complaint in substance at the end of the day without the Court getting involved in the minutiae of the development of this issue was … The real issue in the case was whether the witness Henry's testimony was the subject of inducement as a result - either wholly or in part as a result of the withdrawal of these charges by the learned trail Judge directing the jury as he did, by adopting the learned prosecutor's request, that issue was effectively withdrawn from the jury's consideration.
It wasn't as though the learned trial Judge gave those five directions but went on to say, 'Leaving the question of a deal to one side, you really need to focus on what the primary issue is and that is, was Henry's evidence or has his evidence in any way possibly been induced, and here you have some facts which on the basis of the evidence you have heard are most unusual: charges are withdrawn; none of the police that you would expect to be told about this have been told; no explanation has been forthcoming from the Crown despite the most strenuous efforts by defence counsel to try and find out; no explanation is placed before you, therefore there is a real question for you. Has there been an inducement? Has something occurred which might have coloured Henry's evidence?' The Judge didn't do any of that. The Judge merely gave the directions requested by the learned prosecutor so that we submit at the end of the day the effect of all that was this issue was withdrawn from the jury's consideration.
What was the jury left with? The jury was told, 'There is no evidence of a deal. In fact you should conclude the contrary, there was no deal. Counsel was wrong to have ever made any such suggestions. The Crown can't be criticised for not calling any evidence and the defence could have called some evidence.' Now, this all has to be viewed, we would submit, in the context of the duties of a prosecutor. This was not an adversarial process in which each side was entitled to take whatever
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- forensic advantage they could of whatever was the situation in Court."
82 A little further on, counsel said:
"The issue was, had there been an inducement, whether it was express, whether it was intended, what was the effect of the withdrawal of the charges? Why were they withdrawn? In what circumstances were they withdrawn and what effect did that have on Mr Henry? ...
So that I don't fall into the same error as those conducting the trial, I accept what his Honour Sheller AJ has said, that the matter did get out of hand and more was made of the question of whether there was a deal, as a consequence of which the important issue was totally lost. ...
The only point we say comes out of this is that the focus was shifted to the fight on one issue when the real question, which lay at the heart of that aspect of the cross-examination of Mr Henry, was not addressed at all; namely, was there an inducement and what effect did the withdrawal of the ten charges have?"
The identification of Nasko
83 The applicants claimed that Henry's identification of Nasko as the police officer to whom he had spoken in the interview room was evidence about which no reasonable jury properly instructed could have been satisfied beyond reasonable doubt. In the course of a statement made to the investigators, Henry said that the person who came into the interview room was a tall person, the person who had read out the search warrant to him at AFP, driven him in the company of Scantlebury to 15 Laughton Way, explained to Wright on her return home that the house would be searched, been in the second bedroom with Henry and Scantlebury, had with Scantlebury assaulted him, had left the second bedroom and returned with the drugs, questioned him and left the room with the drugs, on return to AFP headquarters came into the interview room and asked questions and made threats in the company of Scantlebury, had with Scantlebury and Roussety moved him to a second interview room and entered the second interview room and mentioned that the drugs had been located in the bedroom wardrobe.
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84 At the committal proceedings of Hugo and Nasko in August 1997, Henry identified Nasko in Court as the tall officer but said he could not remember which officer had shown him the warrant at AFP headquarters and said he had "a little doubt" that the officer he saw reading the warrant to Wright was Nasko. In giving evidence on the voir dire at his own trial, Henry said that the officer, who drove him to 15 Laughton Way and was in the bedroom with Scantlebury, assaulted him then left the bedroom and returned to question him with the drugs, was Fredericks.
85 In giving evidence to the jury at his own trial, Henry said that the officer who entered the interview room "may have been Fredericks but it may have been Nasko". Henry was unsure who had moved him to the second interview room. Henry's explanations for the changes in his evidence were that he did not know the difference between Fredericks and Nasko, that before the committal he did not know what Nasko looked like, that he was confused at all times when asked in the past prior to the trial and that, notwithstanding that he had spent a very long period of time with Fredericks before Fredericks was brought into the court room in his own trial, he did not know Fredericks existed. The applicants submitted that, due to Henry's drug usage and confusion, there was a very high risk that Henry was a mistaken witness. The unreliability of this evidence was increased by the court room identification and by the Crown's failure to adopt any procedure such as an identification parade in preparing the case that it was Nasko who came into the interview room: see Alexander v R(1981) 145 CLR 395.
86 It was a matter for the jury whether or not they accepted Henry's evidence that it was Nasko who came into the interview room and told Henry that the LSD had been found in the bedroom. Having taken account of the evidence to which we have been referred, I am not persuaded that it was not open to the jury properly instructed to accept Henry's evidence about this.
87 It is now convenient to return to the grounds of appeal grouped in the way I have indicated.
Ground 7.1: The Crown prosecutor unfairly and in breach of his duty introduced as an issue for the jury the motives and integrity of Nasko's counsel
88 This ground is exemplified by the interchanges about the so-called deal between Henry and the Director of Public Prosecutions. I do not think it necessary to pursue it further.
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Ground 7.2: The Crown prosecutor conducted the prosecution case unfairly and in breach of his duty by conveying his personal opinions about the strength of the Crown case
89 Such personal observations should not have been made but in the context of other grounds of appeal I do not think it is necessary to say anything further about this ground.
Ground 7.3: Evidence of Henry's earlier identification of Nasko
90 This ground was directed to what was said to be the Crown's failure to disclose to the defence before Henry was called the evidence that he had given earlier about his identification of Nasko. It emerged during the hearing of the appeal that the relevant transcripts had been made available before the trial began to Hugo's solicitor and instructing counsel for Nasko. No evidence was put before the Court to support this ground of appeal by Nasko's counsel and, in the general context of the other grounds of appeal, I think it unnecessary to pursue it further.
Grounds 7.4, 7.5(a), 7.8, 8.3, 8.4, and 12(a): Henry's evidence and inducement
91 These grounds all related to the way in which Henry's evidence and the question of inducement was dealt with at the trial. I do not think it necessary to add to what I have already said. Counsel for Nasko saw fit to persist with an allegation, unsupported by any evidence, that there was a deal between Henry and the Director of Public Prosecutions. A more measured address such as that put to us might have been appropriate. But that was not the course counsel chose.
Grounds 7.5(b), 8.4 (in part) and 12(b): Failure to adopt an appropriate identification procedure
92 These grounds related to the failure by the Crown to adopt an appropriate identification procedure. As I have indicated, there were obvious weaknesses in Henry's evidence identifying Nasko as the person who spoke to him in the interview room. These weaknesses flowed from the want of any pre-trial identification procedure, from the in-court identification and from the change in his evidence from time to time. Ultimately, however, I am not persuaded that it was not open to the jury properly instructed to accept Henry's evidence about this.
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Grounds 7.5(c) and 8.4 (in part): Inconsistencies of evidence of various Crown witnesses
93 These grounds related to the defence claims that there were flaws in the method of investigating inconsistencies between the versions of events given by various Crown witnesses. The nub of the complaint on the appeal was that the prosecutor invited the jury to regard these criticisms as a deliberate red herring. The trial Judge did not correct or comment on what the prosecutor said. However, defence counsel followed the Crown in final addresses and was well able to make such point as there was about the significance of this investigation. I do not think any further direction was called for from the trial Judge about this and none was sought.
Grounds 7.5(d) and 8.4 (in part): Bowring
94 These grounds related to the defence reliance upon the fact that Bowring had never been requested by the applicants or anyone else to give a false account as to where she had found the drugs. Again, the defence had ample opportunity in addressing the jury to rely upon this fact and, again, no re-direction was sought from the trial Judge.
Grounds 7.5(e) and 8.4 (in part): Notebook and PSR private documents
95 These grounds related to the defence submission that the notebook and the property seizure records remained the applicants' private documents. As I have said, in my opinion, such a submission is entirely without substance.
Grounds 7.5(f) and 8.4 (in part): Future plans
96 These grounds related to the applicants' future plans and, in particular, that Nasko had had his leave booked to go away within a few days and that his wife was about to give birth to a child. The Crown said to the jury that those plans were irrelevant. Again, the defence had the opportunity to make what it wished of the evidence in its address to the jury and sought no re-direction from the trial Judge. I do not think these grounds have any substance.
Grounds 7.5(g) and 8.4 (in part): Hugo's fatigue
97 These grounds related to Hugo's statement that he was suffering from fatigue at the time he made the relevant entry in the PSR and the trial
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- Judge's failure to direct on this. Again, this seems to me to be a matter for address to the jury. Mr Quigley sought directions from the Judge about Hugo's fatigue and claims that the trial Judge said he would deal with it but failed to do so. In the context of the evidence as a whole I do not think this failure is of significance, particularly when one considers that that explanation of Hugo's was already before the jury.
Grounds 7.5(h), 8.4 (in part) and 14 which relate to the time when Nasko made the entry in his notebook and the time when Wright signed it
98 Nasko's case was that he had corrected the notebook before Wright signed it. Wright could not say what was in either of the documents at the time she signed it. There was an issue in relation to when the entries were made and when the notebook and PSR were signed. The applicants' complaint was that the trial Judge failed to correct the Crown prosecutor's statement to the jury that this was an irrelevant issue and gave no direction at all about the requirement that the jury would have to be satisfied beyond reasonable doubt that Wright signed each of these two documents while they were in an incorrect or false form. There is no doubt that the invitation to Wright to sign the notebook entry and the PSR when either Hugo or Nasko or both or them knew the respective entries were false was an element of the offence charged and ordinarily would have called for a direction that it required to be proved beyond reasonable doubt. However, this absence of direction seems to me in the context of other grounds of appeal not to be a matter which requires further consideration.
99 The Crown submission was that on Bowring's evidence no opportunity arose for Nasko ever to have believed that the LSD had been found in the main bedroom. There was no occasion for him to have been mistaken. Nasko had been told by Bowring and shown by Bowring where she had found the LSD within minutes of the event. Before speaking to Nasko she had not told anyone else of her find. Bowring was Nasko's first and only source of information as to where the LSD had been located. Nasko made an entry in his notebook while he, Wright and Bowring were at the garage. Wright signed the notebook while she was at the house. She later initialed it in the interview room at AFP headquarters after Nasko returned to that room following his meeting with Curtis and at the same time that she initialed the PSR. The Crown submitted that the overwhelming inference to be drawn was that when Wright signed the notebook it contained the false entry which entry was corrected and initialed at AFP headquarters. No other inference was open on the evidence. In my opinion, this ground of appeal has no substance, an
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- opinion reinforced by the failure of Nasko's counsel to seek any further direction.
Grounds 7.5(i) and 8.4 (in part): The absence of a bust kit
100 A "bust kit", we were told, was a working set of documents ordinarily given to the property officer. Again, the defence was able, in its address, to deal with whatever the Crown said about the bust kit. After addresses were complete and before the Judge summed up Mr Quigley submitted to his Honour that it was not a false tactic to raise the fact that there was no bust kit "down at the house". I am not persuaded that the absence of any direction about the bust kit is of any significance.
Grounds 7.5(j) and 8.4 (in part): Evidence as to the number of squares of LSD
101 These grounds related to the drug registrar's evidence about the number of squares of LSD found on the sheet. In his charge the trial Judge noted that the defence was suggesting that the registrar made a mistake. His Honour doubted the necessity to have this matter pursued. I do not regard it as requiring any further consideration.
102 The applicants complained that the prosecutor attacked defence counsel's style of cross-examination and that the trial Judge never told the jury that the Crown prosecutor was over zealous in his attack on the relevance of the defence argument and on the integrity of counsel and that his Honour never directed the jury to ignore these attacks.
103 I do not think it necessary, in light of other matters that have been raised on the appeal or, in the circumstances, desirable to descend any further into the detail of these complaints. Suffice it to say that those who represent both the prosecution and the accused have a duty to ensure that the accused has a fair trial. Behaviour by any legal representative which distracts the jury from or may mislead the jury about the nature of the task at hand is not only undesirable but may be improper. Counsel who make more difficult the proper conduct of a trial by the presiding Judge do not sufficiently perform their duty to the Court and to their clients. If it is possible, and if it is necessary, it is in my view preferable that a trial Judge take to task those who misbehave in private chambers rather than bringing the jury into such unseemly contests. Ordinarily, one would expect a warning from a Judge in chambers or in the absence of the jury in Court to defuse the sort of personal interchanges between counsel to which our attention has been drawn in this case. It is unnecessary to say anything further about it.
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Grounds 7.6 and 8.5: The applicants claimed that the trial Judge gave an inadequate direction as to the applicants' good character
104 These grounds related to Hugo's statement and the material he gave about his background and lack of criminal convictions. Hugo's solicitor also cross-examined to like effect. My reading of this material suggests that Mr Quigley did rely upon Hugo's good character which left it open to the Crown prosecutor to address about it. He did so by reference to the statement and the evidence that Hugo had invited Wright and Kamperman out for a drink after Wright's de facto husband Henry had been arrested and was about to be charged with a criminal offence. I do not think this was impermissible or of any particular significance in the context of this appeal.
Grounds 7.7 and 11: Motive for falsifying records
105 These grounds related to the invitation to the jury to conclude that the applicants' motive for falsifying the records was to strengthen their case against Henry. In summing up Judge Nisbet said:
"Then, says the Crown, you may - we don't have to prove a motive but you can find one here because the quality of the Crown case against Henry would be improved by moving the drugs from the carport - yes, the carport or the garage into the bedroom.
The second motive they floated - let me use that term because it wasn't advanced in any way with any evidence - whilst it's entirely a matter for you as I stress - which could [not] in any way be described as compelling - in fact, I would suggest to you that there is not a scintilla of evidence to support the second motive advanced by the Crown; stressing again that these are matters for you to decide - is that each of these accused, mindful of Lexie Bowring's attempts to get to Cyprus with the United Nations police force or whatever as an Australian representative, in the knowledge that she probably wouldn't be allowed to go if she was required as a witness in a major drug bust, decided to help her, without consulting her, or without knowing whether she wanted them to, to say that she didn't find the drugs but they did, and it was in the bedroom - sorry, it was Mr Hugo and in the bedroom. Well, you won't spend a lot of time with that I wouldn't have thought. There is no evidence to support that theory.
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