KARMA Gurung v The Queen
[2019] VSCA 196
•11 September 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0165
| KARMA GURUNG | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU, EMERTON and WEINBERG JJA |
| WHERE HELD: | MILDURA |
| DATE OF HEARING: | 29 August 2019 |
| DATE OF JUDGMENT: | 11 September 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 196 |
| JUDGMENT APPEALED FROM: | DPP v Gurung (Unreported, County Court of Victoria, Judge Stuart, 29 June 2018) |
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CRIMINAL LAW – Appeal – Conviction – One charge of armed robbery – Distinct description of offender by victim – Applicant twice denied offending in record of interview – Informant mistakenly gave evidence that applicant gave ‘no comment’ record of interview – Whether trial judge erred in refusing to admit ‘further addendum to agreed facts’ after close of prosecution case to correct this error – Whether trial judge’s charge unbalanced – Whether trial judge erred in failing to answer jury question adequately – Whether miscarriage of justice – Leave to appeal granted – Appeal allowed – Applicant to be retried – Jury Directions Act 2015 ss 65(b); 66(2)(a), (e), (f) – R v Kotzmann [1999] 2 VR 123; R v Davies (2005) 11 VR 314; DPP v Newman (a pseudonym) [2015] VSCA 25.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S N Andrianakis | Emma Turnbull Lawyers |
| For the Respondent | Mr B F Kissane QC with Mr J C J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
EMERTON JA
WEINBERG JA:
The applicant stood trial in the County Court, at Melbourne, on a single charge of armed robbery. On 1 May 2018, he was convicted of that offence. On 29 June 2018, he was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Armed robbery [s 75A Crimes Act 1958] | 25 years’ imprisonment | 3 years and 6 months’ imprisonment | - |
| Non-parole period: | 2 years and 3 months | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 172 days | |||
| Other relevant orders: | Forensic Sample Order | |||
The applicant now seeks leave to appeal against conviction. He relies upon the following grounds of appeal:
Ground 1:A substantial miscarriage of justice occurred as a result of the Trial Judge refusing to admit into evidence a ‘further addendum to agreed facts’ that the applicant denied the offending in his record of interview with police.
Ground 2: In directing the jury as to different pathways that could be taken to reach a unanimous verdict, there was an imbalance favourable to the prosecution case in that:
(a) two examples of the road to a guilty verdict were provided;
(b) there were no examples of the road to an acquittal; and
(c) the Trial Judge refused to correct the imbalance –
resulting in a substantial miscarriage of justice.
Ground 3: The Trial Judge erred in refusing to answer the jury’s question ‘Did the victim ID the Accused?’ resulting in a substantial miscarriage of justice.
Background facts
At about 5.30 pm on 24 March 2017, the victim, Nathan Chen, then aged 17, was seated at a bus stop on Ashley Street, opposite the Braybrook Shopping Centre. He was approached by two unknown men. They were both of Asian appearance. Chen noticed that one of the men, later identified as Zaher Alizada, had sores on each side of his mouth. He also noticed that this man appeared to be aged 30 to 40, approximately 170 to 175 centimetres tall, of medium build, and with short hair.
Chen described the second man (alleged by the Crown to be the applicant) as slightly shorter than Alizada, about 165 to 170 centimetres tall. He estimated his age to be 35 to 40. He said that this man’s hair was longer than that of Alizada, and added that ‘it wasn’t long like a pony tail but it wasn’t short.’ He also described him as ‘skinnier’ than Alizada. Chen said that he knew for a fact that the second man was wearing ‘light blue jeans.’ He added emphatically ‘I was positive that he was wearing light blue jeans.’
Chen said that he noticed that the second man had stitches running diagonally across the palm of his right hand, approximately five to eight centimetres in length. He could not say in what direction these stitches ran, but instead demonstrated by holding up his right hand, two alternative possibilities as to the direction of the diagonal across the palm.
Alizada approached Chen and asked him if he had any money. Chen said that he did not, and that it was all on his Myki card. Alizada then turned to the second man and said to Chen ‘do you see that man over there? He’s going to fucking stab you.’
The second man then stood in front of Chen and said ‘give us your fucking money.’ Chen took out his wallet and asked ‘how much?’ One of the men said ‘I want $150.’ When it became apparent that Chen had more cash than that in his wallet, Alizada demanded all of it. Chen then handed over four $50 notes, as well as a debit card that happened, in fact, to be expired.
At that stage, the second man said to Chen ‘I’m going to fucking stab you bro.’ He told Chen that he had already stabbed two other people that week. Alizada intervened, and reassured Chen that the second man would not be likely to stab a third.
In the course of this conversation, the second man pulled a ‘flip knife’ (another name for a switchblade knife) from his pocket. That knife was approximately four to five centimetres in length. The second man then demanded Chen’s iPhone, which he handed over to Alizada, after having first unlocked it. Chen gave the two men a false name, a false phone number, and a false PIN, all of which Alizada recorded in his mobile phone.
The offenders asked Chen whether the iPhone’s location services had been disabled. He replied that he believed that he had switched them off. The offenders then walked away, turning right, down Ballarat Road.
Once they were out of sight, Chen ran to a nearby gym and telephoned police. They were able to track Chen’s iPhone through an app called ‘Find My Phone.’ That app directed them to a nearby address in Cambridge Street, Maidstone. Police arrived outside the property at about 6.00 pm, and maintained surveillance. This was only 30 minutes or so after the robbery. Minutes later, they entered the premises.
Inside the unit, police located Alizada and the applicant (who they believed to be the second man involved in the robbery). They were seated together on a couch.
There were also three other men of Asian appearance, and a Caucasian male, inside the unit. Police searched the premises. They located Chen’s iPhone and his sim card in a bedroom. They then found Chen’s debit card on the coffee table, located in front of the couch on which Alizada and the applicant were seated. Nearby, they found the applicant’s wallet, and Alizada’s phone. It contained the false details which he had recorded earlier as to Chen’s name, phone number, and PIN.
At the time of the police search, the applicant was wearing a distinctive yellow and black checked shirt, dark trousers, a blue cap, and black shoes with white stripes. Police noted that he had stitches across the fingers and just grazing the top of his left palm (remembering that Chen had described the second man as having stitches diagonally across his right palm). Police also noted that none of the other males that they searched in the unit appeared to have stitches across their palms.
The applicant and Alizada were arrested and taken to the Footscray Police Station. Police officers interviewed the applicant, at about 9.30 pm. Early on, when asked whether he was ‘alright’, the applicant replied:
Yeah, I’m all right. I didn’t do anything. I don’t want to do — I don’t consent to this interview.
Shortly afterwards, the interviewing officer asked the applicant the following question:
Ok. As I said, I want to interview you in relation to an armed robbery that occurred today in Braybrook on Ashley Street at approximately 5.30 pm tonight involving two males. In as much detail as possible, can you tell me your involvement, if any, in this offence?
The applicant replied:
No, I didn’t do anything, no.
The applicant otherwise declined to answer any questions, occasionally responding ‘no comment.’
Erroneous evidence that applicant made a ‘no comment’ interview
It seems that there were discussions between the prosecutor and defence counsel as to how best to deal with the record of interview. It was submitted before this Court that there had been a tacit agreement reached to the effect that nothing would be said about it, on the basis that a ‘no comment’ record of interview contains no evidence of any probative value.
However, when the informant was called, the prosecutor posed the question whether he had conducted an interview with the applicant. The informant replied that he had.
Inexplicably, the prosecutor went on to ask:
Did he make a no comment interview?
The informant replied:
Yes, I believe he did.
The trial judge, correctly, intervened at this point. He asked ‘well what’s the relevance of that?’ The prosecutor replied:
There was reference made in previous evidence about an interview, and I just wanted to explain what was said in the interview, that it was a ‘no comment’ interview and your Honour will obviously give directions with respect to the relevance of that.
The trial judge observed that, normally, evidence of a ‘no comment’ record of interview is not led because it would be irrelevant. He directed the jury in these terms. He told them that a suspect had a right to decline to answer questions, and instructed them in the clearest of terms that no inference adverse to the applicant could be drawn from his having exercised that right.
At that point, the prosecutor asked the trial judge to send the jury out because she had a matter she wished to raise. She indicated that her next question to the informant was going to be whether he had offered the accused the opportunity to take part in an identification parade, but that he had refused. She said that she had sent a text message to defence counsel the previous night to see if he had any objection to that proposed course and that, unfortunately, that text message seemed not to have been received.
The trial judge then asked what connection there was between a ‘no comment’ record of interview and a refusal to take part in an identification parade. The prosecutor said that she had not intended to lead evidence that the applicant had declined to be interviewed but, rather, that he had declined to take part in an identification parade. The prosecutor, when pressed by his Honour, agreed that she had made a mistake.
The trial judge then added that he had ‘corrected’ the prosecutor’s mistake. Defence counsel accepted that ‘a slip’ had occurred. Instead of seeking any further direction regarding the ‘no comment’ interview, he told the judge that he would not be seeking to elicit evidence to the effect that no photo board identification had been conducted, and that therefore, there was no need for the prosecution to adduce evidence that the applicant had declined to take part in an identification parade.
This was as far as the matter went at that time. The trial proceeded, both counsel addressed the jury, and the judge began his charge. It was not until the following Monday, three days after the evidence concerning the ‘no comment’ record of interview had been inadvertently adduced, that the prosecutor came forward with a concern. She submitted that the jury may have been misled by being told that there was a ‘no comment’ record of interview, when that was not strictly accurate.
The prosecutor sought leave, pursuant to s 233(3) of the Criminal Procedure Act 2009 to adduce additional evidence, even though the prosecution case had been closed.
The prosecutor reminded his Honour that on the previous Friday, she had mistakenly put to the informant that the applicant had made a ‘no comment’ record of interview. She said that this meant that, unless the evidence was corrected, the jury would be left with the impression that the applicant, in the exercise of his right to do so, had declined to answer questions. Yet, that was not the position at all. As indicated, he had twice said words to the effect that he had not ‘done anything.’ In other words, he had twice denied involvement in the robbery.
The prosecutor said that in fairness to the applicant, the jury should be informed that he had denied any involvement in the offence with which he was charged. She told his Honour that she had spoken with defence counsel about this matter, and that he agreed that the jury should be given correct information about the record of interview. She proposed that this be done by way of an addendum to the agreed facts, which she handed up to his Honour. The addendum reads as follows:
(1)An interview with the accused was commenced on 24 March 2017 at 9.38 pm.
(2)Detective Acting Sergeant Parker asked the accused, ‘in as much detail as possible, can you tell me your involvement, if any, in this offence?’ in response, the accused said, ‘no, I didn’t do anything, no.’
Defence counsel agreed that the jury should be given this addendum in order to correct the prosecutor’s error.
The trial judge, however, observed that a case should only be reopened in rare and exceptional circumstances. He said that he had misgivings about the proposed addendum, and added that a simple denial, without any substance or flesh to it, if introduced at this stage of the trial, would be, in his experience, unprecedented and would open up as many problems as it would solve. This additional evidence might detract from the strong direction that he had given to treat the record of interview as entirely irrelevant, and to put it out of the jury’s minds. He emphasised that there was no detail in what was said, which was nothing more than a blanket denial.
Nonetheless, defence counsel persisted in asking for the prosecution to be granted the leave sought to tender the addendum. His Honour said he would do so only if defence counsel consented to the prosecution tendering the addendum and urged that course. Defence counsel responded that he did urge that course. His Honour then stood the matter down.
When the trial resumed, his Honour indicated that he had been ruminating about the matter, and had changed his mind. He said that he did not think it was possible to give a meaningful direction regarding this issue so late in the trial. He added that the course proposed was redolent with problems. He said that there was no possibility that the absence of this material would adversely affect the applicant’s ability to receive a fair trial, and accordingly, refused leave to reopen. It was that refusal that gave rise to Ground 1.
Ground 1
In his written case, the applicant submitted that the trial judge ought to have permitted the prosecution to reopen its case by tendering the addendum, thereby preventing the jury from being misled as to the true position regarding the record of interview.
The applicant submitted that he had been entitled to have the jury informed of the fact that in his record of interview, he had twice denied any involvement in the commission of this offence. That fact would have placed a different gloss upon the entire interview. A positive denial of wrongdoing, when questioned by police, was far more important to the defence than a mere ‘no comment’ interview, in which no admissions were made.
In support of Ground 1, the applicant relied upon the decision of this Court in DPP v Newman (a pseudonym).[1] That was a case in which, unusually, the prosecution brought an interlocutory appeal against a trial judge’s refusal to permit an accused to lead evidence of good character and to receive the benefit of a good character direction. Both prosecution and defence counsel agreed that such a direction was warranted. The trial judge, however, ruled that she would not give the direction sought. Her Honour explained that was because the accused in that case was facing other charges of a similar nature to those that were the subject of the interlocutory appeal, and she regarded that as disentitling him to the direction sought.
[1][2015] VSCA 25 (‘Newman’).
This Court held that the trial judge was wrong to refuse to give a good character direction. That direction should go both to the credibility of his explanation, and the unlikelihood of his guilt.
The point made by the applicant in this case is that, reliant upon Newman, a trial judge should be slow to ignore a joint submission from the prosecutor and defence, particularly when it was agreed that the jury had been misled by the evidence given at trial, and it was further agreed that the matter was likely to be prejudicial to the accused. Moreover, it was common ground that the error could easily be rectified by a simple and short addendum of the kind proposed.
The respondent before this Court submitted that, notwithstanding that the prosecutor at trial had proposed the tender of the addendum as a solution to the problem she had created, the trial judge had correctly understood that more harm might be done to the defence by permitting the prosecution to reopen its case, than whatever minimal benefit might result from adopting that course.
The respondent submitted that the trial judge had correctly understood that there was a risk that by tendering the addendum, the jury’s attention would be focused upon the fact that the applicant had refused to answer questions, rather than that he had made two bare, and wholly non-specific, denials. By the time the prosecutor’s error had come to light, and it was sought to cure the problem by way of tendering the addendum, the jury had been told in the strongest of terms to disregard the evidence concerning the record of interview, and any further discussion of that issue could easily rebound against the applicant.
It was submitted that a bald statement of denial, in circumstances where it was obvious from the nature of the defence case that the applicant’s position was that he had nothing whatever to do with the robbery, would have been of little or no utility to the defence case, but could easily have had a negative impact upon it.
The respondent submitted that the trial judge had correctly understood the difficulties associated with adding to the evidence, by way of addendum, after both sides had addressed and after, in his Honour’s view, any sting had been taken out of the prosecutor’s mistake because of the direction given to ignore the record of interview as irrelevant.
In the alternative, the respondent submitted that even assuming the trial judge had fallen into error by refusing the joint application for the prosecution to be given leave to reopen the case, that refusal would not have given rise to a substantial miscarriage of justice.
It is no small thing for a trial judge to refuse an application joined in by both the prosecution and the defence to correct the record, as far as the evidence is concerned, in a way that both sides regard as favourable to the accused.
While we can understand the motivation behind his Honour’s decision to refuse leave to reopen the prosecution case, we consider that justice would have been better served had his Honour trusted in the good sense of both counsel in the trial that, on balance, the jury should be told that the applicant had, when interviewed, denied any wrongdoing. His denials would then have been evidence before the jury, upon which they could have acted.
In a case in which the applicant exercised his right to silence, the possibility that denials of guilt might have had some impact upon the jury’s deliberations, greater than a ‘no comment’ interview (which they were told to ignore, in any event), cannot be dismissed as fanciful. Ground 1 seems, to us, to have some merit.
Whether that ground could succeed as a standalone challenge to this conviction need not be finally resolved. As will be seen, Ground 1 should be viewed in conjunction with Grounds 2 and 3.
Ground 2
This ground complains of an unbalanced charge. It contends that when his Honour directed the jury as to the different ‘pathways’ that could be taken to reach a unanimous verdict, the two examples that he invoked were both favourable to the prosecution. It is said that, to make matters worse, there were no examples of any ‘pathway’ that might lead to an acquittal.
It was submitted that his Honour had twice been asked to correct the imbalance. He had indicated that he proposed to do so. However, it was submitted that in the end, his Honour had failed entirely to achieve an appropriate degree of balance.
It should be understood that the applicant’s case before the jury was that Chen was a credible and reliable witness. The defence position was that, based on the accuracy of Chen’s evidence, the applicant could not possibly have been the second offender.
The defence case at trial was that Chen’s description of the second offender did not accord with the appearance of the applicant at the time he was arrested. As previously indicated, Chen described the second offender as having ‘longer hair’ than Alizada, though not ‘like a ponytail.’ He said that the second offender had not been wearing a hat. He said that he was quite certain that the second offender had been wearing ‘light blue jeans’, but he had no memory at all of what top that offender had been wearing.
As previously indicated, Chen said that the second offender was shorter than Alizada. He estimated his height to have been about 165 to 170 centimetres. He said that the second offender had stitches on his right palm, five to eight centimetres in length. These stitches were in a straight diagonal line, either from the base of the index finger to the end of the palm (to where it met the wrist), or from the base of the right thumb, to the base of the area between the little finger and ring finger. In other words, the stitches could have gone in either of two quite different directions, but certainly across the palm.
When the applicant was arrested, some 45 minutes or so after the commission of the robbery, he was photographed. He was wearing dark pants, a yellow checked shirt (in striking colours), and a cap worn backwards. He was said to be about the same height as Alizada, approximately 176 to 178 centimetres, slightly taller than the estimate made by Chen. Importantly, he had stitches on his left hand (rather than the right hand, as Chen had stated). These stitches ran across the fingers, rather than across the palm, as such. Certainly, they were not diagonally across the palm.
When his Honour came to direct the jury as to how they might go about the task of weighing the evidence, on the Friday afternoon, he pointed out that the case against the applicant was essentially circumstantial in nature. He spoke of the burden of proof. He said that the prosecution sought to establish that the applicant was the second offender through a comparison of Chen’s description of the offender, with the photographs that were tendered, and the description of the applicant’s physical appearance when arrested. His Honour said:
They seek further to conclude from other evidence that the pay and go, or whatever it is called, card was nearby, where he was sitting. And from other evidence that [the prosecutor] has gone through, not individually, not one by one but in combination, pointing, the prosecution say, to the only conclusion open, the only reasonable conclusion open is that Mr Gurung was the armed robber. The defence case is of course the contrary, that there are gaps, there are holes, such that you could not be satisfied [t]hat the only reasonable conclusion, even upon such facts as you might accept is that he was the armed robber.
No exception was taken to that brief summary of both the prosecution and defence cases. That may be because his Honour indicated that he would have more to say about those matters in due course.
On the following Monday, his Honour continued his charge. He returned to the subject of circumstantial evidence and inferential reasoning. He said:
Right, now, on Friday I was dealing with indirect evidence and circumstantial evidence led for the purpose of proving another fact, if you are satisfied that those facts that are the circumstances exist. So it is a foundational question, of course. You cannot draw a conclusion from a fact unless you are satisfied of that fact being that, but then from that you can draw a conclusion, and in this case of course the inference, the conclusion that the Crown, that the prosecution seek to draw is that by reference to the circumstances that [the prosecutor] articulated during the course of her final address, you will be satisfied that the only reasonable inference is that the accused was the second armed robber.
Putting it on the other side of the coin, i.e. that you are satisfied beyond reasonable doubt that he in fact was the second armed robber, and remember when you are drawing an inference against the accused, should you do so, you must be satisfied that it is the only reasonable inference.
On the other hand, [defence counsel] in his final address pointed out to you that there are a lot of assumptions, there are gaps, there are things that were not done that should have been done and at the very least he submits that there are other conclusions that can be drawn and certainly not the only reasonable conclusion open on this particular case, that the accused was the second armed robber.
The trial judge did not elaborate upon what he meant when he spoke of the defence case as being built around flaws in the prosecution case, ‘assumptions’, ‘gaps’, and ‘things not done that should have been done’. As can be seen, that particular characterisation of the defence case largely replicated what the jury had been told about it on the preceding Friday.
Instead of explaining the nature of the defence case, the trial judge merely told the jury that they had heard argument in two excellent final addresses. He said that he did not propose to repeat those arguments, or to try to summarise them. He simply told the jury that they must look at the whole of the evidence and decide whether they were satisfied beyond reasonable doubt that the applicant was the second armed robber.
He then dealt with the issue of ‘pathways’ to verdict. He said:
As with all cases you will be 12. It is not expected that all 12 of you go down exactly the same path. Some, for example, may put greater weight on the question of the stitches [than] others [and] their presence bearing in mind the apparent errors that [a]re made by Mr Chen in which hand it was, et cetera. So, some of you may give greater weight to that sort of matter. Others might think ‘no it’s inconsequential it does not assist me, I reject that but I accept other parts, other circumstances, that point in my view to the Crown case being established as being the only inference open that he was in fact the armed robber.
So what I am trying to illustrate here is provided your pathway to whatever verdict it may be, guilty or not guilty, is a pathway which is defined by my directions at law. That [pathway is open to you. You are and will be] 12 different minds. It can’t be that everyone is on the same track or pathway … [2]
[2]Emphasis added.
These passages provoked an exception by defence counsel, who complained that both ‘pathways’ alluded to by his Honour were favourable to the prosecution case, and would lead to conviction. Neither of them provided a pathway to acquittal.
Thus, so it was submitted, the jury were told that they might regard the evidence that the second offender had stitches across his palm as a basis for or ‘pathway’ to conviction. That was so, despite the fact that Chen had mistakenly attributed those stitches to the right hand, when, in fact, the stitches shown in the photograph of the applicant that was tendered made it plain that they were stitches to the left hand.
The jury were told that, in the alternative, they might put the stitches entirely to one side. They might reason towards guilt by having regard to the balance of the evidence, circumstantial though it may have been, as a pathway to conviction.
Counsel also took exception to the fact that the trial judge had told the jury that he would not summarise counsels’ addresses, but, at the same time, when summarising the evidence led in the case, had highlighted only those parts of those addresses, and of the evidence that suggested guilt. Counsel submitted that the charge was ‘very heavily weighted towards the prosecution.’
The trial judge appeared to be taken somewhat by surprise by that submission. He posed the question ‘really?’ after exception had been taken to his charge on the basis that it was unbalanced. Nonetheless, defence counsel persisted. He specifically wanted the jury to be reminded that the entire defence case was built around the proposition that Chen was a wholly credible and reliable witness, and that the jury should proceed on that basis.
It was submitted that to speak of Chen’s identification of the stitches as having possibly been a ‘mistake’ may have reflected the prosecution case, but was completely at odds with the position taken by the defence in answer to the charge.
Having heard what counsel said, the trial judge replied ‘I see what you mean.’ He said ‘yes alright, I’ll correct that’, seemingly indicating an acceptance, on his part, that the charge was unbalanced, and that more needed to be said about the defence case.
Shortly afterwards, when his Honour resumed charging the jury, he said this:
Trial judges are not required to summarise the evidence now, nor to summarise the arguments of counsel, and that is a burden that has been lifted, but I started on some part of a summary of the argument of [the prosecutor and defence counsel] and I should not have, and I think I missed out on some aspects or particulars of [defence counsel’s] points that he was making yesterday — on Friday. You will remember his arguments so do not be distracted by me only adverting to a part of the argument that he made. You look to all the arguments that he put forward, just as with [the prosecutor].
After this ‘redirection’, the jury were sent out to consider their verdict. At that point, unsurprisingly, defence counsel took further exception. He submitted that the trial judge had not done what he said he would in order to cure the imbalance in the charge by adequately summarising the defence case. In particular, he had not reminded the jury that the entire defence case rested primarily upon the submission that Chen was a witness who had given careful and accurate evidence.
The transcript of what then transpired reads as follows:
HIS HONOUR: And I don’t intend to … because if I were to endeavour to try and go through all of it I would be doing what is unnecessary and not required. I’ve alerted the jury to the fact that what I have said in relation to your final address is inadequate and reminded them of the fact that your final address was but on Friday, so I don’t intend to go any further.
COUNSEL:But not so much in relation to the final addresses, Your Honour. More in relation to what Your Honour said about on the one hand some of you will put prominence on the fact that there were apparent errors in Mr Chen’s description of the stitches and others will say there are other matters that you rely on. The only inference is that he was the armed [robber], and that was just left by itself. So there was no — it’s very — it’s prosecution heavy, in my submission, and there’s nothing in relation to the defence about that. Both those propositions - - -
HIS HONOUR: I then went on and said at to a finding of guilt or not guilty.
COUNSEL:Your Honour’s left two propositions to the jury about the stitches. Some of you will find that he’s just made an error about the hand and others will say, well, that error doesn’t matter, the only inference is that he was the armed robber.
HIS HONOUR: You’ve made the argument … I’m not going to go into it any further.
It was submitted before this Court that the trial judge, having accepted that his charge required some rebalancing, and that he would attend to that, had simply failed to do so. The problem could have been overcome quite easily had his Honour spent just a few moments reminding the jury of the essential thrust of the defence case, rather than referring to counsel’s closing address, in laudatory, but non-specific terms.
Counsel drew attention to ss 65(b) and 66(2)(a), (e), and (f) of the Jury Directions Act 2015 (‘JDA’). Section 65(b) provides:
In his or her summing up to the jury, the trial judge—
…
(b)must refer the jury to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial but need not summarise the closing addresses of the prosecution and the accused …
Section 66(2), paragraphs (a), (e), and (f) provide as follows:
In determining whether and if so to what extent identification of evidence is necessary under subsection (1), the trial judge must have regard to—
(a) the facts in issue; and
...
(e)the submissions and addresses of the prosecution and the accused; and
(f)any reference to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial …
It was submitted that his Honour’s charge had failed to meet the requirements of these provisions. Although it is unnecessary to repeat, or even summarise in detail, what counsel have said in the course of their closing addresses, judges are required, as they have always been, to refer to the way in which each of the prosecution and defence have put their cases in relation to the issues in the trial. Simply telling the jury that the defence relied upon ‘assumptions’, ‘gaps’, and ‘things that were not done’, did not capture the essence of the defence case. Indeed, it was far removed from the primary point, which was Chen’s reliability. And telling the jury that they had heard an excellent address from counsel did not satisfy the requirements of these provisions of the JDA.
In our view, the applicant’s submissions in support of Ground 2 are cogent, and should be accepted. The charge was unbalanced, and did not remind the jury of the true nature of the defence case. Having indicated that he was persuaded that the charge needed correcting, it is difficult to understand why his Honour then took the somewhat intractable position that he did, and refused to remind the jury of the real nature of the issues in the trial, from a defence perspective. His failure to do so comes very close, on its own, to requiring this Court to set aside this conviction.
Ground 3
Returning to the events following the commission of this offence, and leading up to Ground 3, police offered the applicant the opportunity to participate in an identification parade. He declined to do so, as he was perfectly entitled to do.
At the commencement of the trial, the prosecutor indicated that she would seek to lead evidence of that refusal. She relied upon a decision of this Court in Rv Davies.[3] In that case, the primary issue was whether the trial judge had been correct in allowing the prosecution to adduce evidence of the accused’s refusal to participate in an identification parade, in order to explain why the police had not made use of such a parade.
[3](2005) 11 VR 314, [7]–[12] (‘Davies’).
The trial judge in Davies permitted the Crown to adduce such evidence. He referred to R v Clune,[4] a decision of the Full Court, and also to the decisions of the Canadian Supreme Court in Marcoux v R,[5] and the New South Wales Court of Criminal Appeal in R v McCarthy.[6] The trial judge in Davies, in his summing up, had emphasised to the jury that the accused had a fundamental right to decline to participate in an identification parade, and that his exercise of that right must not be treated as an indication of guilt.
[4][1982] VR 1.
[5][1976] 1 SCR 763.
[6](1993) 71 A Crim R 395.
The trial judge in Davies permitted the prosecution to lead evidence of a compilation of a videotape identification parade, whereby a number of persons with physical attributes similar to the accused had been shown to the identifying witness.
The Court of Appeal in Davies held that the course adopted by the trial judge had been appropriate. It held that the prosecution could anticipate that the omission of an identification parade would be an issue in the trial, and could seek to meet that point in advance. Any possible impingement on the presumption of innocence could be dealt with by directions as to the purpose and effect of the evidence. The appeal against conviction failed.
In the present case, unlike Davies, the police did not fall back upon the use of a videotape identification parade or, similarly, a photo board identification.
The issue of whether the prosecution could lead evidence of the applicant’s refusal to take part in an identification parade was initially, and for a time, left unresolved. Ultimately, however, it came to nothing. Defence counsel indicated that he would not seek to raise, as a matter for the jury’s consideration, that the police had not conducted a photo board identification or its equivalent. Once he gave that intimation, the trial judge ruled that he would not permit the prosecution to lead evidence of the applicant’s refusal to take part in an identification parade. In the end, no such evidence was led.
That resulted in the position that appears to have given rise to Ground 3. During the jury’s deliberations, they asked three questions. Two of them are not presently material. One, however, and that which gives rise to Ground 3, was ‘did the victim ID the accused?’
Defence counsel submitted that the judge should answer that question by simply saying ‘no.’ However, after some discussion, his Honour declined to deal with the matter on that basis. However, in answer to all three questions, he directed the jury that:
The evidence is in.
You act on the evidence that you have and you cannot speculate about any of the matters that you’ve asked about …
It seems that the trial judge understood the jury’s question ‘did the victim ID the accused?’ as meaning ‘did Chen identify the accused in an identification parade, or its equivalent?’ Self-evidently, there was no evidence before the jury regarding that matter, and, assuming that this was the purport of the jury’s question, his Honour’s response was entirely appropriate.
A difficulty arises, however, if this was not, in fact, what the question signified. Defence counsel plainly understood it in a quite different sense. He wanted the judge to answer, succinctly, ‘no.’ This may have been because he took the view that the question was directed to whether one could say that Chen’s description of the second offender constituted, or was in some way tantamount to, an identification of the applicant. Obviously, the answer to that question would have been that Chen’s evidence was not, as such, an identification. Rather, it formed the basis upon which the jury might, if so minded, have found that Chen had identified the applicant as one of the offenders.
Depending upon how one understood the jury’s question, his Honour’s direction to the jury that they were not to speculate was either entirely apt, or of no assistance to the jury and detrimental to the applicant’s case.
The applicant, in his written case, submitted that the answer provided by the trial judge would have been prejudicial to his case because it would have left the jury wondering why they were not being given an answer to a perfectly straightforward question. Of course, that would depend upon what meaning should be attributed to the question itself.
In our opinion, the trial judge should have sought clarification from the jury as to precisely what it was that they were seeking by way of an answer to the question that was posed. Clearly, there was an element of uncertainty about that question. As indicated above, defence counsel took a different view of what the question meant than his Honour appears to have done.
Irrespective of how one interprets the jury’s question, Ground 3, viewed alone, cannot give rise to a substantial miscarriage of justice. At best, it adds a layer of concern to the other proposed grounds of appeal, and may have some effect upon the outcome of this application, if viewed in that light.
In R v Kotzmann,[7] this Court recognised that there may be cases where no individual ground of appeal can succeed in overturning a conviction, but what the Court described as an ‘aggregate of errors’ can, in certain circumstances, bring about that result.
[7][1999] 2 VR 123 (‘Kotzmann’). See also, R v Ireland (1970) 126 CLR 321; R v Glennon (No 3) (2005) 12 VR 421; R v Gell [2006] VSCA 255.
Ground 3 can be taken into account in support of that principle.
Conclusion
We have concluded that this conviction must be set aside. All three grounds have some substance, though Ground 2 is clearly of greatest concern. Cumulatively, this was not a fair trial. By refusing to allow the prosecution to correct the inaccuracies in its case, and in delivering an unbalanced charge to the jury, the trial judge allowed the jury to form an unfavourable impression of the applicant that was not warranted, having regard to the evidence in the trial. Moreover, he also failed to deal adequately with a question from the jury.
Viewed through the prism of Kotzmann reasoning, it is clear that there was an aggregate of ‘errors’, ‘defects’, and ‘faults’ at trial that, when viewed collectively, caused the trial to miscarry. In our view, this amounted to a substantial miscarriage of justice that must result in a new trial.
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