Jones v The Queen
[1990] TASSC 44
•4 September 1990
Serial No 41/1990
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Jones v R [1990] TASSC 44; A41/1990
PARTIES: JONES, Allan William
v
R
FILE NO/S: CCA 117/1989
DELIVERED ON: 4 September 1990
DELIVERED AT: Hobart
JUDGMENT OF: Green CJ, Underwood and Wright JJ
Judgment Number: A41/1990
Number of paragraphs: 78
Serial No 41/1990
List "A"
File No CCA 117/1989
ALLAN WILLIAM JONES v THE QUEEN
REASONS FOR JUDGMENT GREEN CJ
UNDERWOOD J
WRIGHT J
4 September 1990
Order of the Court
Appeal dismissed.
Serial No 41/1990
List "A"
File No CCA 117/1989
ALLAN WILLIAM JONES v THE QUEEN
REASONS FOR JUDGMENT GREEN CJ
4 September 1990
The appellant was charged with stealing approximately $38,000 in decimal currency and a quantity of Australian pre–decimal currency the property of the Administrators of the Estate of Thomas Ewart Jones deceased or a person or persons unknown between 4 August 1985 and 19 February 1987. He was also charged with three counts in the alternative. After a trial the appellant was convicted of the first count and as I understand it no verdicts were taken upon the alternative counts.
The appellant appeals against that conviction upon the following grounds:
"1That the learned trial judge erred in fact and in law in allowing the prosecution to re–open its case to call rebuttal evidence from Rosemary Elaine Jones and Jeffrey Thomas Jones.
2That the learned trial judge erred in fact and in law in allowing counsel for the Crown to address the jury again after completion of the summing–up.
3That the cumulative effect of the matters alleged in Grounds 1 and 2 was such as to produce a miscarriage of justice."
The facts and the course which the trial took are set out in the reasons for judgment of the other members of the Court and I do not need to restate them.
Ground 1
Section 371(i) of the Criminal Code provides that one of the rules which shall apply to the proceedings upon the trial of an indictment is that evidence in rebuttal may be called by the Crown "if the judge is of opinion that in the circumstances of the particular case it should be allowed".
In Brown v R (1980) Tas R 61 Neasey and Cosgrove JJ held that the "governing test" of whether the Crown should be given leave to call evidence in rebuttal is that which was laid down by the High Court in Shaw v the Queen (1952) 85 CLR 365 and cited the following passage from the joint judgment of Dixon, McTiernan, Webb and Kitto JJ as being of particular significance:
"Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made ... When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. The court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against re–opening the Crown case unless the circumstances are most exceptional. We are not disposed to lay down the rule in the terms adopted from Tindal CJ in R v Frost. It is a matter of practice and procedure, and in such matters, even where the procedure is criminal and is directed to safeguarding the position of the accused, there is less reason for closely following English authority than where the development of the substantive law is involved.
...
It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence. (85 CLR, at pp379, 380)"
In the same case Nettlefold J held that the "guiding principle" was as stated in the final sentence in that passage.
The High Court reaffirmed its adherence to the principles stated in Shaw's case in Killick v the Queen (1981) 147 CLR 565, Lawrence v R (1981) 38 ALR 1 and R v Chin (1985) 157 CLR 671. However whilst accepting that a trial judge must apply the statement of principle made in Shaw v R. it should also be recognised that that statement is not a rigid or exhaustive statement of all the considerations which should guide the exercise of the discretion conferred by s371(i) of the Criminal Code. In addition to the fact that it is not competent for this court to unduly restrict the exercise of a discretion conferred by the Criminal Code in unqualified terms it should also be noted that in Shaw's case itself it was thought that it was "unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise in a criminal trial". Further in R v Chin (supra) Dawson J observed at pp 684 and 685 that:
"Beyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved, this Court has declined, having regard to the multifarious directions which a criminal trial may take, to lay down any rigid formula."
Finally, although the High Court in Niven v the Queen (1968) 118 CLR 513 accepted that the matters pointed out in Shaw's case should be "borne in mind" in appropriate cases it also held at p517 that:
"... the exercise by the trial judge of the discretion given him under s371 is a substantial matter and should follow upon a full consideration by the judge of the possibility of prejudice to the accused as well as of prejudice to the prosecutor which could have been avoided by appropriate action taken at an earlier point in the trial."
I turn to consider two further statements which elaborate the above general statements and which are of particular relevance to the circumstances of this case.
In R v Chin (supra) in the course of a judgment with which Mason J agreed Dawson J said at p685:
"The prosecution will not, of course, be seeking to split its case when the evidence which it wishes to call by way of reply is to rebut evidence which forms no part of its proofs as, eg where the defence of insanity is raised or evidence of good character is called by the accused. Even then, if the nature of the evidence which the accused intends to call should have been known to the prosecution so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence. Thus it was held in Killick's Case that the prosecution ought not to have been permitted to call evidence after the close of the defence case in order to rebut an alibi raised by the accused which ought to have been foreseen by the prosecution because it had been raised in earlier proceedings. Where evidence which the prosecution seeks to call by way of rebuttal is also confirmation of the case which it has sought to make, the trial judge must exercise his discretion to ensure the observance of the principle which finds its expression in the rules which have been laid down: see Killick's Case (23). If the evidence was only of marginal, minimal or doubtful relevance to the prosecution case, it may properly be admitted to rebut the defence case."
The passage from Killick's case which is referred to comes from the judgment of Wilson J and Brennan J who, after referring to the principle stated in Shaw's case said at pp.575 and 576:
"That enunciation of the principle as a prohibition against the splitting of the prosecution case tends to overshadow the obverse of the principle, namely, that evidence for the prosecution may be given after the closing of the defence case 'where it becomes necessary to rebut matters which have been raised for the first time by the defence' (per Lord Goddard LCJ in Owen (33)). There is no inconsistency between the enunciation of the exclusionary rule in Shaw and the facultative rule expressed in the dictum in Owen. Wigmore on Evidence, 3rd ed (1940) encompasses both by applying the exclusion to 'all evidence which has not been made necessary by the opponent's case in reply' (vol 6, par 1873, p 511) and in R v Stimpson (34), Garrow B admitted so much of the testimony of a witness called in reply as went to destroy the case set up by the prisoner, rejecting the testimony which went merely in confirmation of the prosecution case. Where the defence is the first to raise at the trial a matter of exculpation, evidence which merely rebuts that matter does not split the prosecution case on any issue and Shaw furnishes no reason for excluding the evidence.
There may be cases where the evidence which the Crown seeks to call in rebuttal of new matter introduced by the defence is at the same time confirmatory of the case which the Crown has sought to make. Such cases required the trial judge to exercise a discretion. He must ensure on the one hand that evidence which is clearly relevant to the Crown case – not marginally or minimally relevant – is not admitted in breach of the rule laid down in Shaw (35) merely because of its relevance to a fact first raised in the defence case (cf Reg v Levy & Tait (36); equally he must not exclude evidence which is in substance rebuttal evidence because some minimal or marginal relevance to the Crown case would have made it admissible in that case. The discretion must be exercised according to the circumstances of each case (cf Reg v Milliken (37)."
Wilson J and Brennan J dissented in that case but it seems to me that the basis of their dissent was whether the possibility that the accused in that case might raise an alibi was foreseeable and whether it would have been open to the Crown to have called evidence to rebut the accused's alibi before the accused had set it up and that the above passage is not in conflict with anything said by the majority. Further it seems to me that the views expressed in the above passage are in conformity with those stated by Dawson J and Mason J in Chin's case.
One of the primary issues in this case was whether the appellant took or converted the subject property dishonestly. The evidence which the appellant gave in cross examination – to the effect that he had handed over the property to one of the complainants or his agent was capable of being used by the jury as circumstantial evidence which was relevant to their determination of that issue. Although from the outset the Crown carried the burden of proving that the appellant acted dishonestly the claim made by the appellant was not put to any of the Crown witnesses and it could not possibly have been regarded as reasonably foreseeable by the Crown. Although the evidence called in rebuttal might have been incidentally relevant to the issue of the appellant's credit it could not be said to have been significantly "confirmatory of the Crown case" and in no real sense could it be said that the Crown had split its case.
Applying the principles to which I have referred I am not satisfied that it has been shown that the learned trial judge erred in the exercise of his discretion to permit the Crown to call the evidence in rebuttal.
Ground 2
By virtue of s371(j) of the Criminal Code the trial judge may, in addition to instructing the jury as to the law applicable to the case make such observations upon the evidence as he thinks fit. It follows that when, as is almost invariably the case, a trial judge does think it appropriate to make observations upon the evidence the customary invitation to counsel to make submissions at the end of the summing up must be taken to include submissions relating to observations on the facts as well as the law. Counsel made the statement which is the subject of this ground after receiving such an invitation from the trial judge and in response the trial judge said to the jury inter alia "they are things you will consider no doubt. I will not comment on them further".
In my view those exchanges which took place at the end of the summing up could be regarded as a supplementary observation by the trial judge upon the evidence relating to the telephone call made in response to a submission made by counsel. Had his Honour made an observation along the lines indicated in the submission made by counsel for the Crown during the course of his summing up proper no objection could have been taken to it and I cannot see how it could be said that that observation became objectionable merely because it was made at the end of the summing up in response to a submission by counsel.
However even if that characterisation of what occurred is incorrect and the proper conclusion is that this ground has been made out I consider for the following reasons that no miscarriage of justice has actually been occasioned thereby:
1It amounted to no more than a relatively minor procedural irregularity.
2Counsel for the appellant declined to avail himself of the opportunity which he was given to invite the trial judge to make some countervailing observations.
3Counsel for the appellant conceded that he could not argue before this court that ground 2 taken by itself was sufficient to demonstrate that a miscarriage of justice had occurred.
I should add that in my view the practice of making submissions of this kind in the presence of the jury ought to be discouraged because the trial judge's discretion whether to make a supplementary observation as a result of the submission is pre–empted by the fact that the jury has already heard the submission. Whenever counsel propose making a submission of this kind they should indicate to the trial judge that it should be made in the absence of the jury.
I would dismiss the appeal.
Serial No 41/1990
List "A"
File No CCA 117/1989
ALLAN WILLIAM JONES v THE QUEEN
REASONS FOR JUDGMENT UNDERWOOD J
4 September 1990
This is an appeal against conviction for stealing contrary to the Code, s234. The particulars of the count to which the conviction relates provide that:
"allan william jones at Launceston in Tasmania between on or about the 4th day of August 1985 and on or about the 19th day of February 1987 stole approximately $38,000.00 in decimal currency and a quantity of Australian pre–decimal currency the property of the Administrators of the Estate of the late Thomas Ewart Jones or a person or persons unknown".
The grounds of appeal are:
"1That the learned trial judge erred in fact and in law in allowing the prosecution to reopen its case to call rebuttal evidence from Rosemary Elaine Jones and Jeffrey Thomas Jones.
2That the learned trial judge erred in fact and in law in allowing counsel for the Crown to address the jury again after completion of the summing–up.
3That the cumulative effect of the matters alleged in Grounds 1 and 2 was such as to produce a miscarriage of justice."
Thomas Ewart Jones died intestate on 4 August 1985. The appellant is one of his eight surviving children. On 31 January 1986, Letters of Administration were granted to three of those children namely, Jeffrey Jones, Robert Jones and Edith Hankey. The estate was distributed in about April 1986, each child being entitled to receive approximately $7,000.00. At the time of his death, the deceased was cared for by a housekeeper who lived with him at 3 Brentwood Street, Launceston. She remained in the residence for about a month after his death. Shortly after the deceased's death his son, Thomas, moved into the house. After the housekeeper left, the appellant also moved into the deceased's former home and lived there with his brother for some months.
It appeared that, in at least one respect, the deceased's behaviour had been eccentric. He always carried a small bag in which the appellant believed his father kept a substantial amount of cash. The appellant's evidence was that after his father's death this bag "was later presented" to him and some of his siblings but found to contain only a small amount of money. The appellant said that he believed that the housekeeper had stolen money from the bag and, although he expressed this belief to some members of his family, all were disinclined to take any step to pursue the matter.
While living in his late father's house, the appellant made a thorough search of the premises and a garden shed to see if he could find any hidden money. He discovered, secreted in three different locations, a total of approximately $38,000.00 in decimal currency and £12,000.00 in predecimal currency. In his out of court statement to the police, the appellant detailed the money he found as follows:
"A total of approximately A$38,000 Commonwealth of Australia, decimal currency mostly in $20.00 (twenty dollar notes), few $10.00, few two dollar notes – about $500.00 worth.
A total of A12,000 pounds pre decimal currency in good condition:
One (1) one thousand pound note. Prefix 2A. blue/grey in colour, with one thousand (one thousand pounds) in figures on the four corners, and in very good condition, and folded in half.
Two (2) A100 pound notes.
Number of A10 pound notes – (about A7,000 pounds) and the remainder in 5 pound notes, blue in colour, and also green 1 pound notes." [sic]
The appellant did not hand this money to the Administrators for distribution to the beneficiaries but kept it himself. He admitted using about $6,000.00 of the decimal currency but claimed that he felt that he was entitled to do this for it was only a portion of the amount that he was lawfully entitled to receive as one of the beneficiaries. Between 19 and 27 February 1987 the appellant made several visits to both the Hobart and Launceston Casinos and was there observed converting old decimal currency into chips and later exchanging the chips for money currently in general circulation. On one occasion in Hobart and on one occasion in Launceston, State police officers (presumably alerted by the Casino staff) spoke to the appellant about the money. He told them on both occasions that it was money he was entitled to have as it was part of his late father's estate and had been found in his father's home. Additionally, the appellant told at least two of his brothers that he had found some old money hidden in their father's house and that they would "all be millionaires" or words to that effect. So at the trial the appellant did not dispute that he took the money he had found without the consent of the owners, but denied that he did so dishonestly and with an intention to permanently deprive the owners of the money.
In essence, the appellant claimed in his evidence that because of the lack of interest exhibited by his siblings in pursuing their father's housekeeper to try and recover money he believed she had taken and because of other disputes between him and some of the members of his family, which need not be detailed here, he did not trust the Administrators to obtain the best possible price for the old notes he had found nor to properly distribute the proceeds between all those entitled. Accordingly, he said, he decided to carry out this task himself.
However, this did not come to pass. According to the appellant's account he gave the money to persons who claimed to be Federal police officers and it has not been seen since. In an out of court statement made to Federal police officers on 6 April 1987 the appellant gave the following version of the relevant events and in his evidence deposed that it was correct:
"I left all the abovelisted money in the biscuit tin and placed the biscuit tin in a green garbage bag and I buried it over the back of the Australian Railway's compound, about half a mile east of 3 Brentwood Street, Newstead. Out of this money, before I buried it the first time, I kept about four hundred dollars of the Australian decimal currency and I spent the money on groceries and clothes.
From that time on I returned to the hiding place about six (6) times and I took about A$6000 worth in money and I spent the money for my own expenses.
In February 1987 I went to the Hobart Casino with Peter Ryan, and I changed over about $2,700.00 worth of the money that I had hidden. From this money the Hobart Casino gave me the money in $100 and $50 notes in exchange for the $2,700. About eight (8) weeks ago, I looked up the Melbourne Age newspaper and found the names of two currency dealers in Melbourne ...
I then telephoned 'Majorca Coins and Stamps', Melbourne, and I spoke to a male person who gave his name as Steven Shostack ... I told Steven that I had a large amount of Australian C of A decimal Banknotes with the 'Coombs Randall' signatures, and I asked him for a valuation of the Australian notes. Mr Shostack told me that he would have to see them first, but notes in good condition and in sequence may be worth up to $500 to $1,200 dollars each. I did not discuss any of the pound notes with Steven on the first occasion.
After this call I went to the Australian Railways compound near Brentwood Street, and I picked up all the money in the garbage bag and took it to 4 Crown Street, Launceston [the appellant's then residence].
Towards the end of February 1987, I took the Australian decimal C of A money and the Australian pound notes in a brown brief case to the Commonwealth Bank, Charles Street, Launceston and placed the brown brief case in a safety deposit lodgement number 473.
From that time I had access to the safety deposit on two or three occasions. The first time was to get some money out of the brief case. The second time was to grade the Banknotes in order to obtain a valuation for Mr Shostack.
On the third occasion, I went to the Commonwealth Bank, in Charles street, to get the brief case out. This happened some time in early March 1987 ... From then on I kept the brown brief case with me at all times. [This account of the use of the Bank's safe custody deposit was confirmed by evidence given by an officer from the Bank].
From the brown brief case I took out all the notes and I placed all the notes in sequence ... All the money was then placed into another grey coloured combination lock type brief case, which I had bought new from Fitzgeralds in Launceston.
About five (5) weeks ago, I made arrangements to meet Steven Shostack at his home in Toorak, Melbourne, so that I could show him the Banknotes. I was supposed to have gone over to Melbourne on a Monday, but I didn't go. [Mr Shostack confirmed the making of this arrangement and the failure of the appellant to adhere to it].
About three (3) weeks ago, I spoke to Mr Shostack on the telephone. This was the first time that I had told him about the A. one thousand pound Banknote. Mr Shostack then said that he would be coming over to Launceston on the 7.45am flight on Saturday 28 March 1987, with an MSS security guard. Steven Shostack told me that it was for security reasons to bring the guard with him.
[Mr Shostack confirmed that this arrangement was made but said that the guard was an employee of a company called Australian International Security Operations (AISO)].
About 11.00am on Saturday 28 March 1987, I was driving my yellow Holden Utility .... in a northerly direction on Crown Street, from Frankland Street, as I approached the intersection of Twining Street and Crown Street, I saw two males outside my place on the front footpath at 4 Crown Street. (There followed a description of these two men). I then turned left into Twining Street from Crown Street, and went to Dowling Street where I stayed in my Utility. I had the grey brief case containing the money with me. [Mr Shostack confirmed that he and the security guard went to this address but the appellant was not there].
About 5.30pm that night on Saturday 28 March 1987, I went home to 4 Crown Street, Launceston. Sometime that night I spoke to my sister–in–law, Marie Jones, (Rosemary Elaine Jones) ... My sister told me that just after lunch this day two males approached her at her home in Vale Street, and one of them had said that he was Steven, and another male who spoke with a German accent wanted to see Allan Jones. (There followed a description given the appellant by his sister–in–law of the two men). Marie had told me that the male with the accent had introduced himself as a Federal police officer. Steven also explained to Marie that he had two Federal police officers at the Melbourne Airport and twothree at the Launceston Airport. [Mr Shostack confirmed that he went from Crown Street to the home of the appellant's sister–in–law and spoke to her there].
On Sunday night 29 March 1987, Mr Steven Shostack telephoned me at home. Mr Shostack said, 'What's going on?' I said,
'Yes, what is going on, what's the idea of bringing in the Federal police?'
He said,
'No, they are not they are ASIO'
Mr Shostack denied that they were Federal police. Mr Shostack stated that he had been to 4 Crown Street, on Saturday morning the 28 March 1987, and that he had also been to my sister's place [sic] at Vale Street, Prospect.
Mr Shostack then went on and explained to me that the male person with him was from the Australian International Security Organisation or something similar ...
About 9.15am on Monday 30 March 1987, I took the grey brief case containing the money with me and I drove from my home in Crown Street, to the Commonwealth Bank, in Charles Street. I parked my yellow Holden Utility outside JR Green's in Charles Street. I got out of the Utility with the grey coloured brief case and I crossed the road opposite JR. Green's. I had a brief conversation with Bert Hinds of the Tasmanian Police CIB. About one (1) minute after this, I started to walk towards the Bank when I was approached by two male persons. They didn't ask me for my name, and one of them said:
'We are Federal police, we are taking this money to have its authenticity checked'.
I said,
'Why what's the problem'. And the tall one said,
'We are having it checked and we will be in touch.'
Words to that effect. I gave the grey brief case to the tall male, and they walked away in the direction of the Brisbane Street Mall.
(There followed a description of the two men).
At the time the tall male pulled out what appeared to me an identification badge from the inside breast pocket of his suit. It was dark blue/black in colour. I then went over to my parked Utility and watched them walk towards the Brisbane Street Mall on Charles Street.
Then about 4.00 pm. on Tuesday or Wednesday, the 31 March 1987, or 1st April, 1987, I went to see my Solicitor, Mr Guy Zeuschner of Lyon & Co at Cameron Street, Launceston and I told both Mr Lyon and Mr Zeuschner (Solicitors) about what had happened, that the Federal police had got the money.
About 6.40pm on Thursday 2 April 1987, I was walking in a southerly direction in Margaret Street, near the Brickfields when I was approached from behind by two male persons. One of them got me in an arm lock and held me against the fence. One of them held something behind me which felt like a hand gun and said,
'Open your mouth and you're dead.'
They made me lay face down on the footpath and I was instructed to 'lay on the footpath and don't move.' I heard a late model car start up which was parked in Twining Street. I did not get a look at either the two males or the car ... "
The Crown case against the appellant was that his account of the money being taken from him by two men claiming to be Federal police officers and of the subsequent assault in Margaret Street was false and that the appellant, either at the time he found the money or at some time between then and cashing some of it at the Hobart Casino in February 1987, dishonestly decided to keep the money himself.
At the trial, although no formal admissions were made by the appellant, because he did not claim that his initial taking of the money was rightful, the substantial issue for the jury was whether, between the date of finding and 19 February 1987, the appellant formed the requisite animus furandi. See R v Hennessey Neasey J 1476; R v Sullivan [1965] Tas SR (NC) 272.
In his evidence–in–chief, the appellant said nothing to suggest that he had ever given the money to any of the Administrators but during the course of cross–examination, he volunteered that during one of the periods he temporarily had the money out of the Commonwealth Bank safe custody deposit, he took it to his brother Jeffrey's house and there handed it over to him, or his wife in Jeffrey's presence, for safe keeping, either overnight or for a few days. He said that he then made it clear to his brother that he was going to sell the money himself. He also said that the next day or a few days later he returned and the case with the money in it was given back to him.
The proposition that the appellant had at some stage handed the money to one of the three persons lawfully entitled to it and received it back from that person or his agent at a later date was not put in the cross–examination of Jeffrey Jones. In his evidence, Jeffrey Jones said that the appellant had told him on several occasions that he had found some old money in their father's house and that the appellant had said something to the effect that "we'll all be millionaires". Jeffrey also said that on one visit to his house, the appellant showed him three old $20 notes that the appellant had taken from the glove box of his car. He was not asked by either counsel whether the appellant had his permission to take and keep the found money nor, whether it had at any stage been in his possession. Mrs Rosemary Jones was not called to give evidence as part of the Crown case. At the close of the defence case, the Crown sought leave to call Jeffrey Jones and his wife to rebut the claim made by the appellant that at one time the money had been given into the possession of one of the rightful owners and subsequently returned by him to the appellant. The learned trial judge granted the application. This ruling is the subject matter of ground 1 of the appeal.
The Code, s371(i) is an enactment of the practice at common law. See Niven v The Queen (1968) 118 CLR 513. With respect to this practice, Dixon, McTiernan, Webb and Kitto JJ said in Shaw v The Queen (1952) 85 CLR 365 that the power to admit rebuttal evidence must be exercised in the light of the general rule that the whole of the Crown case must be presented before the accused is called upon. They said at p380:
"It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence."
This general principle was affirmed in Killick v The Queen (1981) 147 CLR 565 in which case the following passage appears in the joint judgment of Gibbs CJ, Murphy and Aickin JJ at p569:
"The general rule that all available evidence on which the prosecution intends to rely in proof of the guilt of the accused should be presented before the close of the case for the Crown is not merely a technical rule, but an important rule of fairness. Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that the last piece of evidence which the jury hears is given in contradiction in evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution."
In R v Chin (1985) 59 ALR 1 the High Court confirmed the general rule of practice that the Crown should not be permitted to split its case and that rebuttal evidence should only be permitted in exceptional cases and generally speaking, not allowed if the occasion for it ought to have been reasonably foreseen by the Crown. The illustrations of the application of this rule are numerous. See Cross on Evidence (3d Australian ed.) p465 et. seq.
Counsel for the Crown supported his application to call evidence in rebuttal with the following submissions:
1The appellant's claim in cross–examination that he handed the money to one of the lawful owners and that it was returned to him was a matter which the Crown could not have reasonably foreseen. This submission is undoubtedly correct as the assertion was made for the first time by the appellant in cross–examination.
2That the claim was not put to the relevant witnesses under cross–examination namely, Jeffrey Jones and Thomas Jones, whom the accused said, also in cross–examination, that he thought might also have been present, and consequently the appellant was in breach of the rule known as the rule in Browne v Dunn (1894) 6 R. 67.
3That the claim went to the issue of taking the money without the consent of the true owner.
The third submission has no validity. The particulars in the indictment allege that the stealing occurred between 4 August 1985 and 19 February 1987. The officer from the Commonwealth Bank gave uncontested evidence that the safe custody deposit was opened by the appellant on 24 February 1987 and closed on 9 March 1987. As the appellant's evidence was that the transfer of possession to and from one of the Administrators occurred during the time he temporarily had the money out of the safe custody deposit the consent by the true owner to the taking of the money was at that time not an issue between the Crown and the accused. However, that is not to say that the evidence was not relevant to any issue. Although, on the Crown case, at the time it was claimed that the money was handed over, the commission of the crime was complete, it was cogent circumstantial evidence on the issue of the appellant's animus furandi at the time he was charged with stealing the money.
Thus, the proper exercise of the judicial discretion called for a consideration of:
1whether the failure to put to Jeffrey Jones and Thomas Jones that the appellant had given the money to Jeffrey Jones or his wife in his presence and received it back again was a breach of the rule in Browne v Dunn (supra) and if yes,
2whether that circumstance was sufficiently exceptional to permit the Crown to adduce evidence in rebuttal.
These considerations came before the court in Brown v The Queen [1980] Tas R 61. After referring to Browne v Dunn (supra) and the summary of the rule in Odgers Principles of Pleading and Practice, 21 ed (1975) p279, Neasey and Cosgrove JJ said at pp73, 74:
"What [the rule in Browne v Dunn] does require is that the witness being cross–examined should be given firm notice that his version is to be contradicted or otherwise impeached, and what the substance of the competing version is to be, so as to enable him to give any explanation or any evidence with which he may be able to rebut the competing version when he knows what it is. It does not require every material detail of the opposing evidence to be put in cross–examination. If that were so, and if rebuttal evidence were to be allowed whenever any substantial detail were not put, rebuttal evidence would be the order of the day in most criminal cases of any complexity where the accused gives evidence; instead of being, as is said in Shaw v The Queen (1952) 85 CLR 365, at p380, 'most exceptional'. It is almost inevitable that evidence of particular facts and details will come from the accused which his counsel did not anticipate or was not instructed about, and which were therefore not put in cross–examination."
Perhaps the last sentence is apposite to the present case.
Jeffrey Jones was not asked either in evidence–in–chief or cross–examination whether the appellant had his permission to take or keep the money but the other two Administrators said in their evidence–in–chief that he did not have their permission and this evidence was not challenged. The whole thrust of the defence case during the trial was directed to the proposition that the appellant did not have the requisite animus furandi. The unsolicited response in cross–examination that at one stage the money was passed by the appellant to Jeffrey Jones and returned, was no more than an aspect of the defence case, the substance of which was put to both Jeffrey and Thomas Jones. In my opinion, the failure to put this one matter, which appeared to arise ex improviso in cross–examination, did not amount to a breach of the rule in Browne v Dunn (supra) and the learned trial judge erred in permitting the Crown to recall Jeffrey Jones and to call his wife to give evidence after the close of the Crown case.
Even if there had been a breach of the rule it was not of such significance, or a circumstance so exceptional to warrant the calling of evidence in rebuttal. In criminal cases, a failure to observe the rule will not always justify the reception of evidence in rebuttal. See Brown v The Queen (supra) at p75.
I pass to ground 2 of the appeal. The Crown called Mr David Allan, a friend of the appellant. His evidence was to the effect that the appellant called at his house early in 1987 and asked him to look after approximately $2,000 which the appellant told him was part of his inheritance from his father's estate. The money was old decimal notes of various denominations. Mr Allan agreed to the appellant's request and a couple of days later the appellant returned and took the money away. The veracity of this evidence was not attacked by the defence although there was no reference in the appellant's account to the police of him leaving $2,000 with Mr Allan for safe keeping.
With respect to this aspect of the Crown case, the appellant said in evidence–in–chief that, the morning he gave the brief case to the two men who claimed to be Federal police, he had about $2,000 in old currency in his pocket. He did not hand this money over with the brief case. He said that that night while visiting his brother Jeffrey the phone rang. Jeffrey answered it and then told the appellant it was an anonymous call from a man who asked him to take the appellant outside his house where someone would be waiting for him with a gun and who would, in effect, force the appellant to show him where the money was. In his cross–examination Jeffrey Jones confirmed that he did receive an anonymous phone call the evening the appellant called in and confirmed the appellant's account of what he, Jeffrey Jones, told him. The appellant said that when he left his brother's house that night he saw two persons in the street, one of whom was crouched behind a motor vehicle. He said that he became fearful for his safety and for that reason he went to Mr Allan's house and asked him if he would look after the $2,000 which had not been handed over to the two men earlier that day.
In his address to the jury counsel for the Crown forcefully urged them to take the view that the accused's account of the money being taken by two men claiming to be police was false but he made no reference to the somewhat unusual account which gave rise to the appellant handing Mr Allan $2,000 for safe keeping. Counsel for the appellant did refer to this matter. He put to the jury that the evidence of Jeffrey Jones established the fact of the phone call and the truth of the statements made to him over the phone thus proving that "there was certainly somebody floating around Launceston threatening the use of weapons to recover this money". However, the evidence of Jeffrey Jones about the telephone call was admitted not to prove what was said to him on the telephone, let alone the truth of those statements, but to prove what Jeffrey Jones told the appellant on the basis that it was relevant to explain the appellant's later action of leaving $2,000 with Mr Allan. This (no doubt inadvertent) misuse of the evidence was not corrected in the summing up. With reference to this part of the case the learned trial judge said:
"Now there was also the evidence of Mr Allan who said that the accused came to his home, he didn't identify the day, but the accused came to his home and asked he and his wife to keep two thousand old dollars for him and said it was part of his inheritance or it was inheritance money. The accused says that in fact what happened there was that after he had been relieved of the money in the street, the bag of money in the street, that same night, the very night, a phone call was made to his brother Jeff asking him to take he, the accused, outside where he could be threatened with a gun to make him disclose where the money was. That is quite a bizarre story you might think but it's a matter for you, but it is strange that if the baddies have already got the money why would they be threatening him that night if they already had it. Now it may well be, of course, that the people who did take the money from him in the street were Federal police officers or that they were baddies and that the person who rang Jeff Jones – Jeff Jones agrees he received a phone call but he didn't identify which day it was but Jeff Jones agrees he received such a phone call – it may have been that it was some other baddies, it may have been Mr Shostack was involved with one or other group, well the two men or the one man who rang, he may not have been. These are all questions for you and I am sorry to be raising them but they are all questions for you to consider and not for me to answer. But that is the accused's explanation for why he went to the home of Mr Allan and asked him to care for the $2,000, the last $2,000."
At the conclusion of his summing up the learned trial judge asked the jury, "now do you have any questions at all". There was apparently no response. His Honour said, "do either counsel want me to raise something more, to say something that I ...". Counsel for the Crown intervened and said:
"I'd just want to mention one matter, your Honour, if I could, and that is as to the phone call to Mr Jeff Jones and that is to suggest that it's a reasonable explanation or a possible explanation that if the accused had decided, having dealt with Mr Shostack and found out the value of the money, if he had decided then to make sure the family didn't get hold of it and to fake a robbery from him, that he then contacted Mr Zeuschner and officially told him of the money, then added his account that the same day he was robbed, and that he had a friend or whoever ring Mr Jeff Jones with the account of somebody with the gun to give credence to a possibly false claim of being robbed in the street. That is all, thank you".
Counsel for the appellant submitted that the foregoing paragraph amounted to a further address by the Crown after the address on behalf of the accused and that the learned trial judge erred in allowing this to occur.
If in the course of summing up to the jury, a trial judge misstates the law or omits a material matter of law or misstates some part of the evidence, it is desirable that the error be brought to his attention by counsel at the conclusion of the summing up. See Kams v The Queen (1910) 4 Cr App R 8; Mowbray v The Queen (1912) 8 Cr App R 8; R v Southgate [1963] 2 All ER 833; Cocks v The Queen (1976) 63 Cr App R 79.
Whether the error should be drawn to the trial judge's attention just before or just after the jury retires to consider its verdict will depend upon the circumstances of each case. Without purporting to be exhaustive, if the error is obvious, not one of complexity or not likely to be the subject of dispute between counsel, there appears to be every reason for mentioning it before the jury retires. Conversely, if counsel wish to draw attention to a perceived error in the summing up which is complex, not readily apparent or likely to be productive of a dispute at the Bar, the matter should be left until just after the jury have retired. In this respect the court is largely dependent upon the good sense of counsel. I believe that it has long been the practice in this State for trial judges to ask counsel at the end of the summing up if they have any submissions to make, referring of course to the summing up and the possibility that inadvertently, there may have been a misstatement of either law or material fact or an omission of some material direction of law. The question should not be construed as an invitation to either counsel to make a further statement to the jury nor to suggest, save in exceptional cases, that the trial judge should refer to some part or parts of the evidence to which he has not already referred. The Code, s371(j) makes it clear that, whilst the judge has a duty to instruct the jury as to the applicable law, observations on the evidence are confined to those "the judge may think to make".
In the present case, although the learned trial judge's unfinished question was phrased in somewhat broad terms, it should not have been construed as an invitation by counsel for the Crown to respond as he did, not by asking the judge to correct any matter in the summing up but to make, in the presence of the jury, what was, in effect, his own observations on one aspect of the evidence. The making of that observation at that time was a breach of the rules of procedure laid down by s371(c)(ii). The learned trial judge responded to Crown counsel's comments by saying:
"Yes. Well, Mr Jacobs has said they're possibilities, they are things you will consider, no doubt. I will not comment on them further. These questions of fact are all questions for you but I stress you may think there are a lot of possibilities but in the end it is this question of whether you are satisfied beyond reasonable doubt of guilt and if not, he is entitled to the benefit of it. Anything, Mr Richardson, at all?"
Counsel who appeared for the appellant at the trial responded with a touch of justifiable acerbity:
"No sir, I completed my address while I was on my feet."
This Court has held in Masnec v The Queen [1962] Tas SR 254 at p267 et. seq. and affirmed in Smith v The Queen [1984] Tas R 146 at p156, that the provisions of the Code, s371, being rules of practice are directory and not mandatory. In order to succeed on ground 2 the appellant must show that the comment by counsel for the Crown, made on completion of the summing up, resulted in a miscarriage of justice. See R v Meaton (1986) 65 ALR 65 at p69. Considered alone, the breach of the procedures set out in s371(c)(ii) could not be said to have resulted in a miscarriage of justice. It was a minor procedural error. The observation made by Crown counsel was brief and referred to but one small part of all the evidence put before the jury. It did not concern a central matter. The jury was properly told that the comment by Crown counsel was just one possibility and that the jury might think that there were a lot of possibilities. Central to the defence case was the appellant's account that he had handed the bulk of the money over to two men claiming to be Federal police officers before the telephone call was made to Jeffrey Jones and therefore, before the jury could convict they would have to be satisfied beyond reasonable doubt on the whole of the evidence that this account was untrue. In my opinion, the procedural irregularity which occurred at the conclusion of the summing up did not cause a miscarriage of justice.
Finally, I turn to consider whether the wrongful admission of rebuttal evidence and the procedural irregularity together amounted to a miscarriage of justice entitling the appellant to an order for a new trial.
The evidence–in–chief of Jeffrey Jones and his wife led in rebuttal was very brief. It was confined to a statement that the appellant had not at any time given either Jeffrey Jones or his wife a brief case. The cross–examination of Mrs Jones ranged over a number of matters and attacked the reliability of her evidence–in–chief. After some initial hesitation on her part, she, and later in his evidence, her husband, agreed with the proposition put by counsel for the appellant that there was an occasion when the appellant was at their home and whilst there he spoke to Mr Shostack on the telephone. Both recalled that the conversation concerned the value of old Australian currency and at that time the appellant produced three old currency notes from the glove box of his car and showed them to Mr and Mrs Jones. However, both maintained their assertion that at no time had the appellant left a brief case with them for safe keeping.
The question is whether, in all the circumstances and notwithstanding both the erroneous admission of rebuttal evidence and the procedural irregularity, the court considers that no substantial miscarriage of justice has actually occurred. See Byrne v The Queen (1986) 20 A Crim R 306 at p307. It is now well settled that a Court of Criminal Appeal will only reach that view if it is satisfied that a reasonable jury properly directed would, on evidence properly admissible, without doubt convict and that an appellant has not lost "a real chance of acquittal", per Barwick CJ in R v Storey & Another (1978) 140 CLR 364 at p376. See also Mraz v The Queen (1955) 93 CLR 493 at p514; Driscoll v The Queen (1977) 137 CLR 517.
Although the appellant's credit was central to the jury's deliberations, and although the rebuttal evidence and the final comment of Crown Counsel concerned matters relevant to the issue of that credit, both were minor matters in the totality of the case for and against the accused.
Apart from the rebuttal evidence there was ample evidence on which the jury could and must have acted to find guilt. By their verdict, the jury rejected the appellant's account that he handed the money over to two men posing as Federal police. The effect of the rebuttal evidence and the final comment of Crown Counsel on the jury's decision would have been negligible in the totality of the evidence and summing up. In my opinion the error of law and procedural error when considered together did not cost the appellant a chance, fairly open to him, of being acquitted. I would dismiss the appeal.
Serial No 41/1990
List "A"
File No CCA 117/1989
ALLAN WILLIAM JONES v THE QUEEN
REASONS FOR JUDGMENT WRIGHT J
4 September 1990
The appellant, who was convicted of stealing on 28 September 1989, appeals against his conviction claiming that he has suffered a miscarriage of justice as the combined result of two errors by the trial judge. The errors alleged are as follows:
(1)that the learned trial judge erred in fact and in law in allowing the prosecution to re–open its case to call rebuttal evidence from Rosemary Elaine Jones and Jeffrey Thomas Jones, and
(2)that the learned trial judge erred in fact and in law in allowing counsel for the Crown to address the jury again after completion of the summing up.
Counsel for the appellant conceded that neither ground of appeal, on its own, would justify an order setting aside the appellant's conviction.
The indictment against the accused contained four counts consisting of a primary charge that between 4 August 1985 and 19 February 1987, he stole approximately $38,000 in decimal currency and a quantity of Australian pre–decimal currency, the property of the administrators of the estate of the late Thomas Ewart Jones or a person or persons unknown, and three subsidiary alternative charges. As the appellant was convicted upon the first count, there was no need for the jury to deal with the remaining three counts in the indictment.
The case against the appellant was a somewhat curious one and depended to a large extent upon admissions which he made to Commonwealth police officers to whom he gave a signed statement on 6 April 1987. What follows is essentially taken from that statement but is supplemented in some minor respects from oral evidence given at the trial.
The appellant is one of seven children of the late Thomas Ewart Jones deceased, who died intestate in August 1985. The administrators of the estate were Jeffrey Thomas Jones, Robert Charles Jones and Edith Mary Hankey. The deceased's estate consisted of real property situate at 3 Brentwood Street, Newstead, money and other personal property. The real estate was sold to one of the deceased's sons, Thomas Bernard Jones and the other property was distributed amongst the family.
The appellant and his brother Thomas moved into 3 Brentwood Street Newstead about four months after their father's death but when interviewed by the Commonwealth police, the appellant was living at 4 Crown Street. He told them that about six or seven months after moving into 3 Brentwood Street, he found some money hidden under the linoleum in the back room where he was sleeping. He said that he had also found about £2,000 hidden in the lining of the shed in the back yard of 3 Brentwood Street and, in the ceiling of the house under the cork foam insulation, he found an old biscuit tin with some old and unused Australian pound notes. He gave fairly precise details of the nature and face value of this currency. He said that he spent some of the money which he found for his own purposes and buried the remainder in the biscuit tin on property owned by the Australian Railways Commission about half a mile away from his place of residence. He did not claim to have the permission of the administrators of the estate to deal with the money in this way.
He contacted a Mr Shostack, a dealer in notes and coins who was trading under the name of "Majorca Stamp and Coin Centre" in Melbourne. After making this phone call the appellant picked up all of the money which he had buried and took it to 4 Crown Street Launceston. Towards the end of February 1987, he took the early Australian decimal currency and Australian pound notes to the Commonwealth Bank in Charles Street, Launceston where he placed it in a brief case in a safety deposit box.
He visited the safety deposit box on three occasions. The first time to get some money out of the brief case and the second time to grade the bank notes in order to obtain a valuation from Mr Shostack. On the third occasion he went to the safety deposit box in early March 1987, and took from it the brief case containing the money. Thereafter he kept that brief case in his possession. He arranged to meet Mr Shostack in Launceston on Saturday 28 March 1987.
At approximately 11 o'clock that morning he was driving his motor vehicle towards 4 Crown Street when he saw two men waiting outside on the front footpath. Apparently their appearance alarmed him and he did not return to his home. However later that day he spoke to his sister who told him that the two men in question had been inquiring for him and that one of them introduced himself to her as a Federal police officer.
On Sunday 29 March, Mr Shostack telephoned the appellant at his home and asked him what was "going on". There was then some discussion about the identity of the two men who had been outside 4 Crown Street. The appellant said that Mr Shostack told him that one of these persons was a member of ASIO, and he implied that he, Mr Shostack, was the other.
The appellant said that at 9.15am on Monday 30 March 1987 he took the brief case containing the money and drove to the Commonwealth Bank in Charles Street. As he walked towards the bank he was approached by two male persons who claimed that they were Federal police officers and that they wished to take the money to have its authenticity checked. The appellant said that he gave the brief case to one of these persons and he said that he has not seen the money since.
It is unnecessary to give further details of his narrative statement to the Commonwealth police officers. The Crown case was that the appellant had dishonestly taken the money at the outset, that he had no intention of distributing it to its rightful owners and that he had intended to maximise his unlawful gains by selling the old currency notes to Mr Shostack and keeping the more recent currency for his own purposes.
The defence was that the accused intended at all times to distribute the proceeds of sale of the old currency and the other money to his siblings on the assumption that they were the persons rightfully entitled thereto, but that his intention to do so had been frustrated by the unexpected intervention of imposters claiming to be Federal police officers. It seems to have been accepted by both parties that the money had been the property of the appellant's late father and that it formed part of his estate.
At his trial the appellant gave sworn evidence during which he affirmed the truth of what he had said in the statement to the Commonwealth police. He was cross–examined by the Crown prosecutor Mr Jacobs. During the course of cross–examination he was asked to explain what he had done with the brief case containing the money between the time when he withdrew it from the safety deposit box and when it was allegedly stolen from him late in March. He was asked:
"QWhere did you have it kept during that time?
AJeff had it for a few days I had it in my possession most of the time.
QJeff had it did he?
AYes.
QWhat! Did he actually have the whole money?
AIn the brief case.
QHe actually had control of the brief case did he?
AWell yes.
QAnd he could have counted it all and checked the money himself?
AWell that he was my brother what he did was at his liberty he could do what he liked.
QBut that's what you are saying he your brother Jeff had all the money?
AYes.
QCompletely in his possession for a while to do what he liked?
AThat's correct.
QWell I suggest to you that's false.
AWell that is as it happened."
Subsequently in his cross–examination the appellant said that his brother's wife Maree had been present on the occasion in question and that he thought Thomas was also there. Thomas was one of his brothers. He was asked:
"QAnd what room in the house was it?
AIn the loungeroom.
QRight. So just tell us what happened.
AWe just discussed the money. They wanted to have a look at it I showed them the money the CoombesRandall Commonwealth of Australia $20 and they were fascinated as much as I was. There was no – I left it with Maree actually.
QMaree Jones?
AYes.
QWell, just go on tell us what happened in this discussion in the living room.
AI can't there again I can't be specific as to what exactly was said that was nearly what, two and half years ago.
QWell, did they say – ?
AI made it abundantly clear to Jeff that I was going to take responsibility for the money and ultimately dispose of it in view of what happened there was discussion about the housekeeper taking the money there was numerous discussions.
QAnd what did he say about this if anything?
AAbout what?
QAbout him having control of the money for a while?
AWell I think I would more say Maree had control of the money more so than Jeff."
The Crown applied for, and was granted leave to call Jeffrey Jones and his wife Rosemary (referred to by the appellant as Maree) to give evidence denying that they had been given or were shown the money in the way described by the appellant. The learned Crown prosecutor submitted to the learned trial judge that the evidence called from these witnesses was relevant to the issue of consent as Jeffrey was one of the administrators of the deceased's estate. It was submitted to this Court by counsel for the appellant, Mr Proctor, that the issue of consent did not arise in respect of these matters, because the Crown case was that the appellant had stolen the money soon after he had originally found it. He submitted that credit was the only issue to which the evidence by his client related. However, after some debate Mr Proctor conceded that the evidence in question went not only to the credit of the appellant, but was also germane to the issue of whether or not the appellant had a dishonest state of mind when he was dealing with the money.
Nonetheless, it was submitted that to admit rebuttal evidence on this occasion was contrary to the clear principles laid down in Shaw v The Queen (1952) 85 CLR 365 and affirmed in Killick v The Queen (1981) 147 CLR 565 that the prosecution must offer all its proofs during the progress of the Crown case and before the accused is called upon for his defence and that it is only in very exceptional or special circumstances that the Crown will be permitted to re–open its case and adduce further evidence in rebuttal after the close of the case. The scope and purpose of the rule relating to the calling of rebuttal evidence by the Crown was discussed by Dawson J in R v Chin (1985) 59 ALR 1 at pp12–13:
"The rule (sometimes referred to merely as a practice) which governs the reopening of the prosecution case after the close of the case for the defence, was examined in Shaw v R (1952) 85 CLR 365 and was reconsidered recently in Killick v R (1981) 37 ALR 407; 147 CLR 565 and Lawrence v R (1981) 38 ALR 1. The prosecution may be permitted to adduce evidence after the close of the defence case in the discretion of the trial judge. The discretion is, however, to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case. That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. If it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances. Beyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved, this court has declined, having regard to the multifarious directions which a criminal trial may take, to lay down any rigid formula. In Shaw's case, at p 380, Dixon, McTiernan, Webb and Kitto JJ expressed the view that: 'It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence.'
The prosecution will not, of course, be seeking to split its case when the evidence which it wishes to call by way of reply is to rebut evidence which forms no part of its proof as, for example, where the defence of insanity is raised or evidence of good character is called by the accused. Even then, if the nature of the evidence which the accused intends to call should have been known to the prosecution so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence. Thus it was held in Killick's case that the prosecution ought not to have been permitted to call evidence after the close of the defence case in order to rebut an alibi raised by the accused which ought to have been foreseen by the prosecution because it had been raised in earlier proceedings. Where evidence which the prosecution seeks to call by way of rebuttal is also confirmation of the case which it has sought to make, the trial judge must exercise his discretion to ensure the observance of the principle which finds its expressions in the rules which had been laid down: see Killick's case (ALR) at 414–5; (CLR) at 576. If the evidence was only of marginal, minimal or doubtful relevance to the prosecution case, it may properly be admitted to rebut the defence case. There is also authority for the proposition that the prosecution may be permitted to reopen its case to repair omissions of a formal, technical or non–contentious nature: see Archbold: Criminal Pleading, Evidence and Practice 41st ed, 1982, para 4–414, and the cases there cited.
The relevant principle is essentially one of fairness The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross–examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for defence."
His Honour also noted that it would be unfair and wrong for the Crown to attempt to obtain material essential for the prosecution's success by cross–examining an accused person, rather than leading evidence upon that issue during the course of the Crown case, but there can be no suggestion that the Crown was attempting to follow such a course in the present circumstances; nor can it be suggested that the Crown prosecutor was deliberately putting material to the appellant as to which he, the Crown prosecutor, had previous instructions, with a view to getting the appellant to contradict those instructions so that the Crown could use this as a pretext for calling evidence in rebuttal.
Nonetheless, it is of relevance to note that the evidence in question emerged only in the course of cross–examination and was not led from the appellant in his evidence–in–chief as one of the issues upon which his defence would depend. It cannot therefore be suggested that the rule in Browne v Dunn [1893] 6 R p67 was breached or that such a breach would of itself provide a basis for calling rebuttal evidence in any event. This Court decided in Brown v The Queen [1980] Tas SR p61 that, "In a criminal case where both rules are involved it [the rules in Browne v Dunn] must yield to the rebuttal evidence rule", but that does not mean that a failure to observe the rule in Browne v Dunn will not justify rebuttal evidence being allowed in an appropriate case.
In considering the prosecution's application to call evidence in rebuttal, the learned trial judge made no reference to, and placed no reliance upon, s371(i) of the Criminal Code which provides:
"Evidence in rebuttal may be called by the Crown if the judge is of opinion that in the circumstances of the particular case it should be allowed".
This provision does not suggest to me, and it apparently has not suggested to any other judges of this Court, that the rebuttal evidence rule applies differently or the discretion is wider in Tasmania than it is in common law jurisdictions.
Having perused the transcript of proceedings for myself in some detail, I am bound to say that in my judgment the evidence called in rebuttal could not and should not have been foreseen as of importance to the Crown case at the commencement of the trial. It was essentially evidence of a negative quality called to contradict claims made by the appellant which were supportive of his claim to have dealt with the money in an honest fashion which emerged for the first time when he was in the witness box. The central issue was whether or not the appellant had been dishonest in taking the money and in dealing with it thereafter. No amount of ingenuity or foresight could have anticipated that he would claim to have left it in the custody of Crown witnesses for safe keeping. The truth or otherwise of this allegation no doubt called into question the credit of the appellant himself, and I do not overlook the point validly made by counsel for the appellant, that his client's credit was an important issue at the trial. The observations by Neasey and Cosgrove JJ, in Brown v The Queen (supra) at p72 are of relevance in this connection:
"In the present case, the evidence from Kevin Brown about alleged assault and threats by certain police officers in the police station was given in answer to a line of cross–examination adopted and pursued by counsel for the Crown in order to attack the credibility of the accused. It raised collateral issues which had little if any relevance to the central issue concerning guilt or otherwise; namely the true course of events inside the hotel. The fact that the appellant's answers to that attack on his credit attacked in turn the conduct of the three police officers, two of whom played no part in the prosecution case and the third only marginly so, provided no proper basis for allowing evidence in rebuttal on those issues. To allow such evidence served only to enable the prosecution to mount what must have been a powerful attack on the general credit of the accused after the defence case was concluded. That clearly was not justified by the rule in Shaw v The Queen (supra). The Queensland case, Reg v Korwin–Drozynski [1963] QR 362, provides strong support for the proposition that evidence from Crown witnesses to be called in rebuttal, which has little if any relevance to the issues in the case, and of which the only effect is to attack the credit of the accused, will ordinarily not be admissible in rebuttal."
I respectfully agree with the final proposition contained in the foregoing passage. However, as I have explained, in my opinion, the matter dealt with by the rebuttal evidence was not collateral or peripheral to the substantive issues in the case as they had developed by the conclusion of the appellant's evidence.
It was said in Killick v The Queen (supra) at p569 in the joint judgment of Gibbs CJ, Murphy and Aickin JJ:
"Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that the last piece of evidence which the jury hears is given in contradiction of evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution."
Although these observations may be applicable in some circumstances, it is my opinion that the tendency spoken of will not arise in all cases. It must be remembered that rebuttal evidence is not necessarily more persuasive than the accused's own evidence or that given by other witnesses called in his defence. Furthermore, after the conclusion of evidence the normal course of a criminal trial involves the presentation of addresses by counsel both for the prosecution and defence followed by a summing up by the trial judge. Whatever its shortcomings may be it seems to me that it is an unsubstantiated criticism of the jury system to suggest that the value of the evidence presented to a jury is likely to depend upon the order in which it is given. Having considered the rule in Shaw's case as illuminated by Dawson J's discussion in R v Chin (supra), I am quite unable to conclude that the learned trial judge was in error in admitting rebuttal evidence in the circumstances of this trial.
I turn now to consider the second ground of appeal. I do so notwithstanding the concession by counsel for the appellant that neither ground on its own would suffice to sustain the appeal.
Section 371 of the Criminal Code provides as follows:
"371 — (c) If the accused person has no witnesses to call he may himself give evidence on oath (but by so doing shall not be deemed to adduce evidence), and thereupon, or if he does not give evidence;
(i)................................
(ii)if he has counsel, the counsel for the Crown may, if he thinks it a proper case in which so to do, make a second speech summing up the Crown's evidence, and commenting on the evidence of the accused, if any; and the counsel for the accused may then address the jury on his behalf;"
At the conclusion of his summing up and before the jury had retired to consider its verdict, the learned trial judge addressed counsel and said:
"Do either counsel want me to raise something more, to say something that I ..."
Mr Jacobs, counsel for the prosecution, then said:
"I'd just want to mention one matter, your Honour, if I could, and that is as to the phone call to Mr Jeff Jones and that is to suggest that it's a reasonable explanation or a possible explanation that if the accused had decided, having dealt with Mr Shostack and found out the value of the money, if he had decided then to make sure the family didn't get hold of it and to fake a robbery from him, that he then contacted Mr Zeuschner and officially told him of the money, then added his account that the same day he was robbed, and that he had a friend or whoever ring Mr Jeff Jones with the account of somebody with the gun to give credence to a possibly false claim of being robbed in the street. That is all, thank you."
This comment by Mr Jacobs appears to have been directed to observations made by the learned trial judge in the course of his summing up when he was discussing a phone call which had been made to the appellant's brother Jeffrey during the evening after the money had allegedly been stolen from the appellant. This passage of the summing up is set out below:
"Now there was also the evidence of Mr Allen who said that the accused came to his home, he didn't identify the day, but the accused came to his home and asked he and his wife to keep two thousand old dollars for him, and said it was part of his inheritance or it was inheritance money. The accused says that in fact what happened there was that after he had been relieved of the money in the street, the bag of money in the street, that same night, the very night, a phone call was made to his brother Jeff asking him to take him, the accused, outside where he could be threatened with a gun to make him disclose where the money was. That is quite a bizarre story you might think but it's a matter for you, but it is strange that if the baddies have already got the money why would they be threatening him that night if they already had it. Now it may well be, of course, that the people who did take the money from him in the street were Federal Police officers or that they were baddies and that the person who rang Jeff Jones – Jeff Jones agrees he received a phone call but he didn't identify which day it was but Jeff Jones agrees he received such a phone call – it may have been that there were some other baddies, it may have been Mr Shostack was involved with one or other group, well the two men or the one man who rang, he may not have been. These are all questions for you and I am sorry to be raising them but they are all questions for you to consider and not for me to answer. But that is the accused's explanation for why he went to the home of Mr Allen and asked him to care for the two thousand dollars, the last two thousand dollars. Mr Jeff Jones agreed that he had heard this story of him being threatened but he couldn't say when that was he had heard the story."
After Mr Jacobs made the remarks which I have set out above, his Honour said:
"Yes. Well, Mr Jacobs has said they're possibilities, they are things you will consider, no doubt. I will not comment on them further. These questions of fact are all questions for you but I stress you may think there are a lot of possibilities but in the end it is this question of whether you are satisfied beyond reasonable doubt of guilt – of guilt, and if not, he is entitled to the benefit of it. Anything, Mr Richardson, at all?"
Defence counsel, Mr Richardson then responded in these terms:
"No sir, I completed my address while I was on my feet."
His Honour then turned to the jury and gave some brief final directions as to permissible verdicts and sent them out to consider their verdict.
It was submitted by counsel for the appellant that Crown counsel had effectively had the last word to the jury in the passage quoted above and that his doing so was in breach of the spirit, if not the precise terms of s371(c)(ii) of the Code. Crown counsel responded by saying that when he made the comments to the learned trial judge, he was addressing his Honour and not the members of the jury. I think that this is a distinction without substance as there can be no doubt the comments were made within the sight and hearing of the jury which was likely to have heard and understood the point being made.
Nonetheless, I do not think that what transpired produced unfairness in the trial. I do not think that it is a ground which of itself would justify the verdict being set aside. In no sense was it a further address by counsel for the Crown. In any event defence counsel was given an opportunity to respond but chose not to do so. At most it may be characterized as a minor procedural irregularity. In my opinion this ground of appeal does not succeed. Accordingly, I would dismiss the appeal.
0
12
0